OF THE
N$29.30 WINDHOEK - 24 December 2004 No.3358
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GOVERNMENT NOTICE |
No. 285 Promulgation of Criminal Procedure Act, 2004 (Act No. 25 of 2004), of the Parliament .......................................................................................................... 1 |
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Government Notice |
No. 285 2004
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 25 of 2004: Criminal Procedure Act, 2004.
ACT
(Signed by the President on 9 December 2004)
ARRANGEMENT OF SECTIONS
Section
1. Definitions
CHAPTER 4
SEARCH WARRANT, ENTERING OF PREMISES, SEIZURE,
FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES
CHAPTER 5
QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME,
ASCERTAINMENT OF BODILY FEATURES OF ACCUSED
AND VICTIM IMPACT STATEMENT
CHAPTER 6
METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
40. Methods of securing attendance of accused in court
CHAPTER 8
SUMMONS
CHAPTER 9
WRITTEN NOTICE TO APPEAR IN COURT
58. Written notice as method of securing attendance of accused in magistrate’s court
CHAPTER 10
ADMISSION OF GUILT FINE
CHAPTER 12
RELEASE ON WARNING
CHAPTER 13
ASSISTANCE TO ACCUSED
CHAPTER 14
SUMMARY TRIAL
CHAPTER 15
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS:
MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
CHAPTER 16
THE CHARGE
CHAPTER 17
DISCLOSURE
CHAPTER 18
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES
118. Pre-trial conferences
CHAPTER 20 | |
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JURISDICTION | |
124. | Accused before court that has no jurisdiction |
CHAPTER 21 | |
PLEA OF GUILTY AT SUMMARY TRIAL | |
125. | Plea of guilty |
126. | Change of plea of guilty |
127. | Committal by district court of accused for sentence by divisional court after plea |
of guilty | |
CHAPTER 22 | |
PLEA OF NOT GUILTY AT SUMMARY TRIAL | |
128. | Plea of not guilty and procedure in regard to issues |
129. | Committal of accused for trial by divisional court |
130. | Committal of accused for sentence by divisional court after trial in district court |
131. | Committal to High Court in special case |
132. | Non-availability of judge or magistrate after plea of not guilty |
CHAPTER 23 | |
COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT | |
AFTER CONVICTION IN DIVISIONAL COURT | |
133. | Committal of accused for sentence by High Court after conviction in divisional |
court | |
CHAPTER 24 | |
PLEA IN DISTRICT COURT ON CHARGE | |
JUSTICIABLE IN HIGH COURT | |
134. | Accused to plead in district court on charge to be tried in High Court |
135. | Charge sheet and proof of record |
136. | Plea of guilty |
137. | Plea of not guilty |
CHAPTER 25 | |
PLEA IN DISTRICT COURT ON CHARGE | |
TO BE TRIED IN DIVISIONAL COURT | |
138. | Accused to plead in district court on charge to be tried in divisional court |
139. | Charge sheet and proof of record |
140. | Plea of guilty |
141. | Plea of not guilty |
CHAPTER 26 | |
PREPARATORY EXAMINATION | |
142. | Prosecutor-General may direct that preparatory examination be held |
143. | Proceedings preceding holding of preparatory examination to form part of |
preparatory examination record | |
144. | Prosecutor-General may direct that preparatory examination be conducted at a |
specified place | |
145. | Procedure to be followed by magistrate at preparatory examination |
146. | Recalling of witnesses after conversion of trial into preparatory examination |
147. | Examination of prosecution witnesses at preparatory examination |
148. | Recording of evidence at preparatory examination and proof of record |
CHAPTER 27
TRIAL BEFORE HIGH COURT
CHAPTER 28
CONDUCT OF PROCEEDINGS
CHAPTER 29
WITNESSES
CHAPTER 30
EVIDENCE
245. | Admissibility of certain statements made by young children |
246. | Admissibility of confession by accused |
247. | Admissibility of facts discovered by means of inadmissible confession |
248. | Confession not admissible against another |
249. | Admissibility of admission by accused |
250. | Admissions in court |
251. | Admissibility of certain trade or business records |
252. | Admissibility of, and weight to be attached to, documentary evidence as to facts |
in issue | |
253. | Admissibility of dying declaration |
254. | Judicial notice of laws and other published matter |
255. | Evidence of prints or bodily appearance of accused |
256. | Evidence of no sexual intercourse between spouses admissible |
257. | Evidence of character |
258. | Evidence of sexual conduct or experience of complainant of rape or offence of an |
indecent nature | |
259. | Evidence of disputed writing |
260. | Evidence of times of sunrise and sunset |
261. | Evidence and sufficiency of evidence of appointment to public office |
262. | Evidence of signature of public officer |
263. | Article may be proved in evidence by means of photograph thereof |
264. | Proof of public documents |
265. | Proof of official documents |
266. | Proof of judicial proceedings |
267. | Proof of entries in accounting records and documentation of banking institutions |
268. | Proof of entries in accounting records and documentation of banking institutions |
in countries outside Namibia | |
269. | Evidence on charge of bigamy |
270. | Evidence of relationship on charge of incest |
271. | Evidence on charge of infanticide or concealment of birth |
272. | Evidence on charge of receiving stolen property |
273. | Evidence on charge of defamation |
274. | Evidence of receipt of money or property and general deficiency on charge of |
theft | |
275. | Evidence on charge of which false representation is an element |
276. | Presumptions relating to certain documents |
277. | Presumptions relating to absence from Namibia of certain persons |
278. | Presumption that accused possessed particular qualification or acted in particular |
capacity | |
279. | Presumption of failure to pay tax or to furnish information relating to tax |
280. | Presumption of lack of authority |
281. | Unstamped instrument admissible in criminal proceedings |
282. | Use of traps and undercover operations and admissibility of evidence so obtained |
283. | The law in cases not provided for |
284. | Saving of special provisions in other laws |
CHAPTER 31 | |
CONVERSION OF TRIAL INTO ENQUIRY | |
285. | Court may refer juvenile accused to children’s court |
CHAPTER 32 | |
COMPETENT VERDICTS | |
286. | Attempt |
287. | Accessory after the fact |
288. | Murder and attempted murder |
289. | Culpable homicide |
290. | Robbery |
291. | Rape and indecent assault |
292. | Housebreaking with intent to commit an offence |
293. | Statutory offence of breaking and entering or of entering premises |
294. | Theft |
295. | Receiving stolen property knowing it to have been stolen |
296. | Assault with intent to do grievous bodily harm |
297. | Common assault |
298. | Statutory offence of committing a sexual act or of unlawful carnal intercourse |
299. | Sodomy |
300. | Offences not specified in this Chapter |
301. | Acts committed under influence of certain substances |
CHAPTER 33 | |
PREVIOUS CONVICTIONS | |
302. | Previous convictions may be proved |
303. | Fingerprint record prima facie evidence of previous conviction |
304. | Evidence of further particulars relating to previous conviction |
CHAPTER 34 | |
SENTENCE | |
305. | Evidence on sentence |
306. | Sentence by magistrate or judge other than magistrate or judge who convicted |
accused | |
307. | Nature of punishments |
308. | Imposition and conversion of correctional supervision |
309. | Minimum sentences for certain serious offences |
310. | Cumulative or concurrent sentences |
311. | Interpretation of certain provisions in laws relating to imprisonment and fines |
312. | Antedating sentence of imprisonment |
313. | Minimum period of imprisonment four days |
314. | Periodical imprisonment |
315. | Declaration of certain persons as habitual criminals |
316. | Imprisonment in default of payment of fine |
317. | Recovery of fine |
318. | Court may enforce payment of fine |
319. | Manner of dealing with convicted juvenile |
320. | Period of supervision or custody of juveniles |
321. | Committal to rehabilitation centre |
322. | Conditional or unconditional postponement or suspension of sentence, and caution |
or reprimand | |
323. | Agreement on operation of suspended sentences |
324. | Sentence may be corrected |
325. | Warrant for execution of sentence |
CHAPTER 35 | |
COMPENSATION AND RESTITUTION | |
326. | Court may award compensation or order restitution where offence caused injury, |
damage or loss | |
327. | Compensation to innocent purchaser of property unlawfully obtained |
CHAPTER 36 | |
REVIEWS AND APPEALS IN CASES OF CRIMINAL | |
PROCEEDINGS IN MAGISTRATES’ COURTS | |
328. | Sentences subject to review in the ordinary course |
329. | Transmission of record |
330. | Procedure on review |
331. | Special review before imposition of sentence |
332. | Accused may set down case for argument |
333. | Execution of sentence not suspended unless bail granted |
334. | Correctional supervision not suspended unless bail granted |
335. | Appeal from magistrate’s court by person convicted |
336. | Explanation of certain rights to unrepresented accused |
