NO: CA 58/2010
THE HIGH COURT OF NAMIBIA
the matter between:
J / SIBOLEKA, J
Appeal against sentence
by accused person. Court gives notice mero motu of considering
increase in sentence imposed in the Court a quo.
Appellant cannot after
notice has been given by Court that an increase will be considered
withdraw his appeal without the permission of the Court – Rule
of practice preventing the thwarting of Court of Appeal’s power
to increase sentence –
Appellant convicted in
magistrate’s court on two counts of attempted murder –
Court on appeal may interfere with sentence imposed only where the
court imposing sentence misdirected itself or where sentence imposed
is startlingly or disturbingly inappropriate, or where it creates a
sense of shock, or where there is a striking disparity between the
sentence imposed by trial court and sentence Court of Appeal would
have imposed as court of first instance
under-emphasising interests of society and seriousness of the
offences committed – sentences imposed disturbingly lenient.
Court of Appeal’s
right to increase sentence limited – may not impose a sentence
which exceeds the jurisdictional limit of the trial court.
Court of Appeal may in
terms of sectoin 304 (2)(c)(iv) of Act 51 of 1977 make an order the
magistrate’s court ought to have given – matter ought to
have referred to the Regional Court for purpose of sentencing. In
terms of section 10(8) of Act 7 of 1996 Court may declare person
unfit to posssess fire-arm for minimum period of 2 years – no
maximum period prescribed
Prudent and more
effective manner to order that period during which accused is
declared unfit to possess a fire-arm should start to run from the day
of release from prison.
NO: CA 58/2010
THE HIGH COURT OF NAMIBIA
the matter between:
HOFF, J et SIBOLEKA, J
on: 23 September 2011
on: 28 May 2012
J:  The appellant was convicted in the magistrate’s
court for the district of Windhoek on two counts of attempted murder
and sentenced in respect of the first count to 2 years and six months
imprisonment and in respect of the second offence to 5 years
The appellant appealed against both the convictions as well as the
The appeal was originally set down on 20 May 2011 at which stage the
appellant was unrepresented. The appeal was then postponed to 23
September 2011 and the Registrar was ordered to appoint amicus
curiae counsel to appear on behalf of the appellant and it was
simultaneously indicated that this Court would hear argument on the
merits of the appeal as well as argument on a possible increase in
respect of the sentences imposed.
V Uanivi of the law firm Nambahu & Uanivi Attorneys was
subsequently appointed as amicus curiae to argue the appeal on
behalf of the appellant.
Mr Uanivi submitted that there were no prospects of success on appeal
and that he had informed the appellant accordingly. Mr Uanivi further
informed the Court that he received instructions from the appellant
to withdraw the notice of appeal.
In S v Du Toit 1979 (3) SA 846 (AA) it was held that when set
down of an appeal against sentence has taken place and notice has
been given by the Court that an increase will be considered, an
appellant cannot withdraw his appeal without the permission of the
also S v Kirsten 1988 (1) SA 415 (AA).
Where the Court of Appeal mero motu considers to increase a
sentence imposed in the court a quo and has given notice to
the appellant of such intention, such a notice cannot reasonably be
construed in terms of the Constitution as lack of impartiality.
S v Sonday and Another 1994 (2) SACR 810 (C) ).
The afore-mentioned cases confirmed a rule of practice preventing the
thwarting of a court of appeal’s power to increase a sentence,
where an appellant after receiving a notice of the court’s
intention to increase the sentence, withdraws the appeal.
my view a withdrawal of an appeal should not be granted for the mere
asking thereof. A Court of Appeal has a discretion to grant or refuse
the withdrawal of a notice of appeal under these circumstances on
good cause shown.
The appellant may, therefore, in the absence of any permission by
this Court, not withdraw his notice of appeal.
The appellant in his notice of appeal raised as ground of appeal in
respect of the conviction that the magistrate misdirected himself by
failing to find that the appellant was acting in self-defence.
The two complainants and a police officer testified on behalf of the
State in the Court a quo.
The complainant in respect of the first charge testified that on 9
December 2008 he was on his way home when he passed the house of the
appellant and decided to approach the appellant in respect of money
appellant owed him. He was in the company of the second complainant.
At an earlier stage he had sold shoes to the appellant for the amount
of N$100.00 and N$20.00 was still outstanding. They were standing at
a counter in the shebeen where appellant worked when he requested
payment from the appellant. The appellant told him that he had no
money and would give him none. Thereafter the appellant entered an
adjacent room and then emerged with a pistol, cocked it, and started
shooting. The first complainant was hit on the side of his forehead.
