REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: CC 03/2011

JACKIE JACKSON 1ST APPLICANTKAVETU PONTIANUS KWANDU 2ND APLLICANTISASKAR NAU-GAWASEB 3RD APPLICANT

versus

THE STATE RESPONDENT

Neutral citation: Jackson v State (CC 03/2011) [2014] NAHCMD 308 (17 October

2014)

Coram: SHIVUTE, J

Heard: 22 September 2014

Delivered: 17 October 2014

ORDER

Application for leave to appeal against conviction and sentence in respect of each

applicant is refused. No reasonable prospects of success on appeal.

NOT REPORTABLE

2

JUDGMENT LEAVE TO APPEAL

SHIVUTE J:

[1] The applicants as accused 1, 2 and 3 were convicted of 1st count of murder,

2nd count of robbery with aggravating circumstances and 4th count of attempting to

defeat or obstruct the course of justice. They were sentenced as follows:

1st Count: Accused persons 1 and 2 twenty eight (28) years’ imprisonment each.

Accused 3 Thirty (30) years’ imprisonment.

2nd Count: Accused 1, 2 and 3 to fifteen years’ imprisonment each five (5) years of

which are to be served concurrently with the sentence imposed on the

1st count.

4th Count: Accused 1, 2 and 3 two (2) years’ imprisonment each.

[2] All of them are aggrieved by both conviction and sentence hence this

application for leave to appeal. Mr Brockerhoff appeared on behalf of the 1st

applicant, Mr Tjituri on behalf of the 2nd applicant and Mr Uirab on behalf of the 3rd

applicant whilst the respondent is represented by Ms Ndlovu.

[3] The grounds of appeal against conviction in respect of 1st applicant may be

summarised as follows:

1. The Court erred by totally disregarding evidence adduced during bail

proceedings.

2. The Court erred in not applying the cautionary rule as required in terms of s

208 of Act 51 of 1977 when it dealt with the evidence of a single witness

Matheus Nambahu.

3

3. The Court erred in rejecting the 1st applicant’s version that he went to the

stadium to steal alcohol as this version was corroborated by witness

Nambahu and 3rd applicant.

4. The Court erred in law by stating that no prior agreement is required in the

determination of common purpose.

5. No evidence was placed before court to show that the 1 st applicant was

present at the place where the deceased was shot as it was the defence’s

contention that the 1st applicant was at the pavilion attempting to steal alcohol.

6. The Court erred in convicting the 1st applicant of murder and robbery with

aggravating circumstances because it failed to pronounce itself as to who

pulled the trigger; where the co-accused persons were at the time of the

shooting and whether there was any indication of the knowledge required for

the doctrine of common purpose.

7. Whether the 1st applicant participated in the disposal of the deceased’s body

is not an indicator that such applicant participated in the killing of the

deceased because he joined in after shooting hence rendering him to be an

accessory after the fact.

8. The Court erred by relying heavily on the confession/statement by the

applicant where he erroneously uttered the word ‘we’ if this was the case the

word was uttered after the applicant found the deceased already shot.

9. The Court found the applicant not to be a truthful witness because he had

misled the magistrate when he told her that he went to retrieve his jacket from

the stadium; because he lied to the police and disregarded the reasonable

explanation given by the applicant in court.

10.The Court erred by rejecting the version of the applicant that he was wearing

a trouser during the incident and the shorts that was produced was under the

trouser. The Court was supposed to treat the uncorroborated evidence of

Nambahu and give benefit of doubt to the applicant in respect of counts 1 and

4

2 and not to find that the state has proved its case beyond a reasonable

doubt.

[4] The grounds for conviction advanced in respect of the 2nd applicant are that:

1. The Court misdirected itself in law and/or facts by finding that the principle of

common purpose was applicable in the circumstances of the case or that the

principle of common purpose in this case has been proven sufficiently to

warrant a conviction.

