Court name
High Court Main Division
Case number
CA 71 of 2012
Title

Hoorzook and Another v S (CA 71 of 2012) [2013] NAHCMD 168 (10 June 2013);

Media neutral citation
[2013] NAHCMD 168
Coram
Geier J
Parker AJ













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



EX-TEMPORE JUDGMENT








Case no: CA 71/2012








In the matter between:








ABDOOL MAJEED HOORZOOK
....................................................FIRST
APPELLANT



RABIA BIBI HOORZOOK
...........................................................SECOND
APPELLANT








and








THE
STATE

......................................................................................................RESPONDENT








Neutral citation:
Hoorzook v State (CA 71/2012) [2013] NAHCMD 168 (10 June 2013)








Coram: GEIER J and
PARKER AJ



Heard: 10 June
2013



Delivered: 10
June 2013








Flynote: Criminal
procedure – Appeal against conviction – Notice of appeal
– Noting of appeal is foundation on which appeal is based –
Where grounds are not grounds but conclusions of the draftsperson who
drafted the notice court is not entitled to adjudicate the case on
such non-grounds – In instant case counsel therefore did not
pursue such non-grounds.








Summary: Criminal
procedure – Appeal against conviction – Notice of appeal
– Noting of appeal is foundation on which appeal is based –
Where no grounds but conclusions of facts are put forth by the
draftsperson of the notice of appeal court is not entitled to
adjudicate the case based on those conclusions – Court finding
that only two of the six grounds of appeal are grounds and so merit
adjudication on the merits – Court rejected the two grounds as
meritless – Appeal against conviction therefore dismissed –
In casu, counsel did not pursue the four non-grounds – The
principles in S v Gey van Pittius 1990 NR 35 (HC) and S v
Kakololo
2004 NR 7 (HC) on notice of appeal applied.










ORDER










The appeal is dismissed.










JUDGMENT










PARKER AJ (GEIER J
concurring):








[1]
The first appellant (accused 1 in the court below) and the second
appellant (accused 2 in the court below) were charged before the
magistrates’ court, Windhoek, with two counts, namely,
remaining in Namibia after expiration of employment permit in
contravention of s 27(6), read with s 1, of the Immigration Control
Act 7 of 1993 (count 1 in respect of the first appellant) and
resisting a member of the Police (count 2 in respect of the first
appellant); and in respect of the second appellant, resisting a
member of the Police (count 2) and remaining in Namibia after
expiration of visitor’s entry permit (count 3).








[2] The formulation of
the counts is inelegant and confusing in relation to the second
appellant. The impression is given that she was also charged with the
first count. There is no first count charged against the second
appellant, and yet the two counts are numbered ‘2’ and
‘3’.








[3]
I find that as respects the first appellant the two counts are clear,
and as respects the second appellant the two counts are also clear,
save that the numbering is wrong, as I have shown. The wrong
numbering of the counts cannot and does not detract from the fact
that the counts are clear, and it would seem that both appellants who
were represented by counsel in the trial court pleaded not guilty to
the charges. And I do not see anything on the record establishing
that they did not understand the charges and so did not plead to the
counts.
They did plead to the counts, and they
did plead not guilty. They were tried, convicted and sentenced
accordingly. They now appeal against the conviction.








[4] The appellants filed
a notice of appeal in November 2012, dated 20 November 2012. In the
notice both appellants put forth what they consider to be six grounds
of appeal. The respondent has moved to reject the appeal, and in
doing that the respondent raises a preliminary objection on the basis
that some of the grounds are not grounds in terms of our law.








[5]
I do not think this objection should be characterized as a point
in
limine
. In my view it
goes to adjudication of the merits of the appeal and I shall consider
it as such. In any case, Mr Brandt does not persist with ground 3,
ground 4, ground 5 and ground 6. This concession disposes of the
respondent’s point
in limine.








[6]
I now proceed to deal with the two remaining grounds of appeal.

As to ground 1; the appellants say that he ‘Learned
Magistrate erred by not finding that both accused had no
mens
rea
in relation to the statutory offences of
section 27(6) and 29(1), respectively, of the Immigration Control
Act’.








