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Hyacinth James Ningisa & Others Versus the State

Hyacinth James Ningisa & Others Versus the State

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Published by André Le Roux
Application for leave to appeal in Namibia High Court by undefended appellant or accused discussed. Provisions of the procedure involved and applicable discussed and explained.
Application for leave to appeal in Namibia High Court by undefended appellant or accused discussed. Provisions of the procedure involved and applicable discussed and explained.

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Categories:Types, Research, Law
Published by: André Le Roux on May 28, 2009
Copyright:Attribution Non-commercial

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06/12/2010

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SUMMARY
CASE NO.: CC 4/2002HYACINTH JAMES NINGISA & OTHERS
and
THE STATE
SILUNGWE, AJ 12/11/2008 
APPEAL -
Leave to appeal and petition procedures – Constitutionality of provisions of section 316(1), (6) and (7) of Criminal ProcedureAct, Act 51 of 1977 – Such provisions not inconsistent withArticle 12(1)(a) of the Constitution and therefore notunconstitutional.
 
 
-2-
CASE NO.: CC 4/2002IN THE HIGH COURT OF NAMIBIA
In the matter between:
HYACINTH JAMES NINGISA Applicant No. 1MACDONALD KAMBONDE Applicant No. 2HENDRICKS HENNY TSIBANDE Applicant No. 3BRENDON DAVID OMSWA SIMILO Applicant No. 7ISMAEL OAEB Applicant No. 9VINCENT NDABULA MABUZA Applicant No. 10MIKE SANDILE MABENA APANI Applicant No. 11
and
THE STATE Respondent
CORAM: 
SILUNGWE, AJ
 
Heard on:
18/01/2008
Delivered on:
01/02/2008
Reasons on:
2008/11/12
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL:SILUNGWE, AJ:
[1] In this judgment, the applicants will retain the samenumbers that they have had since the inception of their trial.
 
 
-3-[2] Applicants 1, 3 and 11 are unrepresented in these proceedings,whereas Messrs Murorua and Neves kindly appear
amica curiae 
in respect of applicants 2, 7 and 9 and Applicant 10, respectively. The Court is infinitely indebted to both of them not only for their assistance in the currentproceedings, but also for having given their valuable time towards theadvancement of the interests of justice.[3] The applicants, having been variously convicted of, and sentenced for,crimes ranging from robberies with aggravating circumstances to,
inter alia 
,theft, are now applying for leave to appeal to the Supreme Court against theirconvictions and sentences. Besides the grounds and the supportingsubmissions on which the applications rest, and to which I will later return,there is a constitutional challenge mounted by Applicant 11 – Mike SandileMabena Apani (Mike). The substance of the challenge is that the provisions of the Criminal Procedure Act, Act 51 of 1977 (subsections (1), (6) and (7) of section 316 of the Act) which require a convict to apply to this Court for leaveto appeal to the Supreme Court, and, in the event of the Court’s refusal togrant him such leave, to petition the Chief Justice which petition “shall beconsidered in chambers”, are unconstitutional. Although he refers in hischallenge to such Articles as 8, 10, 12 (and so forth) of the Constitution, it isapparent that his primary reliance rests on Article 12(1)(a) which provides,
inter alia 
, that -
“12(1)(a) In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to 
a fair and public hearing 
by an independent, impartial and competent Court or Tribunal established by law …” 
 (Emphasis provided).

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