CRIMINAL LAW – IMPROPER NOTICE OF APPEAL CONSTITUTES A NULLITY AND REMAINS A NULLITY

CRIMINAL LAW – IMPROPER NOTICE OF APPEAL CONSTITUTES A NULLITY AND REMAINS A NULLITY

The appellant was convicted of four counts namely; fraud, defeating or obstructing the course of justice, forgery and uttering a forged document in the Magistrate’s Court sitting in Windhoek.  On 24 August 2017, she was sentenced to N$20 000 fine or four years’ imprisonment of which N$10 000 or two years’ imprisonment were suspended for a period of five years on usual conditions. The four counts were taken together for purpose of sentencing. Aggrieved by the convictions, she appealed on 12 March 2019, but the appeal was inactive until it was pursued during August 2021. The appeal was also late and the appellant filed an application for condonation for the late filing of the notice of appeal.

SHIVUTE J (CLAASEN J concurring) considered the appeal and stated the following:

‘The appellant failed to comply with Rule 67 of the Magistrate’s Court Rules and filed an improper notice of appeal with inconsistencies in dates which causes confusion. Appellant was unable to give a satisfactory explanation concerning her improper notice of appeal. Grounds of appeal are also vague, not clearly and specifically stated. Improper grounds of appeal amounts to a nullity as well as the defective notice of appeal. Once a nullity, it remains a nullity and it cannot be resurrected or revived, neither by condonation of non-compliance with the rules nor by amendment of the defective notice of appeal. Counsel for the appellant is under obligation to comply with the rules of court as the notice of appeal constitutes the very foundation of the appeal. If the notice of appeal does not comply with the rules of court, it is a nullity without force and effect.’

In the result, the matter was struck from the roll and the court specifically ordered that the appeal should not be enrolled on the roll until the appellant files a fresh notice of appeal accompanied by an application for condonation.

Petrus v S NAHCMD 2 September 2022