CASE NO.: CA 08/2010
IN THE HIGH COURT OF NAMIBIA 
In the matter between:

and

Heard on: October 4, 2010 
Delivered on: October 19, 2010

JUDGEMENT:

[1] The appellant, an Israeli national who, at the time of the trial, was 43 years of age, was convicted in the Magistrate Court of Windhoek, on a charge of contravening Section 30(1) read with Section 30(2) of the Diamond Act, 1999 (Act 13 of 1999), unlawful possession of rough and/or uncut diamonds, and a charge of contravening Section 37(1) of the Diamond Act, 1999 (Act 13 of 1999), unlawful import of rough and/or uncut diamonds.

[2] The quantity, value and weight of the diamonds involved in both counts were 272 rough or unpolished diamonds with a mass of 348.75 carats, valued at N$15,613.03.

[4] Appellant did not testify in mitigation nor did she call any witnesses to testify on her behalf. The State also did not call any witnesses.

"Ad the sentence

1.1. The Appellant was a First Offender.
1.2. The value of diamonds was only N$15,613.03.
1.3. The diamonds were forfeited to the State.
1.4. The Appellant cooperated with the police investigation.

2.	The Learned Magistrate overemphasised the seriousness of the offence and the interest of society.
3.	The Learned Magistrate erred in taking into account the prejudice or potential prejudice of the Namibian Government, losing its International Trading Licence in Diamonds, as occasioned by Appellant's conduct in that:

4.       The sentence is so unreasonable, shocking and disproportioned, that no reasonable Court could have imposed it."

"the rule provides in simple unambiguous language that the appellant must lodge his notice in writing, in which he must set out "clearly and specifically" the grounds on which the appeal is based. He must do this for good reason. The Magistrate must know what the issues are, which are to be challenged, so that he can deal therewith in his reasons for judgment. Counsel for the State must know what the issues are so that he can prepare and present argument which will assist the court in his deliberations and finally, the court itself will wish to be appraised of the grounds so that it can know what portions of the records to concentrate on and what preparation, if any, it should make an order to guide and stimulate a good argument in court."

"It should be made perfectly clear that a notice of appeal is not just an informal document which could be disregarded at will. It forms the very basis upon which an appeal must stand or fall. This Division is working under tremendous pressure, the Judges barely have time to read a record once and certainly no time to consider the merits of an appeal outside the grounds upon which a conviction or sentence is being attacked in the notice of appeal. When an accused is convicted the magistrate often does not give any reasons in support of the conviction and/or times may only give a short ex tempore judgment. After a notice of appeal is lodged the magistrate's statement offacts found proved and his written reasons for judgment
are usually confined to the grounds taken therein	 A warning is accordingly
issued, that in future this court will be very slow in allowing appellants to amend their grounds of appeal at such a late stage and will only consider doing so if there is a substantive application to that effect. Appeals will have to stand or fall on the grounds properly and timeously taken."

[11] Mr Muluti, on behalf of the appellant, in appellant's main heads of argument and/or during the hearing of the appeal, in addition to the grounds reflected in the notice of appeal submitted that:-
	"By reason of the fact that the magistrate imposed similar sentences on both counts "it may be inferred that the magistrate concluded that there were no substantial and compelling circumstances""
	"The record does not indicate which personal circumstances, if any, were taken into consideration during sentencing" "

[12] None of the submissions referred to hereinbefore is founded, even by a stretch of imagination, on any ground of appeal as it appears in the notice of appeal. The submissions also, do not only entail points of law, but of law and fact. Any such submission that is not based on one or more of the appellant's grounds of appeal, cannot be entertained because the grounds of appeal have not been amended and have not been submitted to the magistrate for his consideration. As such, the additional submissions advanced by Mr Muluti find no application in the present appeal and are ignored.

[14] Mr Muluti contented that the forfeiture of the unpolished diamonds must be regarded as a mitigating factor and that the learned magistrate erred in the law and/or on the facts in not doing so. Ms Jacobs, on behalf of the state, submitted that a forfeiture in circumstances like the present, cannot be regarded as mitigation as the magistrate was compelled to forfeit the diamonds to the State. In my view the submission of Ms Jacobs is correct, as it is common cause that the possession and importation of the rough and uncut diamonds, by appellant were illegal. Appellant, could not import nor legally possess the rough and uncut diamonds in the Republic of Namibia. Appellant as such was not lawfully entitled to the value of the unpolished diamonds or any part thereof.   The magistrate was compelled to declare the rough and/or unpolished diamonds forfeited to the State in terms of section 34 of the Criminal Procedure Act.

Appellant, at the time of sentencing was a 43 year old business woman, an Israeli national who was involved in the diamond industry for approximately 10 years. Appellant is of moderate education, and has three (3) children who live in Israel.
The offences committed by appellant, were premeditated. Appellant who earns a living from the diamond industry also breached the trust that the International Diamond Industry certainly has in its stakeholders, not being involved in the illegal transportation, possession and/or dealing with the commodities from which they attempt to earn a living from.
Appellant was on her first trip to Namibia and as such showed a complete disregard for, not only the sovereignty of the Republic of Namibia, but also for the interest of all Namibians not to be subjected to illegal activities perpetrated by foreigners on Namibian soil. Namibia, with its fragile economy, of which the diamond industry is a very important source of income for its Government and its citizens, cannot internationally, be regarded to foster a climate of perceived acceptance of international trafficking of illegal substances and/or commodities across its borders.

[18] For the above reasons the appeal is dismissed.
BOTES, AJ

I concur.

Henning, AJ

								Muluti & Partners

							The office of the Prosecutor-General.