337. | Appeal from magistrate’s court by Prosecutor-General or other prosecutor |
338. | Appeal from High Court to Supreme Court |
339. | Review or appeal and failure to comply with subsection (1)(b) or (2) of section |
125 | |
340. | Institution of proceedings anew when conviction set aside on appeal or review |
341. | Obtaining presence of convicted person in magistrate’s court after setting aside of |
sentence or order | |
CHAPTER 37 | |
APPEALS IN CASES OF CRIMINAL | |
PROCEEDINGS IN HIGH COURT | |
342. | Court of appeal in respect of High Court judgments |
343. | Applications for condonation, for leave to appeal and for leave to lead further |
evidence | |
344. | Appeal from High Court by Prosecutor-General or other prosecutor |
345. | Special entry of irregularity or illegality |
346. | Appeal on special entry under section 345 |
347. | Reservation of question of law |
348. | Report of trial judge to be furnished on appeal |
349. | When execution of sentence may be suspended |
350. | Powers of Supreme Court |
351. | Institution of proceedings anew when conviction set aside on appeal |
CHAPTER 38 | |
GENERAL PROVISIONS | |
352. | Force of process |
353. | Court process may be served or executed by member of police |
354. | Transmission of court process by facsimile or telegraph or similar communication |
355. | Irregular warrant or process |
356. | Prosecution of corporations and members of associations |
357. | Attorney-General may invoke decision of Supreme Court on question of law |
358. | Minister may declare certain persons peace officers for specific purposes |
359. | Person who makes statement entitled to copy thereof |
360. | Prohibition of publication of identity of persons towards or in connection with |
whom certain offences have been committed | |
361. | Medical examination of minors towards or in connection with whom certain |
offences have been committed | |
362. | Act or omission constituting offence under two or more laws |
363. | Estimating age of person |
364. | Production of document by accused at criminal proceedings |
365. | Removal of accused from one prison to another for purposes of attending criminal |
proceedings | |
366. | Prison list of unsentenced prisoners |
367. | Compounding of certain minor offences |
368. | Charges for giving conflicting statements |
369. | Binding over of persons to keep the peace |
370. | Conviction or acquittal no bar to civil action for damages |
371. | Unreasonable delays in trials |
BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:
1. (1) In this Act, unless the context otherwise indicates
“alibi” means a defence in a criminal trial according to which the accused alleges that he or she was elsewhere on the day or at the time when the offence with which he or she is charged was allegedly committed;
“assessor”, in relation to a criminal trial, means a person who, in the opinion of the judge who presides at the trial, has experience in the administration of justice or skill in any matter that may be considered at the trial;
“banking institution” means a banking institution authorized under the Banking Institutions Act, 1998 (Act No. 2 of 1998), to conduct business as such, and includes the Agribank referred to in section 3 of the Agricultural Bank of Namibia Act, 2003 (Act No. 5 of 2003), and a building society as defined in section 1 of the Building Societies Act, l986 (Act No. 2 of l986);
“charge” means an indictment, charge sheet, summons or written notice;
“clerk of the court” means a clerk of the court appointed in terms of the Magistrates’ Courts Act, and includes an assistant clerk of the court so appointed;
“complainant” means
of that person’s sentence has been suspended under section 322(1)(b) or (5), respectively;
“criminal proceedings” includes a preparatory examination under Chapter 26;
“day” means the space of time between sunrise and sunset;
“dependant”, in relation to a deceased victim, means
“district court” means a court established for a magisterial district under the Magistrates’ Courts Act, and includes any other court established under that Act, other than a court for a magisterial division;
“district magistrate” means a magistrate appointed under the Magistrates’ Courts Act for a magisterial district established under that Act, but does not include a divisional magistrate;
“divisional court’’ means a court established for a magisterial division under the Magistrates’ Courts Act;
“divisional magistrate” means a magistrate appointed under the Magistrates’ Courts Act for a magisterial division established under that Act;
“domestic violence offence” means a domestic violence offence within the meaning of the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003);
“High Court” means the High Court of Namibia constituted in terms of Article 80(1) of the Namibian Constitution;
“informer” means a person who provides information to the police, in writing or orally, relating to the commission of an offence, for the purpose of assisting the police in the investigation of offences, whether for reward or otherwise and on the express or implied condition that the identity of the informer will not be disclosed;
“justice of the peace” means a person who is a justice of the peace under the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);
“law enforcement officer” includes a member of the prison service and a member of the Namibia Central Intelligence Service constituted in terms of section 3 of the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997);
“legal practitioner” means a person who, in terms of the Legal Practitioners Act, 1995 (Act No. 15 of 1995), has been admitted and authorized to practise as a legal practitioner or is deemed to have been so admitted and authorized;
“life imprisonment” means imprisonment for the rest of the natural life of a convicted person;
“local authority” means any municipal council, town council or village council established under the Local Authorities Act, 1992 (Act No. 23 of 1992);
“magistrate” means a district magistrate or a divisional magistrate;
“magistrate’s court” means any district court or divisional court established under the Magistrates’ Courts Act pursuant to Article 83(1) of the Namibian Constitution;
“Magistrates’ Courts Act” means the Magistrates’ Courts Act, 2004;
“marriage”, for the purposes of the law of evidence in criminal proceedings, includes a
marriage by customary law;
“member of the police” means a member of the Namibian Police Force as defined in
section 1 of the Police Act, 1990 (Act No. 19 of 1990), and “police” has a similar meaning;
“member of the prison service” means a member of the Namibian Prison Service within
the meaning of the Prisons Act, 1998 (Act No. 17 of 1998);
“Minister” means the Minister responsible for justice;
“night” means the space of time between sunset and sunrise; “offence” means an act or omission punishable by law; “peace officer” means any magistrate, justice of the peace, member of the police, member
of the prison service and, in relation to any area, offence, class of offences or power referred to in a notice issued under section 358(1), any person who is a peace officer under that section;
“premises” includes land, any building or structure, or any vehicle, conveyance, ship,
boat or aircraft;
“prison” means a prison established under section 13 of the Prisons Act, 1998 (Act No.
17 of 1998), and includes a temporary prison declared under section 14 of that Act;
“probation officer” means a probation officer appointed under section 58 of the Children’s Act, 1960 (Act No. 33 of 1960);
“registrar” means the registrar of the High Court, and includes an assistant registrar;
“rules of court” means the rules made under section 37(1) of the Supreme Court Act,
l990 (Act No. 15 of 1990), or section 39 of the High Court Act, 1990 (Act No. 16 of
1990), or under the Magistrates’ Courts Act;
“sexual act” means a sexual act as defined in section 1(1) of the Combating of Rape Act,
2000 (Act No. 8 of 2000);
“social worker” means a social worker as defined in section 1 of the Social Work and
Psychology Act, 2004 (Act No. 6 of 2004);
“spouse” means a person’s partner in marriage, and includes a partner in a marriage by customary law;
“State” means the Republic of Namibia; “State-owned enterprise” means a company, corporation or other entity in which the State
79(1) of the Namibian Constitution;
“this Act” includes the rules of court and any regulations made under this Act;
“victim”, in relation to an offence against the person or against property, means a person who directly or indirectly suffered harm, including physical or mental injury, emotional suffering, damage or loss, as a result of the commission of the offence, regardless of any familial relationship between that person and the person who committed the offence, and includes
and, where the victim is deceased, also a dependant of the victim;
“victim impact statement” means a victim impact statement referred to in section 39(3).
(2) Any reference in any other law to an inferior court is, unless the context of such other law indicates otherwise, to be construed as a reference to a magistrate’s court as defined in subsection (1).
