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CASE NO.: CA 95/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

EWALD ZEMBURUKA Appellant

and

THE STATE Respondent

CORAM: VAN NIEKERK J et SILUNGWE AJ

Heard: 7 March 2008

Delivered: 23 December 2008

APPEAL JUDGMENT

VAN NIEKERK J:

[1] On 25 January 2006 the appellant was convicted by the Magistrate, Otjiwarongo, on a charge of theft of three head of cattle under the Stock Theft Act, 12 of 1990, and sentenced to five years imprisonment. Appellant had legal representation during the trial.

[2] The State, represented before us by Mr Shileka, submitted in limine that the document filed by appellant launching this appeal is not a valid notice of appeal as the appellant does not set out clearly any grounds of appeal. More specifically, the State submits, the notice of appeal does not point out any misdirection or error either in fact or in law committed by the magistrate. The result is, counsel submits, that there is, in fact, no appeal before us and the matter should be struck.

[3] The notice filed by the appellant is addressed to the clerk of the magistrate’s court at Otjiwarongo and is in the form of a letter with the subject heading “RE: APPEAL DUE OPTION OF FINE”. In the letter appellant mentions that he was convicted as charged and sentenced to 5 years imprisonment with no option of a fine. Appellant then states:

“……… I appeal to the High Court for an option of fine due to the following reasons:

1. I’m a married man with eight children, 5 of them went to school, while the remaining 3 are still minors are at home. There is no one to maintain them.

2. I’m a farmer and no one is looking after my live-stock. My wife can’t manage to do it alone and this will affect her both physically and emotionally. I do appeal to you to be lenient and grant me a affordable fine so that I may go and proceed to maintain my family.”

[3] There is ample authority which emphasises the requirement of clear and specific grounds of appeal and the importance of a proper notice of appeal (see e.g. S v Horne 1971 (1) SA 630 (CPD) 631H-632A; S v Khoza 1979 (4) SA 757 (N) 758B; S v Wellington 1990 NR 20 HC 22G-23A; Tuhafeni Kakololo v The State (Case No. CA 42/2001, unreported, delivered 15/11/2002); Gotfried Kahunga and another v The State (Case No. CA 57/2002, unreported, delivered on 18/11/2004). In each case the Appeal Court would have to interpret the notice of appeal to assess its compliance or otherwise with the requirements set by the law.

[4] In this case, the letter was clearly written by a lay person without assistance of a lawyer. 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. In effect he is stating that the magistrate misdirected herself by not giving him the option of a fine in the light of his personal circumstances, which he sets out. The personal circumstances he relies on do not constitute new matter, but were mentioned in evidence during the trial and counsel made submissions thereon during his address on sentence.

[5] State counsel submitted that the letter should be accorded the same fate as in Kahunga’s case in which this Court, per SHIVUTE JP (as he then was) and MAINGA J, held that the notice of appeal was a nullity on account of lack of particularity. In that case the notice of appeal was aimed at conviction as well as sentence. I shall confine myself to the latter for purposes of this case. In the Kahunga case the notice of appeal, drawn by a legal practitioner who had not represented appellant during the trial and had no transcribed record of the proceedings available, formulated the grounds for appeal against sentence as follows:

“That the Magistrate misdirected himself on the fact alternatively in law in sentencing the appellants to direct imprisonment without the option of a fine and/or suspending a part of the sentence. It would be furthermore argued that the sentence is startlingly inappropriate and creates a sense of shock.”

[6] In that case the magistrate, when requested to provide reasons for the sentence, replied that he was placed in a difficult position to provide these as he considered the grounds to be vague.

[7] In my view the facts of the Kahunga case are distinguishable from the facts of the case before us. In casu, although the notice of appeal is in the form of a letter and not framed in the language normally used, one is able to make out what the substance of the complaint is, as I have sought to show above. Furthermore, it was drawn by a lay person, to whom the Court should afford some leniency. When considering the notice of appeal, the learned magistrate in this case did not complain about any vagueness rendering it impossible for her to furnish any reasons. She merely stated that she has “nothing to add to the sentence handed down” (See: Record p148). In my view the letter in this case should be considered to be a valid notice of appeal and the point in limine accordingly fails.

[8] I note at this stage that Mr Titus, who appeared amicus curiae, was initially of the view that the notice of appeal is irregular as it does not state that the court a quo erred in law/and or in fact when it passed sentence and that the appeal should be struck. However, when the Court indicated that it was in principle prepared to take a more lenient view of the perceived deficiencies in the notice of appeal on account thereof that it was drawn by a lay person, counsel submitted that the notice should be upheld.

[9] I now turn to the merits of the appeal. The learned magistrate’s ex tempore judgment given on sentence is very brief. It reads as follows:

“It is also your luck today, Accused person, that you are charged under the old Stock Theft Act, because, ……[under] the new Stock [Theft] Act that was passed in December 2004 you would have gotten a very more, or a more severe sentence than today. And it was in fact the intention of the legislator to try and decrease or reduce this type of offence of stock theft because of the prevalence and the seriousness of the offence. Not only here in the Otjiwarongo District, but also in the whole of Namibia. And in your case, Accused person, the seriousness of the offence outweighs your personal circumstances. You also did not show remorse to the Court. You wasted the Court’s time tremendously and you deprived the Complainant from his cattle and it would have been permanently if you were not stopped before you would have gotten away with this cattle. And therefore, Accused person, you are sentenced to five years imprisonment.” [the insertions are mine]

[10] At the time the offence was committed, the applicable penalty for stock theft provided for by section 14 of the Act, as amended, was imprisonment for a period of not exceeding ten years; or a fine not exceeding N$40 000; or both such fine and such imprisonment. Both the prosecutor and defence counsel mentioned it in their addresses on sentence that a fine was an option to be considered.

