Court name
High Court
Case number
CA 28 of 2009

S v Nauyoma (CA 28 of 2009) [2011] NAHC 202 (13 July 2011);

Media neutral citation
[2011] NAHC 202
Liebenberg J
Tommasi J

CASE NO.: CA 28/2009



In the matter between:





Heard on: 20.05.2011.

Delivered on: 13.07.2011.


LIEBENBERG, J.: [1] On 28 April 2008 the appellant was
convicted by the Regional Court sitting at Ohangwena on two charges
of housebreaking with intent to steal and theft and sentenced him to
five and three years imprisonment, respectively. Although the
appellant noted an appeal against both his conviction and sentence,
no grounds of appeal against sentence were raised in the Notice of
Appeal dated 27 May 2008. Accordingly, the appeal lies only against
his conviction on both charges.

[2] Whereas the appeal was filed out of time, appellant sought the
Court’s indulgence condoning the non-compliance with the
Magistrates’ Court Rules and simultaneously filed an
application for condonation explaining the delay. This Court on
application may extend the period of 14 days in which the appeal had
to be filed with the clerk of the court and will do so only when good
cause is shown (for non-compliance) and where there are prospects of
success on appeal. Appellant’s application was not supported by
an affidavit in which he on oath explains the late filing of his
notice of appeal; and the explanation tendered herein is a
regurgitation of ‘reasons’ usually advanced by appellants
appearing before this Court, stating that the appeal could not be
filed in time because of difficulties experienced in obtaining
documents from “the state and non-government organs”; and
that the appellant was not familiar with the procedure he had to
follow when lodging his appeal. Appellant, who appeared before us in
person, submitted that he adhered to the reasons advanced in his
application; but added that he did not have writing paper on which he
could note his appeal.

[3] The trial court after pronouncing sentence explained to the
appellant that if he intended appealing his conviction and sentence,
that he had to note the grounds on which the appeal is based and hand
same to the clerk of court at Eenhana Magistrate’s Court, who
would then process the appeal. The time limit of 14 days in which the
appeal had to be filed, however, was not conveyed to the appellant.

[4] Mr. Wamambo,
appearing on behalf of the respondent, submitted
that in view of the poor explanation advanced by the appellant
explaining the delay, the omission to inform the appellant of the
period in which the appeal had to be filed, would make no difference,
as no foundation was laid on which the application is based. It was
submitted that what is before the Court, is a “blanket
explanation” and that appellant failed to show good cause why
the Court should condone his non-compliance.

[5] It has been said by this Court that a
substantive application should be made, based on facts explaining
appellant’s non-compliance with the rules; and in the absence
thereof, the Court is unable to adjudge the reasonableness of the
appellant’s actions and whether it satisfies the requirement of
good cause shown.
The Court in the Undari
matter (supra)
held that wilful disregard for the Rules of Court by laypersons in
bringing their applications, will not be condoned for the mere reason
of them being laymen; as the circumstances of each case had to be
scrutinised – including the fact that the appellant is a lay
person – when considering whether appellant’s explanation
showed good cause or otherwise.

[6] I am not persuaded that the explanation advanced by the appellant
is at all reasonable and that it meets the requirements referred to
above. Appellant, after the trial court had explained to him his
right of appeal; where he had to file his notice setting out the
grounds of appeal; and that the clerk of the court would prepare the
appeal, responded that he understood the explanation given to him.
Therefore, the excuses advanced by the appellant are without merit. I
shall consider the prospects of success later herein.

[7] Regarding the grounds of appeal, Mr. Wamambo
contended that no proper grounds were stated as
required by the rules and found support for his contention by
referring us to what has been stated in
v Kakololo
In view thereof, so it was argued, the matter
should be struck from the roll. It is trite law that where the
grounds of appeal, whether based on fact or the law, or both, are not
clear and specifically set out in the notice of appeal (Rule 67 (1)),
then there is no valid notice; and as such no notice at all, and is a
nullity without force or effect.

