2

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case number: CA 30/2015

In the matter between

IGNATIUS FREDRICK GASEB APPELLANT

versus

THE STATE RESPONDENT

Neutral citation: Gaseb v State (CA30/2015) [2015] NAHCMD 285 (23 November 2015)

Coram: UEITELE J et PARKER AJ

Heard: 16 November 2015

Delivered: 23 November 2015

Flynote: Criminal law — Rape in contravention of Act 8 of 2000 —

Criminal procedure - Sentence - Appeal against sentence - Role of court of appeal - Trial court must exercise discretion in sentencing in accordance with judicial principles - Court of appeal only to interfere if discretion not correctly exercised - court of appeal generally reluctant to erode trial court's discretion - Such erosion could undermine administration of justice.

Summary: The appellant was charged with one count of rape under s 2(1)(a) of the Combating of Rape Act 8 of 2000 (The Act) and one count of assault with intent do grievous bodily harm. It was alleged that he had committed unlawful sexual acts by having sexual intercourse with the complainant under coercive circumstances. Appellant was convicted on both counts but he appealed against the conviction on rape and the sentence of a 10 years’ imprisonment. The appellant argued that he had sexual intercourse with the complainant with her consent.

Held, that the sexual intercourse which the accused had with the complainant, constituted rape in contravention of s 2 of the Act.

Held further that is trite law that a court, when sentencing an accused, has regard to the well-known triadic factors, namely, the crime, the criminal and the interests of society. The time may have come also to bear in mind the circumstances of the victim and the effect the crime has had on her.

Held further that the grounds of appeal have no merit.

ORDER

The appeal is dismissed.

JUDGMENT

UEITELE J (PARKER AJ concurring):

[1] On the 4th of April 2013 the appellant was convicted by a magistrate sitting in the Regional Magistrates’ Court, Otjiwarongo, on a charge of rape in contravention of s 2 read with sections 1, 3, 4, 6, 7 and 8 of the Combating of Rape Act, 2000 (Act No 8 of 2000) as well as on a charge of assault with intent to do leveous bodily harm. He was subsequently (on the 10th of April 2013) sentenced to 10 years imprisonment in respect of the charge of rape and one year imprisonment in respect of the charge of assault with intent to do grievous bodily harm. On 02 May 2013, the Appellant lodged an appeal against his sentence (in respect of the conviction on rape), setting out several grounds upon which he based his appeal.

[2] The hearing of the appeal was set down for 24 July 2015. On that day, when the matter was called, the appellant indicated that he desired to be represented by a legal practitioner. He furthermore indicated that he had applied to the Director of Legal Aid for legal assistance. We accordingly postponed the hearing of the appeal to 21 September 2015 awaiting the outcome of his application for legal assistance. On 21 September 2015 we were informed by the appellant that his application for legal assistance was unsuccessful and that he has elected to represent himself, we accordingly again postponed the appeal hearing to 8 October 2015 to enable the appellant to prepare for conducting his appeal. On 23 September 2015 the appellant prepared and submitted a document titled ‘Heads of Arguments’ which only came to the attention of the respondent at the hearing on 8 October 2015. We therefore postponed the matter to 16 November 2015 for hearing. When we so postponed the matter we also made the following orders:

‘2 The respondent must ensure that the original record plus the additional grounds of appeal are delivered to the Regional Magistrate of Otjiwarongo (Mrs Diergaardt) on or before 13 October 2015 for her to provide further reasons if so advised.

3  The Regional Magistrate must provide her additional reasons, if any, on or before 6 November 2015.’

[3] When the matter came up for hearing on 16 November 2015 counsel for the State advised us that on 14 October 2015 he had couriered (he tendered a copy of the waybill as proof of the fact that he had so couriered the documents) the record together with the court order of 8 October 2015 to the Regional Court Magistrate: Otjiwarongo on 14 October 2015 and that he had not yet received the regional magistrates’ additional reasons. After being so advised we decided to hear the appeal.

[4] Before us the appellant argued his appeal in person while Mr. Litubezi appeared for the respondent. The respondent raised a point in limine. The point in limine raised is that the appellant’s notice of appeal (in so far as it relates to the conviction) does not satisfy the requirements set out in the rules[1] in that the document titled ‘Heads of Arguments’ on which the appeal is based does not constitute a valid notice of appeal in that no grounds are advanced upon which the conviction is attacked.

[5] As I indicated above the appellant lodged his notice of appeal on 2 May 2013 and that that appeal was directed at the sentence only, the notice of appeal is formulated as follows (I quote verbatim from the Notice of Appeal):

‘A AD SENTENCE

1.  The learned Magistrate erred by not considering that the appellant is the first offender in this case.

2.  The learned Magistrate erred in finding that they had proved beyond reasonable doubt;

2.1 The attempt of rape

2.2 The absence of my legal representative

3. The learned magistrate erred in finding that the State had proved that the evidence of all the State witnesses was nothing but full of contradiction or hearsay evidence which is not allowed in any court proceedings or in any of our Namibian law.

4.  More particularly he also erred in not having regards to the testimony of the appellate as true evidence during the trial date.

5.  He also erred by not having regards to fact that both the complainant the appellant and all the 8 State witnesses where all under influence of alcohol.

6.  He also erred or he over emphasized the seriousness of the offence and the interest of the society.

7.  The learned magistrate erred in taking into account the statistics as to prevalence of rape in his jurisdiction area.

7.1 The learned magistrate erred in not finding or considering this case on a charge of common assault with intent to do grievously bodly harm but he considered only the fact that rape is one of the serious offence in Namibia.

