Court name
High Court
Case number
53 of 2003
Title

S v Mutjavikua (53 of 2003) [2012] NAHC 69 (16 March 2012);

Media neutral citation
[2012] NAHC 69
Coram
Shivute JP













REPUBLIC OF NAMIBIA








IN THE HIGH COURT OF
NAMIBIA



Case No.: CA 53/2003



In the matter between:



HEROLD UENJADJOZA
MUTJAVIKUA
…...................................................APPELLANT








and








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








CORAM: Shivute, JP



Heard on: 03/11/2003



Delivered on: 16 MARCH
2012



______________________________________________________________________



APPEAL JUDGMENT



______________________________________________________________________







SHIVUTE, JP:




  1. The appellant was
    charged with theft of a motor vehicle in the Regional Court and at
    the end of the trial during which he was legally represented, was
    convicted and sentenced to five (5) years imprisonment. He now
    appeals against both conviction and sentence and furthermore applies
    for condonation pursuant to section 309(2) of the Criminal Procedure
    Act, 1977 for the late filling of his notice of appeal. Arguments
    were heard both in respect of the condonation application as well as
    the merits. Rule 67(1) of the Magistrates Court Rules inter alia
    requires that a person convicted of an offence or crime and who
    desires to appeal must do so within 14 days after the date of
    conviction or sentence. It is trite law that if an appeal is not
    noted within the time limits, condonation for the late noting of the
    appeal must be applied for. The appellant was sentence on 31 October
    2002. It is not apparent from the record when the notice of appeal
    was filed but the condonation application was filed only on 12 May
    2003, nearly 7 months after conviction and sentence. The appellant
    deposed to an affidavit wherein he sought to explain the delay for
    the lodging of the notice of appeal. The explanation appears in the
    following paragraphs of his affidavit:




2 I am
presently in custody at the Windhoek Central Prison pursuant to my
conviction and sentence for the theft of a motor ... on 31 October
2012.



4 I approached Dammert & Hinda
Incorporated Legal Practitioners on 28 November 2002 to advise me on
the prospects of success on appeal against the judgment and sentence
and to note and prosecute an appeal once satisfied on the prospects
of success.



5. I was advised by Mr Hinda of
Dammert & Hinda Incorporated Legal Practitioners, whose advice I
verily belief, that:



5.1 The prescribed term (days) for
noting an appeal had already expired; and



5.2 He needed to have the record of
the proceedings transcribed in order to give me meaningful advice on
the prospects of success.



6. I am advised further by Mr Hinda,
whose advise I verily believe that:



6.1 Dammert & Hinda Inc. addressed
a letter to the Clerk of the Court at Katutura, requesting to be
furnished with the record of the proceedings to have same
transcribed. A copy of the letter is annexed hereto marked ‘A’.



6.2 On 7 January 2003 my Legal
Practitioners addressed a letter to Messrs. Global Click and
requested them to transcribe the record of the proceedings. Messrs
Global Click furnished their offices with a transcribed record of the
proceedings on 18 February 2003. Copies of the said letters are
annexed hereto marked ‘B’ and ‘C’
respectively.



6.3 It was impossible and impractical
to have advice on the prospects of success and also to file and
prosecute an appeal against both conviction and sentence, in the
absence of the transcribed record of the proceedings.



6.4 I have prospects of success on the
basis as set out more fully from the Notice of Appeal, a copy of
which is annexed hereto, marked ‘D’.



7. It is my humble submission that the
delay in the noting of my appeal was caused by the fact that I was
not aware of the fourteen (14) days within which I had to file the
notice of appeal. I did not have money to instruct legal
practitioners and relied heavily on my family members to assist me
financially, which they did. I then approached my legal practitioners
to advice me on the prospects and to prosecute the appeal.



8. I submit that my explanation
constitutes good cause as it is not wilfully, deliberate and/or
malicious.”









  1. Counsel for the
    appellant, Mr Hinda, who is not the same counsel who represented the
    appellant at the trial filed an affidavit confirming the correctness
    of the contents of the appellant’s affidavit in so far as they
    related to him.










