1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: CA 16/2015
In the matter between:
MUSANA HULENICO APPELLANT
and
THE STATERESPONDENT
Neutral citation: Hulenico v The State (CA 16-2015) [2015] NAHCMD 148 (22June 2015)
Coram:PARKER AJ et MASUKU AJ
Heard:27 April 2015, 22 June 2015
Delivered:22 June 2015
Flynote:Criminal Procedure – appeal against conviction – Noting appeal out of statutory time limits; the form the application for condonation should assume and what it should allege. Grounds of appeal – they should clearly and fully set out the bases upon which the appeal is brought. Failure to appeal on sentence – the court cannot deal with sentence if no appeal against sentence and no grounds are alleged on which the trial court may have erred.
Summary:The appellant was tried and convicted for rape. Notice of appeal – it was held that the notice of appeal should fully and concisely set out the grounds upon which it alleged the trial court erred so as to give notice to all the parties the grounds on which the decision is attacked. Application for condonation – the court held that where the appellant has not filed the notice of appeal in time, he or she should file an application for condonation accompanied by an affidavit which explains the delay and states grounds on which the appellant claims he or she has prospects of success on appeal. Sentence – where there is no appeal against sentence, the court may not interfere with the sentence imposed as there are no grounds alleged therefor. Evidence – the court held that although the complainant was a single witness and young, she had adduced her evidence truthfully and the trial court duly warned itself on the dangers of relying on her evidence. Appeal dismissed as no prospects of success were alleged and shown to exist.
ORDER
The application for condonation is refused and the appeal is dismissed.
JUDGMENT
MASUKU, AJ.,
Introduction
[1]As a prelude to this judgment, I must mention that this appeal came before us initially on 22 April 2015 for hearing. On that day, the appellant indicated that he had applied for legal representation from Legal Aid. In view of that development, and in order to ensure that the appellant could possibly obtain legal presentation for the appeal, we, at his instance, postponed the appeal for a period of two months to today. When the matter was called this morning, it became evident that the appellant had not obtained a favourable response from Legal Aid and he chose to take the bull by the horns as it were and argued the appeal himself.
The charge
[2]The above-named appellant was arraigned before the Otjowarongo Regional Court charged with a single count of rape, read with the provisions of sections 1,3,4,5,6 and 7 of the Combating of Rape Act.[1] The charge sheet alleges that the appellant, on 27 April 2011, and at or near Farm Cecilie, in the Regional Division of Namibia, wrongfully, unlawfully and intentionally committed or continued to commit a sexual act with Sofia Tjombungumbi, the complainant, by inserting his penis into her vagina by or while coercive circumstances obtained in that the complainant, was 10 years old (under the age of fourteen) and the perpetrator was 43 years old at the time (being more than three years older than the complainant).
[3]The appellant was represented by counsel throughout his trial. Notwithstanding his plea of not guilty, the trial magistrate, after listening to and assessing the evidence adduced in its entirety, returned a certitude of guilt and sentenced the appellant to a custodial term of 18 years, 18 months of which were conditionally suspended for a period of five years.
The grounds of appeal
[4]Evidently dissatisfied with the conviction, the appellant approached this court seeking its intervention in exercise of its appellate jurisdiction. The following, may be summarized as the main bases on which the conviction is assailed, as may be gleaned from his notice of appeal:
(a) the evidence of the prosecution’s witnesses was contradictory;
(b) there was no medical evidence to prove beyond reasonable doubt that that the appellant committed the offence of rape;
(c)the trial court failed to gather sufficient evidence to sentence him. There was a doubt as to whether he committed the offence charged in this case; and
(d)the trial magistrate was partial in his verdict and justice was not served.
[5]It is fitting that I mention that grounds of appeal in an appeal, serve a very important purpose and for that reason, should be comprehensive in their scope and content. In Gert Marius Boois v The State[2], this court quoted with approval the sentiments expressed in some cases decided in this jurisdiction, including S v Gey van Pittius[3]and S v Kakolo[4]. In the Gey van Pittius case, the court, per Strydom JP, expressed itself in the following terms on this issue:
‘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’.
In the Kakolo case, the court, per Maritz J stated that, ‘The noting of an appeal constitutes the very foundation on which the case of 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 parts of his or her judgment are 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 crystallises the disputes and determines the parameters within which the court of appeal will have to decide the case.’
