Court name
Supreme Court
Case number
SA 4 of 2010
Case name
Nakale v S
Media neutral citation
[2011] NASC 2































REPORTABLE


CASE
NO. SA 04/2010















IN THE SUPREME COURT
OF NAMIBIA



In the matter between:














FILLEMON
NAKALE



APPELLANT




And










THE
STATE



RESPONDENT








Coram: Shivute,
CJ, Mainga JA et Strydom AJA



Heard on:
28/03/2011



Delivered
on:
20/04/2011



_________________________________________________________________



APPEAL JUDGMENT
(REASONS)



_________________________________________________________________



SHIVUTE CJ:




  1. This appeal was disposed
    of by way of an order on 28 March 2011. We indicated then that
    reasons were to follow. These are the reasons. The appellant and his
    co-accused named Robert Martin, as well as one Bonny Paulus were
    arraigned in the Regional Court, Windhoek, on a charge of robbery
    with aggravating circumstances. Bonny Paulus died before the
    commencement of the trial and so Robert Martin and the appellant as
    Accused No. 1 and Accused No. 2 respectively jointly stood trial on
    the charge, it being alleged that while armed with a firearm, the
    accused on 19 January 2000 robbed the principal of a school in
    Windhoek of cash in the amount of N$5470,00. Both the appellant and
    Robert Martin pleaded not guilty to the charge but after the
    conclusion of the trial, they were convicted and sentenced to 17
    years imprisonment each.









  1. Robert Martin appealed
    against his conviction and sentence, which appeal was heard in the
    High Court on 3 July 2003. His conviction and sentence were set
    aside in a judgment prepared by Frank, AJ and in which Damaseb, AJ
    (as he then was) concurred. I will advert to certain aspects of this
    judgment at a later stage. For the moment, it is necessary to
    continue with the presentation of the history of the matter.
    Appellant, acting in person, subsequently launched his own appeal
    against his conviction and sentence. It is common cause that he was
    out of time. After some two postponements, the matter was finally
    called before Manyarara, AJ and Hinrichsen, AJ on 1 October 2007. No
    written judgment arising out of the proceedings of 1 October 2007 is
    available, but the Court order issued on that date indicates that
    the application for condonation had been refused and the appeal
    dismissed. The “dismissal” of the appeal in the
    circumstances in which the merits of the appeal had not been dealt
    with is an anomaly which will be commented upon later on in this
    judgment. The matter was again placed on the roll for 15 June 2009,
    this time around for the hearing of an application for leave to
    appeal. The application for leave to appeal was refused in a brief
    judgment handed down the same day. In that judgment, the High Court
    referred to the fact that the appellant had been charged jointly
    with Robert Martin; that the appellant noted his appeal more than
    three years and two months out of time; that he had applied for
    condonation; that the appellant had alleged in the supporting
    affidavit that part of the delay had been caused by his mistake in
    citing the wrong case number, and that it was one Mr Marcus, a clerk
    at the Magistrate’s Court where the appellant was convicted
    and sentenced, who had provided him with the correct case number.
    Significantly, the Court a quo remarked that Mr Marcus had
    denied what had been attributed to him by the appellant. The Court
    below also levelled criticism at the appellant’s attempt to
    explain the steps he purportedly took to rectify the mistake after
    he had allegedly become aware of the incorrect case number,
    characterising the attempt as “highly improbable” and
    thereby rejecting it.









  1. With the refusal of his
    application, the appellant then filed what purported to be a
    petition to the Chief Justice for leave to appeal to the Supreme
    Court. Upon perusal of the “petition”, a view was
    expressed through the Registrar of the Court that since the
    underlying reason for the order the appellant was seeking to appeal
    against was that the High Court was not inclined to grant
    condonation for the late filing of the notice of appeal against his
    conviction and sentence in the Regional Court, that other than in
    the context of the application for condonation the merits of the
    appeal had not been dealt with by the High Court, in the
    circumstances, so it was remarked, it was not in law competent for
    the Supreme Court to consider a petition for leave to appeal
    against, what was in essence, a refusal of the application for
    condonation in the High Court. The appellant was informed to
    consider his right to appeal with regard to the provisions of the
    law and was furthermore informed to have regard to specific
    authorities of the South African Supreme Court of Appeal which he
    may find useful in considering the nature of the remedies available
    to him.









  1. The appellant
    consequently filed a notice of appeal wherein he stated inter
    alia
    as follows:








I am hereby noting an appeal
against the High Court’s judgment refusal (sic) to grant
me condonation for the late filing of the notice of appeal and/or the
application for leave to appeal to the Supreme Court of Namibia heard
and delivered on 15 June 2009 by the Honourable Acting Judges,
Justice Manyarara and Justice Hinrichsen.







