SUMMARY
REPORTABLE
CASE NO.: CA
16/2009
HAMWAAMA AND
OTHERS
v
ATTORNEY-GENERAL
AND OTHERS
Heard
on: 2009 April 27
Delivered
on: 2009 June 5
HOFF,
J et
PARKER, J
____________________________________________________________________
Criminal
procedure - Appeal
– Application for leave to appeal in criminal proceedings –
Irrespective of constitutional challenge in criminal proceedings the
nature of proceedings is not converted thereby into civil.
Criminal
procedure - Appeal
– Application for leave to appeal – Court holding that applicants
have failed to indicate reasonable possibility that Supreme Court may
take different view and also to show there are reasonable prospects
of success on appeal – Accordingly Court dismissing appeal.
Criminal
procedure - Appeal
– Application for leave to appeal against conviction and sentence
already refused by trial Court – Trial Court having no jurisdiction
to entertain a second application for the same relief.
Criminal
procedure - Appeal
– Application for leave to appeal to Supreme Court – Application
for leave to appeal already refused by trial Court – Petition to
Chief Justice also dismissed – Once Chief Justice has refused
application there can be no further application for leave to appeal.
REPORTABLE
CASE NO.: CA
16/2009
IN THE HIGH
COURT OF NAMIBIA
In the matter
between:
TUHAFENI
HELMUTH HAMWAAMA 1st
Applicant
THOMAS
HEITA 2nd
Applicant
KAIN
MCNAB 3rd
Applicant
FREDIS
KAVALE 4th
Applicant
and
THE
ATTORNEY-GENERAL OF NAMIBIA 1st
Respondent
THE MINISTER OF
JUSTICE 2nd
Respondent
THE
PROSECUTOR-GENERAL OF NAMIBIA 3rd
Respondent
CORAM: HOFF, J
et
PARKER, J
Heard on: 2009
April 27
Delivered on: 2009
June 5
__________________________________________________________________
JUDGMENT:
PARKER, J.:
[1] In the present
matter (CA 16/09) the applicants have sought leave to appeal against
this Court’s decision (in Case No.: A 176/07) on an application
(“the constitutional challenge”) in which the applicants had
prayed for orders in the following terms (set out, hereunder,
verbatim):
(1) Granting
the applicants an order of enforcement or protecting the applicants’
fundamental rights and freedoms guaranteed by the Constitution
Articles 10, 12, (1) (a), (c),(e) and 138 (c).
Declaring
the in-chambers consideration and refusal decision of the
applicants’ petitions for leave to appeal to the Supreme Court of
Namibia in terms of Section 316 (6), (7) and (9) (a) of the Criminal
Procedure Act, Act 51 of 1977, to be null and void and setting aside
the refusal decision of 19 July 2000 and 14 March 2005.
Declaring
the following parts of the Criminal Procedure Act, Act 51 of 1997,
Section 316 (6), (7) and (9) (a) to be unconstitutional and in
conflict with the constitution of Namibia and setting aside the
subsections in question.
Granting
the applicants an order for a fair and pubic hearing and prosecuting
their appeals against their trial proceedings, conviction and
sentence to the finality in the Supreme Court of Namibia.
That
the Honourable Supreme Court of Namibia be directed that the
applicants’ appeals be dealt with in a reasonable time as a matter
or urgency.
[2] The
applicants appear in person. The 2nd,
3rd
and 4th
applicants confirmed to the Court that the 1st
applicant would argue their application for them and on their behalf.
Ms Katjipuka-Sibolile represents the respondents. Counsel informed
the Court that the respondents would not persist in their preliminary
objection to condonation of the applicants’ late filing of their
so-called “Notice of Appeal”. It follows that I proceed to
consider the merits of the application.
[3] An official in
the office of the Registrar completely misunderstood the nature of
the application in Case No.: A 176/07, and so he or she treated the
aforementioned matter as if it were an application in civil
proceedings. Under such glaring misapprehension, the official opened
a new case file and wrongly gave that matter a new Case Number, a
Case Number reserved for application in civil proceedings, i.e. “Case
No.: A 176/07”, instead of a Case Number with the notation “CA”
which is for criminal appeal.
