Zola V the State (CA56-2013) 2015 NAHCNLD 24 (22 June 2015)
NOT REPORTABLE
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
APPEAL JUDGMENT
Case no: CA 56/2013
In the matter between:
DADY ZOLA APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Zola v The State (CA56-2013) [2015] NAHCNLD24 (22 June 2015)
Coram:TOMMASI J and JANUARY J
Heard on:1 June 2015
Delivered: 22 June 2015
Flynote: Appeal – Application for Condonation – Late noting of appeal – Court to consider cumulative circumstances – The delay, the explanation for such delay and the reasonable prospects of success.
Summary: The appellant appealed against his sentence but lodged his notice of appeal out of time. The court considered the period of delay, the reason advanced for the delay and the prospects of success. The court held that the explanation tendered was inadequate and determined that the appellant has not shown that he is likely to succeed on the grounds raised. The court thus declined to extend the period prescribed in terms of Rule 67(1) of the Magistrate’s Court Rules.
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ORDER
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1. The application for condonation is dismissed.
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JUDGMENT
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TOMMASI J (JANUARY J concurring)
[1]The appellant lodged an appeal out of time and brought an application for condonation. The application for condonation was opposed by the Respondent and this court is thus called upon to determine whether it should grant the appellant the indulgence he seeks by extending the period prescribed in terms of Rule 67(1) of the Magistrate’s Court’s Rules.[1]
[2]The appellant was represented by Mr J H Greyling, appearing amicus curiae and Ms Nghiyoonanye appearing for the Respondent. The court is greatly indebted for the helpful heads of argument filed by both counsel.
[3]The appellant was convicted of having contravened section 2(a) (Dealing in Dependence Producing Drugs, to wit: Cannabis) read with sections 1,2 (i) and or (ii), 8, 10 ,14 and Part 1 of the Schedule of the Abuse Of Dependence-Producing Substancesand Rehabilitation Centers Act 41 of 1971 and was sentenced to five (5) years’ imprisonment on 18 March 2013. He drafted his notice of appeal on 16 August 2013 and same was filed together with an affidavit explaining the delay on 5 September 2013.
[4]The appellant explained that he does not know the Namibian Law and he did not understand well at the time the magistrate explained the appeal procedure.The record reflects that the appellant is an Angolan citizen and that an interpreter was used in the court a quo. The magistrate was at pains to explain that he should appeal within 14 days. The appellant indicated that he understood the explanation and that he did not need the any further explanation.There is thus no reason for this court to conclude that the appellant did not understand the magistrate’s explanation that he was required to lodge his appeal within 14 days after the date of his sentence.
[5]The appellant further explained that he wanted to be assisted by a legal practitioner but fails to mention what efforts were made to obtain the services of a legal representative.
[6]This court is mindful of the fact that the appellant is a lay litigant but he does not adequately explains why he delayed in lodging his appeal. The court however has to take the cumulative circumstances into account[2] inclusive of the fact that the appellant was already serving his sentence at the time.The deciding factor in this instance would be whether the appellanthas reasonable prospects of succeeding with his appeal.
[7]There is one discernable ground in the appellant’s notice of appeal i.e (a) that the magistrate erred by not imposing a fine. Counsel for the appellant however also argued that the magistrate erred in imposing a sentence which was shockingly inappropriate and which overemphasized the deterrence factor, the seriousness of the offence, the aggravating factors and his previous convictions.
[8]A brief summary of the facts are as follow: the appellant was trapped by the police after they obtained information that he was selling cannabis. The appellant was arrested when he arrived at an arranged point and was found with 145g of cannabis valued at N$435. His co-accused was later arrested with 90g of cannabis valued at N$270 which the appellant asked him to keep.
[9]The appellant admitted to having two previous convictions. The appellant was convicted on 22 August 2007 of the same offence and was sentenced to 4 years’ imprisonment of which two years were suspended for five years. On 12 September 2011, 4 years after the first conviction, the appellant was again convicted for the same offence and was given a fine of N$1000 or three months imprisonment. He was arrested for this offence on 11 December 2012.
[10]The learned magistrate considered the appellant’s personal circumstances; the seriousness of the offence; the interest of society and the aggravating factors i.e that: the appellant was allowed temporary access to Namibia when he committed the offence; and the fact that he had previous convictions.