2. The Court misdirected itself on facts and/or law in finding that the offences of

murder and robbery with aggravating circumstances had been proven against

the accused regard being had to the totality of evidence in this regard.

[5] Counsel for the respondent raised a point in limine that the 2nd applicant had

failed to set out clearly and specifically the grounds on which he is basing his appeal

on conviction as is required by s 316 (2) of the Criminal Procedure Act, 51 of 1977.

With regard to the 1st ground of appeal counsel for the respondent argued that this is

a blanket allegation about the principle of common purpose and it is not clear and

specific. The 2nd applicant was supposed to state the basis on which he makes this

allegation. The principle of common purpose has at least five requirements and the

2nd appellant has failed to mention which of these requirements he is unhappy with.

Concerning the second ground of appeal, counsel argued that this ground is no more

than the appeal is against the weight of the evidence and is bad in law. She

submitted that the 2nd applicant should not be allowed to argue the appeal. In

support of her argument she cited authorities extensively.

[6] Counsel for the 1st applicant on a point in limine argued that in terms of s 316

of the Criminal Procedure it is not necessary to set out factual grounds that relates to

a point of law. Regarding the contention that the second ground is bad in law and

does not concisely and clearly sets out what the state should reply, counsel for the

first applicant submitted simply that he does not agree with the respondent’s

argument. According to him, “the ground clearly sets out what he intended to argue,

namely that the offences being robbery with aggravating circumstances and murder which

will also be argued as a compounded submission together when one would have a regard to

5

the submission relating to common purpose.” Furthermore, he argued that if the

grounds are not clearly set out that would be cured by the arguments as set out in

the written heads of argument. The court reserved ruling and allowed counsel for 2nd

applicant to argue on the merits.

[7] The 3rd applicant’s grounds of appeal will be summarised as follows:

1. Although the court accepted that the 2nd applicant admitted in the presence

of his employer Jackson and police officer Afonso that he got a fourth

bullet from his friend Ndumba, the court erred by failing to take into

consideration that the 2nd applicant collected the fourth bullet to conceal

his act of shooting the deceased.

2. The Court erred in completely disregarding the consistency of the 3 rd

applicant’s version when he informed police officer Afonso of what

transpired and repeated the same during bail application and when he

pleaded in terms of s 119 of Act 51 of 1977.

3. The Court erred in not finding in favour of the applicant upon his arrest by

witness Zacharia Amakali he stated that he knew everything that

happened and would tell the story but, that he was not involved.

4. The Court erred by rejecting the applicant’s version that he went to the

stadium on invitation of the 1st applicant to steal alcohol

5. The Court erred in rejecting the version of the 3 rd applicant that their

intention was to steal alcohol because there was no evidence of a break-in

when such event was not investigated.

6. The sixth ground raised by the 3rd applicant is similar to the ground raised

by the 1st applicant in paragraph 2 (iii) I will therefore not restate it.

7. The Court erred in accepting the evidence of witness Nambahu that the 1st

applicant was the person who took the murder weapon from the

guardroom.

6

8. The Court erred in rejecting 3rd applicant’s version that he was not present

at the specific place during the exact and specific time when the deceased

was shot and killed.

9. The Court erred in finding the 3rd applicant guilty on the basis of the

doctrine of common purpose whereas the court said that it is not

necessary to prove prior agreement or causal connection between the

conduct of each accused and the death of the deceased.

10.The Court erred in not making a factual finding whether or not 3 rd applicant

causally contributed to the death of the deceased and not making a finding

as to who exactly pulled the trigger.

11.The Court erred in applying the doctrine of common purpose whilst there

could be no agreement on the facts of the case by virtue of the fact that 2 nd

applicant and 3rd applicant did not know each other.

12.The Court erred in finding that the prerequisites for common purpose as

set out in the cited authorities have been proven in concluding that 1st

applicant and 3rd applicant lured the deceased to the stadium and acted in

cohort with 2nd applicant to commit offences in respect of the deceased.