CHAPTER 2
PROSECUTING AUTHORITY
2. (1) The authority to institute and conduct a prosecution in criminal proceedings in respect of any offence in relation to which a magistrate’s court or the High Court in Namibia has jurisdiction, vests in the State and must, pursuant to and in accordance with Article 88(2) of the Namibian Constitution, be exercised by the Prosecutor-General in the name of the Republic of Namibia.
(2) Criminal proceedings purporting to be instituted in the name of the State in any court in Namibia are for all purposes deemed to be instituted in the name of the Republic of Namibia.
3. Pursuant to Article 88(2)(d) of the Namibian Constitution, the Prosecutor-General may in writing delegate to any person employed in the Public Service, subject to the control and direction of the Prosecutor-General, authority to
4. The Prosecutor-General or any person delegated by the Prosecutor-General under section 3 to conduct a prosecution at the instance of the State, or any body or person conducting a prosecution under section 6, may
(a) before an accused pleads to a charge, withdraw that charge, in which event the accused is not entitled to an acquittal in respect of that charge;
(b) at any time after an accused has pleaded, but before conviction, stop the prosecution in respect of that charge, in which event the court trying the accused must acquit the accused in respect of that charge, but where a prosecution is conducted by a person other than the Prosecutor-General or a body or person referred to in section 6, the prosecution may not be stopped unless the Prosecutor-General or any person authorized thereto by the Prosecutor-General, whether in general or in a particular case, has consented thereto in writing.
5. (1) In any case in which the Prosecutor-General declines to prosecute for an alleged offence
may, subject to section 7, either in person or by a legal practitioner, institute and conduct a prosecution in respect of the said offence in any court competent to try that offence.
within 30 days of receipt of any such request.
(4) A person authorized under subsection (1) to institute a private prosecution who feels aggrieved by any failure of the Prosecutor-General to comply with subsection (2)(b)(i) or (ii) or (3)(a) or (b), may apply to the High Court for an order compelling the Prosecutor-General to comply therewith.
6. (1) Any body on which or person on whom the right to prosecute in respect of any offence is expressly conferred by law may, subject to subsection (2), institute and conduct a prosecution in respect of such offence in any court competent to try that offence.
7. (1) No private prosecutor referred to in section 5 may take out or issue any process commencing a private prosecution unless such prosecutor deposits with the district court in whose area of jurisdiction the offence in question was committed the amount that court may determine as security for the costs that may be incurred in respect of the accused’s defence to the charge.
8. (1) A private prosecution must be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor.
9. (1) If the private prosecutor fails to appear on the day set down for the appearance of the accused in the district court or for the trial of the accused, the charge against the accused must be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his or her control, in which event the court may adjourn the case to a later date.
(2) Where the charge is dismissed in terms of subsection (1), the accused must immediately be discharged from custody and may not in respect of that charge be prosecuted privately again, but the Prosecutor-General or a public prosecutor with the written consent of the Prosecutor-General, may at the instance of the State prosecute the accused in respect of that charge.
10. (1) A private prosecution must, subject to this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State, but the accused may be brought before the court only by way of a summons in the case of a magistrate’s court, or an indictment in the case of the High Court, except where the accused is under arrest in respect of an offence with regard to which a right of private prosecution is vested in any body or person under section 6.
(2) Where a prosecution is instituted under section 5(1) and the accused pleads guilty to the charge, the prosecution may be continued at the instance of the State, but only if the private prosecutor or the person on whose behalf the private prosecutor so prosecutes consents thereto.
11. (1) The Prosecutor-General or a public prosecutor with the written consent of the Prosecutor-General, may in respect of any private prosecution apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case in order that a prosecution for the offence in question may be instituted or continued at the instance of the State, and the court must, subject to subsection (2), make such an order if the private prosecutor or the person on whose behalf the private prosecutor so prosecutes consents thereto.
(2) When the Prosecutor-General intends to take over the prosecution from a private prosecutor, the Prosecutor-General must offer to pay to the private prosecutor all costs and expenses incurred by such prosecutor in connection with the private prosecution up to the date of the offer, and if the offer is accepted by the private prosecutor or the person on whose behalf such prosecutor so prosecutes, the court before which the private prosecution is pending must make an order giving effect to the agreement concluded between the parties.
12. A private prosecutor, other than a prosecutor contemplated in section 6, must in respect of any process relating to the private prosecution, pay to the clerk of the court in question or the registrar the fees prescribed under the rules of court for the service or execution of such process.
13. (1) The costs and expenses of a private prosecution must, subject to subsection (2), be paid by the private prosecutor.
(2) The court may order a person convicted upon a private prosecution, other than a prosecution instituted and conducted under section 6, to pay the costs and expenses of the private prosecution, including the costs of any appeal against such conviction or any sentence, but where such a private prosecution is instituted after the grant of a certificate by the Prosecutor-General that he or she declines to prosecute and the accused is convicted, the court may order the costs and expenses of the private prosecution, including the costs of an appeal arising from such prosecution, to be paid by the State.
14. (1) Where in a private prosecution, other than a prosecution contemplated in section 6, the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding in favour of the accused on appeal, may order the private prosecutor to pay to the accused the whole or part of the costs and expenses incurred by the accused in connection with the prosecution or appeal.
(2) Where the court is of the opinion that a private prosecution was unfounded and vexatious, it must award to the accused at his or her request such costs and expenses incurred by the accused in connection with the prosecution as it may consider fit.
15. (1) Section 326(4) applies in respect of any order or award made under section 13 or 14 in connection with costs and expenses.
(2) Costs awarded under section 13 or 14 must be taxed according to the scale in civil cases of the court that makes the award or, if the award is made by a divisional court, according to the scale in civil cases of a district court, or, where there is more than one such scale, according to the scale determined by the court making the award.
16. (1) The right to institute a prosecution for any offence, other than the offences of
lapses, unless some other period is expressly provided by law, after the expiration of a period of 20 years from the time when the offence was committed.
(2) The right to institute a prosecution for any of the offences mentioned in subsection (1) is not barred by the lapse of time.
CHAPTER 3
LEGAL REPRESENTATION OF ACCUSED
AND OF VICTIM IN CRIMINAL PROCEEDINGS
17. Pursuant to Article 12(1)(e) of the Namibian Constitution, an accused has the right to be represented by a legal practitioner of his or her choice before the commencement of and during his or her trial in any criminal proceedings.
18. (1) A victim of an offence against the person or against property may appoint at his or her own expense a legal practitioner of his or her choice to represent in general the interests of the victim at the trial of the accused for the offence that caused injury, damage or loss to the victim, and in that capacity, but subject to subsection (2), to
(2) A legal practitioner appointed under subsection (1) must, at the beginning of the trial, identify himself or herself to the court trying the accused and indicate to the court that he or she intends applying on behalf of the victim for compensation in terms of section 326.
CHAPTER 4
SEARCH WARRANTS, ENTERING OF PREMISES, SEIZURE,
FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES
19. This Chapter does not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter.
20. The State may, in accordance with this Chapter, seize anything (in this Chapter referred to as an article)
(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within Namibia or elsewhere;
21. (1) Subject to sections 22(1), 24(1) and 25, an article referred to in section 20 may be seized only by virtue of a search warrant issued
22. (1) A member of the police may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20
(2) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.
23. (1) On the arrest of any person, the person making the arrest may
24. (1) Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises in question, or that any article has been placed thereon or therein or is in the custody or possession of any person on or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs or substances, arms and ammunition or explosives, may at any time, if a member of the police is not readily available, enter such premises for the purpose of searching that premises and any person thereon or therein, and if any such stock, produce or article is found, that person must take possession thereof and immediately deliver it to a member of the police.
(2) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.
25. (1) If it appears to a district magistrate or justice of the peace from information on oath that there are reasonable grounds for believing
he or she may issue a warrant authorizing a member of the police to enter the premises in question at any reasonable time for the purpose
(iii) of seizing any such article.
26. Where a member of the police in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is on any premises, the member of the police may without warrant enter that premises for the purpose of questioning that person and obtaining a statement from him or her, but the member of the police may not enter any private dwelling without the consent of the occupier thereof.
27. (1) A member of the police who may lawfully search any person or premises or who may enter any premises under section 26, may, subject to subsection (2), use such force as may be reasonably necessary to overcome any resistance against such search or against such entry of the premises in question, including the breaking of any door or window of that premises.
28. (1) A member of the police
commits an offence and is liable on conviction to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months, and is in addition subject to an award under subsection (2).