[4] This gross
misapprehension of the law and the Rules of Court led to a litany of
confusion. For instance, the heading of a letter addressed to “The
Assistant Registrar” of the Supreme Court by an official, on behalf
of the Registrar, reads “Re: Civil Appeal, A 176/07 to Supreme
Court, T Hamwaama and
3 others. This
letter, dated 11 September 2008, enclosed “3 copies and the summary
judgment”.
[5] To start with,
the judgment that this Court delivered on 31 July 2008 (“the 31
July 2008 judgment”) in the aforementioned Case No.: A 167/07
respecting the aforementioned constitutional challenge is not a
“summary judgment” by any stretch of legal imagination. By a
parity of reasoning and equally important, the appeal that the
applicants now seek this Court’s leave to pursue in the Supreme
Court against the abovementioned 31 July 2008 judgment of this Court
is not – and cannot be – a civil appeal: it is an appeal in
criminal proceedings; that is, a progression of the said criminal
proceedings in which this Court convicted the applicants and
thereafter on 16 August 1999 sentenced them to prison terms.
[6] What happened
after this Court had sentenced the applicants, as aforesaid, has been
set out briefly at p7 of the 31 July 2008 judgment thus:
Having
had their leave to appeal against conviction and sentence refused by
this Court, the 1st,
2nd
and 3rd
applicants petitioned the Chief Justice for leave to appeal. Their
petition was considered by three judges of the Supreme Court
“according to law” and refused on 19 July 2000. The 4th
applicant’s petition suffered a similar fate on 14 March 2004.
These are the main, relevant facts in the present matter, and they
are not in dispute. Consequently, in my view the question this Court
is called upon to determine is primarily a matter of constitutional
law; and that is the manner in which we approach this case.
[7] I have
sketched this background to bring home the significant point that all
these proceedings are criminal proceedings and not civil proceedings.
The fact that the applicants mounted a constitutional challenge in
criminal proceedings did not by that reason convert the nature of the
proceedings from criminal to civil. (See S
v Strowitzki 1994 NR
265.) In this regard, it would seem Ms Katjipuka-Sibolile also
misread the true nature of the application in Case No.: A 176/07.
[8] Thus, as far
as we are concerned, the applicants now seek leave to appeal against
a judgment of this Court, sc. the 31 July 2008 judgment, in criminal
proceedings. That is the manner in which we approach the instant
application for leave to appeal: it is leave to appeal in criminal
proceedings.
[9] In S
v Nowaseb 2007 (2)
NR 640 at 640F-641A, I had this to say concerning application for
leave to appeal:
It
has been stated in a long line of cases that in an application of
this kind, the applicant must satisfy the Court that he or she has a
reasonable prospect of success on appeal (See, e.g., Rex
v Nxumalo
1939 AD 580; Rex
v Ngubane and Others
1945 AD 185; Rex
v Ramanka
1948 (4) SA 928 (O); Rex
v Baloi
1949 (1) SA 523 (A); Rex
v Chinn Moodley
1949 (1) SA 703 (D); Rex
v Vally Mahomed
1949 (1) SA 683 (D & CLD); Rex
v Kuzwayo
1949 (3) SA 761 (A); R
v Muller
1957 (4) SA 642 (A); The
State v Naidoo
1962 (2) SA 625 (A); S
v Cooper and Others
1977 (3) SA 475 (T); S
v Sikosana
1980 (4) SA 559 (A).) The first ten sample of cases adumbrated above
were decided before the coming into operation of the new Criminal
Procedure Act, 1977 (Act 51 of 1977) (CPA), but the test remains
unchanged. (Sikosana,
supra,
at 562D)
Thus,
an application for leave to appeal should not be granted if it
appears to the Judge that there is no reasonable prospect of success.