The second complainant was shot in the neck. The first complainant
started to run to the police station but fell down and only regained
consciousness in the hospital. He was discharged the next day.
The second complainant corroborated the testimony of the first
complainant in material respects. He added that the appellant
informed them that the sneakers were in the north of the country. He
further testified that he regained consciousness after the second day
in the hospital. He was hospitalised for more than a year. As a
result of the injuries he sustained he has been paralysed and is
permanently in a wheelchair.
The police officer, sergeant Natangwe Erastus, testified that the day
after the incident, first complainant informed him what had happened.
He went to the house of the appellant and after a search found
sneakers underneath the bed of the appellant which had been
identified by the first complainant as the shoes in question. The
appellant handed a 7.65 mm pistol to him. In the magazine were 6
cartridges. He found spent cartridges behind the counter. The
appellant was the licence holder of the fire-arm. The appellant
informed him that the complainants were trying to rob him and that
was the reason why he shot at them.
The appellant testified that the two complainants requested him to
bring their “things” and when he questioned them about
the goods they broke the door of the counter. He took the fire-arm
from his waist and fired three shots in the air. The first
complainant according him “did not surrender” and he then
shot him in the forehead. The first complainant left and second
complainant came towards him and was then shot in the neck and he
fell down. The ambulance came and removed the second complainant. He
was arrested on 12 December 2008. He denied buying shoes from anyone
of the complainants.
During cross-examination the appellant testified that both the
complainants were unarmed, that they did not break the door of the
counter, only damaged the lock and when he was asked why he shot the
second complainant he answered that he was just shooting and did not
care where the shots went. The appellant readily admitted that he
foresaw the possibility that if a person is hit in the head or in the
neck that it could result in the death of such a person.
In his ex tempore judgment the magistrate was alive to the
principle that the appellant bore no onus to convince the
court of the truth of the explanation he gave why he had shot the
magistrate found the complainants to be consistent in their
testimonies, that their evidence corroborated each other and that
they created a “strong impression” of honest and reliable
magistrate found that on the available evidence the complainants did
not break or did not attempt to break the door of the counter and did
not attack the appellant.
magistrate in turn analysed the evidence of the appellant and found
it to be “crippled” with inconsistencies. He pointed out
that the appellant never laid a charge against the complainants, that
he did not tell sergeant Erastus about the breaking of the counter
door when he was arrested, that the appellant had first denied
knowledge of any shoes but when the shoes were identified by the
first complainant he did not dispute it; that the appellant first
testified that the door of the counter was broken by the complainants
but later testified that only the lock of the door was broken, that
when appellant cross-examined the two complainants, the appellant
never denied that he bought shoes from first complainant, and that
the police officer never observed a broken counter door.
The magistrate in my view correctly rejected the defence of the
appellant and committed no misdirection in convicting the appellant
on both counts of attempted murder.
Regarding the sentence imposed, although the appellant has appealed
against the sentences, his notice of appeal reflected no ground on
which the appeal against sentence is based. Mr Uanivi submitted that
there were no prospects of success on appeal in respect of both the
convictions and sentences and offered no opposition to a possible
increase in respect of the sentences imposed.
The sentence imposed in respect of the first count was 2 years and 6
months imprisonment and in respect of the second count was 5 years
imprisonment of which 5 months imprisonment were suspended on
condition accused is not again convicted of attempted murder or
assault with intent to do grievous bodily harm committed during the
period of suspension.
The sentence in respect of count 1 was ordered to run concurrently
with the sentence imposed in count 2.
appellant was further declared unfit to possess a fire-arm for a
period of 3 years and 3 months as from 21 April 2010 in terms of the
provisions of section 10(7) of Act 7 of 1996.
The appellant in mitigation stated that he was 31 years of age, not
married, was self-employed, earned N$100.00 to N$150.00 per month by
selling fruit and vegetables, is the father of four minor children,
and that his father had passed away.
The approach of a court of appeal regarding a sentence imposed in a
lower court is that sentencing is pre-eminently a matter within the
discretion of the trial court and that a court of appeal will only
interfere where the court imposing sentence misdirected itself
materially in respect of the sentence imposed.
primary question in an appeal is not whether the sentence imposed was
wrong or right but whether the trial court in imposing the sentence
exercised its discretion properly and judicially.
misdirection is material if it is of such a nature or degree that
directly or by inference it can be said that the court did not
exercise its discretion at all or exercised it improperly.
