S v Swartz (CC 48-2007) 2019 NAHCMD 400 (09 October 2019)



IN THE HIGH COURT OF NAMIBIACase Title:Hendrik Swartz v The StateCase No:CC 48/2007Ruling on Application for leave to AppealDivision of Court:Main DivisionHeard before:Mr Justice Liebenberg Delivered on:09 October 2019Neutral citation: S v Swartz (CC 48/2007) [2019] NAHCMD 400 (09 October 2019)The order:The condonation application is granted.The application for leave to appeal is granted.Reasons for decision:LIEBENBERG J This is an application for leave to appeal against the Court’s judgment delivered on 29 February 2008. The applicant was sentenced on various counts ranging from murder, robbery with aggravating circumstances and defeating or obstructing the course of justice. He was sentenced to an effective term of 40 years’ imprisonment. The applicant lodged his application for leave to appeal on 09 November 2018. The applicant’s grounds of appeal are mainly premised on the fact that his sentence of 40 years’ imprisonment was inordinately long and therefore unconstitutional. He based his application on the Supreme Court judgment of S v Gaingob and Others. Whilst relying on the reasoning of the court in Gaingob in his application applicant is however silent on the relief sought i.e. to convert his sentence to life imprisonment, or a reduction of 2 ? years’ imprisonment to his sentence.The application was filed out of time with 11 years. Nonetheless, the applicant filed a condonation application where he explained the reasons as to his delay. The explanation he proffers is that once he got knowledge of the Gaingob judgment he saw an opportunity to file the present application. The state did not oppose his explanation as to the late filing of the application for leave to appeal, however, they do oppose the application on the grounds that the appeal does not enjoy prospects of success on appeal. Ms Ndlovu, for the respondent, presented written arguments in which she contend that because the applicant was sentenced to an effective term of 40 years’ imprisonment, it meant that under section 115 of the Correctional Service Act 9 of 2012, the applicant would become eligible for parole after serving two thirds of his sentence. This equates to 26 years’ and 7 months’ imprisonment. Furthermore, it is argued that the applicant would be released from gaol when he turns 61 years when granted parole. Consequently, the respondent opined that the sentence meted out by this court did not per se amount to ‘informal life imprisonment’ which was ruled unconstitutional in the Gaingob matter.Additionally the respondent relied on S v Likanyi where the Supreme Court held that it had the power to revisit its earlier decision so as to right a wrong to a party occasioned by an earlier decision. I assume that reference to this judgment is aimed at the Supreme Court revisiting its earlier decision in Gaingob.The Supreme Court stated at p. 229A-B of the Gaingob judgment as follows:‘As life imprisonment is the most severe sentence that can be imposed any sentence that seeks to circumvent this approach by imposing fixed term sentences longer than 37 and a half years is materially misdirected and can be rightly described as inordinately long and is thus liable to be set aside.’(Emphasis provided)If the Gaingob case is to be followed as proposed by the applicant, it would mean that the maximum effective sentence of 37 ? years exceeds the limit set by the Supreme Court by 2 ? years. Whereas the applicant would be eligible for parole after having served 26 years and 8 months, the sentence actually served would exceed a sentence of life imprisonment by one year and seven months.The respondent reasoned that each case must be considered on its own merits and that there are cases, like the present, where the circumstances warrant an appropriate sentence. In an application of this nature regard must still be had to the same factors taken into account by the trial court in sentencing. In the present instance the aggravating factors far outweighed the extenuating factors as summarised in the court’s judgment on sentence.I am in respectful agreement with the respondent’s submission that, whereas the applicant was 35 years old when sentenced and will be eligible for parole at the age of 61, it can hardly be said that the sentence imposed on him is ‘an informal life sentence’. Neither would it in the circumstances of this case be reasonable to follow the blanket approach to sentence applied in the Gaingob case, nor to conclude that the sentence of 40 years’ imprisonment imposed in this instance is materially misdirected.In sentencing the trial court was mindful of the cumulative effect of the sentences imposed and ameliorated same by ordering that part of the sentence (6 years) must be served concurrently.This notwithstanding, the court acknowledges the fact that the sentence of 40 years’ imprisonment exceeds the benchmark set by the Supreme Court. To this end there may be prospects of success on appeal. In the result, it is ordered:The condonation application is granted.The application for leave to appeal is granted.NOTE TO THE PARTIESThe reason(s) hereby provided should be lodged together with any Petition made to the Chief Justice of the Supreme CourtJ C LIEBENBERGJUDGE ................
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