During the hearing the appellant
argued in person and I am now filing this appeal based on similar
cases such as S v Absalom 1989 (3) SA 145 (A); S v Gopal
1993 (2) SACR 584 (A); S v Phiri 1992 (2) SACR 525 (A); S v
N
1991 (2) SACR 10 (A).”







I may add that the cases
cited by the appellant in his notice of appeal are the authorities
that he was asked, through the Registrar, to consider in the exercise
of his rights should he be advised or minded to do so. The appellant
also filed an application wherein he sought condonation for the late
filing of the appeal in this Court. In his supporting affidavit, the
appellant stated that although he had filed the notice of appeal with
the clerk of the Regional Court within the stipulated time, only the
appeal of his then co-accused, Robert Martin, had been processed.
After Robert Martin’s appeal was allowed, the appellant made
several enquiries about his appeal and was at a later stage informed
by Mr Marcus that the reason why his appeal had not been processed
was because the case number on the initial notice of appeal had been
wrongly recorded and that he was accordingly advised to file a fresh
notice of appeal giving the correct case number, which number was
allegedly supplied to him by Mr Marcus. This he duly did; filing at
the same time, also the application for condonation for the late
noting of the appeal. In his written heads of argument, the appellant
criticised the Court a quo’s finding that Mr Marcus had
denied knowledge of the appellant’s averments in this regard.
The appellant argued, correctly in my view and this brings me to this
aspect on which I undertook to comment, that there was no proof that
Mr Marcus had denied the averment made by the appellant relating to
Mr Marcus. It is not apparent from the record that Mr Marcus had made
any representation during the hearing of the appeal or at any stage
prior to the hearing thereof but, I may add, this issue in itself is
not dispositive of the appeal.








  1. A reading of the
    judgment of the Court a quo on the application for leave to
    appeal also gives some insight into the reasoning behind the making
    of the order of 1 October 2007 refusing the application for
    condonation and “dismissing” the appeal. In paragraph
    [4] of that judgment, the Court inter alia recorded its
    rejection of what it characterized as the appellant’s “attempt
    to explain away the steps he purportedly took to rectify the
    mistake” relating to the case number allegedly pointed out to
    him by Mr Marcus. In paragraph [5] of the judgment, the High Court
    explained the order it had made on 1 October 2007 as follows:








The Court also found that there
were no prospects of success on appeal and concluded that the
application was so meritless that the Court refused condonation and
dismissed the appeal without giving reasons in writing; neither did
the applicant request a written judgment.”








  1. It is evident from the
    reading of this paragraph and of the judgment as a whole that other
    than in the context of the application for condonation, the High
    Court did not deal with the merits of the appeal. It is trite that
    where the merits of the appeal have not been dealt with, there can
    be no scope for the dismissal of the appeal. The refusal of the
    application for condonation entails a tacit endorsement that the
    appeal would not be allowed to continue since the first hurdle, i.e.
    condonation, has not been overcome. In those circumstances, one
    cannot properly speak let alone write, about the dismissal of the
    appeal. Instead, the appeal is struck off the roll. The High Court
    ought rather to have struck the appeal off the roll. It follows also
    that since the merits of the appeal were not dealt with, it was not
    necessary for the appellant to apply for leave to appeal. This Court
    has recently reaffirmed the principle in our law that where on an
    appeal noted to it, the High Court does not consider the merits of
    the appeal other than in the context of the application for
    condonation, but it only decides and refuses the application for
    condonation for the late noting of the appeal, an appellant is
    entitled to appeal to the Supreme Court against the decision
    refusing condonation as of right. If the Supreme Court upholds the
    appeal against the refusal of the application for condonation, the
    matter has to be remitted to the High Court for the merits of the
    appeal to be heard and decided in that Court. This is so because the
    Supreme Court does not have the power to hear the appeal on the
    merits, there being no provision in our law for an appeal directly
    to the Supreme Court against a conviction by a magistrate. If, on
    the other hand, the Supreme Court dismisses the appeal against the
    refusal of condonation, that is the end of the matter. (See
    judgments of this Court in Severen Iita v State,
    unreported, delivered on 17/11/2010; Phillipus Longer v State,
    unreported, delivered on 8/12/2000. See also decisions of the
    South African Supreme Court of Appeal on the point cited in the
    appellant’s notice of appeal referred to in paragraph [4]
    above.)









