CASE NO.:
5/2012

IN THE HIGH
COURT OF NAMIBIA

In the matter
between

ANDREAS VAN
TAAK
…..............................................................APPELLANT

versus

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

CORAM: VAN
NIEKERK, J et UEITELE, J.

Heard on: 02 JULY
2012

Delivered on: 25
JULY 2012

APPEAL JUDGMENT

_________________________________________________________________________

UEITELE, J.:
[1] The appellant was charged in the Magistrate’s Court for
the district of Karasburg with two separate counts, the first count
being the offence of malicious damage to property. The appellant also
faced an alternative charge to the first main count, namely that he
contravened section 38 (1)(l) read with Sections 38 and 39 of the
Arms and Ammunitions Act, 1996, (Act No. 7 of 1996). The second count
which the appellant faced was that he contravened section 38 (1)(i)
read with Sections 38(1), 38(2) and 39 of the Arms and Ammunitions
Act, 1996, (Act No. 7 of 1996).

[2] On the 10^th
of November 2010 the appellant was convicted in respect of the first
main count (namely malicious damage to property) and on the second
count. (The record indicates guilty of contravening section 38(1)(l)
of Act 7 of 1996).

[3] On the same
day (i.e. on 10^th of November 2010) the appellant was
sentenced as follows:

(a) In respect of
count 1, to pay a fine of N$ 1 500-00 or serve fifteen months
imprisonment in default of payment.

(b) In respect of
count 2, to 6 (six) months imprisonment suspended in whole for five
years on condition that the accused is not convicted of contravening
section 38(1) (l) of Act 7 of 1996 committed during the period of
suspension.

Dissatisfied with
his conviction and sentence the appellant appealed against both
conviction and sentence.

[4]
Before us the appellant argued his appeal in person while Ms
Husselman appeared for
the respondent. The respondent raised two points in
limine. The first
point raised is that the
appellant’s notice of appeal does not satisfy the requirements
set out
in the rules¹
in that the ‘letter’
on which the appeal is based does not constitute a valid notice of
appeal in that no grounds are advanced upon which either the
conviction or sentence are attacked. The second point in
limine relates to
the time of noting the appeal. At the hearing of the appeal the
respondent abandoned the second point in
limine when the
appellant produced a hand written notice of appeal indicating that
the appeal was indeed noted within the time prescribed in the rules.

[5]
The
notice filed by the appellant is addressed to the High Court of
Namibia and is in the form of a letter with the subject heading “PA
VAN TAAK: APPEAL AGAINST VERDICT IN THE MAGISTRATE COURT KARASBURG
DATE 10 -11-2010”. In the letter appellant amongst others
states that:

“(a)
…I herewith wish and beg to appeal to the Honourable High
Court of Namibia against the conviction and sentence imposed by the
said presiding Magistrate.

(b)
My reason for the appeal against conviction and sentence are as
follows:

The
prosecution failed to prove and lead evidence to proof that the
offences was (sic) committed and that most essential part of
the crime was proofed (sic) and or the accused acted
intentionally or unlawful…”

[6]
I agree with Ms Husselman’s submission that the courts have on
many occasions emphasised the requirements for clear and specific
grounds of appeal and the importance of a proper notice of appeal².
I,
however, also take note of the fact that in each case the Appeal
Court must interpret the notice of appeal to assess its compliance or
otherwise with the requirements set by the law.

[7]
In this case, the
letter which launches the appeal was written by a lay person without
assistance of a lawyer. I therefore find the comments of Van Niekerk
J³,
fitting this matter when she said:

“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....”

[8] In the present
matter the appellant actually sets out the basis of his appeal . He
is stating that the magistrate misdirected himself as there was not
sufficient evidence to sustain a conviction, he further argues that
he acted in self-defence when he shot the dog. I am able to make out
what the substance of the complaint is, and 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.

[9] I now turn to
the merits of the appeal. The learned magistrate did not provide
further reasons when the notice of appeal was served on him, but
remarked that the reasons for judgment and sentence are included in
the judgment. The learned magistrate’s ex tempore
judgment with respect to conviction is very brief. It reads as
follows:

“The available
evidence reflects that accused was the aggressor from the time he
arrived at the farm stead of the complainant. His aggressive conduct
continued until the time of arrival of the complainant. Such
aggression caused the assault and attack by the dog. After that the
accused had a choice to leave the farm and to report to the Police
and seek medical attention. Instead he returned to the scene with a
clear intention to shoot the dog. He fulfilled his intention. The
court finds the main count charge against him in count 1 proven. In
respect of count two the court finds it proven that the accused
handled a firearm in a manner that put the lives of other people at
risk. The evidence available therefore proves a contravention of
section 38 1(l).”

[10] The issue
which we are called upon to decide is whether the appellant was
correctly convicted both on the main charge on the first count and on
the second count. I will deal with the second count first.

[11]
The second count alleges that the appellant is guilty of a
contravention of section 38 (1)(i) read with Sections 38(1),
38(2) and 39 of the Arms and Ammunitions Act, 1996, (Act No. 7 of
1996). Section 39 of the Arms and Ammunition Act creates certain
presumptions which are not relevant to this matter. The provisions of
section 38 which are relevant to the charges which the appellant
faced in material terms provide as follows:

“38
Offences and penalties

(1) Any person who-

(a) …

(i) willfully points
any arm or air rifle which is not an arm at any person;

(l) discharges an
arm and thereby negligently kills, injures, endangers the life or
limb of another person or damages property of any other person, or
who handles an arm in a negligent manner, whether that arm discharges
or not; …

shall be guilty of
an offence.

