CASE NO.: CA 47/2011

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

PHIRI KHITA
….....................................................................................APPELLANT

and

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

CORAM: LIEBENBERG, J et
TOMMASI, J.

Heard on: 24 February 2012

Delivered on: 24 February 2012 (ex
tempore)

APPEAL JUDGMENT

LIEBENBERG,
J.: [1]
The appellant in this matter was convicted in the Magistrate’s
Court, Oshakati on the 24^th
of June 2011 on a
charge of contravening s 56 (e) of the Immigration Control Act¹
and sentenced to a
fine of N$12 000 or 3 years’ imprisonment, partly suspended on
condition of good conduct.

[2] On the 27^th
of June 2011 a
notice of appeal was filed, supported by a power of attorney, as
required by the rules²
appealing against
conviction and sentence. The notice was drawn by Ms Kishi,
his legal representative, who still represents the appellant in this
Court. In counsel’s heads of argument filed prior to the
hearing of the appeal, it is reflected that appellant now abandons
his appeal against sentence. Consequently, the appeal only lies
against conviction.

[3] Mr Shileka,
appearing for the respondent, raised the question as to whether the
power of attorney mandated Ms Kishi
to lodge an appeal
against conviction in that she (only) had the authority from the
appellant, as set out in the power of attorney, to do the following:

“ … to
be [appellant’s] true and lawful Legal Practitioner(s) and
Agent(s) in [his] name, place, and stead, to appear before the High
Court of Namibia or wherever else may be necessary and then and there
as [his] act and deed to
note an appeal against the Magistrate’s ruling.”
(sic)

[emphasis and insertion provided]

Hence, so it was
argued, counsel for the appellant had no mandate as the power of
attorney does not authorise her to prosecute an appeal against
conviction (and sentence³).
In support of this contention we were referred to the matter of Imms
Zuhupirapi Kavari v The State⁴
where the Court was
faced with a similar situation in that the power of attorney in that
case mandated counsel to lodge an appeal against sentence (only);
whereas the appeal prosecuted by his counsel was against conviction
and sentence.
The Court ultimately found that counsel had lodged an appeal against
conviction without
the required
mandate, and the matter was consequently removed from the roll.

[4] There is no
need to repeat what has been stated in the Kavari
(supra) case.
After considering civil case law⁵
as well as the
commentary of the learned authors, Herbstein and Van Winsen –
The
Civil Practice of the High Courts of South Africa, (5^th
Edition)⁶,
where it was inter
alia said
that “A
power of attorney is a document which is strictly construed and must
be drawn carefully” and “A power of attorney to defend an
action … must therefore be carefully drawn”, the
Court, at para [21], concluded that this equally applies to criminal
proceedings. I am in respectful agreement with the Court’s
finding.

[5] Turning to the
appeal under consideration, it is evident that the appellant
authorised his legal practitioner to prosecute an appeal against a
ruling
made by the trial
court – nothing more. To which ruling reference is being made,
is not clear as the trial court made at least four different rulings
during the trial i.e. on the recusal or not of the magistrate;
whether the content of documents the State relied on as evidence was
admissible or not; and the s 174 application brought by the defence
at the close of the State case.

[6] It is trite law
that rulings made by the trial court during the course of a trial, by
itself, where such ruling is not a final order or judgment but
interlocutory in nature, are not appealable.⁷
Although the
appellant could have noted an appeal against the ruling in which the
magistrate refused to recuse himself from the case – albeit
without substance – it is plain from the notice of appeal
filed, that this was never intended. The grounds raised in the notice
of appeal all lie against the appellant’s conviction and not
against a specific ruling of the court a
quo.

[7] The noting of the appeal against
conviction clearly exceeds the authority given to counsel in the
power of attorney and therefore does not satisfy the requirements set
out in Rule 67 (1). Whereas the defect in the power of attorney has
not been rectified before the matter came before us on appeal, the
only conclusion to come to is that there is no valid appeal before
this Court.

[8] Consequently, the matter is struck
from the roll.

_________________________

LIEBENBERG, J

I concur.

___________________________

TOMMASI, J

ON BEHALF OF THE APPELLANT Ms F
Kishi

Instructed by: Kishi Legal
Practioners

ON BEHALF OF THE RESPONDENT Mr R
Shileka

Instructed by: Office of the
Prosecutor-General