Where it appears to a Court of Appeal that the trial court ought to
have had regard to certain factors and failed to do so, or that it
ought to have assessed the value of these factors differently from
what it did, then such action by the trial court will be regarded as
a misdirection on its part entitling the Court of Appeal to consider
the sentence afresh. (See S v Fazzie and Others 1964 (4) SA
673 (A) at 684 B).
trial court would misdirect itself where it over-estimates or
under-estimates the seriousness of an offence, or the personal
circumstances of an accused, or the interests of society. Other tests
to indicate that a trial court misdirected itself would be where the
sentence imposed is startlingly or disturbingly inappropriate, or
where it creates a sense of shock, or where there is striking
disparity between the sentence imposed by the trial court and the
sentence the Court of Appeal would have imposed as court of the first
S v Tjiho 1991 NR 361 (HC) at 366 A – B).
A Court of Appeal may also question whether the trial court in
imposing a sentence properly balanced the four aims of punishment
namely, deterrence, prevention, reform and retribution or whether one
or more of the aims had been over-emphasised at the expense of the
other aims. If there was such a misdirection the court of appeal is
at liberty to consider sentence afresh.
A trial court’s sentence would only be set aside on appeal if
it appears that the trial court exercised its discretion in an
improper or unreasonable manner (S v Pieters 1987 (3) SA 717
(A) at 727 F – H). The final and crucial question remains
whether the trial court could reasonably have imposed the sentence it
did (Pieters 734 C – H).
In Pieters the Court of Appeal recognised that it would be
unrealistic not to acknowledge the fact that a specific period of
imprisonment in a particular case cannot be determined according to
any exact, objectively applicable standard, and that there would
frequently be an area of uncertainty wherein opinions regarding the
suitable period of imprisonment may validly differ. In such a case
even if a Court of Appeal was of the opinion that it would have
imposed a lighter (or heavier) sentence it would nevertheless not
interfere, where the trial court did not misdirect itself in any way.
It is in the context of the afore-mentioned precepts that the
sentences imposed by the magistrate’s court must be considered.
However before I do so it would be instructive first to look at some
In S v Salzwedel and Others 1999 (2) SACR 586 (SCA) the
accused persons were convicted of the crime of murder and sentenced
to 10 years imprisonment which were suspended in toto for a
period of 5 years on certain conditions. On appeal Mahomed CJ at 592
remarked that there was a striking disparity between the sentence
imposed by the trial Judge and the sentence the Court of Appeal would
have imposed had it been sitting as the trial court.
stated that his main difficulty with the approach of the trial judge
was that he
the personal circumstances of the respondents without balancing these
considerations properly against the very serious nature of the crime
committed, the many very aggravating circumstances which accompanied
its commission, its actual and potentially serious consequences for
others, and the interests and legitimate expectations of the South
African community ...”
The sentence was substituted with a term of 12 years imprisonment,
two years suspended. (See also S v Sadler 2000 (1) SACR 331
In S v Mngoma 2009 (1) SACR 435 (ECD) the accused person was
convicted of the crime of murder and sentenced to 5 years
imprisonment subject to the terms of s. 276(1)(i) which provides for
imprisonment from which the convicted person may be placed under
appeal at 438 i – j to 439 (a) the Court of Appeal (as per
Jones J) remarked as follows:
it seems to me that despite the care with which the learned judge
approached the sentence, the sentence he imposed displays a fatal
lack of proportionality. This is reflected in an overemphasis of (a)
the desirability of the early release of this offender, and (b) the
desirability of imposing a sentence designed to alleviate
overcrowding in our prisons. The result is a sentence that is
shockingly and inappropriately lenient, a sentence that is
startlingly disparate from the sentence which the court of appeal
considers appropriate for this particular offence and this particular
The sentence was replaced with a sentence of 12 years imprisonment.
In Director of Public Prosecutions v Mngoma 2010 (1) SACR 427
(SCA) the accused was convicted of murder and sentenced to 5 years
imprisonment in terms of section 276(1)(i) of the Criminal Procedure
Act 51 of 1977. The accused killed his lover (who was seven months
pregnant) four days after suspecting her of infidelity.
State on appeal did not argue that there was any misdirection on the
part of the trial court but that the sentence of 5 years imprisonment
was shockingly inappropriate. The Court agreed with this submission
and stated as follows at 432 a – b:
sentence imposed on the accused is in my view inappropriate and
distorted in favour of the accused without giving sufficient weight
to the gravity of the offence and the interests of society. For a
sentence to be appropriate it must be fair to both the accused and
society. Such a sentence must show judicious balance between the
interests of the accused and those of society.”