7.2 He also erred by not considering the doctor or the medical examination report given by the doctors to prove the incidence of rape in this case.

8.  The appellant was not informed that the learned magistrate intended taking into account during sentencing the said statistics and therefore the appellant was not afforded the opportunity to present arguments or to lead evidence during or to the trail court.

9.  The sentence is so unreasonable that no court would have imposed it in this regard.’

[6] I agree with Mr. Litubezi’s submission that the courts have on many occasions emphasised the requirements for clear and specific grounds of appeal and the importance of a proper notice of appeal[2]. I further take cognisance of the fact that rule 67(1) of the Magistrate’s Court Rules requires that convicted persons desiring to appeal under s 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.[3] I, however, also take note of the fact that in each case the appeal court must interpret the notice of appeal to assess its compliance or otherwise with the requirements set by the law.

[7] In the circumstances I have taken into account the Supreme Court‘s counsel that pleadings (and other papers) prepared by lay persons representing themselves should be constructed generously and in the light most favorable to the lay person[4]. Maritz J A said that the interests of justice and fairness demand that courts should consider the substance of a lay person’s pleadings and submissions rather than the form in which they have been presented. In this case, the notice which launches the appeal was written by a lay person without assistance of a lawyer. I therefore find the following comments of Van Niekerk J[5] apropos;

‘I do not think that an overly fastidious and technical approach should be followed in the circumstances of this case in considering whether it is a notice of appeal. I think justice will be served if the Court rather seeks, if possible, to interpret the letter in a manner upholding its validity as a notice of appeal so that the merits of the matter may be dealt with and the appeal may be disposed of. While the letter is not couched in the form and language that a properly drawn notice of appeal should be, the substance of the letter is clear – the accused appeals against sentence because he feels aggrieved by the fact that a sentence of direct imprisonment was imposed....”

[8] In the present matter the appellant actually sets out the basis of his appeal. He states that the magistrate misdirected herself because the medical evidence does not support the allegation that he had sexual intercourse with the complaint. He further argues that the learned magistrate acted irregularly when she proceeded with the trial in the absence of his lawyer. I am able to make out what the substance of the complaint is, and in my view the notice of appeal and the document titled ‘Heads of Arguments’ in this case should be considered to be a valid notice of appeal and the point in limine accordingly fails.

[9] I now turn to the merits of the appeal. As I indicated above the learned magistrate did not provide further reasons when the document titled ‘Heads of Arguments’ was served on her. I will therefore briefly outline the evidence (relevant to the allegations of rape) led in the trial court and then apply the legal principles to that evidence to see whether the appellant’s grounds of appeal have any merit.

[10] From the record of proceedings in the Regional Court: Otjiwarongo that was placed before us, I could gather the following. The appellant was arrested on 20 May 2011 and made his first appearance in the Regional Court: Otjiwarongo on 5 August 2011. Between 5 August 2011 and 4 June 2012 the matter was postponed on five different occasions to enable the appellant to apply for legal aid. On 2 February 2012 the appellant indicated to the trial court that he had decided to engage the services of a legal practitioner and that he would not wait for the outcome of his application for legal aid. The matter was therefore postponed to 4 June 2012 for plea and trial. On that date (i.e. 4 June 2012) the private legal practitioner (a certain Mr. Shilunga) who was instructed by the appellant withdrew (the reason advanced for his withdrawal is the fact that the appellant had not placed him in funds) the matter was then postponed to 17 August 2012 for the appellant to engage the services of another legal practitioner.

[11] On 17 August 2012 the prosecutor informed the court a quo that the appellant had secured the services of a legal practitioner (a certain Mr. Van Vuuren) and that they had agreed on a date on which the appellant’s plea would be taken and the trial to continue. The matter was accordingly postponed to 11 March 2013 for plea and trial. On that date (i.e. 11 March 2013) there were other matters on the roll and the trial could thus not continue and the matter was accordingly postponed to 9 April 2013 for plea and trial. On that day (i.e. 9 April 2013) the appellant’s legal practitioner (Mr. Van Vuuren) did not turn up for trial, they faxed a letter stating that the appellant had not placed him in funds and that he was withdrawing as legal practitioner for the appellant. The magistrate refused a further postponement and decided to proceed with the trial. When refusing a further postponement the magistrate said the following (I quote verbatim from the magistrates ruling):

‘Accused person this case is a, you were arrested the 20th of May 2011 so which means this case, it should be next month two years old. And in the beginning you applied to legal aid, and you were granted several postponements for legal aid. And then you suddenly decide informing legal aid, that you appointed a private lawyer where Mr. Shilunga on the 2nd of February 2012 and I remember that Mr. Shilunga never came to Court. Then suddenly on the 12th of June 2012 Mr. Shilunga said this on record.. You informed the Prosecutor that he will not come he also withdraw as your lawyer, you must find another lawyer. And then the Court requested you to apply because and because the court actually insisted from you to acquire legal aid. And then you informed the Court that you do not want legal aid, you will not acquire legal aid you then continue to have Mr. van Vuuren, we agreed on a date. Mr. Van Vuuren then sent Mr. Kruger who on that specific day informed the Court there was lack of funds when all the witnesses were present and there is no time, now Accused person you dropped legal aid in the middle you found a lawyer, you obtained a lawyer then you were requested by the Court to apply again as the Court has all the information the intend you when Accused persons charged with such serious offenses to apply for legal aid, then you refused legal aid and then you appoint another lawyer and could not pay that lawyer and all the Witnesses are here for the second time around and therefore the Court decide to continue with the case today you are aware of the charges and you may prepare. You are undefended but you are also refusing legal aid so the Court will not waste any further time on your cases, we will continue with your trail.’