  1. It has become necessary
    now to consider also the procedure appellant had to follow to note
    and prosecute his appeal against conviction and sentence by the
    Regional Court. In terms of section 309 of the Criminal Procedure
    Act, 1977 read with rule 67 of the Magistrates’ Courts Rules,
    appellant had to deliver a written notice of appeal to the clerk of
    the court within 14 days of the date of the conviction, sentence or
    order. In spite of the assertion on the part of the appellant that
    he had noted the appeal on time, it must be accepted that the
    written notice of appeal had not been delivered to the clerk of the
    court within the time limit set in the rule. As such the appellant
    was required to apply for condonation for the late noting of the
    appeal as he had indeed done. Section 309(2) of the Criminal
    Procedure Act, 1977 (Act No 51 of 1977), empowers the High Court to
    condone the failure to file the notice of appeal within the
    prescribed time limit. Generally, a court may condone such a late
    filing if an applicant provides an acceptable explanation for such
    late filing and if there is reasonable prospect of success on
    appeal. S v Ngombe 1991 (1) SACR 351(Nm) at 352B-C;
    Pietersen-Diergaardt v Fischer 2008 (1) NR 307 (HC). In
    Pietersen-Diergaardt v Fischer (supra) it was
    explained in the headnote and in the context of a civil case as
    follows:








In considering an
application for condonation for the late prosecuting of an appeal,
the court will take several factors into account. These include the
degree of the delay, the reasonableness of the explanation, the
prospects of success and the importance of the matter. The list is
not exhaustive and the court has discretion, but there should be some
flexibility when exercising such discretion.








  1. Against the backdrop of
    these legal principles, it remains then to consider whether the
    Court below was correct in holding that the appellant’s
    application for condonation was meritless. I agree with the Court a
    quo
    that there had been a long delay between the period of
    conviction and sentence and the ultimate noting of the appeal. Sight
    should, however, not be lost that the appellant is a layman and a
    prisoner who stood trial in the Regional Court without legal
    representation. By this it is not meant to be understood that the
    appellant was not aware of his right to appeal. Indeed the record
    shows that his rights were explained in full. My view, however, is
    that the merits of the appeal in this matter are very important and
    should have tipped the scales at the granting of the application for
    condonation and consideration of the merits of the appeal. Mr Small
    who argued the appeal on behalf of the respondent readily conceded
    that the Court a quo should have granted condonation. For the
    reasons that will follow, I am satisfied that this concession was
    properly made.









  1. The State’s case
    during the trial rested entirely on the evidence of identification.
    Only three witnesses testified on behalf of the State, yet the facts
    of the case clearly called for more. Two of the witnesses observed
    the actual robbery. The two eyewitnesses testified, in summary,
    that two men walked in the school principal’s office while the
    school principal was attending to the registration of new pupils.
    Appellant was identified in Court as the robber who was armed with a
    firearm and demanded money. Robert Martin collected the money from a
    drawer and some from an envelope. Thereafter both left the room. The
    principal sent a teacher to follow the robbers while she activated
    the alarm. The teacher followed the robbers and observed them
    getting in a Toyota Cressida. The car, fitted with registration
    number N4464G, drove away. The robbery was over in about 10 minutes.
    In her statement to the police, the principal stated inter alia
    that she could not identify the two men who robbed her, but she was
    insistent in court that the appellant and Robert Martin were the
    robbers. When asked to comment on the appellant’s defence of
    alibi, the principal reacted: “I find it very surprising
    because he looks like the man who was there.” Neither the
    principal nor the teacher knew the robbers before. The two witnesses
    saw the appellant and Robert Martin in court two years after the
    robbery had been committed.









  1. The third State witness
    who claimed not to have known the appellant before, told the
    trial court that he met Bonny Paulus in the company of the appellant
    and Robert Martin for the first time in a residential area of
    Windhoek on the day of the robbery. Bonny Paulus asked him to take
    the three men to the school where the robbery was committed
    supposedly to enrol for English classes. He took the men to the
    school in his Toyota Cressida with registration number N50603W. He
    denied that the registration number ascribed by the teacher to the
    Cressida that allegedly transported the robbers from the school
    belonged to his car. He parked the car in front of the school and
    the three men alighted therefrom and all entered the school building
    while he waited. The men did not take long and the appellant emerged
    from the building first and went to stand at the rear of the car.
    The two remaining men also came and got on the vehicle; the witness
    drove away. Robert Martin paid him N$50,00 for his services. When
    asked about the registration number allegedly seen by the teacher on
    a Cressida, the witness implied that the appellant who had allegedly
    stood at the rear of his Cressida while parked at the school might
    have affixed a false number plate on his car. Reading the evidence
    as a whole, in all probabilities this witness was an accomplice.









