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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case no: CA 5/2016

NOT REPORTABLE

In the matter between:

LINUS MATHIAS........................................................................................................1^st APPELLANT

JOHANNES ERASTUS SHITONGENI...................................................................2^nd APPELLANT

And

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

Neutral citation: Mathias v The State (CA 5/2016) [2016] NAHCNLD 40 (17 June 2016)

Coram: TOMMASI J and CHEDA J

Heard: 17 June 2016

Delivered: 17 June 2016

Flynote:

Criminal Procedure – Sentence – Mandatory minimum sentence of 20 years’ imprisonment no longer applicable – Sentence of 20 years’ imprisonment of which 12 years’ imprisonment were suspended considered to be disproportionate to the offence and to the legitimate expectations of society – Court reduced sentence.

Summary:

The appellants were charged with theft read with the provisions of the Stock Theft Act, 12 of 1990, as amended. They were convicted and sentenced to 20 years’ imprisonment of which 5 years’ imprisonment were suspended. The magistrate imposed the minimum sentence prescribed by s14(1)(a)(ii) of the Act which was struck down as being unconstitutional in Daniel and Another v Attorney-General and Another 2011 (1) NR 330 HC. The sentence imposed was considered to be disproportionate to the offence committed and to the legitimate expectations of society. The sentence was accordingly substituted with an appropriate sentence. The court reduced sentence to time served.

ORDER

1. Condonation is granted for the non-compliance with Rule 67 of the Magistrate’s Court Rules;

2. The conviction of both Appellants are confirmed;

3. The appeal against sentence is upheld and the sentence of both Appellants are set aside and substituted with the following sentence:

Both Appellants are sentenced to 8 years’ 11 months and 16 days imprisonment.

4. The above sentence is ante-dated to 25 June 2007

5. The Appellants are accordingly entitled to an immediate release.

JUDGEMENT

TOMMASI J (CHEDA J concurring)

[1] This is an appeal against sentence. The appellants have been convicted of stock theft taking into consideration the provisions of the Stock Theft Act, 12 of 1990, as amended. They were sentenced to 20 years’ imprisonment of which 5 years were suspended on the normal conditions. The Notice of Appeal was filed out of time but the court is satisfied that grounds exist for this court to interfere with the sentence imposed by the Regional Court.

[2] Both Appellants pleaded guilty in the district court and were properly convicted of having stolen one cow. They were both committed to the Regional Court for sentence. The first Appellant informed the court that he was around 35 years old, not married and unemployed; he is the father of 3 children who were in the care of his aunt. He pleaded for leniency and indicated that he was forced because of poverty to commit the crime. The second Appellant was 40 years old, not married and unemployed; he is the father of 4 children who are taken care of by his brother. Both Appellants showed remorse and are first offenders. The cow was killed and the meat was recovered by the owner.

[3] Mr. Gaweseb, counsel for the state and the magistrate conceded that this court was entitled to interfere with the sentence in view of the striking down of the mandatory minimum sentence embodied in s14(1)(a)(ii) of the Stock Theft Act.[1] The sentence imposed, given the circumstances of this case is shockingly inappropriate and disproportionate to the crime and the legitimate expectations of society.

[4] The Appellants were sentenced on 25 June 2007 and to date served 8 years’ 11 months and 17 days of the sentence imposed taking into consideration their personal circumstances; the seriousness and prevalent nature of the offence; and the public outcry against stock theft, the period served by the Appellants is considered by this court to be an appropriate sentence.

CHEDA J

[5] This mandatory minimum sentence of 20 years was held to be unconstitutional and, the said section was struck down by this court in Daniel and Another v Attorney-General and Another.[2] I totally agree with my sister Tommassi J that the appeal should be upheld together with all other ancillary relief which appear (ultra).

[6] My concern is aroused by the inordinate delay of setting down appeals timeously. An appeal that was lodged on 26 September 2013 and only to be heard on 17 June 2016, a delay of 2 years’ 9 months is in my view unacceptable as it is a serious assault on Appellants right to a fair hearing. Appellants have a constitutional right to have their cases heard within a reasonable time as provided for in Article 12 of the Namibian constitution which reads as follows:

Article 12(1):

(a) In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, the public order or national security, as is necessary in a democratic society.

(b) A trial referred to in Sub-Article (a) hereof shall take place within a reasonable time, failing which the accused shall be released. (my emphasis).

[7] The practice of ante-dating sentence after appeal is indeed a legal procedure which should be resorted to only in exceptional circumstances, but, it should not be used as a general rule. While it is indeed proper to do so, sight should not be lost that, in a way it may be viewed as a way of covering up an injustice which the courts had viewed with a dim view. I am sure it is clear that, it is not normal practice to sentence an accused to years, months and days. In as much as this is the only alternative, this should only be resorted to where such a delay in bringing the appellants’ case for appeal does not boarder on some court officials’ negligence.

[8] The fact that there has been an unreasonable delay in setting or hearing this appeal admits of no doubt. The said delay has therefore played havoc on the Appellants constitutional rights. For a country like Namibia with such an impeccable human rights record, these courts cannot stand spellbound when its citizens’ rights are being trampled in this manner.

[9] The common English adage that: “Justice delayed is justice denied’ could not have been more appropriate than in this matter, as per W.E. Gladstone 1868-74 in his speech on the state of Ireland on 16 March 1868 where he stated: “to no one will we sell, to no one will we refuse or delay right to justice.”

[10] It is a fundamental constitutional requirement provided in the Namibian Constitution that every litigant should be entitled to a fair hearing within a reasonable time by a competent Court or other Tribunal established by law.

In my view the courts should do everything in their power to give effect to this all important provisions of the Stock Theft Act (supra) which were struck down as far back as 2011. It is disheartening that going by the appeals that keep on trickling into the appeal courts, it is reasonable to assume that there are appellants who are awaiting their dates in the court and continue to be denied that opportunity.

[11] I recommend that the authorities should look into a residue of this cases at their earnest convenience.  For a citizen to remain in custody where his/her appeal is overdue is not justice at all. A day in prison where an accused is supposed to be out is a day too many.

[12] In the result the following order is made:

1. Condonation is granted for the non-compliance with Rule 67 of the Magistrate’s Court Rules;

2. The conviction of both Appellants are confirmed;

3. The appeal against sentence is upheld and the sentence of both Appellants are set aside and substituted with the following sentence:

Both Appellants are sentenced to 8 years’ 11 months and 16 days imprisonment.

4. The above sentence is ante-dated to 25 June 2007.

5. The Appellants are accordingly entitled to an immediate release.

M A Tommassi

Judge

M Cheda

Judge

APPEARANCES

Both Appellant: In person

Oluno Correctional Facilities

Respondent: Adv Gaweseb

Prosecute General -Oshakati

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