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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

EX-TEMPORAE JUDGMENT

Case no: CA 80/2014

In the matter between:

FRANCIS LIFUMBELAAPPELLANT

and

THE STATERESPONDENT

Neutral citation:Lifumbela v State(CA 80-2014) [2015] NAHCMD 132 (8June2015)

Coram:PARKER AJetUNENGU AJ

Heard:8 June 2015

Delivered:8 June 2015

Flynote:Criminal procedure – Appeal – Appeal against conviction and sentence – Noting of appeal out of statutory time limit – Applicant must apply to court to condone late filing of notice of appeal – In supporting affidavit appellant must give satisfactory explanation for the delay – In determining condonation application court should consider reasons for the delay and prospects of success – But court should consider prospects of success only where satisfactory explanation for delay in noting appeal has been given except in cases where there has been a failure of justice in the proceedings in the lower court or the decision of the lower court is so repugnant and perverse that the appellate court should not allow it to stand – Principle in S v Ruhumba applied.

Summary:Criminal procedure – Appeal – Appeal against conviction and sentence – Noting of appeal out of statutory time limit – Applicant must apply to court to condone late filing of notice of appeal – In supporting affidavit appellant must give satisfactory explanation for the delay – In determining condonation application court should consider reasons for the delay and prospects of success – But court should consider prospects of success only where satisfactory explanation for delay in noting appeal has been given except in cases where there has been a failure of justice in the proceedings in the lower court or the decision of the lower court is so repugnant and perverse that the appellate court should not allow it to stand – In instant case appellant noted appeal out of the statutory time limit under s 67(1) of the Magistrates’ Courts Rules – Court found explanation given for delay in noting the appeal contained untruths and the explanation not satisfactory – Consequently, court upheld respondent’s point in limine about the late noting of the appeal and struck the appeal from the roll.

ORDER

The appeal is struck from the roll.

JUDGMENT

PARKER AJ (UNENGUAJ concurring):

[1]The appellant was charged before the Regional Court, Katima Mulilo, on one count of rape in contravention of s2(1)(a), read with ss 1, 2, 2(3), 3, 5, 6 and 7, of the Combating of Rape Act 8 of 2000, and read in turn with s94 of the Criminal Procedure Act 51 of 1977. He was tried, convicted and sentenced accordingly. The appellant appeals against the conviction and sentence.

[2]At the commencement of the hearing of the appeal the appellant informed the court that he had applied for legal aid from the Director: Legal Aid (Ministry of Justice) but to date he had not received any response. Ms Esterhuizen, counsel for the respondent, informed the court that she had taken it upon herself to follow up the appellant’s application at the Directorate: Legal Aid and she was informed that the application would not be successful, and that she had asked that a fax message should be sent to her in that regard. She said to date she had not received any such fax. The appellant was asked to decide what he wished to do in the circumstances. Appellant informed the court that he would represent himself because ‘I am tired’. I understood him to say that he would not wait for response from the Director: Legal Aid any longer which had not come, and that he would represent himself.

[3]Thus, the appellant appears in person, and Ms Esterhuizen appears as counsel for the respondent. The respondent has raised a preliminary objection which we must consider at the threshold. Counsel for the respondent submitted that according to s67(1) of the Magistrates Courts Rules, a convicted person who desires to appeal against a decision of a magistrates’ court must file a notice of appeal within 14 days after the date of sentence, and the notice must set out clearly and specifically the grounds on which the appeal is based.

[4]The appellant was sentenced on 11 February 2011 but the notice of appeal was filed on 7 May 2012. In that event, in terms of rule 27(3) of the Rules of Court, the court may only condone the late filing of the Notice of Appeal if there is an application properly before the court in which the appellant explains to the satisfaction of the court the reasons for the late filing of the Notice and also shows the court that there are reasonable prospects of success on appeal. In that regard it has been held that if the explanation for the late filing of the notice of appeal is not satisfactory, the court may not consider prospects of success except in rare cases where there has been a failure of justice in the proceedings in the court below or the decision of the court below is so repugnant and perverse that the appellate court should not allow it to stand (S v Ruhumba Case No. CA 103/2003 (Unreported).

[5]In the instant case, the appellant has brought an application for condonation for the late filing of the notice of appeal. In the supporting affidavit the appellant has put forth three reasons to explain the late filing of the notice of appeal. The second explanation is rejected as irrelevant. It is about his plans to obtain legal representation. The second is that it was ‘flatly difficult for the appellant to understand and know what the notice of appeal is (and) to who (whom) it may be forwarded’. This explanation, too, is rejected as false. As Ms Esterhuizen submitted, the learned magistrate did well to instruct the appellant regarding his right to appeal and the rule that he must lodge the appeal in writing within 14 days. The appellant did not tell the learned magistrate that he did not understand the instructions when the learned magistrate asked him if he understood the instruction. For this reason, too, the appellant’s first explanation that he ‘is laymen (a layman) and ignorant person of the law and court procedures’ is also rejected as baseless. It has been said that the rules are for all litigants, and they must be adhered to by all litigants. Damaseb JP in Kalenga Iyambo v S Case No. CA 165/2008, para 10, put it categorically thus, ‘What we want to stress is that lay litigants are just as much under an obligation as those represented by lawyers to follow the rules of court and cannot, as they please, (fail to) comply with the rules of court’. I should add that one being a lay litigant representing oneself is not licence for one to fail to comply with rules of court.

[6]In the instant case, though a lay litigant, the appellant was able to file a Notice of Appeal and launch a condonation application,with a supporting affidavit. The fact that he is a lay litigant is therefore irrelevant. Having considered the substance of the affidavit and not the form in which it is formulated (see Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (2) NR 753 (SC)), we find that the appellant has not placed before the court a satisfactory explanation for the delay in noting the appeal; a delay that is too long.

[7]In my view the litany of untruths that the appellant put forth to the court cannot on any ground possibly constitute an explanation. It follows that there is no satisfactory explanation for failure to note the appeal within the statutory time limit. In that event, I hold that the court should not consider prospects of success on appeal since it has not been established that there was a failure of justice in the proceedings in the lower court or that the decision of the lower court is so repugnant and perverse that this court should not allow it to stand. (See S v Ruhumba.) The rule of practice enunciated in Ruhumba is clear, and it has been followed in the interest of due administration of justice. In any case, as Ms Esterhuizen submitted, the appellant has not indicated clearly that he has reasonable prospects of success on appeal.

[8]For the foregoing reasons, the respondent’s point in limine is upheld, and so, the appeal is struck from the roll.

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C Parker

Acting Judge

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E P Unengu

Acting Judge

APPEARANCES:

APPELLANTIn person

RESPONDENT:K Esterhuizen

Of Office of the Prosecutor-General, Windhoek