Court name
High Court Main Division
Case number
CA 67 of 2012
Case name
S v Visagie
Media neutral citation
[2013] NAHCMD 44
Judge
Ueitele J
Unengu AJ













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case No: CA 67/2012








In the matter between:



PIETER VISAGIE
...................................................................................APPELLANT








and








THE STATE
.........................................................................................RESPONDENT








Neutral citation:
Visagie v State (CA 67/2012) [2013] NAHCMD 44 (22 February
2013)








Coram: UEITELE, J
and UNENGU, AJ








Heard: 22 February
2012



Delivered: 22
February 2013























­­___________________________________________________________________







ORDER



___________________________________________________________________







(i) That the appeal is
removed from the roll.



(ii) That the record is
returned to the Clerk of the Court, Windhoek at Mungunda Street for
corrections of defects and mistakes in the record of proceedings and
thereafter to submit the record to the Registrar to assign a date for
the hearing of the appeal after consultation with the parties.



___________________________________________________________________



JUDGMENT



___________________________________________________________________UNENGU
AJ (UEITELE J) concurring:



[1] This is an appeal by
the appellant against his conviction and sentence from the judgment
of the Divisional Court for the Windhoek Regional Division delivered
on 25 June 2012 and 6 July 2012 respectively.







[2] The appellant filed
his Notice and grounds of Appeal on the 19
July
2012 with the Clerk of the Court at the Magistrate’s Court,
Mungunda Street in Katutura, Windhoek.







[3] The Clerk of the said
Court, instead of presenting the full record of the proceedings with
the Notice of Appeal and the grounds thereof to the magistrate who
convicted and sentenced the appellant – who is Mr Endjala, for
his reasons of both the conviction and sentence, the record was
submitted to Ms Usiku. Ms Usiku dealt with the bail application, not
with the criminal proceedings as such.







[4] That being the case,
Ms Usiku then issued a Certificate of Accurate Report in which she
certified that the notes were the true record of the State versus
Peter Visagie, and was an accurate report of the proceedings in the
Magistrate’s Court Katutura, which was tried before her on 2
November 2012. This Certificate might be of the bail proceedings
which took place before her. However, her comments on the reasons for
convictions and sentence cannot be correct. She did not preside in
the trial of the rape charges against the accused nor did she convict
and sentenced the accused on 6 July 2012. Mr Endjala did.







[5] Therefore, Mr Endjala
is the magistrate who must have provided reasons for the conviction
and sentence of the accused. He did not. Without reasons for
conviction and sentence from the presiding officer,
the
Appeal Court will be deprived of the benefit of hearing from the
magistrate’s side concerning the allegations the appellant has
made in attacking the verdict of guilty of the offences he has been
charged with and the sentence imposed on him.







[6] There are other
defects in the record provided as pointed out by the respondent in
the heads of argument,
these
are that page numbers 111, 113, 115, 119, 121 and 127 are not
readable and difficult to make out the typed words. Pages 124 and 126
are numbered upside making it difficult to determine whether the
pages are part of the record or not. There are pages included in the
record which pages do not form part of the record. Bearing in mind
all these shortcomings in the record, I am of the view that the
Appeal record before us is not only incomplete but also not properly
compiled by the Clerk of the Court despite the guidelines and
directives pointed out to them in the judgment of
Petrus
J Coetzee v The State
1.







[7] In view of the
shortcomings in the record as pointed out above, this Court is not in
a position to hear the appeal. In the result we make the following
order:







(i) That the appeal is
removed from the roll.



(ii) That the record is
returned to the Clerk of the Court, Windhoek at Mungunda Street for
corrections of defects and mistakes in the record of proceedings and
thereafter to submit the record to the Registrar to assign a date for
the hearing of the appeal after consultation with the parties.















__________________



E P Unengu



Acting



















__________________



S F I Ueitele



Judge















































































APPEARANCES







APPELLANT: In Person







RESPONDENT: K Esterhuizen



Of the Office of the
Prosecutor-General




1Unreported
appeal judgment in Case No: 52/09, delivered on 11 March 2011.