  1. Ms Kishi, who appeared
    on behalf of the respondent, in effect argued that the there was no
    reasonable and acceptable explanation for the failure to lodge the
    notice of appeal within the prescribed time and that the appellant
    had not shown that he had good prospects of success on the merits.
    Counsel relied on this Court’s matter of S v Nakapela 1997
    NR 184 at 185E-H where Gibson J stated that the requirements had to
    be satisfied in turn and in the absence of a reasonable explanation,
    the appeal should be struck from the roll.










  1. In granting an
    application for condonation, the Court exercises its discretion
    judicially depending on the circumstances of each case. The Courts
    have over the years determined certain factors as guiding principles
    in granting condonation applications for the non-observance of Court
    Rules. In Melanie v Santam Insurance Co Ltd 1962 (4) SA 531
    (A) at 532C-D Holmes JA made the following seminal observations:




In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially upon a
consideration of all facts, and in essence it is a matter of fairness
to both sides. Among the facts usually relevant are the degree of
lateness, the explanation therefor, the prospects of success, and the
importance of the case. Ordinarily these facts are interrelated: they
are not individually decisive, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb would only
serve to harden the arteries of what should be a flexible discretion.
What is needed is an objective conspectus of all the facts. Thus, a
slight delay and a good explanation may help to compensate for the
prospects of success which are not so strong. Or the importance of
the issue and strong prospects of success may tend to compensate for
a long delay…”
1









  1. The
    above exposition of the law has been adopted and applied by our
    Courts over the years.
    2
    The
    Supreme Court in
    Immigration
    Selection Board v Frank
    2001
    NR 107(SC) at 109A-E further pointed out that one factor is not
    decisive in granting an application for condonation and that other
    factors, such as the importance of the case may be strong enough for
    a court to consider the merits of the case. The real issue in the
    application for condonation is therefore whether the explanation
    given is reasonable and satisfactory to grant condonation and in the
    context of an appeal, whether there are reasonable prospects of
    success on appeal.









  1. The essential thrust of
    the appellant’s explanation for the failure to note the appeal
    within the prescribed time was the allegation that he was unaware of
    the time limits and that he had no money to approach a lawyer for
    assistance. As mentioned before, the appellant was represented by
    legal practitioner at the trial. It is not apparent from the record
    whether the appellant’s rights of appeal were explained to him
    by the presiding officer, but it should be observed that the trial
    took place at the time when the practice that where the accused was
    legally represented, the magistrate was not obliged to explain the
    accused’s rights to legal representation prevailed; the
    assumption then being that counsel would explain to a dissatisfied
    client the possibility of an appeal and the process that had to be
    followed should a decision be taken to appeal. It is against this
    background that the explanation should be considered. As is apparent
    from the appellant’s affidavit, when he approached the legal
    practitioners of record on 28 November 2002, the 14 day period had
    already lapsed and that in spite of the late brief to counsel, the
    record was furnished by 18 February 2003. It has already been noted
    that the actual condonation application was only filed on 12 May
    2003. In the case of Saloojee and Another NNO v Minister of
    Community Development 1965 (2) SA 135(A) at 138E-
    H, the court
    pointed out that the explanation must not only include the reasons
    for the delay in noting the appeal but also the delay in seeking
    condonation. It is therefore required that as soon as the appellant
    realizes that he or she has not complied with a rule of court, he or
    she must apply for condonation without delay. In the present matter,
    no explanation has been offered why the condonation application had
    been filed only on 12 May 2003.









  1. However, as previously
    observed, the reasons for and the degree of lateness should not be
    the only factors to be considered. An equally important factor,
    namely the prospects of success, should also be taken into account
    in determining whether or not to grant condonation and deal with the
    appeal. It is to this aspect of the enquiry that I turn next.








Prospects of
success




  1. The
    test of reasonable prospect of success has the effect that a court
    will refuse an application for leave to appeal in those cases where
    absolutely no chance of a successful appeal exists, or where the
    court is certain beyond reasonable doubt that the appeal will fail.
    The question to be decided is whether, on the grounds of appeal
    raised and arguments advanced by the applicant, there is a
    reasonable prospect of success on appeal. A mere possibility that
    another court may come to a different conclusion is not sufficient
    to justify the granting of leave to appeal.
    3
    Therefore,
    the only way to determine whether there is a reasonable prospect of
    success on appeal would be to consider the merits of the appeal.