continued at 432 f – g as follows:
one should not allow ‘maudlin sympathy’ for the accused
to unduly influence one’s objective and dispassionate
consideration of an appropriate sentence. I am of the view that the
sentence imposed is so disturbingly lenient that it has the effect of
I shall now return to consider the sentences imposed by the
The effect of the sentences imposed is that the appellant must serve
a four years and seven months prison term. The appellant is a first
offender but besides this there is nothing unusual regarding the
personal circumstances of the appellant.
magistrate in his reasons referred to the personal circumstances of
the appellant. He referred to the fact that the accused expressed no
regret or remorse for what he had done and correctly regarded this as
an aggravating factor.
referred to the interests of society and that the abuse of fire-arms
has contributed significantly to the high levels of crime in society
and warned members of the public that persons committing violent
crimes with knives and other dangerous weapons like fire-arms will be
punished more severely because by using such weapons there is always
the possibility “of death hovering in attendance”. The
magistrate announced that the commission of crimes involving a
fire-arm will be stamped out ruthlessly in order to protect society,
to deter potential offenders and to “restrain the ever
flourishing rapacious violence in the city”.
magistrate in conclusion stated that “quite clearly courts
have, when an opportunity present itself, to play their role in
protecting potential victims of this scourge imposing deterrent
sentences on persons found wanting in the field of respect for human
I do not disagree with the remarks by the magistrate – it is
however the implementation of these principles which is “wanting”
to borrow from the magistrate.
In S v Van den Berg 1996 (1) SACR 19 (Nm) O’Linn J
expressed the view that “the role of the court in criminal
matters and the primary aim of criminal procedure should be to ensure
that substantial justice is done”. At 29 d – e, he
expressed the view that “A perception exists in some circles
that the fundamental right to a fair trial focuses exclusively on the
rights and privileges of accused persons. These rights however, must
be interpreted and given effect to in the context of the rights and
interests of the law-abiding persons in society and particularly the
persons who are victims of crime, many of whom may be unable to
protect themselves or their interests because they are dead or
otherwise incapacitated in the course of crimes committed against
I refer to this passage to underline the fact that the interests of
the victim of crime who is a member of society should not be under
emphasised (as was done in this case) when a trial court considers an
appropriate sentence. In my view lipservice has been paid regarding
the weight that should have been attached to the interests of society
and the seriousness of the offences in spite of the magistrate’s
warnings and remarks in this regard. The magistrate misdirected
himself by under-emphasising the interests of society and the
seriousness of the offences.
one has regard to the fact that the appellant went to a room,
returned, cocked the fire-arm and then started shooting without any
warning the only inference, in my view, is that he had direct
intention to kill the complainants. This fact together with the
finding of the magistrate that the appellant showed no remorse, are
indications that the appellant in a callous manner committed the
offences and a high degree of moral blameworthiness should be
apportioned to him. In my view to impose an effective sentence of
four years and seven months imprisonment for two convictions of
attempted murder is comparable to a slap on the wrist of the
It is apposite to recall the oft quoted words of Schreiner JA in R
v Karg 1961 (1) SA 231 (AD) at 236 A – B where the
is not wrong that the natural indignation of interested persons and
of the community at large should receive some recognition in the
sentences that the courts impose, and it is not irrelevant to bear in
mind that if sentences for serious crimes are too lenient, the
administration of justice may fall into disrepute and injured persons
may incline to take the law into their own hands. Naturally,
righteous anger should not becloud judgment.”
More recently in the unreported judgment of Strydom JP (as he then
was) in Thomas Goma Jacobs v The State CA 7/96 and delivered
on 22 April 1996 (although said in relation to the crime of
housebreaking with intent to steal and theft is in my view of
application in respect of the commission of crime in general) the
following appears at p. 3:
we want to believe it or not we are involved in a war against crime
which at present shows no sign of abating. The situation calls for
exceptional measurements and in this process Courts play an important
This Court is of the view that the sentences imposed by the
magistrate is disturbingly lenient and that there is a striking
disparity between the sentences imposed by the magistrate and the
sentences this Court would have imposed as court of first instance.
In essence the trial magistrate in imposing the sentences which he
did, exercised his discretion in an improper or unreasonable manner.
This Court would therefore be justified in increasing the sentences
It appears however from case law regarding the issue of increasing
sentences on appeal that this may be done only to the extent that a
Court of Appeal may not impose a sentence which exceeds the
jurisdictional limit of the trial court.
Section 309(3) of the Criminal Procedure Act 51 of 1977 provides that
this Court on appeal have the powers referred to in section 304(2)
and in addition to such powers have the power to increase any
sentence imposed upon the appellant or to impose any other form
of sentence in lieu of or in addition to the sentence imposed by the
trial court. Section 92(1)(a) of the Magistrate’s Court Act, 32
of 1944, as amended, limits the jurisdiction of district magistrates
courts, in respect of criminal convictions, to a period not exceeding
5 years imprisonment per conviction.
