Court name
High Court
Case number
CA 54 of 2009
Case name
S v Mirajiandile
Media neutral citation
[2010] NAHC 168

























CASE
NO.: CA54/09



IN
THE HIGH COURT OF NAMIBIA



In
the matter between:


SAMUEL
MRAJI ANDILE

….......................................................................................
APPELLANT


and


THE
STATE

…..........................................................................................................RESPONDENT


CORAM:
Van
Niekerk J
et
Botes
AJ.







Heard
on: October 15, 2010 Delivered on: October 26, 2010












JUDGEMENT:



Botes,
AJ
.:
[1]
The appellant was charged with the offence of dealing in dagga in
contravention of section 2(a) of the Abuse of Dependence-Producing
Substances and Rehabilitation Centres Act, 41 of 1971 ("the
Act"), in the Windhoek Magistrate's Court. The charge sheet
alleged that appellant unlawfully dealt in 82kg of cannabis with a
value of



N$246,000.00.








[2]
Appellant who was legally represented at the trial pleaded guilty to
the charge and was convicted on 12 May 2009. After appellant's
conviction, the matter was transferred to the Regional Court,
Windhoek for sentencing where appellant was sentenced to 7 years
imprisonment of which 2 years imprisonment are suspended for 5 years
on condition that appellant is not convicted of an offence of
contravening section 2(a) or 2(b) of Act 41 of 1971, committed
during the period of suspension. Appellant now appeals against the
sentence only.



[3]
Before I deal with the merits of the appeal, it is necessary to
refer to the notice of appeal filed in this matter. The only grounds
contained in the notice of appeal are that the magistrate erred in
law and/or in fact in overemphasising the interest of society and
erred in law by not placing sufficient weight on the personal
circumstances of the appellant. Appellant in the notice of appeal
indicated that appellant
"reserves
his right to amplify or amend his grounds of appeal upon receipt of
the transcribed record of the proceedings'"



[4]
When the notice of appeal was drafted, appellant was still
represented by the same legal practitioner who represented him in
the court below. Appellant never exercised his right, as reserved,
to amend the grounds of appeal.



[5]
In my opinion, the grounds of appeal as contained in the notice of
appeal are not proper grounds of appeal at all, but are conclusions
drawn by the draftsman of the notice without setting out the reasons
or grounds therefore. It has been repeatedly stated that the purpose
of grounds of appeal, as required by the rules, is to appraise all
interested parties as fully as possible of what is an issue and to
bind the parties to those issues.1



[6]
The grounds as contained in the present notice of appeal do not
either inform the State, the magistrate or this Court of the grounds
on which the judgment is attacked.



[7]
In
S
v Kakololo,
2
Maritz
J, as he then was, who wrote for the Court stated that:



"Rule
67(1) of the Magistrate Court Rules, requires that convicted persons
desiring to appeal under s 309(1) of the Criminal Procedure Act,
1977 "shall within 14 days after the date of conviction,
sentence or order in question, lodge with the clerk of the court a
notice of appeal in writing in which he shall set out clearly and
specifically the grounds, whether of fact or law or both fact and
law, on which the appeal is based.



The
noting of an appeal constitutes the very foundation on which the
case of the appellant must stand or fall (S v Khoza, 1979 (4) SA 757
(N) at 758B). It serves to inform the trial magistrate in clear and
specific terms which part of his or her judgment is being appealed
against, what the grounds are on which the appeal is being brought
and whether they relate to issues of law or fact or both. It is with
reference to the grounds of appeal specifically relied on that the
magistrate is required to frame his or her reasons under
Magistrate's Court Rule 67(3). Once those reasons have been given,
the appellant may amend the notice of appeal under sub-rule (5) and
the magistrate may again respond to the amended grounds of appeal.



The
notice also serves to inform the respondent of the case it is
required to meet and regard being had to the record and the
magistrate's reasons, whether it should concede or oppose the
appeal. Finally it crystallises the disputes and determines the
parameters within which the court of appeal will have to decide the
case."



[8]
The present notice of appeal except for the conclusions drawn by the
draftsman thereof does not contain any reasons or grounds for such
conclusions. As such, the present notice of appeal does not comply
with the provisions of rule 67 of the rules of the magistrate court
read with s309 of the Criminal Procedure Act.



