Swartbooi v S (HC-MD-CRI-APP-CAL-2025/00017) [2025] NAHCMD 463 (15 August 2025)

and

THE STATE RESPONDENT

Neutral citation: Swartbooi v S (HC-MD-CRI-APP-CAL-2025/00017) [2025] NAHCMD 463 (15 August 2025)

Coram: SHIVUTE J et CLAASEN J

Heard: 28 July 2025

Delivered: 15 August 2025

Flynote: Criminal Procedure – Sentence – Appellant convicted on a count of murder dolus eventualis – Sentenced to sixteen (16) years’ imprisonment two (2) years suspended – Condonation application – Delay of almost 8 years excessive and inordinate – Reasons for delay inadequate – No prospects of success on appeal – No misdirection by court a quo in imposition of sentence – Condonation dismissed.

Summary: Appellant was convicted as charged, after tendering a statement in terms of terms of s 112(2) of the Criminal Procedure Act. He was sentenced to sixteen (16) years imprisonment of which two (2) years were conditionally suspended for five (5) years. The appellant filed a notice of appeal almost 8 years after the date of sentence.

Held that the appellant bears the onus to provide a reasonable and acceptable explanation for the default and that he has reasonable prospects of success on appeal.

Held further that the delay of almost 8 years after the date of sentence was, by any standard, excessive and inordinate. The appellant’s reasons are inadequate to purge the default.

Held further that it is so that each case should be dealt with on its own facts, concerned with the crime and the criminal therein, but at the same time a sentencing court must, as far as possible, hand down similar sentences for similar crimes.

Held further that there was no misdirection by the court a quo, in the imposition of the sentence. There is thus no reason to interfere in the sentence. Thus, the appellant lacks prospects of success on appeal.

ORDER

1. The respondent’s point in limine is upheld.

2. The application for condonation is dismissed.

3. The matter is considered finalised and is removed from the roll.

APPEAL JUDGMENT

CLAASEN J (Shivute J, concurring):

Introduction

1. The appellant was arraigned on one count of murder in the Regional Court of Keetmanshoop. He was convicted as charged, after tendering a statement in terms of s 112(2) of the Criminal Procedure Act, 51 of 1977 (‘the Act’) as amended.

2. On 16 June 2017, the appellant was sentenced to sixteen (16) years imprisonment of which two (2) years are suspended for a period of five (5) years on condition that the accused is not convicted of murder, attempted murder or culpable homicide arising from assault committed during the period of suspension.

3. The appellant was dissatisfied with the sentence and filed a filed a notice of appeal on 16 August 2024. The appeal was accompanied by an application for condonation.

Point in limine

4. The respondent opposed the appeal and raised the delay as a preliminary point. Counsel for the respondent argued that the appellant’s condonation application is not properly laid out and that he does not meet the first or the second requirement for condonation. In respect of the first component, she opined that the explanation of being a lay litigant, with a limited educational background, is not an acceptable explanation. She submitted that it is trite in our jurisdiction that a lay litigant is equally obliged to adhere to the rules of court and the other reasons for the delay does not strengthen his position.

5. Regarding the second requirement, counsel for the respondent opined that the appellant has no prospects of success to have the sentenced altered. She submitted that the appeal court can only interfere where a trial court has not exercised its sentencing discretion judiciously or properly and that is not the case in this matter.

[6] The appellant’s explanations as set out in his supporting affidavit were that he was impeded by a poor educational background as his educational level is grade 10. He wanted Legal Aid but he did not get a favourable response from the Directorate of Legal Aid when he applied the first two times. That led him to withdraw the appeal that he filed in person. He also did not have the number of his case for thirteen (13) months.

[7] Rule 67 of the Magistrate’s court rules stipulates that a person who intends to appeal should do so within fourteen (14) days of the date of the order or judgment. It is trite that in the application for condonation for the late prosecuting of an appeal, the appellant bears the onus to provide a reasonable and acceptable explanation for the default and that he has reasonable prospects of success on appeal.

[8] We turn to the reasons for the delay. Firstly, it must be said that a period of almost eight (8) years has lapsed between the date of sentence and the lodging of this particular notice of appeal. This delay is, by any standards, flagrant and inordinate. That does not bode well for the appellant, as an appeal should be lodged without delay.

