Court name
High Court
Case number
CA 42 of 2001
Title

S v Kakololo (CA 42 of 2001) [2002] NAHC 6 (15 November 2002);

Media neutral citation
[2002] NAHC 6










THE
STATE v. TUAFENI KAKOLOLO



CASE NO. CA 42/2001







2002/14/15







Hannah, J et Maritz, J.











CRIMMINAL PROCEDURE


















Appeals – from lower court -
Rule 67 of Magistrates’ Courts Rules requiring notice of appeal
to set out clearly and specifically the grounds of appeal –given
the objective of expeditious and fair adjudication of appeals, the
rule for good reason formulated in peremptory terms – notice not
stating any grounds of appeal but only intention to add them later
– notice of amendment and application for condonation filed –
notice constitutes the very basis of the appeal - if notice does
not comply with rule, it is not a valid notice and as such no
notice at all – it is a nullity having no force and effect –
it is incapable of being resurrected or revived by amendment or
condonation – appeal struck from the roll.










































































CASE NO. CA 42/2001






IN THE
HIGH COURT OF NAMIBIA













TUHAFENI
KAKOLOLO



Appellant






versus













THE STATE



Respondent









CORAM: HANNAH,
J. et MARITZ, J.





Heard
on: 2002/11/08


Delivered
on: 2002/11/15


_____________________________________________________________________


APPEAL
JUDGMENT


­­MARITZ,
J.:
The appellant was charged with and convicted in the Regional
Court of the crimes of robbery (with aggravating circumstances) and
attempted murder. Both counts were taken together for purposes of
sentence and the appellant was sentenced to 20 years imprisonment on
27 March 2001. Dissatisfied with his conviction and the sentence
subsequently imposed, he belatedly caused his legal representative to
file a notice of appeal on 5 June 2001. The body of the notice, which
is of importance for purposes of this judgment, reads as follows:






“Take notice that the abovementioned appellant hereby gives notice
of his intention to appeal to the High Court of Namibia against his
conviction and subsequently imposed sentence on charges of armed
robbery and attempted murder, passed on 27 March 2001 by his Learned
Magistrate Mr. G. Retief, in the Regional Court for the district of
Windhoek.







Take further notice that, once a certified copy of the transcribed
trial proceedings have been made available for perusal and scrutiny
of same, a supplementary notice of appeal is to be filed subsequent
thereto, same to set out fully the grounds whereupon the appellant is
to base his appeal.







Please also note that a proper application for condonation, on
notice of application, of the late filing of the notice of appeal,
will be filed in time.”






A
supplementary notice of appeal, listing the grounds on which the
appellant sought to prosecute the appeal, was eventually filed more
than three months later. When, after the expiry of yet another 12
months, the appeal was first called in this Court, the appellant
applied for a postponement to rectify omissions in the record of
proceedings. On that occasion the Court pertinently enquired from his
counsel whether, given the failure to state any grounds in the notice
of appeal as required by Magistrates’ Courts rule 67, it could be
said that there was an appeal - properly brought - before us. Counsel
thought that it was properly noted. The submission notwithstanding,
the Court required of the appellant to take such steps as are
required in law to bring his appeal properly before the Court or, if
he were to persist with his stance, to argue the point on the date of
remand. He opted for the latter and, after hearing argument on the
point, the appeal was struck from the roll for reasons to follow.
These are the reasons.





Rule 67(1)
of the Magistrates’ Courts rules requires that convicted persons
desiring to appeal under section 309(1) of the Criminal Procedure
Act, 1977, “shall within 14 days after the date of conviction,
sentence or order in question, lodge with the clerk of the court a
notice of appeal in writing in which he shall set out clearly and
specifically the grounds, whether of fact or law or both fact and
law, on which the appeal is based…”.





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. It
is with reference to the grounds of appeal specifically relied on
that the magistrate is required to frame his or her reasons under
Magistrates’ Courts Rule 67(3). Once those reasons have been given,
the appellant may amend the notice of appeal under subrule (5) and
the magistrate may again respond to the amended grounds of appeal.
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 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.