(2) Where a person falsely gives information on oath under section 21(1) or 25(1) and a search warrant or a warrant is issued and executed on such information, and that person is in consequence of such false information convicted of perjury, the court convicting that person may, on the application of a person who has suffered damage in consequence of the unlawful entry, search or seizure or on the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon section 326 applies with the necessary changes in respect of the award.
29. (1) A search of any person or premises must be conducted with strict regard to decency and order, including the protection of a person’s right to respect for human dignity and to privacy, and the person of someone may, subject to subsection (2), be searched by a person of the same sex only.
(2) If a search of any person is to be conducted by the police and no member of the police of the same sex is available, the search may be made by any other person of the same sex designated for that purpose by a member of the police.
30. A member of the police who seizes an article referred to in section 20 or to whom any such article is under this Chapter delivered
(c) must, if the article is not disposed of or delivered under paragraph (a) or (b), give it a distinctive identification mark and retain it in police custody or make such other arrangement with regard to the custody thereof as the circumstances may require.
31. (1) (a) If no criminal proceedings are instituted in connection with any article referred to in section 30(c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article must be returned to the person from whom it was seized, if that person may lawfully possess the article, or, if that person may not lawfully possess the article, to the person who may lawfully possess it.
(b) If no person may lawfully possess the article referred to in paragraph (a) or if the member of the police charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article must be forfeited to the State.
(2) The person who may lawfully possess the article referred to in subsection (1)(a) must be notified by registered post at such person’s last-known address that he or she may take possession of the article, and if that person fails to take delivery of the article within 30 days from the date of such notification, the article must be forfeited to the State.
32. (1) If criminal proceedings are instituted in connection with any article referred to in section 30(c) and the accused admits his or her guilt in accordance with section 59, the article must be returned to the person from whom it was seized, if that person may lawfully possess the article, or, if that person may not lawfully possess the article, to the person who may lawfully possess it, whereupon section 31(2) applies to any such person.
(2) If no person may lawfully possess the article referred to in subsection (1) or if the member of the police charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article must be forfeited to the State.
33. (1) If criminal proceedings are instituted in connection with any article referred to in section 30(c) and such article is required at the trial for purposes of evidence or for purposes of an order of court, the member of the police charged with the investigation must, subject to subsection (2), deliver the article to the clerk of the court where the criminal proceedings are instituted or, if such proceedings are instituted in the High Court, to the registrar.
(2) If it is by reason of the nature, bulk or value of the article in question impracticable or undesirable that the article should be delivered to the clerk of the court or the registrar in terms of subsection (1), the clerk of the court or the registrar may require the member of the police charged with the investigation to retain the article in police custody or in such other custody as may be determined in terms of section 30(c).
(3) (a) The clerk of the court or the registrar must place any article received under subsection (1) in safe custody, which may include the deposit of money in an official banking account if the money is not required at the trial in question for the purposes of evidence.
(b) Where the trial in question is to be conducted in a court other than a court of which that clerk is the clerk of the court, the clerk of the court must
34. (1) The judge or magistrate presiding at criminal proceedings must, at the conclusion of such proceedings but subject to this Act or any other law under which any matter must or may be forfeited, make an order that any article referred to in section 33
35. (1) Subject to subsection (2), a court that convicts an accused of an offence may, without notice to any person, declare
and that was seized under this Act, forfeited to the State.
(5) (a) The court in question or, if the judge or magistrate concerned is not available, any judge or magistrate of the court in question, may at any time within a period of three years with effect from the date of declaration of forfeiture, on the application of any person, other than the accused, who claims that any right referred to in subparagraph (i) or (ii) is vested in him or her, inquire into and determine any such right, and if the court finds that the weapon, instrument, vehicle, container or other article in question
(aa) the court must direct that such weapon, instrument, vehicle, container or other article be sold by public auction and that the seller be paid out of the proceeds of the sale an amount equal to the value of his or her rights under the contract to that weapon, instrument, vehicle, container or other article, but not exceeding the proceeds of the sale; or
(bb) if the State has disposed of such weapon, instrument, vehicle,
container or other article, the court must direct that the seller
be likewise compensated by the State.
36. (1) Where an article is seized in connection with which
the district magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that the offence in question is punishable in that other country by a fine of N$1 000 or more or by imprisonment for a period of 12 months or more, order the article so seized to be delivered to a member of a police force established in that country or to any other authorized representative of that country, who may thereupon remove the article from Namibia in accordance with any applicable law or any international agreement or arrangement to which Namibia is a party.
(2) When an article removed from Namibia under subsection (1) is returned to the district magistrate, or when that magistrate refuses to order that the article be delivered under that subsection, the article must be returned to the person from whose possession it was taken, unless that magistrate is authorized or required by law to dispose of it otherwise.
CHAPTER 5
QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME,
ASCERTAINMENT OF BODILY FEATURES OF ACCUSED
AND VICTIM IMPACT STATEMENT
37. (1) Without derogating from Article 12(1)(f) of the Namibian Constitution, a member of the police investigating an offence or alleged offence has the power and the duty to question
38. (1) Subject to subsection (2), a member of the police may
(2) The fingerprints and palm-prints of a person arrested on a charge of having committed any offence referred to in Schedule 1 must be taken or caused to be taken by the member of the police charged with the investigation as soon as practicable after the arrest or detention of that person and the fingerprints and palm-prints so taken must be processed without delay to ascertain whether that person has any previous convictions or is sought elsewhere for any other offence.
(iii) any other steps to be lawfully taken under paragraph (c) of that subsection;
commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
39. (1) The member of the police charged with an investigation, or any other member of the police charged with such duty, must obtain a victim impact statement in respect of every victim of an offence against the person or against property and file the statement so obtained with the prosecuting authority in such manner and within such period, but not later than the date of commencement of the trial of the accused, as the Prosecutor-General may determine.
(2) If for whatever reason a victim is incapable of preparing a victim impact statement
prepare the victim impact statement on behalf of the victim.
326.
(b) A victim impact statement
may, on the mere production thereof at criminal proceedings, be admitted in evidence to the extent that the facts contained therein are not disputed by the accused, and the court may then consider any fact or facts not so placed in issue to have been sufficiently proved at such proceedings.
CHAPTER 6
METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
Methods of securing attendance of accused in court
40. The methods of securing the attendance of an accused in court for the purposes of his or her trial are arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.
41. (1) An arrest is effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching that person’s body or, if the circumstances so require, by forcibly confining that person’s body.
(4) To the extent that this Chapter authorizes the deprivation of the personal liberty of a person by making an arrest thereunder, such deprivation is authorized only on the grounds of the procedures established under this Chapter pursuant to Article 7 of the Namibian Constitution.
42. (1) A peace officer may without warrant arrest any person
(2) If a person may be arrested under any other law without warrant and subject to conditions or the existence of circumstances set out in that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances.
43. (1) A peace officer may call upon any person
to furnish the peace officer with his or her full name and address, and if that person fails to furnish his or her full name and address, the peace officer may immediately and without warrant arrest him or her, or, if that person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest that person without warrant and detain him or her for a period not exceeding 12 hours until the name or address has been verified.
(2) A person who, when called upon under subsection (1) to furnish his or her name and address, fails to do so or furnishes a false or incorrect name and address, commits an offence and is liable on conviction to a fine not exceeding N$1 000 or to imprisonment for a period not exceeding three months.
44. (1) A private person may without warrant arrest any person
(2) A private person who may without warrant arrest any person under subsection (1)(a) may immediately pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein.
(3) The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing an offence, and any other person authorized thereto by that owner, occupier or person in charge, may without warrant arrest the person so found.
45. (1) A district magistrate or justice of the peace may issue a warrant for the arrest of a person on the written application of a member of the police of the rank of commissioned officer
46. A warrant of arrest issued under this Act may be executed by a peace officer, and the peace officer executing the warrant must do so in accordance with the terms thereof.
47. (1) A facsimile or telegraphic or similar written or printed communication from a district magistrate, justice of the peace or other peace officer stating that a warrant has been issued for the arrest of a person, is sufficient authority to any peace officer for the arrest and detention of that person.
(2) Section 52 applies in respect of an arrest effected under subsection (1).