13.The Court erred in concluding that 3rd applicant was guilty of robbery as

defined in s 1 of Act 51 of 1977 as amended when there is no evidence

that the deceased had any property of sufficient economical value to rob or

to steal.

14.The Court erred in finding 1st and 3rd applicant guilty of robbery with

aggravating circumstance instead of theft of the radio tape or CD player

and cell phone.

15.The Court erred in rejecting 3rd applicant’s version that the only reason he

assisted 2nd applicant to conceal the body of the deceased was because

2nd applicant was still in possession of the murder weapon and 3 rd

applicant was afraid of being shot and was shocked.

7

16.The Court erred in completely disregarding the fact that the versions of the

1st and 3rd applicants, corroborated each other, was confirmed by 2nd

applicant during the bail proceedings; the court disregarded bail

proceedings alternatively failed to attach sufficient weight.

17.The Court erred by accepting the evidence of witness Afonso that 3 rd

applicant did not tell him that they went to steal alcohol at the stadium but

instead went to fetch a jacket when parts of the witness evidence was

riddled with contradictions, inconsistencies and was certainly unreliable.

In this respect the court failed to deal with specific weaknesses pointed out

in the witness evidence as untruthful and lies.

[8] The following are grounds of appeal raised by the three applicants in respect

of sentence.

1. The sentences imposed by the court in its totality are shockingly

inappropriate.

2. The Court failed to appreciate that the offences were committed out of the

same incidence or circumstances and should have taken the murder, robbery

and defeating or obstructing or attempting to defeat or obstruct the course of

justice as one for purpose of sentencing.

3. The sentence imposed is so excessive that no reasonable person would have

imposed it.

4. The Court misdirected itself in imposing the sentence without having regard to

the applicant’s respective level of blameworthiness or the degree of

participation in the commission of the offences.

5. The Court overemphasised the seriousness of the offence at the expense of

the mitigating factors or personal circumstances of the applicants and it failed

to take into account that the 1st applicant spent 8 months in custody prior to

being released on bail.

8

[9] Counsel for the 1st applicant argued that the court gave no regard to the bail

proceedings whereby the 2nd applicant made admissions. I pause to mention that

although it was alleged that 2nd applicant made the alleged admission at that specific

page the record did not reflect those alleged admissions. Counsel made an

application for the court to subpoena the magistrate who dealt with the bail

proceedings to come and testify about the missing words. The court declined to

subpoena the magistrate and granted counsel permission to subpoena the

magistrate. However, counsel failed to do so. It is therefore not correct that the

court did not give them the opportunity to call the magistrate as it is alleged by

counsel for the 1st applicant.

[10] Counsel further argued that the court erred by accepting the version of Mr

Nambahu because it is questionable as to whether he was awake or not. He

testified that the 1st applicant came in the guardroom and saw him wearing shorts.

However, according to state witnesses’ police officers Afonso, Murumendu and

Amakali it became clear that the 1st applicant was wearing the same clothes he wore

when the offences were committed on the day he was arrested. If the 1st applicant

was wearing a pair of black pants, Nambahu could not have observed the shorts.

[11] It is this court’s opinion that Nambahu did not lie when he testified that the 1st

applicant was wearing a short. This was not disputed. Counsel for the 1 st applicant

in his grounds of appeal confirmed that the 1st applicant was wearing a pair of shorts

under his track suit pants. It was up to counsel for the 1 st applicant to cross-examine

Nambahu as to how he observed the shorts. Furthermore, the police officers

mentioned above could not say with certainty what the 1st applicant wore at the time

the offences were committed as they only came into contact with the 1st applicant

after the offences were already committed.