[9]
In order to finalize this appeal, it was however decided not to
strike the present appeal from the role for want of compliance with
rule 67 of the rules of the magistrate court. This present case must
however again serve as a warning to all litigants, whether legally
represented or not, that this court in future will require strict
compliance with the provisions of rule 67 of the rules of the
magistrate court, read with s 309 of the Criminal Procedure Act.



[10]
Appellant on appeal appeared in person whilst the State was
represented by Ms H Jacobs.



[11]
No evidence was led by appellant or the state in mitigation and/or
aggravation of sentence.



[12]
In respect of the appellant's personal circumstances, the legal
practitioner informed the court
a
quo
that
appellant is 46 years old, a South African citizen, married and
father of 6 children between the ages of 10 and 22. Appellant
attained grade 11 in school and as result of a motor vehicle
accident and the injuries sustained, appellant took up employment as
a truck driver. As such, appellant is gainfully employed and earns a
monthly salary of N$3,000.00. Appellant is a first offender.



[13]
In his plea explanation in terms of s 112(2), which plea explanation
was accepted by the State, the appellant in respect of the offence
alleged that:



"3.1
On the 5
th
of
May 20091 met an old friend of mine in Johannesburg.



3.2
He then asked me to transport three bags of cannabis to Windhoek to
deliver to a certain Goodman.



3.3
I agreed to do it because of my financial situation of being the
only breadwinner with 5 schoolgoing children.










  1. I
    was supposed to get paid in Windhoek in the amount of N$2,000.00,
    once I delivered the bags.



  2. I
    arrived in Windhoek on the 7
    th
    of
    May 2009 and went to the area called Prosperita.



  3. Whilst
    waiting to for the said Goodman, the Police from the Drug Law
    Enforcement arrested me with the bags in my possession.



  4. I
    knew that when I transported the said cannabis that I was
    committing the offence of dealing in cannabis.



  5. I
    further knew that my actions as aforesaid was illegal and against
    the law.



  6. I
    thus had no legal right to transport the cannabis as I did, and as
    such my actions were wrong."




[14]
The appellant furthermore admitted that the three bags had a total
weight of 82 kg with a street value of N$246,000.00. 3



[15]
It is trite law that sentence is pre-eminently a matter for the
discretion of the trial court and a court of appeal can and will
interfere only in certain instances. In
S
v Fazzie & Others,4
Van
Winsen AJA said the following:



"Where
however, the dictates of justice are such as clearly to make it
appear to this Court, that the trial Court ought to have had regard
to certain factors and that it failed to do so, or that he ought to
have assessed the value of these factors differently from what it
did, then such action by the trial Court will be regarded as a
misdirection on its part, entitling this court to consider the
sentence afresh."



[16]
Trollip JA, in discussing the case of
Fazzie
said
the following:5



"Now
the word "misdirection" in the present context simply
means an error committed by the Court in determining or applying the
facts for assessing the appropriate sentence. As the essential
enquiry in an appeal against sentence, however, is not whether the
sentence was right or wrong, but whether the Court in imposing it
exercised its discretion properly and judicially, a mere
misdirection is not by itself sufficient to entitle the Appeal Court
to interfere with the sentence. It must be of such a nature, degree
or seriousness that it shows, directly or inferentially, that the
Court did not exercise its discretion at all or exercised it
improperly or unreasonably. Such a misdirection is usually and
conveniently termed one that vitiates the Court's decision on
sentence."



[17]
Appellant, in his main heads of argument, as well as during the
appeal, submitted that the learned magistrate, in the light of his
personal circumstances, as well as his extended family and the
minors that he has to care for, should have considered the
imposition of a non custodial sentence in the form of a fine coupled
with a suspended sentence of imprisonment.



[18]
This Court however, is not in agreement with the submissions made by
appellant as it is evident from the record of the proceedings in the
court
a
quo,
as
well as the court
a
quo's
reasons
for sentence that :




  • The
    offence was a planned and deliberate one and as such morally more
    reprehensible than acting impulsively and without planning.