And it has been said that in the exercise of his or her power, the
trial Judge (or, as in the present case, the appellate Judge) must
disabuse his or her mind of the fact that he or she has no reasonable
doubt as to the guilt of the accused. The Judge must ask himself or
herself whether, on the grounds of appeal raised by the applicant,
there is a reasonable prospect of success on appeal; in other words,
whether there is a reasonable prospect that the court of appeal may
take a different view (Cooper
and Others,
supra,
at 481E; Sikosana,
supra,
at 562H; Muller,
supra,
at 645E-F). But, it must be remembered, “the mere possibility that
another Court might come to a different conclusion is not sufficient
to justify the grant of leave to appeal.” (S
v Ceaser
1977 (2) SA 348 (A) at 350E)
[10] We
respectfully adopt the dicta by Diemont, JA, which, in our opinion,
must apply mutatis
mutandis to the
present application for leave to appeal. In the 31 July 2008
judgment, this Court gave a fully reasoned judgment when it dismissed
the applicants’ constitutional challenge. It will serve no useful
purpose to rehearse the reasons for our decision thereanent in this
judgment. I have given great thought objectively to the present
application and, disabusing my mind – as far as is humanly possible
– of the fact that we had no doubt that the applicants’
constitutional challenge had no merit, I have not one iota of doubt
in my mind that there are no reasonable prospects at all that the
Supreme Court may take a different view. It follows that in our
judgment the applicants have failed to show that they have reasonable
prospects of success on an appeal to the Supreme Court.
[11] That is not
the end of the matter: in a disingenuous rearguard action, the
applicants now say that they seek leave to appeal only in respect of
prayer (1) (which is set out above). The gravamen of their argument
in this regard is briefly that there were irregularities in the
proceedings during their trial and therefore they did not receive a
fair trial which it is their constitutional right to receive in terms
of Article 12 of the Namibian Constitution. This argument, with the
greatest deference, is absolutely devoid of a modicum of merit.
Whether there were irregularities during the trial and so the guilt
of the accused had not been proved beyond a reasonable doubt and,
therefore, the Supreme Court might take a different view was what the
Court hearing the application for leave to appeal in December 1999,
as aforesaid, considered in order to have come to the conclusion that
the applicants did not have reasonable prospects of success on
appeal, and accordingly refused their application. It follows that
we accept Ms Katjipuka-Sibolile’s submission on the point.
[12] Thus, in this
regard, it cannot be emphasized enough that the applicants’
application for leave to appeal to the Supreme Court against
conviction and sentence was refused by this Court as far back as
December 1999, as I have said previously, and that led to the
applicants petitioning the Chief Justice for leave to appeal to the
Supreme Court. Their petitions were also refused by the Chief
Justice (in respect of the 1st
and 3rd
applicants on 19 July 2000, in respect of the 4th
applicant on 19 November 2004, and in respect of the 2nd
applicant on 14 March 2005).
[13] It follows as
a matter of course and inexorably that since the applicants’
application for leave to appeal to the Supreme Court against their
conviction and sentence has already – as far back as December 1999
– come before this Court, qua
trial court, this Court is functus
officio in regard to
the present second application for the same relief, even if the
applicants have, with respect, unabashedly by a puerile chicanery
attempted to disguise the true nature of the second application.
(See S v Vontsteen
1972 (4) SA 1 (T) (Head note); S
v Singh 1994 (2)
SACR 653 (D).) In pith and substance, the present second application
is indubitably also an application for leave to appeal against the
applicants’ conviction and sentence. Furthermore, the decision of
the Chief Justice to refuse the applicants’ petitions for leave to
appeal to the Supreme Court is final (R
v Maharaj 1958 (4)
SA 246 (A); S v
Gavanozis 1979 (1)
SA 1020 (W)). Accordingly, I hold that the applicants have
completely exhausted the leave-to-appeal process open to them by the
Rules of Court, and they have failed. They cannot have a second bite
at the cherry; the bus stops here in their case and for them.
[14] Additionally,
and this is significant, the hollow trickery of the applicants
amounts to a superlatively gross abuse of the process of the Court at
which the Court must frown: such conduct should not and cannot be
countenanced by the Court under any circumstances.
[15] For all the
above findings, reasoning and conclusions, the application for leave
to appeal is dismissed.
___________________________
Parker, J
I agree.
___________________________
Hoff, J
ON BEHALF OF
THE APPLICANTS: In
person
ON BEHALF OF
THE RESPONDENTS: Ms
U. Katjipuka-Sibolile
Instructed
by: The Government-Attorney