[12] Counsel for the 1st applicant argued that the court could have accepted the

version of the 1st applicant that he went to the stadium to steal liquor because the

applicant’s version in this regard is consistent from the time he applied for bail up to

the trial stage and it was corroborated by Mr Nambahu and the 3 rd applicant. With

regard to the issue that there has never been evidence of break-in, counsel argued

that this aspect has never been explored or investigated. It is not correct that the

issue of a break-in was not explored. Counsel for the respondent questioned the 1 st

9

applicant how he intended to break-in and the 1st applicant replied that they intended

to break-in with iron bars. There is no evidence that they indeed broke-in apart from

their alleged intention to break-in.

[13] Counsel further argued that there was no evidence suggesting that the 1st

applicant corroborated with his co-applicants to commit the offences. No evidence

that he was at the point where the violence was taking place and no evidence to

show that he was aware because he was not the one who took the firearm from the

guardroom. He argued that whether the 1st applicant participated after the murder

under duress or willingly he cannot be held accountable for the murder because, the

violence had ceased at the time he participated he could also not have been held

liable for the robbery. Counsel levelled criticism at the court that it should not have

accepted the version of Nambahu because he was sleeping and he did not hear the

gunshot. The court was only supposed to rely on the bail proceedings to get a clear

picture of what exactly happened. The court was supposed to pronounce itself as to

the roles played by the 1st and 3rd applicants and should have convicted them or

sentenced them according to the degree they participated.

[14] With regard to sentencing counsel for 1st applicant argued that the court gave

no regard to the personal circumstances of the offenders. The fact that the 1 st

applicant spent 8 months in custody and his age was not considered. Since these

offences arose out of the same incident that happened at the same time the

Supreme Court may arrive at a different conclusion and may order a bigger portion

of robbery charge to run concurrently with the sentence imposed on a murder

charge. It is on these grounds that counsel for the 1st applicant is of the opinion that

there are reasonable prospects on appeal that warrants him to be granted leave to

appeal.

[15] Counsel for the 2nd appellant argued that the 2nd appellant was not aware that

the 1st applicant went to fetch the gun from the guardroom and the reason he opened

for him was because the 1st applicant was a colleague and the company belonged to

the 1st applicant’s father. The 2nd appellant was informed that the 1st and 3rd

applicants came to collect a jacket. When 1st and 3rd applicants entered the stadium

the 2nd applicant did not follow them he only went to investigate after he heard a

gunshot whilst he was still in the toilet. He found the 1st applicant with a rifle in his

10

hand; the 2nd applicant was coerced to load the body into the car to be disposed off.

The 2nd applicant later made entries which he admitted were wrong and he only

forged the entries in order to keep his job; that the 2nd applicant was not aware that

the items were stolen or robbed from the deceased’s car by the 1st and 3rd applicants

and he did not gain any benefit from the proceeds of that theft and was not present

at the time of the actual theft. It was counsel’s further argument that the court was

not alive to the fact that all the requirements of the doctrine of common purpose had

to be proved before the doctrine is applied. No evidence placed before court

suggesting or proving that the 2nd applicant had the requisite mens rea, that he

intended the deceased to be killed or foresaw the possibility of him being killed.

[16] It was counsel for the 2nd applicant’s argument that the state failed to prove

that the 2nd applicant was present at the scene, that he was aware of the assault

being perpetrated, that he intended to act in common cause with those who were

actually perpetrating the assault or that he manifested his sharing of common

purpose with the perpetration of the assault by himself performing some act of

association with the conduct of others. The 2nd applicant by making false entries

cannot legally make him guilty of murder or robbery and his conduct cannot be

imputed to the others. Counsel argued that it is inconceivable how the court arrived

at the conclusion that the act of killing which had already happened when the 2nd

applicant arrived should be imputed on him.

[17] Concerning the robbery charge counsel argued that the State did not prove

that the 2nd applicant had intention to rob the deceased. No evidence that linked the

2nd applicant to the charge and he was supposed to be acquitted. Counsel urged the

court to grant leave to appeal because there are reasonable prospects of success.

Counsel for 2nd applicant did not argue in respect of sentence.

