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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPLICATION FOR LEAVE TO APPEAL

Case no: CC 11/2011

NOT REPORTABLE

In the matter between:

SHIVUTE KALAPI SHANGEMWENE.....................................................APPLICANT/ACCUSED

And

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

Neutral citation: Shangemwene v The State (CC11/2011) [2016] NAHCNLD 33 (19 May 2016)

Coram: TOMMASI J

Heard: 17 March 2016

Delivered: 19 May 2016

Flynote: Criminal Procedure –Application for condonation and application for leave to appeal – Failure to show reasonable prospects to succeed on grounds raised.

Summary: The appellant was convicted of murder and robbery with aggravated circumstances. The applicant slit the throat of a 20 year old grade 12 female student who was working at a cuca shop. He robbed her of N$33. He applied for condonation for the late filing of his application for leave to appeal together with application for leave to appeal his sentence. The court held that the applicant failed to show that he had reasonable prospects to succeed with his appeal.

ORDER

1. The application for condonation is dismissed; and

2. The application for leave to appeal is struck from the roll.

JUDGMENT

TOMMASI J:

[1] The applicant applied for leave to appeal his sentence and at the same time applied for condonation for having filed his application for leave to appeal outside the 14 days prescribed by section 316 (1) of the Criminal Procedure Act. The applicant was convicted of murder and robbery with aggravating circumstances and was sentenced to 30 years’ imprisonment for murder and 10 years’ imprisonment for robbery. The court ordered that five of the 10 years’ imprisonment imposed for robbery with aggravating circumstances be served concurrently with the sentence imposed for murder.

[2] Mr Shileka, counsel for the respondent did not take issue with the explanation proffered for the delay. It is however trite that before condonation could be granted the applicant had to satisfy the Court inter alia that he had reasonable prospects of success on the proposed grounds of appeal. Both Mr Shileka and Mr W Greyling, counsel appearing amicus curiae, submitted that there are no reasonable prospects of success.

[3] The applicant’s grounds (summarised) are that the court:

1. committed a serious misdirection by imposing the sentences on the applicant;

2. failed to take into consideration a sentence that is proper and reasonable;

3. failed to take into consideration that he applicant lost his temper and self-control when provoked by the deceased;

4. failed to make an enquiry in order to determine whether there were substantial and compelling circumstances;

5. misdirected itself by not adopting the required objective approach and by relying on the merits of the state’s case; and

6. by imposing a sentence which no reasonable court would have imposed and that the Supreme Court would reached different conclusion.

[4] The applicant was convicted of having killed a young women by slitting her throat and thereafter robbed her of N$33 i.e murder and robbery with aggravating circumstances.

First and Second Grounds

[5] These grounds are vague and lacks particularity. There are no reasonable prospects that the applicant would succeed on appeal on these grounds.

3^rd Ground

[6] The applicant relies on the provocation by the deceased. The applicant’s version in his extra-curial statements was that the deceased was his girlfriend and that she had grabbed him by his testicles. He responded by stabbing her in the neck and pulling her skin in order to force her to release her hold on his testicles. This version was rejected by the court as false and the court could not therefore take it into consideration. There is thus no reasonable prospect that the appellant would succeed on this ground.

4^th and 6^th Ground

[7] The court took into consideration all material factors in order to arrive at an appropriate sentence i.e the nature of the offences, the personal circumstances of the accused, the legitimate expectations of society and the objectives of punishment. The sentence imposed was properly considered and is an appropriate sentence which is not shockingly inappropriate. There are thus no reasonable prospects that another court would interfere with the sentence imposed by this court.

5^th Ground

[8] I am not familiar with the objective approach referred to by the applicant. The applicant opted to remain silent at his trial. The court therefore relied on the applicant’s extra-curial statements and the testimony of State witnesses. All evidential material and testimonies were considered along with the applicant’s failure to testify. To determine how the crime was committed.  The applicants’ version was not confirmed under oath. There are no reasonable prospects that the applicant would succeed on this ground.

[9] In the result the applicant failed to demonstrate to this court that he has reasonable prospects that he would succeed on the grounds raised.

[10] In the premises the following order is made:

1. The application for condonation is dismissed; and

2. The application for leave to appeal is struck from the roll.

M A TOMMASI

JUDGE

APPEARANCES

For the Appellant Mr W Greyling Greyling & Associates

(amicus curiae)

For the Respondent Adv Shileka

Prosecutor General

Oshakati

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