Court name
High Court
Case number
CA 120 of 2010

Kukuri v S (CA 120 of 2010) [2010] NAHC 190 (15 November 2010);

Media neutral citation
[2010] NAHC 190


CASE NO.:CA 120/10


In the matter between:





Heard on:
29 October 2010

on: 12 November 2010


[1] The appellant was charged with
and convicted in the Regional Court of rape. He was resultantly
sentenced to 15 years imprisonment. He was not represented by a
legal practitioner during his trial and at the hearing of this
appeal, for he attempted to obtain legal assistance through the
Directorate of Legal Aid but to no avail.

[2] The appellant was sentenced on 2
February 2009. Subsequent to his conviction and sentence he, on 25
February 2009 prepared a notice of appeal addressed to the High
Court of Namibia. The notice appears to have been also served upon
the Clerk of Court.

[3] The State was represented at the
hearing of this appeal by Mrs Nyoni. During the course of the
preparation for the hearing of this appeal I caused a notice to be
given, through the office of the Registrar, to the State's counsel
requiring her to argue the appeal on merits in respect of the
appellant's conviction in the event of her points
not being
upheld. This was because in her written heads of argument she only
addressed the points
appellant's appeal against sentence despite the fact that the
appellant was evidently also appealing against his conviction. Mrs
Nyoni positively responded to the notice and addressed the court, in
details, regarding the appellant's conviction. The court heard
arguments in respect of both preliminary points and the merits and
reserved judgment.

[4] In her written heads of argument
Mrs Nyoni raised a number of preliminary points
that the
appellant's notice of appeal was not filed within 14 (fourteen) days
of his conviction and sentence and further that the notice of appeal
is a nullity in that it does not comply with Rule 67(1) of the
Magistrate's Court
provides that:

person desiring to appeal shall within 14 (fourteen) days after the
date of conviction, sentence or order in question, lodge
the Clerk of Court
notice of appeal in writing in which he shall set out
grounds, whether a fact or law or both facts and law on which the
appeal is based."

[5] The State's attack on the
appellant's notice of appeal was two pronged; firstly that it was
not filed within 14 (fourteen) days of his conviction and sentence
and, secondly, that it did not set out
and specifically
the grounds on which the appellant's
appeal is based as required in terms of Rule 67(1).
appellant's purported notice of appeal may not strictly meet the
requirements of Rule 67(1). Its formulation leaves much to be
desired and may be confusing. While the notice's heading indicates
that the appeal is against sentence, it is evident from the content
of the notice that the appellant was not only appealing against his
sentence but also against the conviction for he specifically:

(i) attacks
the contradictions and inconsistencies in relation to the photo
produced as evidence by the State as opposed to what he
observed the
date of the incident, in particular the
complainant's clothing;

(ii) points
out that the complainant after leaving his house first went home
wash herself and change her clothing before she reported the rape

(iii) remarks
that if the complainant was indeed sexually assaulted she had an
opportunity to have alerted the appellant's grandmother who was
outside the appellant's house when the complainant left;

(iv) attacks
his conviction on the basis that the charges were made up by the
complainant because the complainant asked for N$100.00 which the
appellant did not have; and he finally points out that the place
pointed out as the scene of crime by the crime is accessible to
members of public, who move around from time to time.

[6] The appellant filed an affidavit
four days before the date of hearing of the appeal in which he
sought condonation for non-compliance with Rule 67(1). He further
filed handwritten heads of argument in which he specifically
challenged the evidence produced by the State at the trial as
insufficient to sustain a conviction.
Taking together all the appellant's
grounds of appeal, the appellant's ground of appeal is essentially
that the State did not prove its case as required.

[8] It is trite that a presiding
officer in a criminal trial has a general duty to assist an
unrepresented accused person
The court
a quo
explained the
right of appeal to the appellant in the following terms:

"Should you feel that the
sentence is harsh or is not in terms of justice you are entitled to
an appeal within 14 (fourteen)
days from the day of this pronouncement. You have a right to appeal
against a conviction as well as sentence."

[9] A critical look at the above rudimentary
explanation by the trial court immediately reveals deficiencies in
material respects. It does not qualify as a sufficient and proper
explanation by a trial court to an unrepresented particularly in
cases where, such as in this case, there is no evidence on the
record that the accused is of a reasonable degree of sophistication
to understand legal proceedings or to access and interpret statutes
on his own.

[10] The first sentence of the court
a quo's above
explanation of the rights to appeal against conviction or sentence
pertains to the period within which an appeal should be lodged. It
is however apparent that the court
did not
mention the word
in that sentence.5
She, in the first sentence of her
explanation, only refered to an appeal if the appellant felt that
the sentence was harsh or if it was not in accordance with justice.
That, in my opinion, may also mean that only the appeal against
sentence is limited in terms of the period within it must be lodged.
The fact that the appeal against conviction was mentioned in the
last sentence does not fully alert the unrepresented appellant that
the 14 (fourteen) days within which one is required to lodge an
appeal pertains to both an appeal against sentence and conviction
for the court
pertaining to the period within which to lodge an appeal only
mentioned an appeal against sentence. Conviction was only mentioned
in the last sentence of the explanation. The trial court adopted a
carefree approach in this regard.