[18] Counsel for the 3rd applicant argued that the court failed to determine who

pulled the trigger and establish the whereabouts of the other perpetrators at the time

the trigger was pulled. The court by not determining the actual shooter had

distanced itself from establishing the truth. The court could have found that it was

the 2nd applicant who killed the deceased as he is the one who collected the firearm

from the guard room.

11

[19] Counsel further levelled criticism at the court for making a finding that witness

Nambahu was a credible and reliable witness because Nambahu could not have

observed exactly what was happening as he was half awake. It was counsel’s

argument that the court incorrectly applied the doctrine of common purpose to the

facts because the pre requisite that the accused must be present at the scene where

violence was taking place was not proved. At the time the gunshot went off the 3 rd

applicant was at the pavilion.

[20] With regard to sentence counsel for the 3rd applicant argued that the court

when imposing the sentence failed to consider that the accused persons have been

in custody awaiting their trial. Counsel referred to matters that appeared in this court

before another judge in 2007 where the accused persons were given sentences

ranging from 15 to 18 years’ imprisonment respectively on charges of murder and

argued that there is no consistency in respect of sentence in this court. He

continued to argue that the court could have imposed a lesser sentence and urged

the court to grant the 3rd applicant leave to appeal because another court may arrive

at a different conclusion.

[21] Counsel for the respondent argued that the issue that 1st and 3rd applicants

went to the stadium to steal alcohol was only raised during the trial 1st applicant

initially told the investigating officer and the magistrate that they went to the stadium

to fetch his jacket. Counsel further argued that all the applicants were at the scene.

According to Nambahu’s testimony when the 1st applicant fetched the firearm from

the guard room he saw the 1st and 2nd applicants waking, following the vehicle.

Counsel argued that the court was alive to the fact that Nambabu was a single

witness and made a finding that he was a reliable and credible witness.

[22] Concerning the 2nd applicant, counsel for the respondent argued that his

explanation that he was in the toilet when a gunshot went off was correctly found to

be not the truth by the court. 2nd Applicant admitted to being at the car where the

deceased was lying dead. He claimed that he was threatened to assist with loading

the deceased’s body into the car and going to dispose of it. It was Nambahu’s

version that he saw the second applicant sitting at the back of the vehicle. Second

Applicant had a gun in his possession. It is highly improbable that he would have

been threatened by anyone whilst he was the one in possession of the firearm. The

12

court correctly relied on the events before and after the commission of the crime. 2nd

Applicant testified that the 3rd applicant fixed something in the bonnet of the vehicle

and removed the number plates. 2nd Applicant had enough opportunity to get away

from the 1st and 3rd applicants if he was not with them out of his own accord. There

was also no reason for the 2nd applicant to falsify the documents at his work place to

hide the killing of the deceased as the “threats” to him by the 1st and 3rd applicants

had already ceased. It is highly unlikely that the 2nd applicant would choose to be

implicated in a murder and robbery than lose his employment unless he was part

and parcel of the plan.

[23] Counsel for the respondent further argued that it was highly improbable that

2nd applicant would allow 1st and 3rd applicant to break-in in order to steal alcohol

when he was on duty, and also just to go to the toilet without finding out what they

were up to. Counsel for the respondent argued that the three applicants took part in

disposing of the body and drove away from the scene. The firearm ended up with

the 2nd applicant who returned it to work. The 1st applicant’s statement to the

magistrate clearly showed that he was a willing participant. 2nd Applicant’s going to

the vehicle with 1st applicant with the firearm showed that there was a plan. The 1st

and 3rd applicants having a talk away the deceased who was supposed to be part of

their plan as alleged showed that whatever was being planned; the deceased was

not part of it. The disposal by the applicants of the deceased’s body and how all

three applicants came to agree on how to dispose of it indicates that they were all

involved in the killing of the deceased. Their behaviour after the killing of the

deceased showed that all of them were in it from the beginning. Counsel referred to

the matter of Karirao vs The State SA 70/2011, Strydom, AJA said at page 12

paragraph 20 of the cyclostyled judgment, where it was held that:

“The actions of the appellant after the killing of the deceased show that he had

fully associated himself with the crimes committed and that the role that he

played had been significant.”