Given the
importance of its objectives, the rule is for good reason formulated
in peremptory terms and, as Broome JP pointed out in R v Hoosen,
1953(3) SA 823 (N) at 824, “an attorney filing such a notice
assumes the onus of satisfying this Court, when the case comes
on for hearing, that the appeal has been properly noted” and that,
if the notice “is not a proper notice, all the consequences of a
failure to note an appeal properly in terms of the Rules necessarily
follow.”. Expounding on what those consequences are, Watermeyer J
in Hashe v Minister of Justice and Another, 1957 (1) SA 670
(C), when dealing with a “notice” in which no grounds were
mentioned said (at p. 675) that it “was not a valid notice of
appeal, and as such it was no notice of appeal at all.”. The same
view was echoed by Galgut, J in R v Zive, 1960(3) SA 24 (T) at
26F and Erasmus J in S v Matuba, 1977 (2) SA 164 (O) at 166.
Such a notice is a nullity (per Kirk-Cohen J in S v Maliwa
and Others
, supra at 726F) and does not have any force or
effect (per Bresler J in S v Nel, 1962 (1) SA 134 (T)
at 134F).





Once a
nullity, it “remains a nullity and cannot be resurrected or
revived” - neither by condonation of the non-compliance nor by
amendment of the defective notice (per Friedman JP in
Molebatsi v Federated Timbers (Pty) Ltd, 1996(3) SA 192 (B) at
94I, 95D and 96F). In Risley v Gough, [1953] Tas SR 78 at 79
(cited in Saunders’ Words and Phrases Legally Defined 3rd
ed. at 78) Gibson J, dealing with a similar notice said: “…I
cannot construe the word ‘amended’ other than to mean the
perfecting or ameliorating of an existing thing – not supplying a
vacuum with something that should be there”. By filing a notice of
amendment well out of time and by seeking condonation for his failure
to incorporate any grounds in his notice of appeal, the appellant
endeavoured to do what the law does not and the Courts should not
permit. If, as Broome J cautioned in R v Nicholson, 1949
(2) SA 585 (N) at 598D-E the Courts were to set foot on such a
course, as the appellant’s counsel invited us to embark on –






"… we are only at the beginning of our troubles and (once),
the clear meaning of the words having been departed from, an iliad of
woes lies ahead of us before a workable rule is evolved. It would
have been better to have been strict from the beginning. The hard way
would, in the long run, have been the kindest to all concerned."





Once
alerted to the consequences of his failure, the course which the
appellant should have followed was clear: withdraw the appeal and
file a fresh notice under rule 67 together with an application for
condonation for the late filing thereof. Had he done so, the Regional
Magistrate could have considered the grounds of appeal; furnished his
reasons and the matter could have taken its course within the
procedural scheme created for appeals of this nature. It is not now
necessary for us to decide whether condonation would have been
granted in those circumstances, but we must emphasise that the Court
will only condone non-compliance on good cause shown and if
reasonable prospects of success have been established. Practitioners
are reminded that the scheme envisaged in Rule 67 is designed to
facilitate the fair and expeditious adjudication of appeals. It
contemplates, for example, that the Court of Appeal will have the
benefit of the magistrate’s reasons specifically addressing the
grounds of appeal given at a time when the proceedings are still
relatively fresh in his or her mind. The Court will not allow those
rules to be deviated from without good cause. In this regard,
practitioners may do well to note the cautionary remarks made in
Molebatsi v Federated Timbers (Pty) Ltd, supra at
96G-H, which I respectfully adopt:






“The Rules of Court contain qualities of concrete particularity.
They are not of an aleatoric quality. Rules of Court must be observed
to facilitate strict compliance with them to ensure the efficient
administration of justice for all concerned. Non-compliance with the
said Rules would encourage casual, easy-going and slipshod practice,
which would reduce the high standard of practice which the Courts are
entitled to in administering justice. The provisions of the Rules are
specific and must be complied with; justice and the practice and
administration thereof cannot be allowed to degenerate into disorder.
Practitioners are enjoined to ensure that notices of appeal comply
with the Rules.”






It is for
these reasons that the Court struck the appeal from the roll.











______________________


Maritz, J.








I agree.











________________________


Hannah, J.