CASE
NO.: CA 41/2009

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

JULIUS KAFIDI
APPELLANT

and

THE STATE
RESPONDENT

CORAM:
LIEBENBERG, A.J. et
SHIVUTE, A.J.

Heard on: 24.11.2009

Delivered on: 24.11.2009

Reasons released:
25.11.2009

APPEAL JUDGMENT

LIEBENBERG, A.J.:
[1]
When the appeal against conviction and
sentence as well as appellant’s application for condonation of
the late filing of the Notice of Appeal were heard, the Court refused
the application and what follows are the reasons for the decision
reached by this Court.

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[2] Appellant was
tried in the Regional Court sitting at Eenhana on charges of rape in
contravention of s.2 (1)(a) of the Combating of Rape Act, 2000 (Act
No. 8 of 2000) alternatively, committing an indecent or immoral act
with a child under the age of sixteen years in contravention of s.14
(b) of the Immoral Practices Act, 1980 (Act No. 21 of 1980), as
amended. At the end of the trial appellant was convicted on the main
count and sentenced to a term of 15 years imprisonment. The appeal
lies against his conviction and sentence.

[3] Ms. Kishi appeared
amicus curiae
and we wish to extend our gratitude to her for having assisted the
Court in that regard. Mr.Haindobo appeared for the respondent.

[4] Appellant was
unrepresented during the trial and after the court a
quo sentenced him, the learned
magistrate explained the following:

“You
have the right to appeal either this conviction or sentence or both
if you are dissatisfied with either the conviction or sentence or
both to the High Court of Namibia and
the procedure is if you desire to appeal you have to write down your
grounds of appeal, bring the same to the office of the Clerk of Court
Eenhana Magistrate’s Court who will then prepare the record for
purposes of appeal. Do you understand?
(emphasis provided)

Appellant’s response was that he understood what had been
explained to him.

[5] Proceedings were
brought to a close on 4 July 2008 when appellant was sentenced,
whereafter he had fourteen (14) days to file his Notice of Appeal
with the Clerk of the Court at Eenhana. The Notice of Appeal in
which the grounds are set out (dated 8 November 2008) and a document
titled “Application for Condonation of late filing Notice of
Appeal” were received by the Clerk of the Court at Eenhana on
20 November 2008. Appellant therefore seeks this Court’s
indulgence for having filed his notice four months out of time.

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[6] I pause here to point out that although the
magistrate in his explanation of the
appellant’s right to appeal did explain to him how and where he
could submit an appeal, he failed to inform the appellant that he had
to note his appeal within the required period of fourteen (14) days.
The core of the appellant’s application for condonation,
however, is that he did not know what procedure
he had to follow in noting an appeal.

[7] The Application
for Condonation has no affidavit to it in which the appellant
explains the circumstances why the notice was filed out of time and
why, in his view, there are prospects of success on appeal. In this
document he states the following:

“The
appellant is a layman, illiterate without any knowledge regarding
Notice of Appeal issues. It is here in Oluno Reh Centre where the
appellant (was) told (of) the Notice of Appeal procedure after many
days as the appellant was in doubt regarding Notice of Appeal. The
above stated reasons are the reasons that cause the appellant to not
file the Notice of Appeal within a prescribed duration of time.”

[8] From the
aforementioned, it is clear that the appellant very well knew that
his appeal was out of time and first had to obtain condonation from
this Court before he could prosecute his appeal. Appellant
furthermore did not in his Application for Condonation explain on
affidavit his late filing of the notice and non-compliance with the
rules as he was required to do and instead, noted his explanation in
the document referred to as the condonation application.

[9] In the explanation
advanced by the appellant he contends that it was only when he came
to Oluno Rehabilitation Centre (prison) that it came to his attention
“after many days” that he could appeal his conviction and
how he should go about doing that. That clearly contradicts his
answer in court after his right to appeal and the procedure to do so
were explained to him by the magistrate at the end of the trial; to
which he responded that he understood. Appellant’s explanation
therefore is simply not true, as he already knew from the day he was
sentenced, that he could appeal and how he should go about lodging an
appeal. Appellant’s application for condonation is

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therefore, in the true sense, not
bona fide.
That possibly explains why his explanation was not given on oath.