[6]A cursory look at the grounds of appeal filed by the appellant in this matter shows that they do not meet the standard so carefully stated in the above cases. The grounds are hopelessly inadequate and do not serve the purpose outlined above. If anything, the said grounds leave the court, the respondent and the trial magistrate in the dark as to the exact nature of the complaints and the particular aspects at which the attack is directed in the proceedings. Strictly speaking, we should not be going any further in this case and we should hold that there are no proper grounds of appeal, marking the end of the matter.
[7]Considering however, that the appellant is unlettered in law and is unrepresented in these proceedings, and to enable him to have his day in court, we have decided, notwithstanding the deficient grounds filed, to consider the appeal for what it is worth although we are clearly shooting in the dark as it were.
Respondent’s case
[8]In response to the appeal, the respondent has filed heads of argument in which it opposes the appeal on a number of grounds. Some of these are based on procedural irregularities and yet others on the substantive issues as emerge, in the eyes of the respondent, from the case as a whole.
[9]The first salvo fired by the respondent is that it is unclear on the appellant’s notice, whether the present proceedings are in the nature of an appeal or review. This is primarily because in his notice of appeal, dated 12 November 2012, the appellant asks this court to conduct a ‘review of my case in order for either an appeal or an acquittal and the previous section 174 to be granted.[5]”
[10]It is indeed unclear, from what is stated above, whether this is an appeal or a review application. There appears to be some confusion which is understandable as the appellant represents himself and is further unlettered in law. What is apparent though, notwithstanding the confusion is that he has titled his aforesaid letter ‘Notice of Appeal’ and proceeds to state what he contends are ‘Grounds of Appeal’. The irresistible conclusion in the circumstances, is that he intended to launch an appeal but used the word ‘review’ rather loosely, if due regard is paid to the contents of the letter as a whole. I would therefore find that no prejudice is occasioned to the respondent, subject to the observations made in paragraphs 5 and 6 above. I say so because the grounds of appeal are otherwise stated and the record is before court, enabling the respondent to deal with whatever issues the appellant threw into the mix as it were. Furthermore, we enquired from the appellant during the hearing and he confirmed that he had intended to note an appeal against the conviction. We shall therefore deal with this matter on the basis that it is an appeal.
[11]The second salvo detonated by the respondent is that the appeal has been noted of time. The appellant was convicted and sentenced on 17 October 2012. His appeal, dated 12 November 2012 was received on 20 November 2012. The respondent contends that the delivery of the notice of appeal falls foul of the provisions of section 67 of the Magistrate Courts Rules[6] as read with section 309 of the Criminal Procedure Act[7]. In terms of the above provisions, the notice of appeal is to be filed within 14 days of the judgment complained of.
[12]It is the respondent’s contention that in the circumstances, the appeal was noted out of time by a period of one month and that no proper application for condonation for the late filing of the appeal was filed by the appellant. The court is therefore being moved to dismiss the application therefor. It is true that the appeal has been filed out of time. What is the proper thing to do in the circumstances, considering the non-compliance with the rules, the length of the delay, the prospects of success and of course the fact that the appellant is an unsophisticated man who is unlettered in law and who claims he is not familiar with the procedures?
[13]In S v Kashire[8], it was held that the proper procedure to follow in seeking to obtain condonation is for the appellant to file an application for condonation, supported by an affidavit explaining the delay. Furthermore, the appellant must show in the affidavit that he or she has reasonable prospects of success on appeal[9]. In the instant case, the appellant in his affidavit filed in support of the application for condonation[10] states that he is illiterate and does not know the procedures to be followed. That is the primary reason he proffered for the delay. No attempt whatsoever was made by him to deal with the issue of prospects of success.
[14]Aside from the non-satisfactory nature of the reason alleged for the delay, considering that the appellant was legally represented during the proceedings before the court a quo, it is clear from the record[11] that after conviction, the learned magistrate advised the appellant of his rights in case he wished to lodge an appeal. For the sake of completeness in this regard, the magistrate said the following as recorded in the record of proceedings:
‘I will explain your appeal rights. You have the right to appeal against Judgment and Sentence. Which means if you are unhappy about either the Judgment or the Sentence, you have the right to appeal against that Judgment and Sentence. You may lodge your appeal with the Clerk of Court. You have 14 days in which to file your appeal. If you fail to submit your appeal within 14 days, you must file a letter of condonation (indistinct).’
