REPUBLIC OF NAMIBIA
CASE NO. CA 96/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:

THOMAS FILLEMON						Appellant
and
THE STATE								Respondent

Heard:        25 June 2010 Delivered:    16 March 2011

[4] As far as the third accused is concerned, he addressed two letters to the Registrar in which he made it plain that he does not wish to appeal against the conviction and sentence on robbery, but only made certain prior queries to the Registrar because he wanted clarification on the date of commencement of a certain sentence imposed, which apparently was wrongly interpreted as an indication that he wanted to appeal against the sentence. There is in fact no notice of appeal by accused no. 3. These facts were also pointed out to counsel. What is more, the appellant complained that he appealed alone and did not want his appeal hearing to be delayed - as he put it, "I did not appeal so that others should be here".

[5] Nevertheless, as I understood counsel, he submitted that in all cases where there are more than one accused, any appeal by one of them means that all the others also have an interest and they should be brought to court to participate in the appeal. How this was to be effected he did not explain.

[10] The State called no eye witness to the crimes, but presented admissible evidence that the appellant and the second accused pointed out certain points at the scene of the crime where the deceased's body was found. Deputy Commissioner Visser dealt with the pointing out by the appellant, which took place on 24 July 2002. The appellant explained to him that he obtained knowledge about that which he would point out because he knew "the place as we were there during the day." The appellant directed Visser to a place in the vicinity of the Eros Airport near a railway line where he pointed out a spot along a foot path parallel with Mandume Ndemufayo Avenue as the place where he had allegedly stabbed the deceased. Visser observed blood stains on the ground at this spot. The appellant then indicated a further spot about 80 metres in a westerly direction as the direction from where the victim came. Notes and photographs were taken by the police, which were handed in during the trial. No cross examination was directed at this evidence.

[12] The prosecution also presented the evidence of Mr Abisai Hasihana who stated that he knew accused 2 and 3 from the 23 July 2002 when they came to his house to sell a bicycle to him. Accused no. 3 told him they got the bicycle from their boss in Klein Windhoek. Hasihana bought the bicycle for N$250. The next day he was arrested and the bicycle was seized by the police after he told them who he had bought it from.

[13] Hasihana's evidence was confirmed by his girl friend Lydia Nujoma, except she testified that the sellers of the bicycle were accused no. 3 and another person, who was not at court.

[14]   The State also called Mr du Plessis, the deceased's employer of 18
years. On 22 July 2002 at about 18h00 to 19h00 he was telephoned by
the police, who had found the deceased's body in the veld near the witness' home with a stab wound in his neck. The police traced du Plessis after they found a pay slip in the deceased's pocket. He identified the deceased's body at the scene of the crime. He knew that the deceased spent a lot of money on the bicycle by buying mirrors, mudguards, reflectors, etc. He made a name plate for the deceased which was stuck to the bicycle. On 24 July he identified the bicycle in the custody of the police to be that of the deceased, specifically as the name plate was still attached.

The grounds of appeal

[18] The second ground of appeal states that the conviction is "against the evidence and the weight of the evidence" without providing any further particulars. This ground is too vague to be considered.  In this

"A notice of appeal which states that appeal is noted against the conviction on the ground that it is against the weight of evidence and bad in law, tells the Court nothing, or rather it tells it no more than that the grounds are based both on fact and law. That is not enough. 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 with them 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 its deliberations, and finally, the Court itself will wish to be appraised of the grounds so that it can know what portions of the record to concentrate on and what preparation, if any, it should make in order to guide and stimulate a good argument in Court. These advantages may well be frustrated where the appellant uses the blanket phrase - "against the weight of evidence and bad in law"."

[19] In the third ground of appeal the appellant states that the magistrate failed to take into account that he was a layman before the trial court and unrepresented although he once expressed the desire for a lawyer. This is clearly incorrect as he was represented throughout by Ms Shakwa.

[22] The sixth ground of appeal is that the magistrate failed to take into account that Visser testified that the appellant did not know the place of crime. This is simply not correct. The evidence is clear that the appellant stated to Visser that he knew the place he wanted to point out because they (i.e. he and his co-accused) were there during the day. He then directed Visser to the exact spot where he had stabbed the deceased.

[25] In the ninth ground the appellant states that the trial court erred by "not staying within the 'four corners' of the proven facts, thereby starting to speculate". Again, no specific particulars are given to identify the speculative aspects of the magistrates' judgment. The ground is dismissed for vagueness.

[28] The twelfth ground of appeal is completely without any merit. It is to the effect that the magistrate erred by failing to hold that the State had totally failed to break down the evidence by the appellant. The short answer is that he closed his case without presenting an iota of evidence.

[30] To sum up, none of the appeal grounds advanced has any merit. The appeal is accordingly dismissed.

VAN NIEKERK, J

I agree.

SIBOLEKA, J

Appearance for the parties

For the appellant:						In person
For the State:						Mr J Kuutondokwa