  • Appellant,
    who imported the drugs into Namibia from another country,
    contributes to the threat Namibia is facing in relation to drugs.6



  • It
    indeed will be an invitation to lawlessness if an appellant can
    rely on his financial predicament to justify the commission of the
    offence of dealing in drugs.



  • Appellant,
    for a meagre amount of N$2,000.00 decided to smuggle a large
    quantity of drugs into Namibia, having no concern about the
    consequences and the lives that he may destroy by trafficking in
    drugs.








The
quantity of the drugs involved is large and has a high street value.



[19]
When appellant's personal circumstances are weighed against the
interest of society and the seriousness of the offence, including
the quantity of cannabis involved, this Court cannot fault the
reasoning of the court
a
quo
to
impose upon the appellant, a first offender, an effective sentence
in the form of a custodial sentence without the option of a fine.



[20]
In
S
v Mlambo
1997
NR 221 (HC), the accused who was a first offender had been convicted
of dealing in 36,102 kg of dagga, valued at NS108,570.00 and
sentenced to 10 years imprisonment of which two years had been
conditionally suspended. The sentence was amended on appeal to 6
years imprisonment of which 2 years were conditionally suspended.7



[21]
Even if it is taken into account that appellant is a first offender
and that mercy or compassion is a quality of justice in itself, and
that, no matter how serious an offence is, an accused is always
entitled to receive the benefit of total justice, including the
quality of mercy, one however cannot in reconciling the interest of
the appellant with those of society and with due regard to the
gravity of the offence and the consequences inherent therein, come
to any other conclusion, but that a substantial period of
imprisonment is called for in the present case.8



[22]
In my view, the court
a
quo,
in
imposing the sentence that it did, did not commit any misdirection
which is of such a nature, degree or seriousness that is shows,
directly or inferentially, that the magistrate did not exercise his
discretion at all, or exercised it improperly or unreasonably. There
also does not exist a striking disparity between the sentence
imposed by the court
a
quo
and
the sentence that this court would have imposed if it was the court
of first instance. As such, the sentence of the trial court, is not
unreasonable to such a degree that it can be described as
"disturbingly inappropriate".9







[23]
For the above reasons the appeal against sentence is dismissed.



























BOTES,
AJ



















I
concur.



















Van
Niekerk, J



ON
BEHALF OF THE APPELLANT:
In
person


ON
BEHALF OF THE RESPONDENT:
The
office of the Prosecutor-General



Adv
H Jacobs





1S
v Wellington 1990 NR 20 (HC) and the cases referred therein; See
also S v Gey van Pittius and Another 1990 NR 35 (HC)





22004
NR 7 (HC) on pg 8




3Record
pg 14.




41964
(4) SA 673(A) at 684 B-C




5Sv
Pillay 1977 (4) SA 531 (A) at 535 D-G





6S
v Sibonyoni 2001 NR 22 (HC) on pg 25 Hoff AJ (as he then was), said
that:
"Drug
dealers are unscrupulous criminals and further that the Courts have
a duty to protect the members of society from exploitation by these
elements."





7See
also S v Sehako 2009 (1) NR 61 (HC) where accused, although not a
first offender, who dealt in 18,385kg of cannabis with a street
value of N$55,155.00 was sentenced to 6 years imprisonment of which
1 year was suspended for 5 years on certain conditions. In S v
Dyomfana 1996 (1) SACR 564 (E) the accused was sentenced to 6 years
imprisonment for dealing in 61,2kg of dagga. The appeal against
sentence was refused in light of the previous convictions of the
accused.





8In
S v Tjiho 1991 NR 361 (HC) on 365 D-F - it was stated that
"Furthermore,
law and order must prevail in society and society expects the
court's protection against lawlessness. The accused must be
prevented from repeating his crime and, if possible, reformed and
other persons must be deterred from doing what the accused did."








See
also: S v Lister 1993 (2) SACR 228 (A) at 232 H-I -
"To
focus on the wellbeing of the accused at the expense of the other
aims of sentencing, such as the interest of the community, is to
distort the process and produce, in all likelihood, a warped
sentence".




9S
v Rabie 1975 (4) SA 855(A) at 864; see also the judgment of Leon AJ
in S v Kramer & Others 1990 NR 49


(HC).





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