Court name
High Court
Case number
37 of 2012
Title

S v Ndakolute and Others (37 of 2012) [2012] NAHC 311 (12 November 2012);

Media neutral citation
[2012] NAHC 311
Coram
Miller AJ
Parker J













NOT REPORTABLE








REPUBLIC OF NAMIBIA








HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT








Case no: CA 37/2012








In the matter between:








ERODIUS NDAKOLUTE
..................................................................FIRST
APPELLANT



EROBIAM NDAKOLUTE
............................................................SECOND
APPELLANT



AARON MALAKIA
..........................................................................
THIRD
APPELLANT



AKWENYE ANDREAS
................................................................
FOURTH
APPELLANT



and



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








Neutral citation:
Ndakolute v State (CA 37/2012) [2012] NAHCMD 70 (12 November
2012)








Coram: MILLER AJ
and PARKER AJ



Heard: 12
November 2012



Delivered: 12
November 2012








Flynote: Criminal
procedure – Appeal – Against sentence –
Interference by court of appeal – Lower court paid lip service
to the consideration of a fine as alternative appropriate sentence –
Lower court failed to consider circumstances of the commission of
offence.








Summary: Criminal
procedure – Appeal – Against sentence – Appellants
convicted and sentenced for malicious damage to property –
Offence inspired by misconceived belief they were entitled to break
down works they have carried and for which employer had failed to
remunerate them – Appellants’ action therefore not
gratuitous violence though appeal court condemning offence –
Lower court failed to give due regard to circumstances of the
offence, that appellants were gainfully employed and they were first
offenders – Lower court paid lip service to consideration of a
fine as alternative appropriate sentence – Court entitled to
interfere with sentence and impose appropriate sentence.










ORDER










That the sentence imposed by the
Magistrate is set aside and substituted with the following sentence:














  1. Each of the appellant is sentenced to
    2 years imprisonment the whole of the sentence imposed is suspended
    for 5 years on condition firstly that he is not again convicted of
    the offence of malicious damage to property committed during the
    period of suspension.










  1. Each of the appellants’
    sentences is further suspended on condition that each of the
    appellants pays the sum of N$5000-00 in compensation. If the
    appellants are to pay, the amounts must be deposited with the Clerk
    of Court at the Magistrate’s Court in Windhoek to be held and
    trust and to be paid over to the complainant as compensation for the
    damage to her property.











JUDGMENT










MILLER AJ (PARKER AJ
concurring):








[1] The Appellants in
this matter were charged before the magistrate sitting in the
Magistrate’s Court in Windhoek with the crime of malicious
damage to property. In substance the allegation against them was that
on the 23rd of February 2011 in the area of Khomasdal they
maliciously and intentionally damaged a wall valued at twenty
thousand Namibian Dollars (N$20 000-00) and tiles to the value of
thirty thousand Namibian Dollars (N$30 000-00) such being the
property of the complainant Marlinda Leonarda Maasdorp.








[2] The Accused were
unrepresented at the trial and all pleaded not guilty to the charge.
After hearing evidence the magistrate convicted all the Appellants as
charged and after hearing some argument and submissions as to
sentence imposed the following sentences. The first Appellant was
sentenced to a period of three years direct imprisonment and
Appellants two, three and four were each sentenced to direct
imprisonment for a period of twenty four months each.








[3] An appeal was
initially noted against both the conviction and sentence. Moreover
the Notice of Appeal was filed three days out of time which
necessitated an Application for condonation by Mr Elago who appeared
for the Appellants before us to condone the late filing of the Notice
of the Appeal. We heard argument from both Mr Elago and counsel for
the State on the reasons for the delay and the prospects of success.
Mr Elago explained that in calculating the days in which the Appeal
should be noted he make use of a civil method of computation which of
course is wrong, the reason being that the ordinary method of
calculation applies. As far as the prospects of success are concerned
it is necessary firstly to refer to the background upon against which
these offences were committed. I pause to indicate that Mr Elago
before us abandoned the Appeal against the conviction and in our view
rightly so.








[4] To return to the
circumstances under which the offence was committed it appears from
the evidence that the four Appellants had been engaged in certain
building operations and renovations which the Complainant was
constructing at her place of residence. Somewhere along the line and
while the work was still in progress certain disputes as to payment
for the work done arose. The Appellants so it would appear in those
circumstances decided to take the law into their own hands and to
demolish the wall and the tiles that they had built on the property.








[5] I am satisfied upon a
perusal of the reasons given by the magistrate for the sentences
imposed and on the submissions made before us today that the sentence
imposed by the magistrate is startingly inappropriate to the extent
that we should interfere with it. I point firstly to the fact that
the magistrate in the reasons for sentence paid mere lip service as
to whether in the circumstances a fine should be considered as an
appropriate option. It is dealt with in two very brief sentences
which does not amount to my mind as a serious consideration of that
aspect of sentence. Moreover all the Appellants at the time of the
commission of the offence were first offenders gainfully employed,
and finally in my view the magistrate paid inadequate regard to the
circumstances and the background against which this offence was
committed. The acts of destruction caused by the Appellants were not
those of gratuitous violence but instead one inspired by a
misconceived belief that they were entitled to act as they did. In so
doing I do not want the Appellants to understand that this Court will
condone behaviour of this kind. It is and remains unlawful and
punishable.








[6] Taking into account
the considerations I have mentioned I would propose that the sentence
imposed by the magistrate on the Appellants be set aside. I also see
no reason to differ between the four Appellants as to the period or
the nature of the sentence imposed. In my view the one is as guilty
as the other. I would propose in the circumstances as I have
indicated that the sentence imposed be set aside and substituted with
the following sentence.








[7] That the sentence imposed by the
Magistrate is set aside and substituted with the following sentence:









  1. Each of the appellant is sentenced to
    2 years imprisonment the whole of the sentence imposed is suspended
    for 5 years on condition firstly that he is not again convicted of
    the offence of malicious damage to property committed during the
    period of suspension.










  1. Each of the appellants’
    sentences is further suspended on condition that each of the
    appellants pays the sum of N$5000-00 in compensation. If the
    appellants are to pay, the amounts must be deposited with the Clerk
    of Court at the Magistrate’s Court in Windhoek to be held and
    trust and to be paid over to the complainant as compensation for the
    damage to her property.





























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



P J Miller



Acting Judge























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



C Parker



Acting Judge













APPEARANCES








APPELLANTS: P S T Elago



Of Tjombe-Elago Law Firm
Inc., Windhoek








RESPONDENT: I O
Husslemann



Of Office of the Prosecutor-General,
Windhoek.