[24] Counsel argued that the court correctly found that three applicants acted in

common purpose and that it was not necessary to prove prior agreement. 1st

Applicant and 3rd applicant took the deceased to the stadium. After the deceased

13

was killed 3rd applicant participated fully in disposing of the body and taking the

vehicle. They by passed two police stations and removed the cell phone and CD

player. The first applicant threw away the ignition key of the vehicle. The 1 st

applicant knew both his co-applicants although the 2nd and 3rd applicant did not know

each other. Third applicant is the one who paid the deceased to take them to the

stadium in order to rob him. The court drew an inference that 3 rd applicant was

aware that 1st applicant had a firearm, he knew or ought to have realised that this

firearm could be used to kill the deceased in the process of the robbery.

[25] The fact that Ndumba was said to have been the one who was mentioned to

supply the fourth bullet does not mean that the 3 rd applicant was not a party to the

killing and the robbery. A bullet had to be found to replace the one that was used to

kill the deceased.

[26] With regard to the evidence of police officer Afonso there was no

inconsistencies found in his evidence. The issue of collecting a jacket was

mentioned by 1st applicant and did not emanate from Afonso. It was again counsel’s

argument that the three applicants robbed the deceased of his vehicle and its

accessories plus a cell phone. Violence preceded the taking of the property. The

motor vehicle was only abandoned because it ran out of fuel. The vehicle cannot be

said to be of no economic value. The abandoning of the vehicle does not negate the

original intention of robbery that was carried out successfully. All three applicants

acted in common purpose throughout.

[27] It was argued that it cannot be said that the 3 rd applicant’s evidence was

consistent that he assisted in disposing of the body because he was scared of the

2nd applicant. His evidence is improbable second applicant never threatened the 3 rd

applicant, he even repaired the deceased’s vehicle. When 1st and 3rd applicants

continued to drive the vehicle and took the radio/CD player and the cell phone 2nd

applicant was not there. They by passed two police stations in the absence of the

2nd applicant. Counsel further argued that the court did not misdirect itself in not

taking into account parts of the bail proceedings that were not fully transcribed. The

parts sought to be relied upon by the applicants were not sent to the magistrate so

that the missing portions could be reconstructed.

14

[28] Counsel further argued that the court correctly relied on the doctrine of

common purpose and on inferences and found that the state had proved its case.

Counsel referred to several authorities as per her written submissions in support of

her opposition for the application for leave to appeal. Counsel for the respondent

also opposed leave to appeal in respect of sentence as per her heads of arguments

that the court did not misdirect itself. The Court considered all the personal

circumstances of the applicants and arrived at the sentence imposed. It was her

argument that all three applicants have no reasonable prospects of success.

[29] Having heard arguments from counsel, I will now consider the point in limine

raised by counsel for the respondent. Section 316 (2) of the Criminal Procedure Act

51 of 1977 provides as follows:

“Every application for leave to appeal shall set forth clearly and specifically the

grounds upon which the accused desires to appeal: Provided that if the accused

applies verbally for such leave immediately after the passing of the sentence he

shall state such grounds and they shall be taken down in writing and form part of

the record.”

Counsel for the respondent correctly argued that s 316 (2) of the Criminal Procedure

Act is the same as Rule 67 (1) of the Magistrates Court Rules. She referred to the

matter of Nhinda-Tjiriange v S (CC40/2007) delivered on 20 April 2011, where it was

stated:

“Section 316 (2) is identical to Rule 67 (1) of the Magistrates Court Rules. The

purpose of Rule 67 (1) of the Magistrates’ Court has been spelt out in line of

cases in this court and those views are by parity of reasoning applicable to s 316

(2) of the Criminal Procedure Act.”