[10] After referring
to the case of S v Mantsha,
2006 (2) SACR 4 (CPD) where it was said that: “The
Rules are for all litigants. They must be adhered to by all
litigants. That is the basic principle which applies.”,
Damaseb, J.P. in Kalenga Iyambo,
(unreported) Case No. CA 165/2008 delivered on 19.10.2009 at par.
[10] said the following:

“What we want to stress
is that lay litigants are just as much under an obligation as those
represented by lawyers to follow the rules of Court and cannot, as
they please, not comply with the rules of Court.

I respectfully endorse the remarks made in the
Iyambo-case
(supra) as there cannot be two different sets of rules applicable to
legally represented and unrepresented lay litigants, respectively.
The basic principle is that the rules of the court must be adhered
to.

[11] It is trite that
a Court of Appeal may relax the rules in granting condonation where a
(lay) litigant did not comply with them, however, there are limits
thereto and the Court will only grant condonation on good cause shown
i.e. when the Court is satisfied that the explanation advanced
justify the granting of the indulgence sought. In this appeal the
appellant could successfully have argued that he was unaware of the
time limit, but instead chose to advance reasons which are clearly
not true. Neither did he give those reasons on oath as he was
required to do.

[12] Condonation is
not there for the asking and applications for condonation (especially
those brought by lay persons) have become commonplace in criminal
appeals, which, in my view, emphasises the need for those
applications to meet the requirements set out in the rules of the
court and which should only be relaxed on good cause shown. As I
have indicated earlier, the appellant in his application did not
advance bona fide reasons
on oath explaining his non-compliance with the rules;

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reasons which, in my view,
would be reasonable and sufficient to show good cause and to grant
him the condonation sought.

[13] Ms. Kishi, from the outset, submitted that
when regard is had to the grounds raised by the appellant in his
Notice of Appeal, there were, in her view, no prospects of success on
appeal. Whereas she appeared amicus
curiae, the Court invited the appellant
to make submissions regarding the grounds he had raised in his
notice, which amounted to him requesting the Court to reduce his
sentence. I interpose here to remark that appellant did not advance
a single ground of appeal against sentence in the notice filed and it
only now came up when he was invited to argue the appeal before us.

[14] The view taken by Ms. Kishi is realistic
and consistent with the evidence adduced during the trial. The
grounds raised in the appellant’s notice, in broad outline,
amount to the following: That the presiding magistrate was bias by
not accepting the appellant’s version as being true; medical
evidence did not prove that it was him who committed a sexual act
with the complainant; and that the evidence was a fabrication by the
complainant and as such, inconsistent and contradictory.

[15] The evidence proved beyond reasonable doubt
that a sexual act had been committed with the complainant; that she
did not sleep at home on the night of the alleged incident; that
complainant’s footprints were seen coming from the appellant’s
room (the neighbour), leading directly to the house of Helaria Jonas
with whom complainant was staying; that after complainant reported to
Helaria that she had been raped by the appellant she examined the
complainant’s genitalia and observed Vaseline on it; that
appellant, when confronted, admitted to Helaria and David Shinana
that he had slept with the complainant “because he was drunk”;
and lastly, that from the medical report compiled in respect of the
complainant later the same day, two tears of approximately 0.5 cm in
size were observed on the labia minora.

[16] The complainant’s evidence was that
she was on her way home after sunset when the accused picked her up
and carried her into his room where he had sexual

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intercourse with her after he had applied Vaseline
to her genitalia. She thereafter fell asleep and early the next
morning he again had sexual intercourse with her whereafter he told
her to leave. Upon her arrival at home she woke Helaria and told her
what had happened. There is sufficient corroboration from the
evidence given by the witnesses Helaria and David; as well as the
medical evidence, that satisfied the trial court that complainant
told the truth namely, that the accused had
raped her.

[17] The evidence
beyond reasonable doubt proves that the appellant committed a sexual
act with the complainant who, at that stage, was 12 years of age.
His conviction therefore, is consistent with the proven facts and the
grounds raised by the appellant in his Notice of Appeal are nothing
more that unsubstantiated allegations, completely without merit.

[18] We therefore came
to the conclusion that there were no prospects of success on appeal
and for the reasons set out in this judgment, refused appellant’s
application for condonation.

_________________________

LIEBENBERG, A.J.

I agree.

_________________________

SHIVUTE, A.J.