[11] The court a
is further disturbingly unfair and utterly insufficient in that it
did not inform the appellant that he is required to set out clearly
and specifically the grounds on which his appeal is based. One is
not required only to lodge a notice of appeal. The notice should
specifically and
clearly set
out the grounds upon which the appeal is based. It is therefore the
duty of the trial court in criminal trials in the lower courts to
meaningfully and fully explain the requirements of Rule 67(1) to an
unrepresented accused. For it will be unfair for an accused to be
criticized at the hearing of his/her appeal in the High Court for
want of specific and clear grounds on which his/her appeal is based
when it was the trial court that omitted to advise him of such

[12] We should not be naive, to act
as if we are oblivious of the fact that many of the accused brought
before courts of law in this country are, in many cases,
unrepresented and regrettably of negligible educational standard.
They usually do not have access to laws nor do they understand them
in the first place. In my view failure to fully explain the
requirements provided for in Rule 67(1), in cases such as this one
amounts to an irregularity by the trial court not during the trial,
but an irregularity attendant to the post conviction and sentence
phase of the trial.
Further the notice of appeal is
required in terms of Rule 67(1) to be lodged with the Clerk of the
court. There is nothing in the explanation by the trial court that
informed the appellant that his notice of appeal should be lodged
with the Clerk of the court. No wonder the appellant's notice of
appeal was addressed to the Registrar of the High Court, and not to
the Clerk of court.

[13] In making submissions that the
appellant's notice of appeal is a nullity counsel for the State
referred to
State v T Kakololo
and many other judgments of this
court in which this court ruled that a notice of appeal which does
not specifically and clearly set out the grounds upon which the
appeal is based is a nullity. In my opinion such a general rule
should be carefully applied on a case by case basis.

[14] In the Kakololo matter the appellant was
represented by a legal practitioner who drafted the notice of
appeal. I am of the view that once it is found that an unrepresented
appellant was not properly informed of the requirements of Rule
67(1) it would be a traversity of justice if the court of appeal
were, notwithstanding such a failure by the trial court, to strike
his appeal from the court's roll without giving an opportunity, with
sufficient assistance, to properly note his/her appeal, or in
appropriate cases, where the grounds of appeal could be gleaned from
the less than perfect notice of appeal, tocondone the non-compliance
and hear the appeal's merits. Each case should however be assessed
on its own facts. It is trite that in condonation application the
appellant is not only required to show a reasonable cause for
non-compliance but also to show reasonable prospect of success on
the merits. I am of the opinion that where the trial court is found
not to have explained the rights to appeal to an unrepresented
accused or having done so improperly, this court has discretionary
powers to condone the non-compliance without the appellant having to
show reasonable prospects of success on the merits. This is because
the rights to appeal in terms of Rule 67(1) were not explained or
the explanation was improper or insufficient. The record of appeal
in this matter is about hundred pages only. The State was fully able
to argue the merits. Accordingly it shall be just and fair to
condone the appellant's non-compliance with Rule 67(1) and hear the
appeal. I now proceed to consider the appellant's appeal against

[15] The appellant's ground of appeal against his
conviction, if one takes the cumulative meaning of the grounds of
appeal as appearing in his notice it is clear that, is essentially
pointing out that the State did not prove its case. Counsel for the
State, in details, both in fact and in law argued against the
appellant's appeal against conviction and submits that same does not
enjoy merits.

[16] The appellant was charged in
terms of section 2 of the Combating of Rape Act.
It was alleged that on 12 June 2005,
at Okahandja, he wrongfully, unlawfully and intentionally under
coercive circumstances committed a sexual act with the complainant
by inserting his penis into her vagina. When the charges were put to
the appellant he, in terms of section 115 of the Criminal Procedure
disclosed the basis of his defence.
He stated that he met the complainant at a public drinking place.
They agreed to have sex at the appellant's house. He further stated
that after having sex, the complainant went to the police the next
day and opened a criminal case. He, in his section 115 statement,
therefore admitted a sexual act, and pleads a justification in a
form of a consent by the complainant.

[17] The complainant testified that on the date in
question she went out to enjoy herself at a local drinking place
until the early morning hours. She met the appellant at that place.
The appellant proposed love to her which she rejected. She testified
that she did not know the appellant before. In the early morning
hours she decided to leave the place by walking home. While walking
home two persons came from behind and grabbed her. She was
physically assaulted and dragged into the bushes. Initially the two
assailants were asking for money which she said she did not have.
She was ordered to lie down and her underwear was removed. At that
point it was dark and she could not see the two persons' faces. One
of them had sexual intercourse with her. While the first one had
sexual intercourse with her the other one was waiting for the first
one to finish. Once the first one finished the second person also
had sexual intercourse with her. She described sexual intercourse in
the terms that the two persons inserted their respective penises
into her vagina. One of the persons who later turned out to be the
appellant thereafter carried the complainant to his house. At the
appellant's house the complainant clearly recognized the appellant
as the person she was with earlier at a nightclub. At the
appellant's house the appellant again wanted to have sexual
intercourse with the complainant. She pleaded with him not to. The
appellant did not succeed to have sexual intercourse with her at
that stage. She had to wait until the appellant fell asleep. When
the appellant slept she left. She went home, changed her dress and
proceeded to the police to open a case.