[11] The appellant testified in mitigation of sentence and placed relevant personal circumstances on record. These are, in summary, that he was 36 years old, a first offender, a farmer with a monthly income of about N$500, married with eight children whose ages ranged from 12 years to 8 months old, whom he maintained; he was also looking after his 80 year old father and 70 year old mother; he was the only breadwinner. He had N$1 000 available with which to pay a fine. Appellant surrendered himself to the police a week after his co-accused was arrested in possession of the stolen cattle.

[12] The facts of the case are, briefly, that the accused had approached his co-accused to help him drive along eight head of cattle amongst which three belonged to the complainant, a Mr Erasmus. The police discovered the cattle being driven along the road. They confronted appellant’s co-accused, but appellant ran away. Appellant’s defence was that the cattle being driven belonged to him and he disputed that he ran away. On evidence regarding the identification of the cattle and of accused, the magistrate was satisfied that the accused had stolen the three head of cattle from Mr Erasmus. The total value of the stolen cattle was put at N$4800. It seems from the facts that it was indeed fortunate that the police had found the cattle on the road, otherwise they probably would have disappeared. Complainant therefore suffered no loss.

[13] While amicus curiae initially in correspondence to this Court did not see prospects of success on the ground of appeal raised, he made several helpful submissions during the hearing on aspects regarding sentences imposed in cases of stock theft. The Court also heard the appellant in person, who repeated his view as set out in the notice of appeal. State counsel supported the sentence passed by the court a quo.

[14] Having considered all the submissions, I am in agreement with the learned magistrate that the seriousness of the offence outweighs the personal circumstances of the appellant. It can be deducted from her brief judgment that she did not consider the imposition of a fine as appropriate when considering the seriousness of the offence. The N$1000 appellant had available for a fine is wholly inadequate in any event. I do not think the learned magistrate can be faulted for having considered effective imprisonment to be an appropriate sentence.

[15] However, the Court was perturbed about the statement in the judgment on sentence that appellant “wasted the Court’s time tremendously”. We posed our difficulty with the magistrate’s statement to counsel. Mr Titus submitted that there is no indication that the defence was frivolous, but even if it were, it would be a misdirection if the waste of time was held against the appellant when sentence was passed. Mr Shileka submitted that the remark should merely be seen as expressing justification for the learned magistrate’s finding that the appellant showed no remorse. However, this submission cannot be upheld for the reasons to follow.

[16] I can find no evidence in the record that the appellant wasted the Court’s time. The only deduction I can make is that the remark, made just after the statement “you did not show remorse to the Court”, refers to the fact that the appellant pleaded not guilty, which meant that the prosecution had to call witnesses to prove its case. Appellant also testified, which took more time. I cannot find that in the conduct of the defence, appellant wasted time. It should, in any event, always be remembered that an accused person has, in our criminal justice system, the right to plead not guilty and to require of the State to prove its case. This should never be seen as a waste of a court’s time. It is the very purpose and duty of the court to try cases, whether the defence is meritorious or not. Even if an accused does waste time by, for example, causing unnecessary postponements or unduly prolonging cross-examination, this should never be held against him or her when sentence is passed. It may be irritating or frustrating to a presiding officer who is required to deal expeditiously with an already heavy roll, but this should not influence the court, as the fact that time was wasted is entirely irrelevant when it comes to sentence.

[17] I agree with amicus curiae that the remark that the Court’s time was wasted ‘tremendously’ and the fact that it is specifically mentioned in what is otherwise a very brief judgment mentioning only aggravating circumstances, lead one to the inescapable conclusion that the alleged waste of the trial court’s time weighed against the appellant when sentence was passed. An irregularity which prejudiced appellant was committed. Although this is not a ground of appeal, a Court of Appeal may take notice of any irregularity which taints a verdict, thereby prejudicing the appellant. Where, as in this case, the notice of appeal was drawn by a lay appellant, there is a greater duty on this Court to act of its own accord. I note that we did not request reasons from the learned magistrate on this aspect, but considering that the issue is limited and clear, we decided not to delay the hearing of the appeal further.

[18] As a vitiating irregularity has been committed, this Court is at large to consider what sentence should be passed in place of that of the trial court. Bearing in mind the gravity of the offence and weighing this against the personal circumstance of the appellant, a sentence of 4 years imprisonment would serve the requirements of this case.

[19] The result is that the appeal against sentence is upheld. The sentence of five years imprisonment is set aside and substituted with a sentence of 4 (four) years imprisonment.

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VAN NIEKERK, J

I agree.

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SILUNGWE, AJ

Appearance for the parties:

For appellant: Mr Titus

Koep & Partners

(Amicus curiae)

For respondent: Mr Shileka

Office of the Prosecutor-General

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