48. (1) A person who is authorized to arrest another under a warrant of arrest or a communication under section 47 and who in the reasonable belief that he or she is arresting that person arrests another, is exempt from liability in respect of that wrongful arrest.
(2) A person who is called upon to assist in making an arrest as contemplated in subsection (1), or who is required to detain a person so arrested, and who reasonably believes that that person is the person whose arrest has been authorized by the warrant of arrest or the communication referred to in that subsection, is likewise exempt from liability in respect of that assistance or detention.
49. (1) Every resident of Namibia of an age not below 16 and not exceeding 60 years must, when called upon by a member of the police to do so, assist the member of the police
(a) | in arresting any person; |
(b) | in detaining any person so arrested. |
(2) | A person who, without sufficient cause, refuses or fails to assist a member |
of the police as provided in subsection (1), commits an offence and is liable on conviction to a fine not exceeding N$1 000 or to imprisonment for a period not exceeding three months.
(3) A private person who has incurred expenditure or suffered damage in the course of assisting a member of the police in making an arrest or detaining a person so arrested as contemplated in subsection (1), is entitled to reimbursement by the State of reasonable expenditure incurred or actual damage suffered by him or her in consequence of so assisting the member of the police.
50. (1) A person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he or she first audibly demands entry into the premises in question and notifies the purpose for which he or she seeks entry and fails to gain entry, break open, enter and search that premises for the purpose of effecting the arrest.
(2) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the preservation of the security of Namibia, the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.
51. (1) In this section “serious offence” means
when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the person so authorized may, in order to effect the arrest but subject to subsection (3), use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the suspect from fleeing, but the force so used must be proportional to
(5) Nothing in subsections (2) and (3) contained is to be construed as derogating from the right of a person attempting to arrest a suspect in any of the circumstances contemplated in those subsections
52. (1) In this section
“court day” means a day on which the court in question normally sits as a court, and “ordinary court day” has a similar meaning;
“ordinary court hours” means the hours from 09:00 until 16:00 on a court day.
the arrested person must be brought before a magistrate’s court as soon as reasonably practicable, but not later than 48 hours after the arrest.
(d) If the period of 48 hours expires
(iii) or will expire at, or if the time at which that period expires or is deemed to expire under subparagraph (i) or (ii) is or will be, a time when the arrested person cannot, because of his or her physical illness or other physical condition, be brought before a magistrate’s court, the court before which the arrested person would, but for the illness or other condition, have been brought, may on application by the prosecutor, which, if not made before the expiration of the period of 48 hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a registered medical practitioner, authorize in the absence of the arrested person that the arrested person be detained at a place specified by the court and for such period as the court may consider necessary so that he or she may recuperate and be brought before the court, and that court may, on like application, authorize that the arrested person be further detained at a place specified by the court and for such period as the court may consider necessary.
(5) (a) At his or her first appearance in court a person contemplated in subsection (2)(a) who
(i) was arrested for allegedly committing an offence must
(aa) be informed by the court of the reason for his or her further detention; or
(bb) be charged and, subject to paragraph (b) and section 63, be entitled to apply to be released on bail,
and if the person so arrested is not so charged or informed of the reason for his or her further detention, that person must be released from detention; or
(ii) was arrested for any other reason under this Act than for an offence, is entitled to adjudication on the cause of his or her arrest.
(b) The magistrate’s court before which a person is brought in terms of this subsection, may postpone any bail proceedings or bail application to any date or court for a period not exceeding seven days at a time, on the terms which the court may consider proper and which are not inconsistent with this Act, if
(aa) procure material evidence that may be lost if bail is granted; or (bb) perform the functions referred to in section 38; or
(iii) it appears to the court that it is necessary in the interests of justice to do so.
(6) Subject to subsection (5), nothing in this section contained is to be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.
53. (1) A person who escapes or attempts to escape from custody
commits an offence and is liable on conviction to a fine not exceeding N$8 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.
54. Nothing in this Chapter contained relating to arrest is to be construed as removing or diminishing any authority expressly conferred by any other law to arrest, detain or put any restraint on any person.
55. Subject to sections 48 and 355, nothing in this Chapter contained relating to arrest is to be construed as removing or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.
CHAPTER 8
SUMMONS
Summons as method of securing attendance of accused in magistrate’s court
56. (1) Where the prosecution intends prosecuting an accused in respect of an offence and the accused is not in custody in respect of that offence and no warrant has been or is to be issued for the arrest of the accused for that offence, the prosecutor may secure the attendance of the accused for a summary trial in a magistrate’s court having jurisdiction by drawing up the relevant charge and handing such charge, together with information relating to the name and, where known and where applicable, the residential address and occupation or status of the accused, to the clerk of the court who must
(3) A summons under this section must be served on an accused so that the accused is in possession thereof at least 14 days (Saturdays, Sundays and public holidays excluded) before the date appointed for the trial.
57. (1) An accused who is summoned under section 56 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time specified in the summons or who fails to remain in attendance at such proceedings, commits an offence and is liable on conviction to the punishment prescribed by subsection (2).
(2) The court may, if satisfied from the return of service referred to in paragraph
her failure was not due to fault on his or her part, convict the accused of the offence referred to in subsection (1) and sentence him or her to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months.
(3) Where a warrant is issued under subsection (2) for the arrest of an accused who has failed to appear in answer to the summons, the person executing the warrant
release the accused on warning under section 78 in respect of the offence of failing to appear in answer to the summons, whereupon that section applies with the necessary changes in respect of that offence.
CHAPTER 9
WRITTEN NOTICE TO APPEAR IN COURT
58. (1) If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes that a district court, on convicting the accused of that offence, will not impose a sentence of imprisonment only or of a fine exceeding N$3 000, the peace officer may, whether or not the accused is in custody, hand to the accused a written notice which must
(a) specify the name, the residential address and the occupation or status of the accused;
CHAPTER 10
ADMISSION OF GUILT
Admission of guilt and payment of fine without appearance in court
59. (1) Where
(c) of subsection (1) of that section purports to have been made by a peace officer,
the accused may, without appearing in court, admit his or her guilt in respect of the offence in question by paying the fine so stipulated (in this section referred to as an admission of guilt fine) either to the clerk of the district court having jurisdiction or at any police station within the area of jurisdiction of that court.
(a) or the date on which the accused should have appeared in court has expired.
60. (1) Subject to subsection (2), if an accused who is alleged to have committed an offence has appeared in court and is
the public prosecutor concerned may, before the accused has entered a plea and if that prosecutor on reasonable grounds believes that a district court, on convicting the accused of that offence, will not impose a sentence of imprisonment only or of a fine exceeding N$3 000, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 59 that the accused may admit his or her guilt in respect of the offence in question and that the accused may pay a fine stipulated in the written notice in respect of that offence without appearing in court again.
(2) Subsection (1) does not apply to an accused who is in custody as contemplated in paragraph (a) of that subsection and in respect of whom an application for bail has been refused or bail proceedings are pending.
(3) | A written notice referred to in subsection (1) must contain |
(a) | the case number; |
(b) | a certificate under the hand of a public prosecutor or peace officer that he or she has handed or delivered the original of such notice to the accused and that he or she has explained to the accused the import thereof; and |
(c) | the particulars and instructions contemplated in paragraphs (a) and (b) of section 58(1). |
(4) | The public prosecutor must endorse the charge sheet to the effect that a |
written notice under this section has been issued, and that prosecutor or, if the written notice was delivered to the accused concerned by a peace officer, that peace officer must immediately forward a duplicate original of the written notice to the clerk of the court having jurisdiction in the matter.
(5) Sections 57, 58(2) and (4) and 59(2) to (6), inclusive, apply with the necessary changes in respect of the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 59, such notice were a written notice contemplated in that section and the fine stipulated in such written notice were also an admission of guilt fine contemplated in that section.
61. The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody must be released from custody on payment of, or on the furnishing of a guarantee to pay, the sum of money determined for his or her bail, and that the accused must appear at the place and on the date and at the time appointed for his or her trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned, and that the release must, unless sooner terminated under those provisions, endure until a verdict is given by a court in respect of the charge to which the offence in question relates, or, where sentence is not imposed immediately after verdict and the court in question extends bail, until sentence is imposed, but where a court convicts an accused of an offence contemplated in Schedule 3 or 4, the court must, in considering the question whether the accused’s bail should be extended, apply section 63(12)(a) or (b), whichever may be applicable, and take into account
62. (1) (a) An accused who is in custody in respect of any offence, other than an offence referred to in Schedule 3, may, before his or her first appearance in a magistrate’s court, be released on bail in respect of that offence by a member of the police of the rank of commissioned officer or, in the absence of such a member of the police, by the member of the police in charge of the police station where the accused is detained, after consultation with
if the accused deposits at the police station the sum of money determined by that member of the police.