[7]
S v Kramash 1998 NR
186, referred to the court by Mr Brandt, tells us that in deciding
whether an accused had
mens rea
when he or she committed a statutory offence like the
offences committed by the appellants in the instant proceeding the
onus to prove the absence of
mens rea
on a balance of probabilities rests on the appellants.
See also
S v Paulus 2011
(2) NR 649 (HC) at [65] to [66].
On the discharge
of the onus, Mr Brandt submits on behalf of the appellants that both
appellants testified that they had no intention to commit these
offences. And why does counsel say so? It is only this. The
appellants were advised by their immigration agent (Seter) that they
could remain in the country and be employed pending the outcome of
the renewal application for employment permit and that they had no
intention to commit these offences.








[8] First, it is
important to note that Seter has no colour of authority or power to
administer the Immigration Control Act. Indeed, he does not
administer that Act. And so, what Seter said or did not say is of no
moment in this proceeding as far as the administration of the
Immigration Control Act is concerned. Second, Tobias Nandago v
State
Case No. SA 3/2001 (SC) (Unreported), referred to the court
by Mr Eixab, tells us that ‘mens rea, this mental
element, is not always capable of proof through evidence. It is
usually inferred from proved facts relating to a person’s
conduct’. See also S v Kramash at 193. In the instant
matter, the proved facts in the trial court for which I have no good
reason to fault the learned magistrate are these: as respects the
first appellant; the first appellant knew that his employment permit
had expired and yet he remained in the country and worked without the
requisite permit, which he knew, was required. That is his conduct.
And as respects the second appellant; the second appellant knew her
visitor’s permit had expired and that she requested a new
permit, and yet she continued to remain in the country knowing that
this was required. That is also her conduct. It can be inferred from
the proved facts relating to the conduct of the appellants that they
had the requisite intention to commit the separate offences they were
charged individually with under the Immigration Control Act. What
Seter said or did not say to them is merely an excuse; it does
dissipate their intention to commit the offences. For these two
considerations, the case of the appellants fails with regard to
ground 1.








[9] I now proceed to
consider ground 2. As to ground 2; the appellants contend that the
‘Learned Magistrate erred by not finding that both accused were
erroneously charged under the Police Act 19 of 1990 instead of under
the Immigration Control Act 7 of 1993 (police officers are deemed to
be Immigration Officers)’.








[10] The evidence is that
when the immigration officials failed to get the appellants to open
the door to their flat so that the immigration officials could talk
to them, the immigration officials called for assistance from police
officials ‘to come to help as to see how we can get the key for
the flat or may be how we can also enable to see who is here on the
flat’. I, therefore, accept the evidence that there were police
officials on the scene and they requested the appellants to open the
door so that they could speak to them. And it is not in dispute that
they resisted the police from carrying out their functions by
refusing to open the door. Such conduct is an offence under s 54 of
the Immigration Control Act and so the appellants could be charged
under the Immigration Control Act. But, as I have found previously,
there were police officials also on the scene in order to carry
functions under the Police Act. They were called by the immigration
officials to assist them. The police officials were also resisted.
And so the appellants’ conduct is also an offence under s 35 of
the Police Act 19 of 1990, as amended by the Police Amendment Act 3
of 1999. The State elected to charge the appellants under the Police
Amendment Act and not under the Immigration Control Act; and so, I
see no merit in Mr Brandt’s argument that they were erroneously
charged under the Police Act No. 19 of 1990. The conduct of the
appellants, as I have said, is on the facts and in the circumstances
offensive of the two Acts. The State was at liberty to decide under
which statute they would charge the appellants. The State elected to
charge them under the Police Act. Accordingly, I do not see anything
‘erroneous’ about that election. It follows inevitably
that ground 2 also fails. It, too, has no merit.








[11] For the aforegoing
reasoning and conclusions, I decide that the appeal against
conviction fails.








[12] The chapeu of the
notice of appeals indicates that the appeal is against conviction and
sentence, but no grounds are put forth in the notice regarding
sentence; nor were any arguments addressed on the question of
sentence by counsel. Accordingly, the court makes no finding on
sentence.








[13] For all these
reasons the appeal is dismissed.























-----------------------------



C Parker



Acting Judge























----------------------------



H Geier



Judge













APPEARANCES:








FIRST AND



SECOND APPELLANTS: C
Brandt



Of Chris Brandt
Attorneys, Windhoek













RESPONDENT: J E Eixab



Of Office of the Prosecutor-General,
Windhoek.