The merits of the
appeal




  1. It was not seriously
    disputed during the trial that the Toyota Raider 4-wheel drive,
    white in colour with engine number 22R4206684, chassis number
    AHT31RN670000844 and belonging to the complainant, Mr Vincent
    Kandjimi Mberema, was stolen from outside his house in Windhoek on
    12 September 2001. On 24 September 2001, 12 days after Mr Mberema’s
    vehicle was stolen, the Okakarara Police, acting on a tip-off,
    travelled to Omaihi village where they found two Toyota delivery
    pick-up trucks, one parked under a tree and the other at the back of
    the farmstead. The two vehicles had no engines in them and at least
    in the case of the pick-up found parked under the tree it had no
    gear box either. The white Toyota found parked under a tree had a
    registration number plate affixed to it at the front only bearing
    registration number N49305W. Two Toyota engine blocks were found in
    one of the houses on the farmstead. One bore engine number 2L0837341
    and the other 0865663. The white Toyota pick-up (the pick-up) was
    taken to Okakarara Police Station where Detective Sergeant (D/Sgt)
    Morgan, a member of the Police’s Motor Vehicle Theft Unit,
    subsequently examined it fully. He found inter alia that the
    chassis and the information plates as well as the job plate were
    missing from the firewall where they were affixed. The numbers that
    are normally etched on vehicle windows were also scratched off.
    According to D/Sgt Morgan, a pick-up such as the type found parked
    under a tree would normally have six concealed places on the body of
    the cab and the cargo box where the vehicle’s chassis number
    would be written. He searched for the numbers and found that the
    numbers had been scratched off at five places. On the sixth place,
    being the left door of the cab, however, the number was simply
    painted over and when the paint was removed with acetone, the number
    AHT31RN6700008444 appeared. As mentioned before, this is the cargo
    box and cab of the complainant’s vehicle. A clearance
    certificate disc was found on the pick-up but the chassis number
    thereon was totally different from the particulars found on the body
    of the pick-up. Following the discovery of the loading box and cab
    of Mr Mberema’s vehicle, he was called to Okakarara Police
    Station where the pick-up was shown to him and which he identified
    as his vehicle, on the basis of various marks both inside and
    outside the cab and on the cargo box. The complainant testified that
    the vehicle’s body had been re-sprayed but it seems poorly so,
    because the word “Raider” originally written on the body
    of the vehicle was still visible under the paint. My understanding
    of the evidence is that the identification of the pick up by the
    complainant was not in dispute during the trial. What was in dispute
    was whether what the complainant had identified was a 4x4 or 2x4
    vehicle, an aspect which will be dealt with below.










  1. Although the complainant
    had positively identified the cab and the cargo box, the chassis on
    which those parts were mounted had numbers different from those of
    the complainant’s vehicle. This means that the complainant’s
    cab and cargo box had been mounted on someone else’s chassis.
    Furthermore, whereas the complainant’s vehicle was said to
    have been a four-wheel drive, it was not certain whether the vehicle
    identified by the complainant was a 4x4 vehicle. Although the
    complainant insisted that the body was that of a four-wheel vehicle,
    D/Sgt Morgan who I take it is an expert at least in the
    identification of motor vehicles, indicated that since the vehicle
    had no engine or gear box in it, it was difficult to classify as 4x4
    or 2x4. The chassis on which the complainant’s vehicle was
    mounted was traced to a vehicle belonging to Namibia Breweries,
    which was initially stolen but after its recovery was sold by public
    auction. The computer print-out obtained from the vehicle
    registering authority shows that the Namibia Breweries vehicle in
    question was a Toyota Hilux 2.4, diesel, short wheel base. However,
    according to D/Sgt Morgan, it was difficult to tell from this
    description alone whether this vehicle was a 4x4 or 2x4. In any
    event, so D/Sgt Morgan testified (if I understand his evince
    correctly), the complainant’s cab and cargo box could neatly
    fit on both a 4x4 and 2x4 chassis. On the date the Okakarara Police
    had impounded the white Toyota pick-up, they had also arrested a
    woman who was found at the farmstead where the pick-up and other
    parts were discovered. The woman told the police that she did not
    know who had taken the pick-up and the engines there, but she was
    nevertheless arrested and subsequently charged jointly with the
    appellant. She was acquitted at the end of the trial.










