CASE NO.: CA 105/2009
IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI
In the matter between:

and

Heard on:       17/09/2010; 24/09/2010 &01/10/2010 Delivered on: 11 March 2011

APPEAL JUDGEMENT

(a) The appellant's grounds of appeal do not comply with the requirements of rule 67(1) of the Rules of the Magistrate's Court, since they are vague and general.
(b) There has been non compliance with Rule 67(3) of the Rules of the Magistrate's Court; and
(c) the record was not complete.

[5] The grounds of appeal in essence only deal with the appellant's dissatisfaction with his conviction and no grounds of appeal in respect of sentence are contained in the Notice of Appeal. As such, no appeal lies against sentence. Counsel for the appellant furthermore did not pursue the appeal in respect of the sentence. In view of the afore-mentioned there is no need for this Court to consider the appeal against sentence.
[6] The grounds as set out by the appellant are indeed general and vague. Ms Mainga conceded that most of the grounds are vague and general but contended that there are two grounds that were set out with reasonable particularity. These grounds are the following:
a)	
b)	that the appellant should have been convicted of possession of goods suspected to have been stolen instead of housebreaking with the intent to steal and theft.

[7] The above two grounds, taking into consideration that the appellant was not assisted by a legal practitioner, contains sufficient particularity and will therefore be considered by this Court.

[8] The record reflects that the appellant was not advised of his constitutional right to be represented by a legal practitioner of his choice or that he could apply to the Directorate of Legal Aid if his means are inadequate, to enable the Directorate to engage a legal practitioner to assist and represent him. The failure of the Magistrate to inform the appellant, who was unrepresented at the time, of his right to legal representation was an irregularity that infringes on the appellant's right to a fair trial. The respondent argued that this error does not vitiate the entire proceedings since the appellant suffered no prejudice. Whether this irregularity vitiated the proceedings need to be determined on the facts of this case.

and Chomba AJA stated the following:

[11] From the record it is apparent that the appellant was aware of his right to be represented. The complainant and the police, on the strength of information received, wanted to search the premises where they found the appellant. The appellant refused them entry to the premises. He informed them that he was not the owner of the premises and that he would not allow a search of the premises. He promptly called his lawyer to speak to the concerned police officer. If the appellant knew that he could call upon his legal practitioner to seek advice in respect of his rights under these circumstances, then it cannot be said that he did not know of his right to be legally represented at the trial, or for that matter at any stage during the proceedings.

[12] Despite the above, the appellant at no time requested the court to allow him time to obtain the services of a legal practitioner. The matter was postponed several times after the appellant was released on bail during which time the appellant could have obtained the services of a legal practitioner. The charge faced by the appellant was a simple one of housebreaking with intent to steal and theft. It cannot under these circumstances be said that there was a miscarriage of justice.

[14] The complainant testified that she discovered during the early hours on 7 July 2007 that her place was broken into and items valued at N$21 040.30 were stolen. The items listed were cash, recharge vouchers, various food items, 9 pairs of shoes (one pair was made of springbok leather), clothing items (not specified), 15 tops , 5 trousers and 2 jackets (specified), 3 door locks; 14 bags, 1 cash register and one electronic cash till. These allegations were not disputed and it was therefore common cause that the offence of housebreaking with intent to steal and theft was committed. The appellant disputed that he was the person who committed the offence.

[16] According to the complainant she received information about the whereabouts and identity of a person selling some of her belongings on Saturday, 8 July 2007. She reported this to the police and they went to the house pointed out to the complainant at around 20H00. They found the appellant at the premises, who refused the police officer entry to the premises, despite the fact that he was advised by the police officer that he was entitled to search the premises without a warrant. The appellant locked the door and called his legal representative who spoke to the police officer. The appellant did not dispute that he was found at the house where the stolen items were later recovered and that he refused entry to the house. His refusal was based on the fact that the police did not furnish him with a search warrant; and he did not want to consent, as the house did not belong to him.

[17] The appellant may have been well within his rights to have refused the police entry to the house without a search warrant, given the fact that he could not give lawful consent to search someone else's premises.. The fact that he refused consent to search the house cannot therefore be taken into consideration in determining the culpability of the appellant.

"It is correct that where a person is found in possession of recently stolen goods and has failed to give an explanation which could reasonably be true, a court is entitled to infer that such person had stolen the article or that he is guilty of some other offence. (See
Hoffmann and Zeffert The SA Law of Evidence 4th ed at 605 - 6.) I also agree with the magistrate that there are instances where a lapse of 14 days or longer was still regarded as recent possession. The test to be applied in this regard was laid down in R v Mandele 1929 CPD 96 where the following was stated at 98, namely:
'…..is the article one which could easily pass from hand to hand, and was the lapse of time so short as to lead to the probability that this particular article has not yet passed out of the hands of the original thief? ' 
This dictum was approved on many occasions and again by the South African Appeal Court in S v Skweyiya 1984 (4) SA 712 (A) at 715E. C

[28] No proper grounds of appeal against sentence were advanced to be considered and the appeal against sentence was not pursued by counsel for the appellant.

[29]   In the result:

the appeal against conviction is dismissed.

TOMMASI J

I concur

LIEBENBERG J