Koopman v S (CA 46/2013) [2014] NAHCMD 75 (28 February 2014);

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Full judgment

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 46/2013

DATE: 28 FEBRUARY 2014

NOT REPORTABLE

 

In the matter between:

CYRIL JEROME KOOPMAN...............................................APPELLANT

And

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

 

Neutral citation: Koopman v State (CA 46/2013) [2014] NAHCMD 75 (28 February 2014)

 

Coram: HOFF J and SIBOLEKA J

 

Heard: 28 February 2014

Delivered: 28 February 2014 (Ex tempore)

Judg. made available: 11 March 2014

 

 

ORDER

The matter is removed from the roll – non compliance with Rule 67(1) of Magistrate’s Court Rules – grounds of appeal not clear and specific.

 

JUDGMENT

 

HOFF J (SIBOLEKA J concurring):

[1] The appellant in this matter was convicted in the magistrate’s court of the offence of possession of cannabis in contravention of s 2(b) of Act 41 of 1971 and he was sentenced to a period of 18 months imprisonment without the option of a fine.

[2] On appeal before us Mr Eixab appearing on behalf of the respondent raised a point in limine to the effect that the notice of appeal does not comply with the provisions of Rule 67(1) of the magistrate’s court’s Rules which requires that an appellant must in his notice of appeal where he deals with the grounds of appeal set out the grounds clearly and specifically and this court was referred to authority in this regard and particularly the State v Horn 1971 (1) SA 630 (C) at 631 (H) where the following appears on the Judgment Dimond J and I quote:

‘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 good argument in Court.’

[3] The ground of appeal on which the appellant relies as it appears from the notice of appeal is the following and I quote the paragraph.

‘The learned magistrate misdirected himself alternatively erred in law and all fact by failing to give due consideration to the totality of facts in evidence before him in reaching his decision.’

[4] Mr Phatela who appears on behalf of appellant amicus curiae disagrees with counsel appearing on behalf of the State that this court is not in a position to glean the grounds of appeal from this paragraph.

[5] Mr Eixab however in reply persisted with his view that this particular paragraph falls far short of the requirements set out in Rule 67(1) of the Magistrate’s Court’s Rules. There is ample authority to the effect that grounds of appeal should not embody arguments or conclusions reached by an appellant. It must be specific and clear as required by the Rules and as stated in State v Horn also for good reason as mentioned in that particular case.

[6] In our view the way in which this ground of appeal, which is the only ground of appeal was drafted, is quite in general terms and does not indicate specifically what the grounds are on which the appellant based his appeal. What is more problematic is that it is not clear from the documents filed in this regard, we refer to the notice of appeal as well as the special power of appeal, whether the appeal lies against sentence or against conviction or both sentence and conviction. For example in the notice of appeal the heading reads, ‘appeal against sentence’ but in the body of that notice reference is made the appeal lies against the conviction. This is something which is not stated clearly and unambiguously as required by the Rule and we are of the view that the point in limine taken by a counsel appearing on behalf of the respondent is well founded and in this regard the court cannot entertain the merits of the appeal, and for the reasons provided the appeal should accordingly be removed from the roll.

[7] In the result the following order is made:

The matter is removed from the roll – non compliance with Rule 67(1) of Magistrate’s Court Rules – grounds of appeal not clear and specific.

 

E P B HOFF

Judge

 

A M SIBOLEKA

Judge

 

 

APPEARANCES

APPELLANT : T C Phatela

Amicus curiae, Namlex Chambers

RESPONDENT: J Eixab

Office of the Prosecutor-General, Windhoek

 

 

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