  1. Prior to his arrest, the
    appellant in the company of his lawyer, had approached the
    investigating officer, D/Sgt Morgan, and informed him that the
    pick-up and other vehicle parts found at the farmstead were his
    property and that his then co-accused had nothing to do with them.
    In an attempt to convince the investigating officer that the pick-up
    was his, the appellant produced two documents, one being a sales
    agreement and the other a statement allegedly written by a police
    officer at Otjiwarongo Police Station. The sales agreement, dated 25
    September 1996, purports to show that a white Toyota Hilux, 2x4
    pick-up, with chassis number LN40-02216208 and engine number
    4Y-2021868 was sold by one Toney Tuff Strauss to one Job Kakurupa.
    The defence led the evidence of the appellant who testified that he
    bought the Toyota pick-up from Job Kakurupa in 1998, that Kakurupa
    did not give him any written document evidencing the transaction but
    that he promised to do so once the appellant had finished paying for
    the pick-up. While he was still waiting for the papers from
    Kakurupa, he registered the motor vehicle in the name of his
    brother, Lourens. He described the vehicle he had allegedly bought
    from Kakurupa as a 2x4 White Toyota pick-up with registration number
    N4930W. The appellant did not provide any explanation for the
    possession of the engines maintaining that the engines were not his.
    When questioned on how the chassis number on what he contends was
    his car matched that of the vehicle of Namibian Breweries, the
    appellant was insistent that the chassis on the pick-up belonged to
    the vehicle he had bought from Job Kakurupa; that he was not aware
    that the pick-up had a Namibian Breweries chassis, and that no other
    person had owned the vehicle since 1998. Kakurupa was not available
    to testify to the alleged sale of the vehicle to the appellant; he
    had allegedly died by the time of the trial.










  1. The statement by the
    Otjiwarongo Police addressed “To whom it may concern”
    informs that a vehicle, a Toyota 2.7 white in colour with the
    chassis as well as engine numbers similar to those of the vehicle
    allegedly sold to Kakurupa by Toney Tuff Strauss was impounded by
    Otjiwarongo Police for investigation and etching and that the
    vehicle was etched three times but no ownership could be determined.
    Consequently, a case was withdrawn against the accused, one Ndomena
    Mutjavikua, on 20 September 2000 and the vehicle was handed over to
    Ndomena on the same day. The chassis number recorded in the sales
    agreement and the statement by Otjiwarongo Police is totally
    different from the chassis number of the pick-up identified by the
    complainant. Moreover, since the sales agreement was supposedly
    entered into in 1996 – some 5 years before the complainant’s
    vehicle was stolen – it seems plain that the documents
    presented to the police bore little resemblance to the complainant’s
    vehicle. It was therefore not surprising that the appellant could
    convince neither the investigating officer nor persuade the trial
    court that the pick-up identified by the complainant was the
    appellant’s property, hence the conviction and sentence
    aforesaid.










  1. Several grounds of
    appeal were advanced but these may be condensed into three main
    grounds, namely that the trial court erred in finding that the State
    had proved the case against the appellant beyond reasonable doubt;
    that that court erred in rejecting the version of the appellant
    particularly when he testified about the documents purporting to
    show ownership of the vehicle identified by the complainant, and
    that that court misdirected itself when it observed in its judgment
    that car thieves had developed a system to dismantle stolen vehicles
    and swop their parts to make it difficult for stolen vehicles to be
    identified. Although the many grounds of appeal had not been
    expressly abandoned, Mr Hinda who argued the appeal on behalf of the
    appellant confined himself to the above broad grounds. Mr Hinda
    premised the argument regarding the alleged non-proof of the case on
    the definition of “motor vehicle” in section 1 of the
    Motor Vehicle Act, 1999 (No. 12 of 1999) (the Act) and submitted
    that the parts found in possession of the appellant did not
    constitute a motor vehicle as defined in the Act. As to the trial
    court’s remarks about the swapping of parts of stolen
    vehicles, Mr Hinda contended that the learned Regional Court
    Magistrate was not entitled to make that finding in the absence of
    evidence on record to that effect.