  1. The appellant testified
    and stuck to the defence of alibi that he disclosed at the beginning
    of the trial. He called four witnesses seemingly to corroborate his
    evidence that he was at a wedding in the North at the time of the
    robbery. My view is that these witnesses’ evidence is suspect
    but this does not compensate for the fact that the appellant was
    identified from the dock. I respectfully endorse what was stated by
    Dowling J in R v Shekelele and Another 1953 (1) SA 636 (T) at
    638F-H:








Questions of identification are
always difficult. That is why such extreme care is always exercised
in the holding of identification parades – to prevent the
slightest hint reaching the witness of the identity of the suspect.
An acquaintance with the history of criminal trials reveals that
gross injustices are not infrequently done through honest but
mistaken identifications. People often resemble each other. Strangers
are sometimes mistaken for old acquaintances. In all cases that turn
on identification the greatest care should be taken to test the
evidence. Witnesses should be asked by what features, marks or
indications they identify the person whom they claim to recognize.
Questions relating to his height, build, complexion, what clothing he
was wearing and so on should be put. A bald statement that the
accused is the person who committed the crime is not enough. Such a
statement unexplored, untested and uninvestigated, leaves the door
wide open for the possibility of mistake.”












  1. No evidence whatsoever
    emanating from the investigating authorities had been led to
    establish the circumstances under which the appellant and his former
    co-accused were arrested or the extent to which they were connected
    to the commission of the crime. The fact that the erstwhile
    co-accused was acquitted on appeal on the same case and evidence
    should have weighed heavily with the Court
    a
    quo
    in the evaluation of the evidence led
    against the appellant during the trial
    ,
    considered in the context of the application for condonation.









  1. On page 5 of the
    cyclostyled judgment in the matter of
    Robert
    Martin v State
    ,
    unreported judgment of the High Court delivered on 03/07/2003, and
    to which I had promised to advert, when considering the appeal of
    Robert Martin, the Court observed in reference to the present
    appellant as follows:








Secondly, the co-accused of
appellant did not appeal against his conviction. His conviction is
thus not dealt with but it must be stated that the facts and
circumstances surrounding his conviction, although based on
identification, differ markedly from that of the appellant and the
resultant conclusion will thus not necessarily be the same as in his
case.”












  1. I respectfully agree
    with this observation only up to the point where it was stated that
    the appellant’s appeal had not been dealt with. As regards the
    rest of the dictum, I agree with Mr Small that the evidence led by
    the State at the trial is
    ,
    on the whole, the same in respect of both the appellant and Robert
    Martin. The witnesses identified the appellant and Robert Martin in
    court and it did not appear as if there was other evidence
    implicating them
    . The trial
    magistrate observed that the principal and the teacher were educated
    people who would not incriminate others falsely. It should be
    re-emphasised in this regard that in a criminal case involving the
    identification of a person, courts are more concerned about the
    witness’s accuracy rather than his or her honesty, sincerity
    or conviction
    . (S
    v Ndikwetepo and Others
    1992 NR 232 at
    250D-E;
    S v Mehlape
    1963 (2) SA 29 (A) at 32F.) The accuracy of the witnesses’
    identification of the appellant and his erstwhile co-accused as the
    robbers in this case had not been tested at a properly constituted
    identification parade. There is no evidence why that was not done
    .









  1. In the result, it has
    been shown that while the High Court considered the explanation
    offered for the delay to note the appeal on time, it did not
    sufficiently deal with the prospects of success, which as I have
    endeavoured to demonstrate, appear to be good. Had the Court below
    examined the evidence as part of its consideration of the
    application for condonation more carefully, I have no doubt that it
    would have granted condonation on the basis of the good prospects of
    the appeal succeeding.










  1. It was for those reasons
    that the following order was made:









  1. The appeal succeeds.









  1. The order of the Court a
    quo
    is set aside and the following order is substituted
    therefor:








The application
for condonation of the late filing of the appellant’s notice of
appeal is granted.”












  1. The matter is referred
    back to the High Court for that Court to hear the appellant’s
    appeal against his conviction and sentence.









  1. In view of the
    concession made by the respondent that there are reasonable
    prospects of the appeal succeeding, the Registrar is requested to
    expedite the hearing.




















________________________



SHIVUTE, CJ











I concur.



















________________________



MAINGA, JA











I also concur.



















________________________



STRYDOM, AJA




























COUNSEL FOR THE
APPELLANT:







In person







COUNSEL FOR THE
RESPONDENT:


Instructed
by:




Mr DF Small



The Prosecutor-General