REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 39/2012

In the matter between:

PAUL KANGA KANOGE
............................................................................APPELLANT

and

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

Neutral citation:
Kanoge v State (CA 39/2012) [2012] NAHCMD 45 (12 October 2012)

Coram: MILLER AJ
and PARKER AJ

Heard: 12
October 2012

Delivered: 12
October 2012

Flynote: Criminal
procedure – Notice of appeal – Such notice should clearly
set out grounds of appeal – This rule of practice is not to be
ignored without good cause.

Summary: Criminal
procedure – Notice of appeal – Such notice should clearly
set out grounds of appeal – Such grounds are required to enable
the State to apprise itself as to what case to meet and for the court
to properly adjudicate the appeal – It is also required for the
proper administration of criminal justice – There is no good
reason why the rule should not apply to legal practitioners and lay
appellants, too.

ORDER

The appeal against
conviction is dismissed.

JUDGMENT

PARKER AJ (MILLER AJ
concurring):

[1] The appellant
represents himself. The State is represented by Mr Kumalo who filed
heads of argument and he stand by it.

[2] The appellant
appeared in the Windhoek Regional Court on one count of theft of a
motor vehicle, read with the Motor Vehicle Theft Act 12 of 1999. He
pleaded not guilty to the charge. He was tried and convicted and
accordingly sentenced to 15 years’ imprisonment. The appellant
appeals against conviction only; and in his notice of appeal, the
appellant raises six grounds of appeal.

[3] I have given great
thought to what he says are the grounds; and having done so, I am
firmly of the opinion that, upon the authority of S v Gey van
Pittius and Another 1990 NR 35, there are no proper grounds
before the court. They are all conclusions drawn by the appellant. In
S v Gey van Pittius, Strydom AJP (as he then was) at 36H
stated:

‘The
purpose of grounds of appeal as required by the Rules is to apprise
all interested parties as fully as possible of what is in issue and t
bind the parties to those issues. (See further in this respect the
judgment of my Brother Frank AJ in the matter of S
v Wellington
(1990 NR 20) and the cases referred to therein.)’

[4] The principle
enunciated in S v Gey van Pittius has been followed in many
cases by the court. For instance in S v Kakololo 2004 NR 7 at
8F-9A, Maritz J (as he then was) developed the principle further and
explained it as follows:

‘The
noting of an appeal constitutes the very foundation on which the case
of the appellant must stand
or fall
(S
v Khoza
1979 (4) SA 757 (N) at 758B). It serves to inform the trial
magistrate in clear and specific terms which part of his or her
judgment is being appealed against, what the grounds are on which the
appeal is being brought and whether they relate to issues of law or
fact, or both … .

The
notice also serves to inform the respondent of the case it is
required to meet and, regard being had to the record and the
magistrate’s reasons, whether it should concede or oppose the
appeal. Finally, it crystallizes the disputes and disputes and
determines the parameters within which the Court of Appeal will have
to decide the case (Compare: S v Maliwa and Others 1986
(3) SA 721 (W) at 727; S v Nel 1962 (1) SA 134 (T) at 135A;
and R v Lepile 1953 (1) SA 225 (T) at 230H.)

Consequently,
it also serves to focus the minds of the Judges of Appeal when
reading the (sometimes lengthy) record of appeal, researching the law
in point, considering argument and adjudicating the merits of the
appeal.’ (My emphasis)

[5]
Upon the authorities, I find that there are no grounds of appeal
which this court may consider in adjudicating the merits of this
appeal. Granted, the appellant is a lay litigant and he represents
himself; but these are not cogent reasons to persuade this court not
to follow S v Gey van Pittius and
S v Kakololo. Indeed,
there are no merits in the grounds that call on this court to
adjudicate. I, therefore, hold that this appeal must fail.

[6] In the result the
appeal against conviction is dismissed.

-----------------------------

C Parker

Acting Judge

-----------------------------

P J Miller

Acting Judge

APPEARANCES

APPELLANT : In Person.

RESPONDENT: P S Kumalo

Of Office of the Prosecutor-General,
Windhoek.