[8] Ten “grounds” are listed in
appellant’s notice, none of which it can be said to be a valid
ground satisfying the requirements of Rule 67 (1). The only point
raised by the appellant in the notice which may constitute a valid
ground and as such deserves consideration, is where it is stated that
the trial court misdirected itself by relying on inadmissible hearsay
. Whereas
there are no other clear and proper grounds before the Court for
purposes of considering the appeal, the Court will limit the appeal
to the one ground namely, whether the magistrate in his evaluation of
the evidence, misdirected himself; more specifically, whether
inadmissible hearsay evidence was erroneously admitted into evidence.

[9] Appellant and his co-accused pleaded not guilty to two charges of
housebreaking with intent to steal and theft of goods valued at N$114
091 from Pep Stores Ohangwena, committed during the period 12 –
14 and on 25 June 2004, respectively. In respect of count 2 appellant
explained that he had been drinking with friends the previous night
and returned home drunk. The following morning he discovered the
(stolen) goods in his room, not knowing how it came there; and upon
inquiry, was told that it belonged to a certain Lucas who would come
to fetch it. At the end of the trial his co-accused was discharged
while the appellant was convicted on both counts.

[10] At he beginning of the trial the prosecutor handed up the record
of the s 119 proceedings conducted in the district court in which the
appellant had pleaded guilty on the second charge. He was questioned
pursuant to the provisions of s 112 (1)(b) of the Act and admitted
the commission of the offence in all respects. Not only did the
appellant partake in the breaking and subsequent theft, but the loot
was taken to their (his and Lucas’s) house where appellant had
to take care of it. Appellant’s plea explanation was not
challenged and the trial court rightly relied thereon in its
evaluation of the evidence.

[11] It is common cause that Pep Stores Ohangwena was twice broken
into in June 2004 during which a large quantity of merchandise with a
total value of N$114 091 was stolen. Not only did this include a vast
quantity of clothing, but also electronics like a DVD; CD Hi-Fi’s;
radios; VCR’s; suitcases; travel bags; bedding and toiletries.
The complainant, Ester Alfios, was thereafter summoned to the police
station and requested to identify suspected stolen property recovered
by them. Except for two items which were not the property of Pep
Stores, she identified the rest of the items as those stolen from the
shop; which items corresponded with two lists of stolen property
compiled by her after both burglaries. Some of the clothing still had
the store’s price tags on. Goods to the value of N$9 707.34
were recovered. The witness was furthermore able to point out to the
court which of the recovered items were stolen either on the first or
second occasion. This obviously would not only establish a connection
between the two offences, but would also link the accused with whom
part of the stolen goods were eventually found. Appellant did not
challenge this evidence.

[12] The evidence of Warrant Officer Rehabeam, the investigating
officer in the case, evolved around information obtained from a
police informer about goods being sold at Ongonga village, suspected
to have been stolen from Pep Stores. Names were also provided
(including that of the appellant) and a description of a motor
vehicle that allegedly was used by the suspects. It was this
information pertaining to the vehicle which led Warrant Officer
Rehabeam to appellant’s co-accused, being the owner of the
vehicle. He was in the company of the appellant and both were
arrested. It was decided to park the vehicle at a cuca shop and
Warrant Officer Rehabeam then saw the appellant throw a key to a
certain Benjamin who, after the key was taken from him, was also
arrested as a suspect. Further information obtained from the informer
took the investigation to the home of Benjamin’s girlfriend
where some of the stolen goods were recovered. Benjamin at that stage
admitted guilt and implicated the appellant and his co-accused.
Appellant, on the other hand, denied having any knowledge of or his
involvement in the burglaries committed at Pep Stores.

[13] According to Warrant Officer Rehabeam they then proceeded to the
appellant’s room which he had pointed out. There the appellant
explained that the key of the padlock on the door was not where he
had left it earlier and was therefore unable to open his room.
Rehabeam then used the key he had earlier taken from Benjamin when
thrown to him by the appellant to open the door. Inside three bags
full of items suspected to have been stolen from Pep Stores were
found. Amongst clothing; bedding; and toiletries, there were two tape
deck/radios; one VCR; one amplifier and one speaker. These goods
formed part of those identified by the witness Alfios as having been
stolen during both burglaries. Upon enquiring as to how the
goods ended up in the appellant’s room, he told the
investigating officer that it was brought there by his co-accused and
another person. In cross-examination Warrant Officer Rehabeam denied
that appellant had then told him that the goods were brought to his
room by one Lucas, as he claimed during the trial.