(2) Bail granted under this section, if in force at the time of the first appearance of the accused in a magistrate’s court, remains, subject to section 65, in force after such appearance in the same manner as bail granted by the court under section 63 at the time of such first appearance.
63. (1) (a) Without derogating from section 52(5)(a), an accused who is in custody in respect of an offence is, subject to subsection (2)(a), entitled to be released on bail at any stage preceding his or her conviction or acquittal in respect of that offence, but only if the court is satisfied that the interests of justice so permit.
(i) any other factor that in the opinion of the court should be taken into account.
(a) | The fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings; |
(b) | whether the accused is in custody on another charge or whether the accused is on parole; |
(c) | any previous failure on the part of the accused to comply with conditions of bail or any indication that the accused will not comply with any conditions of bail; |
(d) | any other factor that in the opinion of the court should be taken into account. |
(9) | In considering whether the ground in subsection (4)(e) has been established, |
the court may, where applicable, take into account the following factors:
(10) In considering the question in subsection (4), the court must decide the matter by weighing the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice the accused is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors:
commits an offence and is liable on conviction to a fine not exceeding N$8 000 or to imprisonment for a period not exceeding two years or to both such fine and such imprisonment.
(a) deposit with the clerk of the court or the registrar or with a member of the prison service at the prison where the accused is in custody or with a member of the police at the place where the accused is in custody, the sum of money determined by the court in question; or
(b) must furnish a guarantee, with or without sureties, that he or she will pay and forfeit to the State the amount that has been set as bail, or that has been increased or reduced in terms of section 66(1), in circumstances in which the amount would, had it been deposited, have been forfeited to the State.
(16) The fact that a particular judge or magistrate has heard an application for bail by an accused does not preclude that judge or magistrate from presiding at the trial of the accused, notwithstanding the fact that any findings of credibility were made during such application and notwithstanding the fact that the merits of the case were covered during that application.
64. (1) A complainant of rape or of a domestic violence offence has the right
(2) Where a complainant is a minor, the right conferred by subsection (1) vests, notwithstanding that subsection, in the complainant’s parent or guardian, unless that parent or guardian
and if the right so vests in that parent or guardian, this section applies to that parent or guardian as if the parent or guardian were the complainant.
(a) whether the provisions of subsection (3) or (4), whichever may be applicable, have been duly complied with and, if they have not been so complied with, the reasons for not complying with any such provision;
(b) | the manner in which the complainant has been so informed; and |
(c) | the date and time when the complainant has been so informed. |
(6) | An affidavit prepared in terms of subsection (5) must be handed to the judge |
or magistrate presiding at the proceedings at which bail is considered, and that affidavit forms part of the record of the bail proceedings.
65. (1) A court before which a charge is pending in respect of which bail has been granted, may at any stage, whether the bail was granted by that court or any other court, on application by the prosecutor, add any further condition of bail
(f) | which provides that the accused must be placed under the supervision of a |
probation officer. | |
(2) | If an accused who is in custody on a charge of rape is released on bail, the |
court must, notwithstanding section 63(14) and subsection (1) of this section, add such further conditions of bail as will, in the opinion of the court, ensure that the accused does not make contact with the complainant concerned.
66. (1) A court before which a charge is pending in respect of which bail has been granted may, on the application of the prosecutor or the accused or of its own motion, but after hearing the parties concerned, increase or reduce the amount of bail determined under section 62 or 63, or amend or supplement any condition imposed under section 63 or 65, whether imposed by that court or any other court, and may, where the application is made by the prosecutor and the accused is not present when the application is made, issue a warrant for the arrest of the accused and, when the accused is present in court, determine the application.
(2) If the court referred to in subsection (1) is the High Court, an application under that subsection may be made to any judge of the High Court in chambers if the High Court is not sitting at the time of the application.
67. The court dealing with bail proceedings as contemplated in section 52(5) or that considers bail under section 63 or that imposes any further condition under section 65 or that under section 66 amends the amount of bail or amends or supplements any condition or refuses to do so, must record the relevant proceedings in full, including the conditions imposed and any amendment or supplementation thereof, or must cause such proceedings to be recorded in full, and where that court is a magistrate’s court, any document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct by the clerk of the court, and which sets out the conditions of bail and any amendment or supplementation thereof, is, on its mere production in any court in which the relevant charge is pending, prima facie proof of such conditions or any amendment or supplementation thereof.
68. (1) (a) An accused who feels aggrieved by the refusal by a magistrate’s court to release him or her on bail or by the imposition by that court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may, subject to subsection (2), appeal against such refusal or the imposition of such condition to the High Court or to any judge of the High Court in chambers if the High Court is not then sitting.
(b) The appeal may be heard by a single judge.
69. (1) (a) The Prosecutor-General may appeal to the High Court against the decision of a magistrate’s court to release an accused on bail or against the imposition of a condition of bail in like manner as in section 68(1)(a).
(b) Except where otherwise expressly provided by any law, section 68(1)(b), (2), (3) and (4) applies with the necessary changes in respect of the noting and prosecution of an appeal lodged by the Prosecutor-General under paragraph (a).
70. (1) If an accused is released on bail subject to any condition imposed under section 63 or 65, including any amendment or supplementation under section 66 of a condition of bail, and the prosecutor applies to the court before which the charge with regard to which the accused has been released on bail is pending, to lead evidence to prove that the accused has failed to comply with such condition, the court must, if the accused is present and denies that he or she failed to comply with such condition or that his or her failure to comply with such condition was due to fault on his or her part, proceed to hear such evidence as the prosecutor and the accused may place before it.
(2) If the accused is not present when the prosecutor applies to the court under subsection (1), the court may issue a warrant for the arrest of the accused, and must, when the accused appears before the court and denies that he or she failed to comply with the condition in question or that his or her failure to comply with such condition was due to fault on his or her part, proceed to hear such evidence as the prosecutor and the accused may place before it.
(3) If the accused admits that he or she failed to comply with the condition in question or if the court finds that the accused failed to comply with such condition, the court may, if it finds that the failure by the accused was due to fault on his or her part, cancel the bail and declare the bail money forfeited to the State.
(4) The proceedings and evidence under this section must be recorded.
71. (1) If an accused who is released on bail
the court before which the matter is pending must declare the bail provisionally cancelled and the bail money provisionally forfeited to the State, and issue a warrant for the arrest of the accused.
(3) The court may hear such evidence as it may consider necessary to satisfy itself that the accused has under subsection (1) failed to appear or failed to remain in attendance, and such evidence must be recorded.
72. A person who has been released on bail and who fails without sufficient cause to appear at the place and on the date and at the time determined for his or her appearance, or to remain in attendance until the proceedings in which he or she must appear have been disposed of, or who fails without sufficient cause to comply with a condition of bail imposed by a court under section 63 or 65, including an amendment or supplementation thereof under section 66, commits an offence and is, in addition to the cancellation of the bail and the forfeiture of the bail money under section 70 or 71, liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
73. (1) A court before which a charge is pending in respect of which bail has been granted may, whether the accused has been released on bail or not
issue a warrant for the arrest of the accused, if the accused has been released on bail, and make such order as it may consider proper, including an order that the bail be cancelled and that the accused be committed to prison until the conclusion of the criminal proceedings in question.
(2) A magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1), on the application of a peace officer and on a written statement on oath by the peace officer that
issue a warrant for the arrest of the accused, and may, if satisfied that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to prison, which committal remains in force until the conclusion of the criminal proceedings in question, unless the court before which the proceedings are pending sooner reinstates the bail.
74. A court before which a charge is pending in respect of which the accused has been released on bail may, on application by the accused, cancel the bail and direct that the bail money be refunded if the accused is in custody on any other charge or is serving a sentence.
75. (1) Nothing in section 62 or 63 contained is to be construed as preventing the payment by any person, other than the accused, of bail money on behalf of the accused.
