CASE NO.: CA 95/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

EWALD ZEMBURUKA
Appellant

and

THE STATE
Respondent

CORAM: VAN
NIEKERK J et
SILUNGWE AJ

Heard: 7 March 2008

Delivered: 23 December 2008

APPEAL JUDGMENT

VAN NIEKERK J:

[1] On 25 January 2006 the
appellant was convicted by the Magistrate, Otjiwarongo, on a charge
of theft of three head of cattle under the Stock Theft Act, 12 of
1990, and sentenced to five years imprisonment. Appellant had legal
representation during the trial.

[2] The
State, represented before us by Mr Shileka,
submitted in
limine that
the document filed by appellant launching this appeal is not a valid
notice of appeal as the appellant does not set out clearly any
grounds of appeal. More specifically, the State submits, the notice
of appeal does not point out any misdirection or error either in fact
or in law committed by the magistrate. The result is, counsel
submits, that there is, in fact, no appeal before us and the matter
should be struck.

[3] The notice filed by the
appellant is addressed to the clerk of the magistrate’s court
at Otjiwarongo and is in the form of a letter with the subject
heading “RE: APPEAL DUE OPTION OF FINE”. In the letter
appellant mentions that he was convicted as charged and sentenced to
5 years imprisonment with no option of a fine. Appellant then
states:

“……… I
appeal to the High Court for an option of fine due to the following
reasons:

1. 
   I’m
   a married man with eight children, 5 of them went to school, while
   the remaining 3 are still minors are at home. There is no one to
   maintain them.

   
   

2. 
   I’m
   a farmer and no one is looking after my live-stock. My wife can’t
   manage to do it alone and this will affect her both physically and
   emotionally. I do appeal to you to be lenient and grant me a
   affordable fine so that I may go and proceed to maintain my family.”

   
   

[3] There
is ample authority which emphasises the requirement of clear and
specific grounds of appeal and the importance of a proper notice of
appeal (see e.g. S
v Horne
1971 (1) SA 630 (CPD) 631H-632A; S
v Khoza
1979 (4) SA 757 (N) 758B; S
v Wellington
1990 NR 20 HC 22G-23A; Tuhafeni
Kakololo v The State
(Case No. CA 42/2001, unreported, delivered 15/11/2002); Gotfried
Kahunga and another v The State
(Case No. CA 57/2002, unreported, delivered on 18/11/2004). In each
case the Appeal Court would have to interpret the notice of appeal to
assess its compliance or otherwise with the requirements set by the
law.

[4] In this case, the letter
was clearly written by a lay person without assistance of a lawyer. I
do not think that an overly fastidious and technical approach should
be followed in the circumstances of this case in considering whether
it is a notice of appeal. I think justice will be served if the
Court rather seeks, if possible, to interpret the letter in a manner
upholding its validity as a notice of appeal so that the merits of
the matter may be dealt with and the appeal may be disposed of.
While the letter is not couched in the form and language that a
properly drawn notice of appeal should be, the substance of the
letter is clear – the accused appeals against sentence because
he feels aggrieved by the fact that a sentence of direct imprisonment
was imposed. In effect he is stating that the magistrate misdirected
herself by not giving him the option of a fine in the light of his
personal circumstances, which he sets out. The personal
circumstances he relies on do not constitute new matter, but were
mentioned in evidence during the trial and counsel made submissions
thereon during his address on sentence.

[5] State
counsel submitted that the letter should be accorded the same fate as
in Kahunga’s
case in which this Court, per
SHIVUTE
JP (as he then was) and MAINGA
J, held that the notice of appeal was a nullity on account of lack of
particularity. In that case the notice of appeal was aimed at
conviction as well as sentence. I shall confine myself to the latter
for purposes of this case. In the Kahunga
case the notice of appeal, drawn by a legal practitioner who had not
represented appellant during the trial and had no transcribed record
of the proceedings available, formulated the grounds for appeal
against sentence as follows:

“That
the Magistrate misdirected himself on the fact alternatively in law
in sentencing the appellants to direct imprisonment without the
option of a fine and/or suspending a part of the sentence. It would
be furthermore argued that the sentence is startlingly inappropriate
and creates a sense of shock.”