It is accordingly clear from the foregoing that the appellant was fully informed of his rights in case he wished to appeal. He was told when to apply and what to do should he not file the appeal within the time stipulated. I am of the view that the fact that he is illiterate is not a valid excuse in the light of the full and proper explanation of his rights by the court a quo.
[15]Although the appellant has not made any allegations regarding the prospects of success in the affidavit in which he applies for condonation, we find it proper to consider this aspect of the matter. In order to do so, it is important to consider the evidence led at the trial briefly. It acuminates to this: The appellant and the parents of the complainant are related. They lived in the same compound as it were at a farm known as Cecilia. The complainant lived there with her parents together with younger siblings of hers. The incident in question happened during school holidays.
[16]The complainant’s parents left the farm where they resided and went to the farm of a person known as Masango where they were going to collect some milk and where they also sold some items from time to time. It appears that part of their mission was to collect money owed to them. The three children, including the complainant, were left in the care of the appellant overnight. The complainant’s mother testified that when she returned the following evening, she asked the appellant where the children were as she wanted to sleep with them considering that she had returned home.
[17]The appellant told her that they should be allowed to sleep with him even on that evening. She saw them the following evening after returning from work. It was her evidence that she noticed that the complainant was walking in a strange manner and she also saw her urinating and detected blood stains on her underwear. When she asked the complainant what was wrong with her, the complainant told her that the appellant had had sexual intercourse with her whilst the parents were away. The child was later taken for medical attention and the doctor who attended her found that a case of rape was possible since the child’s examination was painful and the hymen was broken, which was also consistent with the mother’s observation of the child.
[18]The complainant also gave evidence in which she pointed an accusing finger to the appellant as the perpetrator. She also testified that the accused had threatened her with a knife and told her not to tell her mother what he had done to her, failing which he would kill her. In his evidence adduced under oath, the appellant merely denied the charge and stated that the child had lied against him. He suggested, when taxed in cross-examination, that the reason the evidence against him was concocted was because he had had a quarrel with the complainant’s father over trees. This is an issue that was never put to any of the witnesses and was rightly rejected by the trial court as an afterthought.
[19]It must be mentioned that the evidence that the child had been carnally known is unmistakable. The mother saw the child walking in a strange manner and inspected her and was told by the child that the appellant had had sexual intercourse with her. According to her, the child’s organs of generation were bruised. A doctor’s report also confirmed that the child had been possibly ravished as the examination was painful and the hymen had been removed. In the circumstances, there is no reason why the child would have wrongly put the blame at the appellant’s door. As a matter of fact, it is clear that the children were left with the appellant who was well known to them, including the complainant and he was in loco parentis. Furthermore, the complainant child was very soon after the mother’s return detected to be unwell and she pointed an accusing finger at the appellant, who had been looking after them as the culprit.
[20]The trial court observed the demeanour of the witnesses and was impressed with the prosecution’s witnesses. I cannot fault those findings, coming as they do from a court which had the opportunity to see them. As in many cases, there were a few contradictions in the evidence e.g. when exactly the complainant’s mother took the complainant to see a doctor. The complainant said it was the same day but the mother said it was a day or so later as the complainant’s father was not present. The doctor’s report indicates that the complainant was seen about six days later. In my view, this contradiction is not material and has no prospect of changing course of the trial one way or the other as it does not bear on the critical issue of the complaint itself. Although the complainant was single witness in respect of the rape, and was of a young age, I am of the view that in regard to the pertinent issues, she was a credible witness. The magistrate was of the view that whatever shortcomings may have attended her evidence, she had told the truth. I have no reason to differ.
[21]In this regard, the South African Appellate Division made the following lapidary remarks in dealing with issues such as the one in question in this matter in S v Sauls[12] :
‘There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness . . . The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide to a right decision but does not mean ‘that the appeal must succeed if any criticism, however slender, of the witnesses’ evidence were well founded’. . . It has been said that more than once that the exercise of caution must not be allowed to displace the exercise of common sense.’