In terms of section 304 (2)(c)(iv) of Act 51 of 1977 this Court may
“generally give such judgment or impose such sentence or make
such order as the magistrate’s court ought to have given,
imposed or made on any matter which was before it at the trial of the
case in question”.
also section 19 of the High Court Act, 16 of 1990).
In S v Peter 1989 (3) SA 649 (CkAD) Galgut JA considered the
question whether a Court of Appeal may increase any sentence.
He analysed inter alia the sections referred to (supra)
and remarked as follows at 653 C – D:
language used in s. 309(3) does not say, as urged by the State, that
the Court can, on appeal, impose any sentence of imprisonment it
thinks fit. It, says that the Court has the power to increase ‘any
sentence imposed on the appellant’ by the magistrate. Had the
former been intended one would have expected the Legislature to have
said so clearly. Furthermore, to read s. 309(3) as empowering the
Court on appeal to impose a sentence in excess of the magistrate’s
jurisdiction would in my view, lead to some absurdity, inconsistency,
hardship or anomaly.”
at 653 J – 654 A continued as follows:
accused who has been indicted, tried, convicted and sentenced by a
competent court chosen by the State has a right to appeal. From the
outset he would have known the maximum sentence that could be
imposed. If he exercises his rights of appeal he runs the risk of
receiving a sentence in excess of the trial court’s maximum
jurisdiction. His right of appeal is thus unduly threatened. A
question of principle is also involved. It is questionable whether a
sentence, in excess of the trial court’s jurisdiction, should
be achieved by an expedient.”
In S v Van Aswegen 2001 (2) SACR 97 (SCA) the reasoning and
findings in Peter were confirmed.
also Attorney-General, Eastern Cape v D 1997 (1) SACR 473
(ECD) at 478 f – g).
Had the appellant been convicted and sentenced in the Regional Court,
this Court would certainly have entertained the possibility of
imposing sentences in excess of 5 years imprisonment.
This Court may in terms of section 304 (2)(c)(iv) of Act 51 of 1977
make an order which the magistrate’s court ought to have given
at the trial of the accused person, namely to refer the matter after
conviction to the Regional Court for purposes of sentencing in terms
of section 116 of Act 51 of 1977.
In such an instance the appellant may be compelled to testify again
in mitigation of sentence in the light of the higher jurisdiction of
the Regional Court.
In conclusion I need to make a few remarks in respect of the order
made by the magistrate in terms of provisions of section 10(7) of Act
7 of 1996. The magistrate declared the appellant unfit to possess an
fire-arm for a period of 3 year and 3 months from 21 April 2010 i.e.
from the date of the imposition of the sentence. Since the appellant
had been sentenced to 4 years and seven months imprisonment this in
practical terms means that the appellant on the day of his release
from prison would be able to request from the Inspector-General of
the Namibian Police Force possession of his pistol.
In my view this is an ineffective way of imposing the additional
sanction imposed by the Legislature in respect of licenced owners who
commit offences or misuse fire-arms whilst in their possession.
more effective manner in which to impose this additional restriction
would be to order that the period during which he is declared unfit
to possess a fire-arm should start to run from the day of his release
10(8) provides that a person if so ordered by the court shall be
unfit to possess an arm for a period of not less than 2 years. There
is no maximum period prescribed.
This Court is of the view, having regard to the circumstances of this
case, that the appellant is a person that should have been declared
unfit to possess a fire-arm for an indeterminate period.
However it would be inappropriate to be prescriptive in this regard
and I do not wish to interfere with the discretion the magistrate has
to exercise in terms of the provisions of sections 10(7) and 10(8) of
Act 7 of 1996, save to suggest that it should be ordered that the
period should commence on the day of the release of the appellant
magistrate must naturally before determining a period in this regard
give the appellant an opportunity to address the court on this issue.
In the result the following orders are made:
appeal against the convictions is dismissed and the convictions are
sentences are set aside and referred to the Regional Court in terms
of section 116 of Act 51 of 1977 for purposes of sentencing.
period determined by the trial magistrate in terms of section 10(8)
of Act 7 of 1996 as well as the date from which it was ordered to
run, is set aside.
Director of Legal Aid is requested to provide the appellant with the
services of a legal representative to appear on behalf of the
appellant in the Regional Court.
BEHALF OF THE APPELLANT: MR V UANIVI
by: NAMBAHU & UANIVI ATTORNEYS
BEHALF OF THE RESPONDENT: ADV. NDUNA
by: OFFICE OF THE PROSECUTOR GENERAL