Court name
High Court
Case number
18 of 2012
Title

S v Kayembe (18 of 2012) [2012] NAHC 188 (09 July 2012);

Media neutral citation
[2012] NAHC 188
Coram
Miller AJ
Parker J





CASE NO







Not
Reportable’








CASE NO.: CA 18/2012













IN THE HIGH COURT OF
NAMIBIA













In the matter between:













PATRICK KAYEMBE
…...................................................................................Appellant








and








THE STATE
…..............................................................................................Respondent













CORAM:
PARKER, J
et MILLER, AJ








Heard on: 2012 July 9



Delivered on (ex
tempore)
: 2012 July 9



_________________________________________________________________








APPEAL
JUDGMENT



_________________________________________________________________


PARKER
J
: [1] In this appeal the respondent, represented by Mr
Eixab, concedes that the conviction of the appellant on counts 1 and
4 in the trial court cannot be sustained. We accept the concession.
We, therefore, consider this appeal in respect of count 2 only. We
have considered the record of proceedings in the trial court against
the backdrop of counsel’s arguments. The appellant is
represented by Mr Namandje.










[2]
We find that the explanation given by the appellant on how he came
into possession of the raw ivory which is the subject matter of count
2 may be reasonably possibly true; nevertheless, our view is that the
appellant, as Mr Eixab appears to say, should have done more in the
circumstances to clearly dissociate himself from the raw ivory found
in his possession. Thus, on his own version, we find that the
appellant contravened s. 2(1)(a), read with s. 1 of Proclamation AG
42 of 1980 (as amended). In this regard, it is our view that there
might have been misdirections on the part of the learned trial
magistrate and there might have been irregularities in the
proceedings but we hold that, on the totality of the evidence, none
of them could, taken separately or cumulatively, have prejudiced the
appellant to the extent that we can say that there has been a failure
of justice. It follows that the conviction of the appellant on count
2 should be confirmed.






[3]
We pass to consider sentence. In view of what we have said previously
respecting the irregularities and misdirection that might have
occurred, we think this aspect while it cannot affect the conviction
of the appellant, as we have said, it should go in the appellant’s
favour with regard to sentence. We have also take into consideration
the fact that the section of the Proclamation does not prescribe a
degree of punishment in relation to the value of the raw ivory
involved. We have also taken into account the fact that the appellant
has already served a sentence of some 13 months.






[4]
Having taken all these into account we conclude that it would meet
the justice of the case if this Court interfered with the sentence
imposed by the learned trial magistrate; as we do.










[5]
In the result, we make the following orders:







  1. The
    conviction and sentence on counts 1 and 4 are set aside.








  1. The
    conviction on count 2 is upheld.








  1. The
    sentence on count 2 is set aside and is substituted with the
    following:








  1. Two
    years imprisonment, of which one year is suspended for five years on
    condition that the appellant is not convicted of the offence of
    contravening s. 2(1)(a), read with s. 1, of Proclamation AG 42 of
    1980 (as amended), committed during the period of suspension.








  1. The
    sentence in (a) is backdated to 23 May 2011.
















_________________



PARKER, J








I agree.


















_________________



MILLER, AJ




























COUNSEL ON BEHALF OF
THE APPELLANT:
Mr S Namandje








Instructed by: Sisa
Namandje & Co. Inc.


















COUNSEL ON BEHALF OF
THE RESPONDENT:
Mr J E Eixab








Instructed by: The
Office of the Prosecutor-General