(2) Subject to the
provisions of this section, any person convicted of an offence under
this Act shall be liable-

(a) …;

(d) in the case of a
contravention of any other provision of this Act, to a fine not
exceeding N$4 000 or to imprisonment for a period not exceeding one
year or to both such fine and such imprisonment.”

[12]
In coming to the conclusion that the appellant was guilty of the
second count the magistrate reasoned as follows: ‘in
respect of count two the court finds it proven that the accused
handled a firearm in a manner that put the lives of other people at
risk. The evidence available proves a contravention of section 38
1(l)’.

[13]
The misdirection in the learned Magistrate’s reasoning is
obvious. The second count with which the appellant was charged is a
contravention of section 38(1)(i) of the Arms and Ammunition Act,
1996 and not contravention of section 38(1)(l). The charge of
contravening section 38(1)(l) of the Arms and Ammunition Act, 1996
was an alternative to the main first count and since the appellant
was convicted on the main count he could not also be convicted on the
alternative count⁴.

[14] I have taken
into consideration that the reference to section 38(1)(l) in the
Magistrate’s judgment might be a writing error or ‘slip
of the tongue’ and ought to have been 38(1)(i). However, the
Magistrate’s finding that the accused handled the firearm in a
manner that put the lives of other people at risk is to my mind an
indication that he was in fact intending to convict the appellant of
a contravention of section 38(1)(l) and not section38 (1)(i). In any
event, the State in the court a quo conceded that there was
not sufficient evidence to find the appellant guilty of contravening
section 38(1)(i) of the Arms and Ammunition Act, 1996. In my view it
would be unfair towards the appellant to now, on appeal and without
prior notice, resurrect that charge after the State in the court a
quo has conceded defeat. I also do not understand Ms Husselmann
to submit that this should be done.

[15]
However, the matter does not end there. The prosecutor in the lower
court submitted that the appellant should be found guilty on the
offence of common assault as being a competent verdict.
On appeal the respondent did not address us on the submissions made
by the State in the court a
quo. Even if it
could be argued that common assault is a competent verdict on a
charge of pointing a firearm⁵,
I have in the present matter an unresolved problem, and that is, it
does not appear anywhere on the record that the appellant was given
any notice that he was in danger of being convicted of an offence
which is a competent verdict of the offence with which he was
originally charged. In the case of S
v Mkize⁶,
it was held that although it is not necessary to charge an offence
which constitutes a competent verdict as an alternative, the dictates
of common fairness require that an accused person who faces the
danger of being convicted of such an offence must be given some sort
of notice of the danger.⁷

[16]
I am furthermore of the view that Article 12(1)(a) of the Namibian
Constitution which confers upon every accused person a right to a
fair trial, includes, amongst others, the right to be informed of the
charge with sufficient detail to answer it.⁸
I am thus of the view that
conviction on a competent verdict where there is a failure to inform
an accused person that he is in danger of being so convicted amounts
to an unfair trial.

[17] In the
circumstances the conviction and consequent sentencing in respect of
count 2 must accordingly be set aside.

[18] With respect
to the first main count the appellant’s attack upon the
conviction appears to be twofold. First it is based on the allegation
that the ‘prosecution failed to proof (sic) and lead
evidence to proof that the offences were committed’. In
this regard the appellant relies thereon that his plea of
self-defence was incorrectly rejected.

[19] The state
called three witness and all the three witnesses gave vivid and
credible accounts of how the appellant was bitten by the dog and how
he left the farm, returned and shot the dog. I am in agreement with
the Magistrate’s observation that on the ‘available
evidence that the appellant was the aggressor and that appellant’s
aggressive conduct caused the assault and attack by the dog. After
that the accused had a choice to leave the farm and to report to the
Police and seek medical attention. Instead he returned to the scene
with a clear intention to shoot the dog.’ I can therefore
not fault the Magistrate when he rejected the appellant’s
allegation that he acted in private defense.

[20] The attack on
the conviction is secondly based on certain alleged irregularities
namely the curtailing of the appellant’s cross-examination by
the prosecutor. (Appellant appears to also allege that the court
stopped him when he was cross-examining one witness).

[21] The appellant
did not refer us to a specific incident where he was stopped from
cross-examining a witness. I agree with Ms. Husselman where she
argued that: “It seems that the appellant is referring to an
objection against the appellant’s attempt at eliciting what the
prosecutor termed “hearsay evidence” from a State witness
during cross examination and the court sustained the objection.”
The appellant was not stopped from cross-examining the witness,
but only in relation to the specific aspect, to which the appellant
indicated that he would call the particular witness who could testify
about the matter. He also did so. In my view the appellant was not
prejudiced by the objection being upheld.

[22] In my view
there is no merit in the submissions by the appellant that he was
wrongly convicted on the first main count and the appeal against the
conviction on the first main count must therefore be dismissed.

[23] The
appellant, in his ‘letter of appeal’ indicated that the
appeal is noted against both conviction and sentence, but in his
letter and oral arguments in court the appellant did not mention
anything against the sentence. In light hereof this aspect is not
considered further.

[24] In the result
I make the following order:

1. 
   The appeal fails
   in respect of the conviction and sentence on the first main count.

   
   

2. 
   The conviction
   and sentence in respect of the second charge are set aside.

   
   

______________________

UEITELE J

I agree.

______________________

VAN NIEKERK, J

COUNSEL ON
BEHALF OF THE APPELLANT: In Person

COUNSEL ON
BEHALF OF THE RESPONDENT: Ms. Husselmann INSTRUCTED BY: OFFICE OF THE
PROSECUTOR -GENERAL