[11]It is a well-established fact that the court of appeal will not easily interfere with the sentence imposed by the court a quo unless it is apparent that the court it failed to apply its sentencing discretion judiciously. The Act makes provision in cases of a second or subsequent conviction of a contravention of s2(a) for a fine not exceeding R50 000 or imprisonment for a period not exceeding 25 years or for an accused to be sentenced to both such fine and such imprisonment. The magistrate therefore has a discretion whether to impose a fine or direct imprisonment or both. It is trite that a fine may also deter and have retributive effect but the sentencing court has to be satisfied on the facts of each case that a fine would adequately serve the objects of punishment.
[12]The learned magistrate indicated that he wanted to remove the appellant from society as he was dealing with dependence producing drugs which it considered to be harmful to users. The aim of the court a quo was to deter the appellant and others from selling harmful drugs. The effect of cannabis is a legitimate concern of society and the court a quo correctly considered this factor.
[13]The fact that the appellant committed this offence whilst he was permitted to enter Namibia as a visitor impacts on the moral blameworthiness of the appellant and it was indeed a factor the court a quo was entitled to take into consideration.[3]
[14]The appellant’s previous convictions were relevant for the court to determine an appropriate sentence. The appellant was undeterred by a suspended sentence still hanging over his head at the time he committed the 2nd offence and in just over a year after he was given the option of a fine, he was arrested for the matter under consideration. The short period in between offences is telling and the magistrate correctly placed considerable weight on this factor.
[15]While all these factors are mentioned, it is not entirely justified to conclude that the court a quo unduly “over emphasized” the aggravating factors or the aspect of deterrenceand that it lost sight of the actual moralblameworthiness of the accused merely because he did not indicate the weight he apportioned to the each of the personal circumstances of the appellant. The learned magistrate stressed that he has given due consideration to the accused mitigation in its totality.
[16]Counsel for the appellant submitted that the sentence which was imposed was shockingly inappropriate, particularly given the fact that the quantity of the cannabis was negligible. Counsel for the appellant cited cases where first offenders found with substantial quantities of cannabis was given sentences ranging from 6 to 2 years’ imprisonment. The appellant was a repeat offender and his case cannot be compared to cases involving first offenders. Counsel for the respondent referred to cases involving cocaine which is not relevant or helpful as it deals with a different type of drug. (See S v Sehako 2009 (1) NR 61 (HC)).
[17]In S v Sehako, supra,this court on appeal reduced the sentence of a repeat offender from 10 years’ imprisonment of which 2 years were suspended to 6 years’ imprisonment of which 1 year was suspended. In that matter, admittedly, the appellant was found in possession of 18, 385kg whereas the appellant herein was found with far less.It is indeed so that the lager the quantity is the more serious the offence would be but it must be born in mind that it is not merely a case of possession of cannabis but the more serious offence of dealing with cannabis. Markus A J stated the following at page 64, para 11: “Since the previous gaol sentence and fine that were imposed seem not to have deterred him from his criminal conduct, I am of the view that a robust custodial sentence is in the circumstances appropriate”.Five years imprisonment indeed is a robust custodial sentence but the test is not whether this court would have imposed a different sentence if it had been the court of first instance but whether the magistrate exercised his sentencing discretion judicially or properly.
[18]I am not persuaded that the appellant succeeded in showing that there are reasonable prospects that he would succeed in persuading this court to interfere with the sentence imposed by the court a quo.
[19]This court, given the period of delay, the poor explanation tended for the delayand lack of reasonable prospects of success, declines to exercise its discretion in favour of the appellant to extend the period prescribed in rule 67(1) of the Magistrate’s Court Rules.
[20]In the premises the following order is made:
1. The application for condonation is dismissed.
------MA Tommasi
Judge
------
H C January
Judge
Appearance
Appellant:Mr Greyling JNR
Of Greyling & associate [Amicus Curiae]
Respondent;Ms M Nghiyoonanye
Of the office of the prosecutor general
1
[1] Section 309(2) of the Criminal Procedure Act, 51 of 1977
[2] See S v ANDIMA 2010 (2) NR 639 (HC)
[3] See S v STUURMAN 2005 NR 396 (HC)