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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

EX-TEMPORE JUDGMENT

Case no: CA 34/2014

In the matter between:

ANTON ESAU IDANAPPELLANT

and

THE STATERESPONDENT

Neutral citation:Idan v State(CA 34/2014) [2014] NAHCMD 217 (14July2014)

Coram:PARKERAJ and UNENGU AJ

Heard:14July 2014

Delivered:14July 2014

Flynote:Criminal procedure – Notice of appeal – Such notice should clearly set out grounds of appeal in accordance with rule 67(1) of the Magistrates’ Courts Rules – Appellant wrote a letter to the registrar which he put forth as a notice of appeal – Court held that while pleadings and other papers prepared by lay persons representing themselves should be construed generously and in the light most favourable to such litigant this should not be taken too far as to cover situations where a statutory provision has not been complied with by such litigant.

Summary:Criminal procedure – Notice of appeal – Such notice should clearly set out grounds of appeal in accordance with rule 67(1) of the Magistrates’ CourtsRules – Appellant wrote a letter to the registrar which he put forth as a notice of appeal – Court held that while pleadings and other papers prepared by lay persons representing themselves should be construed generously and in the light most favourable to such litigant this should not be taken too far as to cover situations where a statutory provision has not been complied with by such litigant – Court found that no grounds of appeal were set out in a letter to the registrar that appellant put forth as a notice of appeal – Court concluded that there were no grounds of appeal and therefore no appeal for the court to determine – Consequently, court dismissed the appeal.

ORDER

That the appeal is dismissed.

JUDGMENT

PARKER AJ (UNENGUAJ concurring):

[1]The appellant was convicted of theft of stock in the district magistrates’ court, Outjo, and the matter was transferred to the Regional Court, Otjiwarongo, for the sentencing of the accused. The accused was accordingly sentenced to eight years’ imprisonment, of which six months were suspended on conditions. The appellant, who appears in person, appeals against both the conviction and sentence.

[2]The appellant had not informed the registrar that he had applied for legal aid representation from the Director: Legal Aid, Ministry of Justice. Indeed, even up to the time the appellant filed his heads of argument on 30 June 2014 he had not informed the registrar that he had applied for legal aid. It is to avoid delays in criminal appeals that the registrar, in setting down appeals, informs appellants to inform the registrar whether they had applied for legal representation. In the instant proceeding, it was only at the commencement of the hearing of the appeal that the appellant informed the court that he had applied for legal aid but had not had any response from the Director: Legal Aid. The court took the view that the appellant’s conduct was not acceptable and it would delay proceedings unduly. The court, therefore decided to hear the appeal.

[3]Mr Eixab appears for the State (the respondent). The respondent has raised a preliminary objection which we must consider at the threshold. Mr Eixab argues on behalf of the respondent as follows. In terms of rule 67(1) of the Magistrates’ Courts Rules, a convicted person who desires to appeal against a decision of the magistrates’ court must file a notice of appeal within 14 days after the date of conviction and the notice must clearly and specifically set out the grounds on which the appeal is based.

[4]I have carefully considered what the appellant has put forth as notice of appeal. I have also taken into account the Supreme Court’s counsel that pleadings (and other papers) prepared by lay persons representing themselves should be construed generously and in the light most favourable to the lay person. See Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (12) NR 753 (SC). But in my view, the proposition should not be taken too far as to cover situations, like the present one, where a statutory provision has not been complied with. In the present case, the appellant has not satisfied the peremptory statutory requirement under rule 67(1) of the Magistrates’ Courts Rules which, according to the authorities, serve a very useful purpose.

[5]In S v Gey van Pittius and Another 1990 NR 35 at 36H Strydom JP 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 to bind the parties to those issues.’

And in S v Kakolo 2004 NR 7 at 8F-9A, Maritz J developed the principle further and explained thus:

‘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 and disputes and determines the parameters within which the Court of Appeal will have to decide the case.

‘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)

[6]Based on these principles the court in Mbarandongo v The State Case No. CA 127/2009 (Unreported) concluded that where there are no grounds of appeal there is no valid notice of appeal before the court for the court to determine.

[7]For the aforegoing reasoning and conclusions, the point in limine of the respondent is therefore upheld; and the appeal is dismissed.

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C Parker

Acting Judge

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E P Unengu

Acting Judge

APPEARANCES:

APPELLANTIn person

RESPONDENT:J E Eixab

Of Office of the Prosecutor-General, Windhoek