S v Malumo (2) (4 of 2010) [2010] NASC 10 (14 September 2010)

S v Malumo (2) (4 of 2010) [2010] NASC 10 (14 September 2010)

The Supreme Court declined to exercise review jurisdiction under section 16 of the Supreme Court Act, 1990, as no irregularity in the proceedings was established. The Court held that rulings on the admissibility of evidence are interlocutory, alterable by the trial court, and not appealable under section 316A of the Criminal Procedure Act, 1977, prior to conclusion of trial except in exceptional circumstances, which were not present. The State's petition for leave to appeal was refused.

Citation
[2010] NASC 10
Parties
Petitioner: The State; First Respondent: Calvin Liseli Malumo; Second Respondent: Chika Adour Mutalife; Third Respondent: Josef Kamwi Simawhewhe; Fourth Respondent: Sylvester Lusiku Ngalaule; Fifth Respondent: Kingsley Mwiya Mushebafi; Sixth Respondent: John Tebiso Masake; Seventh Respondent: Chris Sitali Mushe; Eighth Respondent: George Masialeti Liseho; Ninth Respondent: Davis Chioma Mazyu; Tenth Respondent: Francis Buitiko Pangala; Eleventh Respondent: Roster Mushe Lukato; Twelfth Respondent: Kisko Twaimango Sakusheka; Thirteenth Respondent: Tobias Mushwabe Kananga; Fourteenth Respondent: Frederick Kabodontwa Luthehezi; Fifteenth Respondent: Postrick Mario Mwiya; Sixteenth Respondent: Ndala Saviour Tutalife; Seventeenth Respondent: Andrea Puo Mulupa; Eighteenth Respondent: Michael Mundia Mubyan; Nineteenth Respondent: O’Brien Sinkolela Mwananyambe; Twentieth Respondent: Josef Omo Mufuhi; Twenty First Respondent: Rodwell Mwanabwe Sihela; Twenty Second Respondent: Albert Skeni Mangalazi; Twenty Third Respondent: Victor Tumoni Lunyandile; Twenty Fourth Respondent: Charles Mukena Samboma; Twenty Fifth Respondent: Ziezo Austin Lemuha
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
14 September 2010
Case Number
4 of 2010
Procedural Posture
Criminal Appeal (petition for Leave to Appeal) / Petition for Leave to Appeal to Supreme Court, Ruling on Admissibility of Evidence (interlocutory)
Outcome
petition for leave to appeal refused
Legal Topics
Appeal Rights of Prosecution, Interlocutory Orders, Admissibility of Evidence, Review Jurisdiction, Piecemeal Appeals
Source Language
English
Criminal Law Criminal Procedure Appeal Rights of Prosecution Interlocutory Orders Admissibility of Evidence Review Jurisdiction Piecemeal Appeals

Case Brief

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Parties

The State

Petitioner

Calvin Liseli Malumo

First Respondent

Chika Adour Mutalife

Second Respondent

Josef Kamwi Simawhewhe

Third Respondent

Sylvester Lusiku Ngalaule

Fourth Respondent

Kingsley Mwiya Mushebafi

Fifth Respondent

John Tebiso Masake

Sixth Respondent

Chris Sitali Mushe

Seventh Respondent

George Masialeti Liseho

Eighth Respondent

Davis Chioma Mazyu

Ninth Respondent

Francis Buitiko Pangala

Tenth Respondent

Roster Mushe Lukato

Eleventh Respondent

Kisko Twaimango Sakusheka

Twelfth Respondent

Tobias Mushwabe Kananga

Thirteenth Respondent

Frederick Kabodontwa Luthehezi

Fourteenth Respondent

Postrick Mario Mwiya

Fifteenth Respondent

Ndala Saviour Tutalife

Sixteenth Respondent

Andrea Puo Mulupa

Seventeenth Respondent

Michael Mundia Mubyan

Eighteenth Respondent

O’Brien Sinkolela Mwananyambe

Nineteenth Respondent

Josef Omo Mufuhi

Twentieth Respondent

Rodwell Mwanabwe Sihela

Twenty First Respondent

Albert Skeni Mangalazi

Twenty Second Respondent

Victor Tumoni Lunyandile

Twenty Third Respondent

Charles Mukena Samboma

Twenty Fourth Respondent

Ziezo Austin Lemuha

Twenty Fifth Respondent

Procedural Posture

Criminal Appeal (petition for Leave to Appeal) / Petition for Leave to Appeal to Supreme Court, Ruling on Admissibility of Evidence (interlocutory)

Legal Issues

  1. 1 Whether the Supreme Court should exercise review jurisdiction under section 16 of the Supreme Court Act, 1990
  2. 2 Whether the State has a right to appeal interlocutory rulings on admissibility of evidence under section 316A of the Criminal Procedure Act, 1977, prior to conclusion of trial
  3. 3 Whether exceptional circumstances exist to justify appeal before conclusion of trial

Ratio Decidendi

The Supreme Court declined to exercise review jurisdiction under section 16 of the Supreme Court Act, 1990, as no irregularity in the proceedings was established. The Court held that rulings on the admissibility of evidence are interlocutory, alterable by the trial court, and not appealable under section 316A of the Criminal Procedure Act, 1977, prior to conclusion of trial except in exceptional circumstances, which were not present. The State's petition for leave to appeal was refused.

Court Disposition

petition for leave to appeal refused

Orders

  • The Supreme Court declines to exercise its review jurisdiction under section 16 of the Supreme Court Act, 1990.
  • The petitioner's petition for leave to appeal against the order of the Court a quo declaring certain statements inadmissible is refused.