[6] In that case the
magistrate, when requested to provide reasons for the sentence,
replied that he was placed in a difficult position to provide these
as he considered the grounds to be vague.

[7] In
my view the facts of the Kahunga
case are distinguishable from the facts of the case before us. In
casu,
although the notice of appeal is in the form of a letter and not
framed in the language normally used, one is able to make out what
the substance of the complaint is, as I have sought to show above.
Furthermore, it was drawn by a lay person, to whom the Court should
afford some leniency. When considering the notice of appeal, the
learned magistrate in this case did not complain about any vagueness
rendering it impossible for her to furnish any reasons. She merely
stated that she has “nothing to add to the sentence handed
down” (See: Record p148). In my view the letter in this case
should be considered to be a valid notice of appeal and the point in
limine
accordingly fails.

[8] I
note at this stage that Mr Titus,
who appeared amicus
curiae,
was initially of the view that the notice of appeal is irregular as
it does not state that the court a
quo
erred in law/and or in fact when it passed sentence and that the
appeal should be struck. However, when the Court indicated that it
was in principle prepared to take a more lenient view of the
perceived deficiencies in the notice of appeal on account thereof
that it was drawn by a lay person, counsel submitted that the notice
should be upheld.

[9] I
now turn to the merits of the appeal. The learned magistrate’s
ex
tempore judgment
given on sentence is very brief. It reads as follows:

“It
is also your luck today, Accused person, that you are charged under
the old Stock Theft Act, because, ……[under] the new
Stock [Theft] Act that was passed in December 2004 you would have
gotten a very more, or a more severe sentence than today. And it was
in fact the intention of the legislator to try and decrease or reduce
this type of offence of stock theft because of the prevalence and the
seriousness of the offence. Not only here in the Otjiwarongo
District, but also in the whole of Namibia. And in your case,
Accused person, the seriousness of the offence outweighs your
personal circumstances. You also did not show remorse to the Court.
You wasted the Court’s time tremendously and you deprived the
Complainant from his cattle and it would have been permanently if you
were not stopped before you would have gotten away with this cattle.
And therefore, Accused person, you are sentenced to five years
imprisonment.” [the insertions are mine]

[10] At the time the offence
was committed, the applicable penalty for stock theft provided for by
section 14 of the Act, as amended, was imprisonment for a period of
not exceeding ten years; or a fine not exceeding N$40 000; or both
such fine and such imprisonment. Both the prosecutor and defence
counsel mentioned it in their addresses on sentence that a fine was
an option to be considered.

[11] The appellant testified in
mitigation of sentence and placed relevant personal circumstances on
record. These are, in summary, that he was 36 years old, a first
offender, a farmer with a monthly income of about N$500, married with
eight children whose ages ranged from 12 years to 8 months old, whom
he maintained; he was also looking after his 80 year old father and
70 year old mother; he was the only breadwinner. He had N$1 000
available with which to pay a fine. Appellant surrendered himself to
the police a week after his co-accused was arrested in possession of
the stolen cattle.

[12] The facts of the case are,
briefly, that the accused had approached his co-accused to help him
drive along eight head of cattle amongst which three belonged to the
complainant, a Mr Erasmus. The police discovered the cattle being
driven along the road. They confronted appellant’s co-accused,
but appellant ran away. Appellant’s defence was that the
cattle being driven belonged to him and he disputed that he ran away.
On evidence regarding the identification of the cattle and of
accused, the magistrate was satisfied that the accused had stolen the
three head of cattle from Mr Erasmus. The total value of the stolen
cattle was put at N$4800. It seems from the facts that it was indeed
fortunate that the police had found the cattle on the road, otherwise
they probably would have disappeared. Complainant therefore suffered
no loss.

