Court name
High Court
Case number
21 of 2012
Title

S v Okaforudeji (21 of 2012) [2012] NAHC 272 (01 October 2012);

Media neutral citation
[2012] NAHC 272
Coram
Miller AJ
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: CA 21/2012








In the matter between:








CHUKWUJEKWU NWOYE
OKAFORUDEJI ..............................................APPELLANT



and



THE STATE
..............................................................................................RESPONDENT













Neutral citation:
Okaforudeji v State (CA 21/2012) [2012] NAHCMD 21 (1 October
2012)








Coram: MILLER AJ
and PARKER AJ



Heard: 1
October 2012



Delivered: 1
October 2012








Flynote: Criminal
procedure – Appeal – Application for leave to appeal
against sentence only – What according to the authorities the
applicant must satisfy the court in order to succeed – In such
cases the court’s reasons for convicting or imposing a
particular sentence at first instance or dismissing the appeal may be
in the relevant judgment but that may not be so where application for
leave to appeal is granted.








Summary: Appeal –
Application for leave to appeal against sentence only – In
order to succeed applicant must indicate clearly reasonable prospects
of success – In the instant case reasons for dismissing appeal
fully and adequately set out in the judgment – Relevant grounds
in application for leave to appeal do not add any weight at all to
the grounds of appeal which the court rejected when it dismissed the
appeal – Court holding that applicant has failed to indicate
clearly reasonable prospects of success on further appeal –
Accordingly, court dismissing application for leave to appeal.










ORDER





The application for leave
to appeal is dismissed.





JUDGMENT










PARKER AJ (MILLER AJ
concurring):








[1] This is an
application for leave to appeal and the applicant appears in person.
In such application for the applicant to succeed he or she must
satisfy the court that he or she has reasonable prospects of success
on appeal (S v Nowaseb 2007 (2) NR 640). It has also been said
that in considering such application the trial judge or appellate
judge (as in the present case) must disabuse his or her mind of the
fact that he or she has no reasonable doubt as to the guilt of the
accused (S v Nowaseb) or that the sentence imposed is
appropriate. Thus, in the instant case I must disabuse my mind of the
fact that I have no reasonable doubt that the sentence imposed by the
court below is reasonable and the sentence is not found to be
shockingly inappropriate.








[2] It must be remembered
– and this is crucial – that Mr Namandje who appeared for
the appellant (applicant in the instant proceeding) did not then
pursue any argument based on misdirection on the part of the learned
regional court magistrate, as is mentioned in the 30 July 2012
judgment where the appeal was dismissed.








[3] In the 30 July 2012
judgment this court gave a fully-reasoned judgment when it dismissed
the applicant’s appeal against sentence. (See S v Nowaseb
at 642B-C, relying on S v Sikosana 1980 (4) SA 559 (A).) It is
my view that it would serve no real purpose to relate particular
passages of that judgment, one by one, to the written grounds of the
present application and what the applicant added from the witness
box. It is sufficient to mention that each and every relevant ground
relied on by the appellant in the appeal was dealt with adequately
and fully by this court. The grounds set out by the applicant in the
instant proceeding do not add any weight – none at all. There
is no relevant ground that is raised in the present application for
leave to appeal that was not considered and determined in the 30 July
2012 judgment.








[4] I have given thorough
objective consideration to the application, and having disabused my
mind, as far as humanly possible, of the fact that this court has no
reasonable doubt that the sentence imposed by the lower court, I find
that that sentence is reasonable and adequate: it is not excessive
and so it does not induce a sense of shock in my mind. Indeed, I am
clearly of the opinion that, as we said in the 30 July 2012 judgment,
any other punishment, for example, a fine (as submitted by the
applicant’s counsel in the appeal hearing) would not be an
adequate punishment capable of achieving the sentencing objective of
a case of this nature, as set out in para 7 of the 30 July 2012
judgment (See also Harry de Klerk v The State SA 18/2002
(unreported).) And we agree with Ms Husselmann, for the respondent,
that the applicant has no reasonable prospects of success on appeal.








[5] For these reasons, I
hold that the applicant has failed to indicate reasonable prospects
of success on further appeal. Accordingly, the application for leave
to appeal is dismissed.


















-----------------------------



C Parker



Acting Judge


















-----------------------------



P J Miller



Acting Judge


















APPEARANCES








APPELLANT : In Person.








RESPONDENT: I Husselmann



Of Office of the Prosecutor-General,
Windhoek.