[14] Appellant testified in defence saying that in July 2004 he
attended a barbeque at Oshikango in the company of Benjamin (also a
former co-accused who was tried separately after pleading guilty),
one Lucas and an unknown boy, where appellant became drunk. After
driving home in the company of his friends that night, appellant went
home and slept. In the morning he discovered the goods later shown to
be stolen. He was told by Benjamin that the goods were brought there
by Lucas when appellant was sleeping. He became suspicious but was
reassured that it was not stolen. At the time of his arrest he was
still waiting for Lucas to come and collect the goods. He said that
he informed the investigating officer about the goods in his room and
led the police there; but denied any involvement in committing the
crimes as he was drunk and asleep when the goods were brought into
his room. On his version the key to his room was taken from his
pocket by the investigating officer and had not been seized as
testified on by Warrant Officer Rehabeam.

[15] In cross-examination appellant gave contradicting evidence
pertaining to his whereabouts in June 2004 by saying that he was in
Walvis Bay and not at Ohangwena; that he could not recall where he
actually was between 12 – 25 June, but that he was not at
Ohangwena. Any one of these versions is in sharp contrast with the
appellant’s plea explanation following his plea of guilty on
count 2 tendered during the s 119 proceedings, in which appellant
admitted his involvement in committing housebreaking and theft on 25
June 2004 at Pep Stores, Ohangwena. Appellant’s explanation
that he was confused when pleading and that his mind was “not
in a good condition” because of earlier assaults, is not
supported by the facts. Despite claims of having been drunk on the
night they went to Oshikango, appellant was capable of giving
detailed evidence regarding time; their seating arrangements in the
vehicle on the way back; and who assisted him getting onto his bed –
all which tend to show that appellant was not as stupefied as he
wanted the trial court to believe. In these circumstances appellant’s
explanation, when considered together with his s 119 plea
explanation, is not only improbable, but false beyond a reasonable

[16] In the ex tempore judgment the magistrate rightly relied
on the appellant’s s 119 plea explanation and although the
judgment was mainly devoted to the acquittal of his co-accused, it is
clear that the appellant’s evidence was outright rejected as
false. I am unable to fault the trial magistrate in his conclusion
that appellant was involved in committing both offences; accordingly,
there is no merit in the contention that the court a quo
misdirected itself in the evaluation of the evidence. On this ground
there are no prospects of success, should the matter go on appeal.

[17] As regards the admission of hearsay evidence by the trial court
in its assessment of the evidence, there is nothing in the judgment
showing that the trial court misdirected itself in this respect. In
the judgment the magistrate specifically excluded hearsay evidence of
the informer implicating appellant and his co-accused and hence, was
alive to the rules governing the admissibility of evidence. Appellant
did not clearly specify which evidence in his view was inadmissible,
but the only other hearsay evidence implicating the appellant, came
from the investigating officer who testified about a report made to
him by Benjamin, the former co-accused. That report was inadmissible
as far as it concerned the appellant, as Benjamin was not a witness
to the proceedings. However, there is nothing in the judgment
suggesting that the trial court relied thereon when convicting the
appellant; and where it was shown in the same judgment that the court
was alive not to rely on hearsay evidence, it cannot simply be
assumed that it did have regard thereto. The contention accordingly,
is without merit.

[18] I am satisfied that appellant’s appeal against his
conviction on both counts has no prospects of success and the
application for condonation is accordingly dismissed.

[19] In the result, the matter is struck from the roll.



I concur.





Instructed by: Office of the Prosecutor-General

Mumageni v The State,
(unreported) Case No. CA 42/2009;
Naurasara Undari,(unreported) Case No. CA 113/2009.

NR 7 (HC).

Kuhanga and Another v The State,
(unreported) Case No. CA