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NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CA 41/2011

In the matter between:

NICODEMUS HANGWALA NAMPALA .....................................................APPELLANT

and

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

Neutral citation: Nampala v The State (CA 41/2011) [2013] NAHCNLD 25 (30 April 2013)

Coram: SMUTS J AND UEITELE J

Heard: 30 April 2013

Delivered: 30 April 2013

Flynote: Criminal law – Minimum sentence prescribed in s 2 of the Combating of Rape Act, 8 of 2000. The need for the trial court to explain the provisions of s 3 (2) and the concept of substantial and compelling circumstances to accused persons after conviction in accordance with the guidelines set out in S v Garoeb 2005 NR 310 (HC) at 517. Sentence set aside and matter remitted to trial court to consider sentence afresh after applying such guidelines.

ORDER

1. The appellant’s application for condonation for the late filing of his appeal against sentence is granted.

2. The appellant’s sentence is set aside.

3. The matter is referred back to the regional magistrate who found the appellant guilty for sentencing afresh and to comply with the guidelines referred to in this judgment and generally to deal with the appellant according to law.

4. The magistrate is furthermore directed to take into consideration in whatever sentence is to be imposed that the appellant has already served a sentence as from the date upon which the original sentence was imposed.

5. The appellant is to remain in custody until such a time as the magistrate has reheard the matter and complied with the guidelines set out in this judgment.

JUDGMENT

SMUTS J (UEITELE J concurring):

[1] The appellant pleaded guilty in the regional court on a charge of contravening s 2 (1)(a) (read with ss 1,2 (2), 3, 4,5,6 and 7) of the Combating of Rape Act, 8 of 2000.

[2] After correctly satisfying himself that the appellant was guilty as charged, the regional magistrate convicted the appellant upon that charge. The complainant and victim of this crime was according to the appellant 10 years old - although the medical evidence suggested she was 8 or 9 at the time. Being under the age of 13 years, the provisions of s 3 (1)(a) (iii) applied, giving rise to a statutory minimum sentence of 15 years imprisonment for first offenders, like the appellant.

[3] The regional magistrate then proceeded to impose this minimum sentence of 15 years on 28 April 2011.

[4] The appellant sought to appeal against this sentence. He did so out of time on 22 June 2011. He simultaneously lodged an affidavit seeking condonation for the late filing of his notice to appeal. This affidavit is dated 23 June 2011.

[5] The appellant was not represented at his trial and says he is illiterate. He is however represented by amicus curiae, Mr. S. Aingura to whom this court is grateful for the industry applied to representing the appellant.

[6] The reasons put forward for the delay in noting the appeal are rightly criticised by Mr. Wamambo, counsel for the represent. But he very properly and correctly acknowledges that an irregularity occurred in the sentencing of the appellant, as outlined below. I am accordingly inclined to grant condonation for the late filing of the notice of appeal despite the inadequacy of the explanation provided because of this irregularity which I now turn to.

[7] When the charge was put to the appellant, the regional magistrate informed him that the prescribed sentence is 15 years direct imprisonment unless there are compelling and substantial circumstances present in which event the court may deviate from the prescribed sentence. He proceeded to state: “I will however not explain this concept now, as you are not yet convicted.”

[8] Despite this correct acknowledgement of the need to further explain this concept, the regional magistrate only explained the rights to mitigation in the standard form without any reference at all to the mandatory statutory minimum sentence and the provision of s 3(2) of the Act. In terms of this subsection, a court would need to impose the prescribed minimum “unless satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence…”

[9] This court has found that at the very least, it is incumbent upon a magistrate to inform an accused after conviction of the duty to impose the specified applicable minimum sentence unless substantial and compelling circumstances exist. ¹But the court pointed out that this would not suffice. ²More is required. The court proceeded to set out guidelines for magistrates in matters of this nature.

[10] Those guidelines are fully set out in that judgment and do not need to be repeated in full in this judgment. Shortly stated the guidelines entail informing an accused of the applicable statutory minimum sentence with reference to the basis for the minimum. The court would then need to explain that the minimum is to be imposed unless the court is satisfied that substantial and compelling circumstances exist to which would justify a lesser sentence. The test in making such a determination would then need to be explained, namely of the sentencing court on consideration of the circumstances of the particular case being satisfied that they render the prescribed sentence would be disproportionate to the crime, the accused and the needs of society, so that an injustice would be done by imposing that sentence, that it would then be entitled to impose a lesser sentence. ³In making this explanation, the court should also point out that the legislature has singled out the crime for severe punishment and a court would not lightly depart from the prescribed minimum sentences. ⁴The standard explanation of the rights to mitigation should then be fully explained in this overall contest. If the magistrate becomes aware of any reason which may give rise to not imposing the minimum sentence, her or she should apprise the State concerning that and afford the parties the opportunity to address the court on that issue.

[11] In this instance, the court did not even refer to the minimum sentence and s 3(2) after conviction, despite the prior indication that this would be done. The failure to have done so in my view constitutes a vitiating irregularity. Indeed, more was required as has been stressed by this court in S v Garoëb which provided guidelines for magistrates which were not followed – not even remotely – in this matter.

[12] Both counsel submitted that the appropriate course would be to set aside the sentence and remit the matter back to the trial court for a sentencing process in accordance with the guidelines set out in S v Garoëb. I agree with that approach.

[13] The following order is made.

1. The appellant’s application for condonation for the late filing of his appeal against sentence is granted.

2. The appellant’s sentence is set aside.

3. The matter is referred back to the regional magistrate who found the appellant guilty for sentencing afresh and to comply with the guidelines referred to in this judgment and generally to deal with the appellant according to law.

4. The magistrate is furthermore directed to take into consideration in whatever sentence is to be imposed, that the appellant has already served a sentence as from the date upon which the original sentence was imposed.

5. The appellant is to remain in custody until such a time as the magistrate has reheard the matter and complied with the guidelines set out in this judgment.

______________

SMUTS, J

I concur ______________

UEITELE, J

APPEARANCES

APPELLANT: LORENTZ ANGULA INC.

RESPONDENT: N WAMAMBO

Office of the Prossecutor-General,

Oshakati

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