Court name
Supreme Court
Case name
S v Rooi
Media neutral citation
[2004] NASC 1



















SA 17/2003


















IN THE SUPREME COURT OF
NAMIBIA











IN THE MATTER BETWEEN:
















DAWID ROOI



APPELLANT












And



















THE STATE



RESPONDENT












CORAM: STRYDOM,
A.C.J., TEEK, J.A., et MTAMBANENGWE, A.J.A.








Heard on: 01/04/2004


Delivered: 01/04/2004















APPEAL
JUDGMENT



















STRYDOM, A.C.J.: The appellant appeared before O’Linn, J,
together with two other accused, on a charge of murder and a charge
of robbery with aggravating circumstances. The appellant was styled
as accused no. 1. After a lengthy trial he was convicted on both
charges and on the charge of murder sentenced to life imprisonment
and on the robbery sentenced to 18 years imprisonment. Mr.
Grobler represented the appellant throughout his trial and is again
representing him. We want to thank Counsel for his assistance to
the Court as amicus curiae. Mr. Small, who also appeared in
the Court a quo, again appeared before us to represent the
respondent.







Subsequently to his conviction and sentence the appellant applied to
the Court a quo for leave to appeal, which application was
unsuccessful. It is however clear that this application only
concerned the conviction of the appellant and that no application for
leave to appeal was launched in respect of the sentences imposed on
the appellant. The history of the matter was set out by Mr. Small
in his heads of argument. Although it seems that there was at some
stage an application launched by the appellant to apply for leave to
appeal also against his sentence this application, for some or other
reason, was never heard. Then, after the lapse of some years the
appellant petitioned the Chief Justice for leave to appeal against
his conviction and sentence. The petition was dismissed in regard
to the convictions but leave was granted to the appellant to appeal
against the sentences.







Because no prior leave was obtained from the Court a quo to
appeal against the sentences Counsel were requested to address the
Court on whether the appeal was regularly before this Court. Both
Counsel submitted, correctly in my view, that this Court could not
entertain the appeal against the sentences because no prior leave to
appeal was applied for in the Court a quo.







Appeals in criminal matters are regulated by sections 315 and 316 of
the Criminal Procedure Act, Act 51 of 1977. In terms of sec. 315
the Supreme Court of Namibia shall be the Court of appeal in regard
to criminal cases heard by the High Court and that such appeals shall
only lie as provided for in sections 316 and 319 of the Act, and not
as of right. Sec. 316, which is relevant to the present
proceedings, provides for applications for leave to appeal to the
Court a quo, and, if unsuccessful, for petitions to the Chief
Justice. Leave could be applied for by an accused in regard to
conviction or sentence or both.







Act 55 of 1977 is an act of the Republic of South Africa which was
applied to South West Africa and survived the Independence of Namibia
by virtue of Article 140(1) of our Constitution. Our provisions
concerning leave to appeal in criminal cases were therefore similar
to that applicable in South Africa at the time of Independence and
decided cases on this issue are therefore relevant to the
interpretation of our sections 315 and 316. In the case of S v
Mamkeli,
1992 (2) SACR 5, the Appeal Court of South Africa,
Hefer, JA, stated the following in this regard, at p 7 f to g:







“An appeal under s 316 could, depending on the extent of the leave
granted, be against the conviction or against the sentence (or both)
or any order following thereon. Where leave had been granted to
appeal against sentence only, the Court was not competent to consider
the merits of the conviction (S v Matshoba and Another 1977
(2) SA 671(A) at 677 G-H; S v Cassidy 1978 (1) SA 687(A); S
v Langa en Andere
1981 (3) SA 186(A) at 189H)”












In the case of David Silunga v The State, an unreported
judgment of this Court, delivered on 2000/12/08 by O’Linn, A.J.A.,
we followed the South African decisions on this point. In this
particular case the application launched in the Court a quo
was only in respect of sentence. When the application was refused
the accused petitioned the Chief Justice for leave to appeal against
conviction and sentence and this was granted. On appeal the Court
found that it was not competent to extend the appeal to include leave
to appeal also against conviction where previously there was no
application in the Court a quo to appeal also against
conviction. The Court came to the conclusion that the order whereby
leave was granted was a nullity, as was now also submitted by Mr.
Grobler and Mr. Small, and any order made on appeal in pursuance of
the order granting leave to appeal against conviction, would likewise
be a nullity.







I have therefore come to the conclusion that it would not be
competent for us to consider an appeal against the sentence as no
application for leave to appeal against sentence was launched and
considered by the High Court. Under the circumstances the appeal
must be struck from the roll as was submitted by both Counsel.







In the result the appeal is struck from the roll.













STRYDOM, A.C.J.























I agree,








TEEK,
J.A.








I agree,











MTAMBNENGWE
, A.J.A.


















COUNSEL
ON BEHALF OF THE APPELLANT: ADV. Z.J. GROBLER


(Amicus
Curiae)





COUNSEL
ON BEHALF OF THE RESPONDENT: ADV. D.F. SMALL


(PROSECUTOR-GENERAL)