Frank J said in the matter of S v Wellington 1990 NR 20 at page 22 H – T.

“In this respect I agree with Diemont J where he states the following in S v Horne

1971 (1) SA 630 (C) at 631H – 632A.”

“The rule provides in simple unambiguous language that he appellant must lodge

his notice in writing in which he must set out ‘clearly and specifically’ the grounds

15

on which the appeal is based. He must do this for good reasons. The magistrate

must know what the issues are to be challenged so that he can deal there with in

his reasons for judgment. Counsel for the state must know what the issues are

so that he can prepare and present argument which will assist the Court in its

deliberations, and finally the Court itself will wish to be appraised of the grounds

sothat it can know what portions of the record to concentrate on and what

preparations, if any it should make in order to guide and stimulate, a good

argument in court.”

[30] This court agrees with counsel for the Respondent that counsel for the 2nd

applicant’s 2nd ground is not a ground at all as it is not clear and specific. It has no

basis and failed to comply with the provisions of s 316 (2) of the Act. The grounds of

appeal which have no basis cannot be cured by argument. However, the Court is

satisfied that the 1st ground meets the requirements of s 316 (2).

[31] Having considered the point in limine I will now deal with the grounds raised

by the applicants as well as arguments from counsel for the respondent to determine

whether the applicants have reasonable prospects of success to warrant them to be

granted leave to appeal on conviction and sentence. This Court convicted the

applicants relying on the doctrine of common purpose in terms of s 155 of the

Criminal Procedure Act. It also relied on S v Gurirab and Others 2008 (1) NR 316 at

322 – 323 It considered the prerequisites as set down in the above matter and

applied the law to the facts of this case and found that the prerequisites have been

met. The prerequisites are set down at page 28 of my judgment and I do not wish to

restate them. I further looked at the factual circumstances of the case. I weighed all

the probabilities of each version. Although Nambahu was a single witness the court

was alive to that fact and made a finding that he was a reliable and credible witness.

The court rejected part of the applicants’ versions because their versions could not

be reasonably possibly true under the circumstances. Reasons for convictions are

stated in my judgement and I still hold the same views expressed therein and

findings made have not changed. It is on these grounds that I hold the view that the

applicants were correctly convicted and their prospects of success on appeal are

very slim.

16

[32] As regards sentence it is a matter for the discretion of the trial court. In S v

Tjiho 1991 NR 361 at 364G-H where it was said:

“This discretion is a judicial discretion and must be exercised in accordance with judicial

principles. Should the trial court fail to do so, the appeal Court is entitled to, not obliged to,

interfere with the sentence. Where justice requires it, appeal Courts will interfere, but short of

this, Courts of appeal are careful not to erode the discretion accorded to the trial court as

such erosion could undermine the administration of justice. Conscious of the duty to respect

the trial court’s discretion, appeal Courts had over the years laid down guidelines which will

justify such interference.”

[33] This court exercised its discretion properly in sentencing the applicants and its

reasons for such discretion are contained in its judgment which is part of this record.

The Court considered the personal circumstances of each accused, the seriousness

of the offence and the interest of society. It has also considered the principles

relating to sentencing. The Court found that the applicants’ personal circumstances

were outweighed by the interest of society. The Court did not misdirect itself as the

sentence was not inappropriate or shocking. I am of the opinion that the sentence

imposed is appropriate in the circumstances and hold the view that there are no

reasonable prospects that the Supreme Court will come to a different conclusion.

The applicants have no reasonable prospects of success on appeal.

[34] In the result the following order is made.

Application for leave to appeal against conviction and sentence in respect of each

applicant is refused. No reasonable prospects of success on appeal.

----------------------------------

N N Shivute

Judge

17

APPEARANCES

RESPONDENT: Ms Ndlovu

Office of the Prosecutor-General

APPLICANTS: Directorate of Legal Aid: Mr Brockerhoff

Mr Tjituri

Mr Uirab

18