[9] Whilst it may not be easy for a lay litigant to formulate grounds of appeal, it also has to be considered that the appellant was not totally helpless and has attended school up to grade 10. In Swartbooi v S,¹ the appeal court was faced with a delay of 4 years and that court explained that the appellant being a lay person should not be an excuse to not follow the rules of court and the condonation was dismissed.

[10] What is more, the court record herein shows that the court a quo gave a comprehensive explanation of the right to appeal after the sentence was imposed. The appellant was informed, amongst others, if he is unable to write or draw up a notice of appeal by reason of physical incapacity or illiteracy, that he can approach the clerk of court to assist him in that regard. The appellant at the time indicated that he fully understood the explanation.

[11] In regard to his averment that it took thirteen (13) months to get his case number, it is a bare averment with no information as to what efforts he made nor is there any affidavit from any official which he approached about that. Cumulatively considered, we regard the excessive delay with the reasons given as inadequate to purge the default herein.

Prospects of success

[12] The court will touch, albeit briefly, on the prospects of success and for that, it is necessary to pause at the grounds of appeal. There is a great deal of overlap in the grounds of appeal, which was conceded by counsel for the appellant. In ground 1, 3 and 4 considered together, the appellant alleges that the learned magistrate erred in fact and law by overemphasizing the seriousness of the offence and public interest without giving weight to the appellant’s personal circumstances and that he pleaded guilty. Counsel abandoned the last two grounds of appeal.

[13] In Shikulo v State,² the court held that an appeal court could only interfere with the sentence imposed by the trial court if the alleged misdirection was of such a nature, degree or seriousness that it shows directly or indirectly that the trial court did not exercise its discretion or exercised its discretion improperly or unreasonably. The court must therefore, consider not just whether there was a misdirection but also whether the misdirection was of such a degree of seriousness as to demonstrate that the trial court did not exercise its sentencing discretion judiciously.³

[14] Counsel for the appellant submitted that although murder is serious and prevalent, she regards the sentence as excessive. That is because the accused was 19 years of age at the time of the commission of the offense, he was a fist offender and he pleaded guilty to the charge. She submitted that each case should be considered on its own merits and prayed for a sentence of ten (10) years’ imprisonment to be appropriate in the circumstances.

[15] This court invited counsel for the appellant to refer this court to comparable cases in this jurisdiction, wherein the accused was given a sentence in the range of the punishment proposed by her. She was unable to do so.

[16] Counsel for the respondent, on the other hand, argued that a sentence of ten (10) years would be highly inappropriate and reminded this court that it was a senseless killing which could have been avoided, had the accused listed to the warnings that was given to him. Instead of doing that, he and his friends pursued the deceased up to his home, in order to lay claim to money which was won in a gambling machine by the deceased’s friend. The appellant was relentless in his behaviour and the stabbing.

[17] The accused was convicted of murder on the basis of dolus eventualis. Even though he pleaded guilty and was a first time offender of youthful age, the factors in aggravation, being the severity of the loss of life, the societal interest in curbing the prevalence of violence committed with knives and the need for general deterrence outweighed the mitigation. That much was clear from the magistrate’s reasons for sentence. He also had regard to several comparable cases before he carefully weighed the competing factors in the matter before him and arrived at a balanced sentence.

[18] It is so that each case should be dealt with on its own facts, concerned with the crime and the criminal therein, but at the same a sentencing court must, as far as possible, hand down similar sentences for similar crimes. Having considered the sentence imposed herein, there was no misdirection by the court a quo and there is no reason to interfere in the sentence.

[19] The court in S v Kohler⁴ held that if prospects of success on appeal are non-existent, it matters not whether there is a reasonable explanation or not, the application will be refused. We are of the view that the appellant lacks prospects of success on appeal as well.

[20] Accordingly, the order is as follows:

1. The respondent’s point in limine is upheld.

2. The application for condonation is dismissed.

3. The matter is considered finalised and is removed from the roll.

_________________

C M Claasen

Judge

________________

N N Shivute

Judge

APPEARANCES:

APPELLANT: Ms Windisch

Of Pack Law chambers

Windhoek

RESPONDENT: Ms Shilongo

Office of the Prosecutor-General

Windhoek