[13] While
amicus
curiae initially
in correspondence to this Court did not see prospects of success on
the ground of appeal raised, he made several helpful submissions
during the hearing on aspects regarding sentences imposed in cases of
stock theft. The Court also heard the appellant in person, who
repeated his view as set out in the notice of appeal. State counsel
supported the sentence passed by the court a
quo.

[14] Having considered all the
submissions, I am in agreement with the learned magistrate that the
seriousness of the offence outweighs the personal circumstances of
the appellant. It can be deducted from her brief judgment that she
did not consider the imposition of a fine as appropriate when
considering the seriousness of the offence. The N$1000 appellant had
available for a fine is wholly inadequate in any event. I do not
think the learned magistrate can be faulted for having considered
effective imprisonment to be an appropriate sentence.

[15] However,
the Court was perturbed about the statement in the judgment on
sentence that appellant “wasted the Court’s time
tremendously”. We posed our difficulty with the magistrate’s
statement to counsel. Mr Titus
submitted that there is no indication that the defence was frivolous,
but even if it were, it would be a misdirection if the waste of time
was held against the appellant when sentence was passed. Mr Shileka
submitted that the remark should merely be seen as expressing
justification for the learned magistrate’s finding that the
appellant showed no remorse. However, this submission cannot be
upheld for the reasons to follow.

[16] I can find no evidence in
the record that the appellant wasted the Court’s time. The
only deduction I can make is that the remark, made just after the
statement “you did not show remorse to the Court”, refers
to the fact that the appellant pleaded not guilty, which meant that
the prosecution had to call witnesses to prove its case. Appellant
also testified, which took more time. I cannot find that in the
conduct of the defence, appellant wasted time. It should, in any
event, always be remembered that an accused person has, in our
criminal justice system, the right to plead not guilty and to require
of the State to prove its case. This should never be seen as a waste
of a court’s time. It is the very purpose and duty of the
court to try cases, whether the defence is meritorious or not. Even
if an accused does waste time by, for example, causing unnecessary
postponements or unduly prolonging cross-examination, this should
never be held against him or her when sentence is passed. It may be
irritating or frustrating to a presiding officer who is required to
deal expeditiously with an already heavy roll, but this should not
influence the court, as the fact that time was wasted is entirely
irrelevant when it comes to sentence.

[17] I
agree with amicus
curiae
that the remark that the Court’s time was wasted ‘tremendously’
and the fact that it is specifically mentioned in what is otherwise a
very brief judgment mentioning only aggravating circumstances, lead
one to the inescapable conclusion that the alleged waste of the trial
court’s time weighed against the appellant when sentence was
passed. An irregularity which prejudiced appellant was committed.
Although this is not a ground of appeal, a Court of Appeal may take
notice of any irregularity which taints a verdict, thereby
prejudicing the appellant. Where, as in this case, the notice of
appeal was drawn by a lay appellant, there is a greater duty on this
Court to act of its own accord. I note that we did not request
reasons from the learned magistrate on this aspect, but considering
that the issue is limited and clear, we decided not to delay the
hearing of the appeal further.

[18] As a vitiating
irregularity has been committed, this Court is at large to consider
what sentence should be passed in place of that of the trial court.
Bearing in mind the gravity of the offence and weighing this against
the personal circumstance of the appellant, a sentence of 4 years
imprisonment would serve the requirements of this case.

[19] The result is that the
appeal against sentence is upheld. The sentence of five years
imprisonment is set aside and substituted with a sentence of 4 (four)
years imprisonment.

______________________

VAN NIEKERK, J

I agree.

­­­­­­­­­­______________________

SILUNGWE, AJ

Appearance for the parties:

For appellant:
Mr Titus

Koep & Partners

(Amicus
curiae)

For respondent:
Mr Shileka

Office of the
Prosecutor-General