- April 14, 2023
- |Concise Law Reports (CLR), Criminal Law And Procedure
The appellant was an employee at the Khomasdal post office. She was in charge of serving clients at the counter, selling products such as stock. She further handled stock on the computer system. She misrepresented to the postmaster that her physical stock corresponded with the stock on the computer system. In the meantime, she took physical stock and sold it externally for her own gain. Her actions caused a shortfall in the amount of N$299 119.21. She furthermore used the illegally obtained proceeds to pay off the debtors of her late mother, thereby laundering money.
The appellant was convicted of fraud in the amount of N$299 119.21 and acquisition, possession, or use of proceeds (N$299 119,21) of unlawful activities in contravention of s 6 read with ss 1, 7, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004. The appellant was sentenced on count 1 to six years’ imprisonment of which two years is suspended for a period of three years on condition that the appellant is not convicted of fraud committed during the period of suspension. On count two, the appellant was sentenced to four years imprisonment ordered to be served concurrently with the sentence on count one.
She appealed against both conviction and sentence. The respondent (State) raised a point in limine that: grounds one to four and seven are defective in that they fail to meet the mandatory requirements of rule 67(1) of the Magistrate Court Rules. Respondent’s counsel submitted, amongst others, that the grounds are not clear neither concise as required and are so vague that one needs to re-evaluate all the evidence presented at the trial to adjudicate if the learned magistrate committed an error(s) for purposes of this appeal.
Many of the appeal grounds were couched in general and vague terms, thus, disqualifying them from being considered by the appeal court. The appeal proceeded on the remaining grounds and the appeal was dismissed on both conviction and sentence.
JANUARY J and CLAASEN J considered the appeal and stated that:
‘[8] It is trite that grounds of appeal in a notice of appeal should be set out clearly and specifically as is required by rule 67(1) of the Magistrate’s Court Rules… [T]he rule does not require an appeal ground to be succinct, but it requires it to be clear and define in precise terms what aspects are being attacked so that a party will know the case it has to meet in the appeal court.
[9] There is an abundance of case law in our jurisdiction that reiterates the above principle. In Kamuro v S (HC-MD-CRI-APP-CAL- 2019/00001) [2021] NAHCMD 135 (29 March 2021), it was held that grounds of appeal must apprise all interested parties as fully as possible of what is in issue and to bind the parties to those issues and that the notice of appeal must be set out clearly and specifically the grounds on which it is based.
[10] In our view, the grounds of appeal are such that the appellant casts her net as wide as possible. Many of the grounds were stated in such general terms that they do not meet the established requirements. That approach is frowned upon by the appeal courts. In this regard, it was stated in Hindjou v The Government of the Republic of Namibia 1997 NR 112 that:
‘To ramble through the whole judgment in the hope of finding something wrong or an error which leads to success of the appeal, is not in the interest of justice. It tends to waste the time of the parties and the court.’
[11] Consequently, this court upholds the point in limine in relation to grounds 1, 2, 4, 7, and 11 and will deal with grounds 3, 5, 6, 8, 9 10, and 12.’
The court went on to consider the grounds that met the requirements and held that:
a) The grounds of appeal must be set out in clear and specific terms to apprise the parties of the case it has to meet in the appeal court.
b) Held further that the typed record was riddled with indistinct portions and the magistrate did not supplement the reasons once the appeal was filed. Furthermore, it was a terse judgment making it difficult to understand how the magistrate resolved the issues of fact and law.
c) The duty to give reasons for a decision could not be relegated as it served to promote public confidence in the administration of justice; it informs the losing party of the reasons for being unsuccessful in court and it enables the appeal court to comprehend the path that the trial court has taken to a given decision.
d) In the evaluation of evidence, a court is to consider the full conspectus of evidence and cannot ignore parts of the evidence. It was a misdirection by the court a quo to have considered the evidence of only one witness whilst two witnesses had testified. As such the appeal court reconsidered the evidence and found that the state has proven all the elements of the two charges.
e) Held further that the state proved its case on both counts nor was there any misdirection in the sentence.
As a result, the appeal in relation to the conviction on both counts and the sentence imposed on both counts were dismissed.