[18] The complainant upon being informed of the
appellant's plea explanation in terms of section 115 of the Criminal
Procedure Act, during her testimony, unshakably stuck to her version
that the appellant under coercive circumstances committed a sexual
act at a place where the appellant was accompanied by another person
and not in the appellant's house. During cross-examination the
appellant put it to the complainant that she voluntarily went to his
house. Initially he put it to the complainant that he did not have
sexual intercourse with her as they only slept together at his
house. However further in his cross-examination he freely
reconstructed his cross-examination by denying the allegations that
the sexual act was committed in the bushes and putting it to the
complainant that they had a consensual sexual intercourse at the
appellant's house. He put it to the complainant that the only reason
why the complainant opened a police case was because the appellant
did not have money the complainant asked for. A police officer that
visited the scene of the crime testified that at the place pointed
out by the complainant as the scene of the crime he observed signs
of dragging and wrestling. This observation was consistent with the
evidence of the complainant.

[19] A police officer who consulted
the complainant on the morning she reported the case with the police
observed that her hair was full of grass and further observed some
scratch marks on her legs. The medical legal report handed in as an
Exhibit indicates that on the morning the complainant reported the
case to the police the doctor who examined her observed multiple
bruises on her legs. The above evidence corroborates the
complainant's version that she was physically attacked before she
was raped and further that she was dragged into the bushes. The
State has a duty to prove guilty of the appellant beyond reasonable
doubt. It must however be remembered that our legal system is an
adversarial one. Once the State has produced sufficient
evidencesufficiently covering all the elements of an offence an
accused who fail to produce evidence to rebut such a case may be at
a risk of a conviction.

[20] In casu
the appellant
having admitted in terms of section 115 that he indeed had sexual
intercourse with the complainant and having further put it to the
appellant in cross-examination that they had sexual intercourse,
save that he alleged that such occurred at his house whilst the
complainant alleged that such occurred in the bushes was under
obligation when he opted to give evidence to lead evidence
consistent with the basis of his defence in terms of section 115 and
the case he put to the complainant. The appellant overwhelmed by the
temptations to reconstruct his case as and when it suits him shot
himself in the foot by giving evidence contrary to the version put
to the complainant and further contrary to his statement in terms of
section 115. It must be remembered that cross-examination is not
only a right it also comes with a duty.
I am of the opinion that there is
less, if nothing at all, value in the appellant's evidence. This is
because the State witness in particular the complainant was made to
comment on the appellant's supposed version which the appellant
decided not to pursue when he later testified in defence.

[21] Considering all the facts and the totality of the
evidence I am satisfied that the State proved its case beyond
reasonable doubt that the appellant committed an unlawful sexual
act. It is regrettable that another person who may have committed
such a serious crime was not prosecuted as the complainant due to
the circumstances in which she was at the time of the conclusion of
the crime could not recognize him.

[22] I now consider the appellant's
appeal against sentence. The defenseless complainant was dragged
into the bushes, physically assaulted and eventually raped. The fact
that two persons could prey upon a defenseless woman after having
physically assaulted her is aggravating. The trial court opted for a
minimum sentence of 15 years having found that there were no
exceptional circumstances as contemplated in terms of the Combating
of Rape Act. This court can only interfere with the sentence if the
sentence was startlingly inappropriate and shocking or in case where
an irregularity during sentence occurred.

[23] In my opinion no irregularities occurred whether
in law or on facts when the trial court considered the sentence in
this matter. Further the record indicates that the trial court
considered all the triad of sentencing. That being the case the
appellant's appeal against sentence is without merit and should be
dismissed. In the result I accordingly make the following order:

  1. The appellant's application for condonation for
    non-compliance with Rule 67(1) of the Magistrate's Court is

  2. The appellant's appeal against both conviction and
    sentence is dismissed.


I agree






is not clear as to when it was received by the Clerk of the
Magistrate's Court as the date stamp on the notice is illegible. It
was however delivered to the Registrar of the High Court on the 14
of April

appellant's handwritten heads of argument and his application for
condonation for the late filing of the appeal while same were placed
on the court file, were not received by the State Counsel as she
only came to know of the existence of the heads of argument and the
application for condonation during the hearing. She, however after
being given an opportunity to read and peruse same indicated that
she was ready to proceed with her arguments.

S v Soabeb and Others, 1992 NR 280 (HC).

am prepared to assume that the Magistrate intended to use the word

sentence of the Magistrate's explanation above under paragraph 8

is an irregularity that does not taint the conviction and sentence.

NR 7.

8 of 2000.

51 of 1977 as amended.

v Katari, 2006 (1) NR 205 (HC) at p 210 and Osman and Another v
Attorney-General, Transvaal, 1998
SA 1224 (CC).

President of the Republic of South Africa and Others v South African
Rugby Football Union and Others, 2000 (1) SA 1 (CC) at p 1.

S v Simon, 2007 (2) NR 500 (HC).