  1. I turn now to consider
    the contentions advanced on behalf of the appellant, starting with
    the question whether or not the motor vehicle parts constituting the
    pick-up appellant admitted to have been in possession of constituted
    a “motor vehicle”. Section 1 of the Act defines “motor
    vehicle” as follows:




"’motor vehicle’
means any self-propelled vehicle, and includes-



(a)...



(b)...



(c)...



(d)...



(e)...



(f) a vehicle the tare of which
exceeds 30 kilograms and having pedals and an engine or an electric
motor as an integral part thereof or attached thereto and that can be
propelled by means of such pedals, engine or motor, or both such
pedals and engine or motor, but does not include-



(i) a pedestrian-controlled vehicle
propelled by electrical power derived from storage batteries; or



(ii) a vehicle the tare of which is
less than 230 kilograms and which is specially designed and
constructed, and not merely adapted, for the use of a person
suffering from a physical defect or disability and is used solely by
such person.”



Vehicle”
is defined as meaning:



a device
designed or adapted principally to travel on wheels or crawler
tracks, but does not include a device designed to move exclusively on
rails.”









  1. The
    definition of “motor vehicle above” envisages the notion
    that to be a motor vehicle, a vehicle in question must be
    self-propelled and must have as an integral part of its equipment an
    engine which provides motive power. It also means that the engine
    must be its sole and only motive power. In the absence of these two
    conditions, it would be incorrect to say that a vehicle is
    self-propelled.
    4
    The
    evidence on record is that the pick-up is a vehicle as it has
    evidently been designed or adapted to travel on wheels. The evidence
    was further that apart from the engine, the gear box and the rear
    left wheel, no other part was stated in the evidence to be missing
    from the vehicle. The photographs produced as part of the
    respondent’s case also give insight into the pick-up. They
    show that the vehicle had many other parts found in the engine
    compartment of a motor vehicle. The external appearance shows it as
    a complete vehicle except for the rear left wheel that was missing.
    Both parties described the vehicle as a “motor vehicle”
    throughout the trial. Cross-examination by counsel for the appellant
    in the court below proceeded on this basis. As has already been
    noted, two engines were found in the vicinity of the vehicle. There
    was no allegation or evidence during the trial that the vehicle’s
    engine had been removed permanently for it to cease to be a motor
    vehicle.
    5
    On
    the contrary, all the evidence points to the vehicle being presented
    not only as vehicle, but also as a road worthy motor vehicle. When
    it was found by the police on 24 September 2001, it had a clearance
    certificate (belonging to a different motor vehicle) displayed on
    the front screen. A cursory examination of the clearance certificate
    shows that the certificate would have expired on 30 September 2001,
    thus giving a false impression to all and sundry that the vehicle
    was road worthy. It will be recollected that it also had a (false)
    registration number affixed to the rear. My own view is that a
    vehicle does not cease to be a motor vehicle merely because the
    engine, the gear box and one of the wheels is missing in the absence
    of credible evidence that these parts have been permanently removed
    and the vehicle in question has permanently lost its means of
    propulsion.
    6
    I do
    not understand counsel for the appellant arguing that the vehicle
    had lost the characteristics of a motor vehicle just because the cab
    and the cargo box had been mounted on a chassis from another
    vehicle. Such a contention would in my view clearly be untenable. I
    have therefore come to the conclusion that the pick-up was a motor
    vehicle and that the trial court was correct in making a finding to
    that effect. As to the contention that the trial magistrate erred in
    remarking that a pattern had developed of car thieves in theft of
    motor vehicle cases that are called before her disguising stolen
    vehicles by mixing them with parts from different vehicles, I cannot
    agree that the finding was erroneous. The finding is based on the
    very evidence in the case before the learned magistrate: that the
    cab and the loading box of Mr Mberema’s vehicle had been
    mounted on a vehicle previously belonging to Namibian Breweries to
    constitute what the appellant had insisted (falsely) throughout the
    trial was his vehicle. It is trite that a court is also entitled to
    take judicial notice of specific matters that are notorious within
    the locality of the court.










  1. As regards sentence, the
    sentence to be imposed on conviction of theft of a motor vehicle is
    provided for in section 15(1)(c)(i) of the Act, which reads as
    follows:




(b) in the
case of an offence referred to in section 2 where such offence
relates to a motor vehicle notwithstanding anything to the contrary
in any other law contained-




  1. on a first conviction, to
    imprisonment for a period of not less than five years without the
    option of a fine.”









