Court name
High Court
Case number
CA 49 of 2010
Title

S v Thom (CA 49 of 2010) [2011] NAHC 323 (28 October 2011);

Media neutral citation
[2011] NAHC 323
Coram
Liebenberg J
Tommasi J

















CASE NO.: CA
49/2010


IN
THE HIGH COURT OF NAMIBIA


HELD
AT OSHAKATI






In
the matter between:






UAHORINUA
THOM

…......................................................................APPELLANT


and


THE
STATE
…...........................................................................RESPONDENT






CORAM:
LIEBENBERG J & TOMMASI J


Heard
on: 21 October 2011


Delivered
on: 28 October 2011












APPEAL
JUDGEMENT



TOMMASI J:
[1] This is an appeal against the conviction of the appellant in the
district court of Opuwo and the sentence imposed by the regional
court sitting at Opuwo.








[2] The appellant
and a co-accused were charged with theft taking into considerations
the provisions of section 11(1)(a), 1, 14 and 17 of the Stock Theft
Act, 12 of 1990 as amended. The appellant and his co-accused pleaded
not guilty but were convicted as charged. Subsequent to the
conviction, the accused were committed to the regional court for
sentence. Both the appellant and his co-accused were sentenced to
twenty (20) years imprisonment of which fifteen (15) years were
suspended for five years on condition that the accused are not
convicted of stock theft read with the Stock Theft Act, 12 of 1990 as
amended, committed during the period of suspension.








[3] The appellant
appeared in person and the State was represented by Mr Lisulu. The
Respondent applied for condonation of the late filing of the Heads of
Argument. The appellant did not oppose the application for
condonation. The Heads of Argument was served on the appellant in
time for him to peruse it and the explanation advanced for this
omission was reasonable. The Court therefore granted condonation for
the late filing of the Heads of Argument.








[4] The notice of
appeal was filed outside the time period prescribed by rule 67 of the
Magistrate’s Court Rules. The appeal was noted approximately 7
months out of time. The appellant explained that he is a layman and
that he has never had any formal education. He was assisted by a
fellow inmate who advised him to obtain a copy of the record of
proceedings. He received the proceedings after a month. He confirms
that he was informed of his right of appeal. Mr Shileka indicated
that the respondent considered the explanation tendered by the
appellant to be reasonable in view of the fact that the appellant was
not informed of the provisions of rule 67 (2) of the Magistrate’s
Court Rules which provides that,
if
the appellant is unable, owing to illiteracy or physical defect, to
write out the notice of appeal, the clerk of the court shall, upon
his request, do
so.



[5] Mr Shileka
however argued that condonation should only be granted herein if
there are reasonable prospects of success and in his view, there are
reasonable prospects that the appellant may succeed on appeal against
sentence; but there are no prospects of success in respect of the
conviction. For reasons stated hereunder it would not be necessary
for the Court to consider the application for condonation by the
appellant.







[6] Counsel for
respondent however, in his heads of argument, pointed out that the
notice of appeal does not comply with rule 67(1) of the Magistrate’s
Court Rules in that it does not clearly and specifically set out the
grounds of appeal against conviction; and it does not contain any
grounds of appeal against sentence. The appellant made oral
submissions that the sentence imposed was “too long.”








[7] The
appellant’s notice of appeal, quoted verbatim reads as follow:



STATUS OF THE CASE
The case is a stock theft case and I was sentenced for a. five (5)
years imprisonment sentence. My part at the case they are implicating
me off producing a permit and act for someone to sell a cattle.



The grounds of my request of
notice of my appeal



A.



I need your honourable the
case to be reviewed. I am not happy and satisfied with the outcome of
the court for sentencing me upon the case I did not commit it all.
That’s why I request for the review of my case. I don’t
know anything upon the matter. The guy who sold the cattle is from
our village he used to come and buy cattIes and go with them. I just
know the guy but is not my family or in same business. In this case
in the court I asked where is the permit I gave to the buyer for that
person who sold the cattle they are implicating me as an agent while
there is no evidence and they failed to produce any paper as proof in
the court that’s why I give notice of appeal against the case
and the sentence for review.



B



In the court the buyer or
the witness I asked him in court where is the paper I gave you as a
permit. He answered saying the paper got lost he don’t have
that paper. And the court also asked the man whether he know us me
and the guy who sold the cattle. He replied like this me ‘Uahahonina
Thom’ I only gave him a permit only. And another guy he sold
the cattle. This is the issue I am against at all.







C.



The day I was sentenced I
was on bail. Then the prosecutor and the complainant they hold as
meeting afternoon before the court proceedings and hey agreed upon to
sentence me with the magistrate saying the questions I am asking are
not effective.



Honourable the matter is not
fair at all so can you please let the case be reviewed brought back
to court and all people must produce the evidence so that it can be
fair.



So your honourable I left
the issue in your hands and looking forward to your response.



Dated at Oluno
Rehabilitation Centre Ondangwa, on this 4th of September
2009.” (sic)











[8] The above
quoted notice does not make any sense at all. It is all too clear
that the person who drafted the notice of appeal was not conversant
in English and that he/she does not have any knowledge of the
provisions of rule 67(1) of the Magistrate’s Court Rules. This
is but one of many appeals where notices of appeal are drafted by
fellow inmates. In S v KAKOLOLO 2004 NR 7 (HC) the need for
clear and specific grounds was spelled out. The Court held that the
noting of an appeal constitutes the very foundation on which the case
of the appellant must stand or fall and cautioned that any relaxation
of these rules would cause the administration of justice to
degenerate into disorder. Although this was stated in a case where
the appellant was represented, the same result would follow if this
Court would relax the rules in cases where the appellants are
unrepresented. The above quoted notice cannot by any standards be
considered a proper notice of appeal and it furthermore does not
contain any grounds of appeal against sentence. There is thus no
proper appeal before this Court.











[9] The
magistrates need to inform illiterate appellants that they may
approach the clerk of the court to assist them with the drafting of
the notice of appeal in order to avoid appellants turning to fellow
inmates who do more harm than good. This Court cannot afford to relax
the rules and allow for the administration of justice to fall into
disrepute.







[10] In the result
this matter is struck off the roll.



























___________________________







Tommasi J























I agree



























___________________________


Liebenberg
J




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