76. The Minister or any person employed in the Public Service acting under the Minister’s authority may remit the whole or any part of any bail money forfeited under section 70 or 71.
77. If an accused under the age of 18 years is in custody in respect of an offence, and a member of the police or a court may in respect of that offence release the accused on bail under section 62 or 63, respectively, the member of the police or court may, instead of releasing the accused on bail or detaining the accused in custody, place the accused in a place of safety as defined in section 1 of the Children’s Act, 1960 (Act No. 33 of 1960), pending his or her appearance or further appearance before a court in respect of the offence in question or until he or she is otherwise dealt with in accordance with the law.
CHAPTER 12
RELEASE ON WARNING
Accused may be released on warning instead of bail
78. (1) If an accused is in custody in respect of an offence and a member of the police or a court may in respect of that offence release the accused on bail under section 62 or 63, respectively, the member of the police or the court may, if the offence is not, in the case of the member of the police, an offence referred to in Schedule 3, instead of bail
(4) The court may, if satisfied that an accused referred to in subsection (2)(a) or a person referred to in subsection (2)(b) was duly warned in terms of paragraph (a) or paragraph (b), respectively, of subsection (1), and that that accused or that person has failed to comply with the warning or to comply with a condition imposed, issue a warrant for the arrest of that accused or that person, and must, when he or she is brought before the court, in a summary manner enquire into his or her failure to comply with the warning or condition and, unless that accused or that person satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, sentence him or her to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
79. Notwithstanding section 78(4), section 73 applies with the necessary changes to an accused who has been released on warning as if that accused were released on bail.
CHAPTER 13
ASSISTANCE TO ACCUSED
Accused entitled to assistance after arrest and at criminal proceedings
80. (1) An accused who is arrested, whether with or without warrant, is, subject to any law relating to the management of prisons, entitled to the assistance of his or her own legal practitioner as from the time of his or her arrest.
81. (1) Where an accused is under the age of 18 years, a parent or the guardian of the accused must be warned, in accordance with subsection (2), to attend the criminal proceedings in question.
and who is warned by the court to remain in attendance thereat, must remain in attendance at the relevant criminal proceedings, whether in that court or any other court, unless excused by the court before which the proceedings are pending.
CHAPTER 14
SUMMARY TRIAL
Summary trial and court of trial
82. (1) When an accused is to be tried in a court in respect of an offence, the accused must, subject to sections 134, 138 and 142, be tried at a summary trial in
(2) If an accused appears in a court that does not have jurisdiction to try the case, the accused must, at the request of the prosecutor, be referred by that court to a court having jurisdiction.
83. (1) Unless an accused has been summoned to appear before the court, the proceedings at a summary trial in a magistrate’s court are commenced by lodging a charge sheet with the clerk of the court, and, in the case of the High Court, by serving an indictment referred to in section 163 on the accused and the lodging thereof with the registrar.
(2) The charge sheet must, in addition to the charge against the accused, include the name and, where known and where applicable, the address and description of the accused with regard to sex, nationality and age.
CHAPTER 15
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS:
MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
Capacity of accused to understand proceedings
84. (1) If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court must direct that the matter be enquired into and be reported on in accordance with section 86.
(6) (a) If the court finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court must direct that the accused be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers under section 29 of the Mental Health Act, 1973 (Act No. 18 of 1973), and if the court so directs after the accused has pleaded to the charge, the accused is not entitled under section 120(4) to be acquitted or to be convicted in respect of the charge in question.
(b) If the court makes a finding in terms of paragraph (a) after the accused has been convicted of the offence charged but before sentence is passed, the court must set the conviction aside, and if the accused has pleaded guilty it is deemed that the accused has pleaded not guilty.
(7) Where a direction is issued in terms of subsection (6)(a) or (9) that the accused be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers, the accused may at any time thereafter, when the accused is capable of understanding the proceedings so as to make a proper defence, be prosecuted and tried for the offence in question.
(8) | (a) | An accused against whom a finding is made |
(i) | under subsection (5) and who is convicted; | |
(ii) | under subsection (6) and against whom the finding is not made in | |
consequence of an allegation by the accused under subsection (1), |
may appeal against that finding.
(b) An appeal under paragraph (a) must be noted and prosecuted in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence.
85. (1) A person who commits an act that constitutes an offence and who at the time of such commission suffers from a mental illness or mental defect that makes that person incapable
is not criminally responsible for that act.
by reason of mental illness or mental defect and direct that the accused be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers under section 29 of the Mental Health Act, 1973 (Act No. 18 of 1973).
86. (1) In this section “psychiatrist” means person registered as a psychiatrist under the Medical and Dental Act, 2004 (Act No. 10 of 2004).
(2) Where a court issues a direction under section 84(1) or 85(2), the relevant enquiry must be conducted and be reported on
(iii) by a psychiatrist appointed by the accused if the accused so wishes.
CHAPTER 16
THE CHARGE
Accused entitled to copy of charge sheet
87. (1) An accused is entitled to a copy of the charge sheet when he or she is formally charged in proceedings in a magistrate’s court.
(2) Subsection (1) does not apply to an accused who appears before court on a summons under section 56 or a written notice under section 58.
88. (1) Any number of charges may be joined in the same proceedings against an accused at any time before any evidence has been led in respect of any particular charge, and where several charges are so joined, each charge must be numbered consecutively.
89. Where an accused is in the same proceedings charged with more than one offence, and any one charge is for any reason to be disposed of by a divisional court or the High Court, all the charges must be disposed of by the divisional court or the High Court in the same proceedings.
90. If by reason of any uncertainty as to the facts that can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts that can be proved, the accused may be charged with the commission of all or any of those offences, and any number of the charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of those offences.
91. (1) Subject to this Act or any other law relating to any particular offence, a charge must set out the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.
92. (1) An accused may, before pleading to the charge under section 120 but subject to subsection (2), object to the charge on the ground
(e) that the accused is not correctly named or described in the charge.
(2) An accused must give reasonable notice to the prosecution of his or her intention to object under subsection (1) to the charge, and must in such notice state the ground on which he or she bases his or her objection, but the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.
93. (1) Where a charge is defective for want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his or her defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.
94. (1) An accused may, at any stage before any evidence in respect of any particular charge has been led, in writing request the prosecution to furnish particulars or further particulars of any matter alleged in that charge, and the court before which a charge is pending may, having regard to the prosecution material that has previously been disclosed to the accused, at any time before any evidence in respect of that charge has been led, direct that particulars or further particulars be delivered to the accused of any matter alleged in the charge, and may, if necessary, adjourn the proceedings in order that such particulars may be delivered.
95. Where a charge is defective for want of an averment that is an essential ingredient of the offence in question, the defect is, unless brought to the notice of the court before judgment, cured by evidence at the trial proving the matter that should have been averred.
96. Except where the fact of a previous conviction is an element of an offence with which an accused is charged, it may not in any charge be alleged that an accused has previously been convicted of any offence, whether in Namibia or elsewhere.
97. In criminal proceedings any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, may be proved by the accused but need not be specified or negatived in the charge and, if so specified or negatived, need not be proved by the prosecution.
98. A charge need not set out the manner in which or the means or instrument by which any act was done, unless the manner, means or instrument is an essential element of the offence in question.
99. (1) A charge is not to be held defective
(2) If any particular day or period is alleged in a charge to be the day on which or the period during which any act or offence was committed, proof that that act or offence was committed on any other day or during any other period not more than three months before or after the day or period alleged in the charge, is deemed to support that allegation if time is not of the essence of the offence in question, but
(a) proof may be given that the act or offence in question was committed on a day or during a period more than three months before or after the day or period stated in the charge, unless it appears to the court before which the proceedings are pending that the accused is likely to be prejudiced thereby in his or her defence on the merits;
(b) if the court considers that the accused is likely to be prejudiced thereby in his or her defence on the merits, it must reject such proof, and the accused is then deemed not to have pleaded to the charge.
100. If the defence of an accused is an alibi and the court before which the proceedings are pending is of the opinion that the accused may be prejudiced in making that defence if proof is admitted that the act or offence in question was committed on a day or at a time other than the day or time stated in the charge, the court must reject such proof notwithstanding that the day or time in question is within a period of three months before or after the day or time stated in the charge, whereupon the same consequences follow as are mentioned in paragraph (b) of section 99(2).