In S v Tjiho 1991
NR 361 at 366A-B, Levy J pointed out that the appeal court may
interfere with the sentence if:



(i) the
trial court misdirected itself on the facts or on the law;









  1. an irregularity which was material
    occurred during the sentence proceedings;










  1. the trial court failed to take into
    account material facts or over emphasised the importance of other
    facts;










  1. the sentence imposed is startlingly
    inappropriate, induced a sense of shock and there is a strikingly
    disparity between the sentence imposed by the trial court and that
    which would have been imposed by the court of appeal.”









I am of the opinion that
none of those circumstances is present here and that the sentence
will not be interfered with.




  1. Having dealt with the
    merits of the appeal, I return briefly to consider further the
    application for condonation in relation to the prospects of success.
    It has already been mentioned that the appellant was represented at
    the trial by counsel. I may add that counsel is well-experienced as
    he appears to specialize in criminal matters. It seems also that the
    appellant was not ignorant in his rights as a suspect or accused. It
    will be recalled that when he had heard that the police had seized
    the pick-up, he approached the investigating officer through his
    lawyer. His lawyer had accompanied him to the offices of the
    investigating officer where the appellant effectively handed himself
    over to the police and sought to have the then co-accused released.
    When asked to make a warning statement, he made it clear to the
    investigating officer that he was not prepared to do so on the
    advice of his lawyer. I am making these observations not to show
    that the appellant’s rights were explained to him by his
    counsel at the trial (for the record is silent on that score) but to
    show that at the very least the appellant had access to the best
    possible legal advice available and that he had the opportunity to
    ask issues relating to the appeal since it was clear that he did not
    accept his conviction and sentence right from the start. In any
    event, as I have endeavoured to demonstrate, the prospect of success
    on the merits is bad. The application for condonation should
    therefore be refused and the appeal be dismissed.










  1. Before I conclude, I
    must mention that the appeal was heard by two judges. The late
    Honourable Justice Manyarara, AJ, who sat with me unfortunately
    passed on before the judgment could be finalised. The legal position
    in such a situation is governed by section 14(2) of the High Court
    Act, 1990 (No 16 of 1990) which provides as follows:




(2) If at
any stage during the hearing of any matter by a full court or by a
court consisting of two or more judges, any judge of such court dies
or retires or becomes otherwise incapable of acting or is absent, the
hearing shall, if the remaining judges constitute a majority of the
judges before whom it was commenced, proceed before such remaining
judges and if such remaining judges do not constitute such a
majority, or if only one judge remains, the hearing shall be
commenced
de
novo
,
unless all the parties to the proceedings agree unconditionally in
writing to accept the decision of the majority of such remaining
judges or of such one remaining judge, as the case may be, as the
decision of the court.”









  1. The parties to the
    proceedings have agreed unconditionally in writing to accept the
    decision of the remaining judge as the decision of the court.










  1. In the premises, it is
    ordered that:




1. The application for
condonation is refused;



2. The appeal is
dismissed.























___________



SHIVUTE JP























































COUNSEL ON BEHALF
OF THE APPELLANT:





Instructed
by:




MR. G. Hinda







Dammert & Hinda
Inc.














COUNSEL ON BEHALF
OF THE RESPONDENT:





Instructed
by:








Ms. F. Kishi






Prosecutor-General









1See
also S v Mohlathe 2000 (2) SACR 530 at 535G-I.




2See,
for example,
Swanepoel v
Marais
1992 NR 1 (HC) at
4A-B




3S
v Ceaser
1977 (2) SA 348 (A) at 350E.




4R
v Fletterman
1953 (4) SA 163 (T) at 164; Mathie v Yorkshire
Insurance Co Ltd
1954 (4) SA 731 (AD) at 735. See also Cooper
Motor Law Vol.1 at p.49.




5Cf.
S v Sitlu 1971 (2) SA 238 (N)




6In
S v Essa 1969 (1) SA 238 (N), it was held that although a
vehicle was purchased for scrap it does not thereby cease to be a
motor vehicle. It should, however, be observed that there was no
allegation in the appeal matter that the pick-up was meant for
scrap.