S v Shipanga (1) (CA 97 of 2010) [2011] NAHC 295 (26 September 2011)

# S v Shipanga (1) (CA 97 of 2010) [2011] NAHC 295 (26 September 2011) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nahc/2011/295/eng@2011-09-26) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nahc/2011/295/eng@2011-09-26) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nahc/2011/295/eng@2011-09-26) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nahc/2011/295/eng@2011-09-26) [ __](mailto:?subject=Take a look at this document from NamibLII: S v Shipanga \(1\) \(CA 97 of …&body=https://namiblii.org/akn/na/judgment/nahc/2011/295/eng@2011-09-26) [ Download RTF (826.5 KB) ](/akn/na/judgment/nahc/2011/295/eng@2011-09-26/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nahc/2011/295/eng@2011-09-26/source.pdf) Report a problem __ * Share * [ Download RTF (826.5 KB) ](/akn/na/judgment/nahc/2011/295/eng@2011-09-26/source) * [Download PDF](/akn/na/judgment/nahc/2011/295/eng@2011-09-26/source.pdf) * * * * * Report a problem __ ##### S v Shipanga (1) (CA 97 of 2010) [2011] NAHC 295 (26 September 2011) Copy citation * __Document detail * __Related documents Citation S v Shipanga (1) (CA 97 of 2010) [2011] NAHC 295 (26 September 2011) Copy Media Neutral Citation [2011] NAHC 295 Copy Court [High Court](/judgments/NAHC/) Case number CA 97 of 2010 Judges [Liebenberg J](/judgments/all/?judges=Liebenberg%20J), [Tommasi J](/judgments/all/?judges=Tommasi%20J) Judgment date 26 September 2011 Language English Other documents [Download PDF](/akn/na/judgment/nahc/2011/295/eng@2011-09-26/attachment/s-v-shipanga-1-2011-nahc-295-26-september-2011.pdf) (72.5 KB) * * * Skip to document content **CASE NO.: CA 97/2010** **IN THE HIGH COURT OF NAMIBIA** **HELD AT OSHAKATI** In the matter between: **NICODEMUS SHIPANGA APPELLANT** and **THE STATE RESPONDENT** _**CORAM:**_ LIEBENBERG, J __et__ TOMMASI, J. Heard on: 26 September 2011 Delivered on: 26 September 2011 (_ex_ _tempore_) **APPEAL JUDGMENT** _**LIEBENBERG, J.:**_ [1] The appellant appeared in the Magistrate’s Court Ondangwa on charges of arson and assault with the intent to do grievous bodily harm. He pleaded not guilty but in the end was convicted as charged and with both counts taken together, sentenced to two years imprisonment. Appellant has no quarrel with his conviction and in a document styled _“Notice: Application for fine”_ he advances reasons why this Court should substitute the sentence imposed with that of a fine. [2] The appellant argued his appeal in person whilst Mr. _Matota_ appeared on behalf of the respondent. [3] The notice dated 23 July 2010 was not date stamped when received by the Clerk of the Court (as required) and despite the respondent’s protestation that the notice was filed out of time, there is nothing showing that it was filed outside the prescribed time period. The date stamp of 17 August 2010 referred to by the respondent (appearing on certified copies of the appeal record), merely reflects the date on which the copies were _certified_ and not the date on which the notice was filed with the Clerk of the Court. I am accordingly satisfied that the appeal was noted within the required time period and that no condonation is thus required. [4] It does not appear from the record that after the appellant’s notice was received, the Clerk of the Court placed it before the magistrate as required by Rule 67 (3) of the Magistrate’s Court Rules. It is possible that because the appellant has couched the “appeal” in the form of an application or request, without noting specific grounds of appeal, the relevant clerk omitted to submit it to the magistrate. This notwithstanding, I am satisfied that even if compliance was given thereto, the magistrate was in no position to substitute the sentence imposed with another, as he was _functus officio_. To that end there is nothing that could be added and in my view, for the conclusion reached _infra_ , there is no need to revert the matter to the magistrate in order to advance additional reasons, explaining the sentence imposed. Besides, the magistrate delivered a well reasoned and detailed judgment on sentence. [5] The appellant is a layperson who clearly did not fully comprehend what was required from him when noting an appeal and as such failed to state specific and clear grounds on which the appeal is founded. The notice merely contains new information in mitigation about the appellant’s personal circumstances relating to his elderly mother and other family members, all financially dependent on him. Appellant addressed the court _a quo_ in mitigation and informed the court of his six children of which three were living with the complainant. He furthermore said that he could only pay a fine of N$500 and had no other valuable assets. _Prima facie_ the record and the magistrate’s _ex tempore_ reasons on sentence, I am unable to find that he failed to exercise his discretion on sentence judiciously and misdirected himself in any manner; thus, there is no basis for this Court to interfere either with the proceedings conducted in the court _a quo_ or the sentence imposed.1 [6] I have alluded to the fact that no grounds of appeal were raised in the notice and where that is the case, then there is no valid appeal before this Court. [6] In the premises, the matter is struck off the roll. **___________________________** **LIEBENBERG, J** I concur. **___________________________** **TOMMASI, J** **ON BEHALF OF THE APPELLANT In person** **ON BEHALF OF THE RESPONDENT Mr. L.S. MATOTA** **Instructed by: Office of the Prosecutor-General** 1 _S v Tjiho,_ 1991 NR 361 (HC) #### __Related documents ▲ To the top >