101. Where it is alleged that an accused on divers occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on divers occasions during a stated period.
102. (1) A charge relating to a testamentary instrument need not allege that the instrument is the property of any person.
of those persons, naming each of them but without specifying which of them, and it is sufficient at the trial to prove that at the time when the offence was committed the property belonged to one or other of those persons without proving which of them.
103. A reference in a charge to a company, close corporation, firm or partnership is sufficient if the reference is to the name of the company, close corporation, firm or partnership.
104. A reference in a charge to joint owners of property is sufficient if the reference is to one specific owner and another owner or other owners.
105. It is sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it is sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased.
106. (1) In any charge relating to the forging, uttering, stealing, destroying or concealing of, or to some other unlawful dealing with any document, it is sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.
(2) When it is necessary in any case not referred to in subsection (1) to make any allegation in any charge in relation to any document, whether it consists wholly or in part of writing, print or figures, it is sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the content of the document or any part thereof is an element of the offence.
107. On a charge alleging the theft of money or property by a person entrusted with the control thereof, the charge may allege a general deficiency in a stated amount, notwithstanding that the general deficiency is made up of specific sums of money or articles or of a sum of money representing the value of specific articles, the theft of which extended over a period.
108. (1) A charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement or the procuring of false evidence or a false statement
(2) A charge relating to the giving or the procuring or attempted procuring of false evidence need not allege the jurisdiction or state the nature of the authority of the court or tribunal before which or the official before whom the false evidence was given or was intended or proposed to be given.
109. A charge relating to insolvency need not set out any debt, act of insolvency or adjudication or any other proceeding in any court, or any order made or any warrant or document issued by or under the authority of any court.
110. In any charge in which it is necessary to allege that the accused performed an act with an intent to defraud, it is sufficient to allege and to prove that the accused performed the act with intent to defraud without alleging and proving that it was the intention of the accused to defraud any particular person, and such a charge need not mention the owner of any property involved or set out the details of any deceit.
111. A charge of printing, publishing, manufacturing, making or producing blasphemous, seditious, obscene or defamatory matter, or of distributing, displaying, exhibiting, selling or offering or keeping for sale any obscene book, pamphlet, newspaper or other printed or written matter, is neither open to objection nor deemed insufficient on the ground that it does not set out the words thereof, but the court may order that particulars be furnished by the prosecution stating what passages in such book, pamphlet, newspaper, printing or writing are relied on in support of the charge.
CHAPTER 17
DISCLOSURE
Application of Chapter, and general interpretation
112. (1) This Chapter applies where
(a) the accused is charged with an offence referred to in Schedule 1
(b) the accused pleads not guilty to the charge.
113. (1) In this section “prosecution material” means material which
114. (1) The prosecution may, at any stage before any evidence in respect of any particular charge has been led, in writing request the accused to give to the court and the prosecutor a written statement disclosing the material required by subsection (2), and the court before which the charge is pending may, at any time before any evidence in respect of that charge has been led, direct the accused to disclose the material so required.
(4) Nothing in this section contained is to be construed as preventing an accused to give of his or her own accord a written statement under this section.
115. (1) Where an accused
subsection (2) applies.
the court may, subject to subsection (3), draw such inference from the accused’s failure contemplated in paragraph (a) of subsection (1) or the defect in or pertaining to the accused’s written statement contemplated in paragraph (b), (c) or (d) of that subsection, as may be reasonable and justifiable in the circumstances.
(3) An accused may not be convicted of an offence solely on an inference drawn under subsection (2).
116. (1) This section applies at all times before
(2) The court may, if further factors have arisen, of its own motion or on application by the accused, reconsider its order made under section 113(6) that
(a) the prosecution material is not reasonably necessary in order to enable the accused to exercise his or her right to a fair trial;
(b) | disclosure of the prosecution material would lead to the disclosure of State secrets or the identity of an informer; or |
(c) | there is a reasonable risk that the disclosure of prosecution material may lead to the intimidation of witnesses or otherwise defeat the ends of justice. |
(3) | If the court in reconsidering its order under subsection (2) is of the opinion |
that the requested prosecution material should be disclosed, the court must so order, and section 113 then applies, to the extent that it can be applied, in respect of the disclosure of such material by the prosecutor.
117. (1) If the accused or his or her legal practitioner or the prosecutor is given or is allowed to inspect a document or other object under this Chapter, he or she may, subject to subsections (2) and (3), not disclose the document or other object or any information recorded in it.
CHAPTER 18
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES
118. (1) When a criminal trial has been set down for hearing and the accused is represented by a legal practitioner, either the prosecutor or the legal practitioner representing the accused (in this section referred to as the parties) may, on a date before the commencement of the trial, call for a pre-trial conference to consider, in the presence of the accused, such matters as will curtail the proceedings at the trial and expedite the hearing.
(2) Without detracting from the generality of subsection (1), the parties must consider
(i) be signed and dated by the parties and by the accused; and
(ii) if the accused has taken part in the pre-trial conference through an interpreter, contain a certificate by the interpreter to the effect that he or she interpreted accurately during such conference and in respect of the contents of the minute.
(4) The minute drawn up in terms of subsection (3)(a) and the paginated bundle of documentation prepared in terms of subsection (2)(m) must be handed into court by the prosecutor at the commencement of the trial before the charge is put to the accused.
(iii) for any other reason, the court is of the opinion that the plea of guilty by the accused should not stand,
in terms of subsection (1) of section 126 record a plea of not guilty and require the prosecutor to proceed with the prosecution, and that section then applies with the necessary changes.
(c) Where the accused, whether or not in accordance with the minute handed into court in terms of subsection (4)
the court must act in terms of section 128.
(d) An agreement between the parties under subsection (2)(d) as to the proposed sentence is not binding on the court, but must be considered by the court and given due weight when imposing sentence, in so far as the proposed sentence is not in conflict with this Act or any other law relating to sentence.
(8) Nothing in this section contained is to be construed as preventing the parties from approaching the judge or magistrate concerned in chambers to inform him or her of any progress made in regard to the pre-trial conference, nor as preventing that judge or magistrate from initiating an enquiry as to such progress with a view to enable the court, with the assistance of the parties, to plan the further proceedings in advance so as to curtail the proceedings at the trial as far as possible.
119. The charge must be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused must, subject to sections 84 and 92, be required by the court immediately to plead thereto in accordance with section 120.
120. (1) When an accused pleads to a charge, the accused may plead
(4) An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the court, is, except as otherwise expressly provided by this Act or any other law, entitled to demand that he or she be acquitted or be convicted.
121. A person charged with the unlawful publication of defamatory matter, who sets up as a defence that the alleged defamatory matter is true and that it was for the public benefit that the matter should be published, must plead such defence specially, and may plead it with any other plea except the plea of guilty.
122. If an accused pleads a plea other than a plea of guilty, the accused is, subject to sections 128, 137 and 160(3), by such plea deemed to demand that the issues raised by the plea be tried.
123. Where an accused in criminal proceedings refuses to plead to any charge, the court must record a plea of not guilty on behalf of the accused, and a plea so recorded has the same effect as if it had been actually pleaded.
CHAPTER 20 JURISDICTION
Accused before court that has no jurisdiction
124. (1) Where an accused does not plead that the court has no jurisdiction and it at any stage
(a) | after the accused has pleaded a plea of guilty or of not guilty; or |
(b) | where the accused has pleaded any other plea and the court has determined |
such plea against the accused, |
appears that the court in question does not have jurisdiction, the court is for the purposes of this Act deemed to have jurisdiction in respect of the offence in question.
(2) Where an accused pleads that the court in question has no jurisdiction and the plea is upheld, the court must adjourn the case to the court having jurisdiction.
CHAPTER 21 PLEA OF GUILTY AT SUMMARY TRIAL
125. (1) Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which the accused may be convicted on the charge and the prosecutor accepts that plea
(a) the presiding judge or magistrate may, if he or she is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$3 000, convict the accused of the offence to which he or she has pleaded guilty on his or her plea of guilty only and
(b) the presiding judge or magistrate must, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$3 000, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether the accused admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.
126. (1) If at any stage of the proceedings under section 125(1)(a) or (b) or 125(2) and before sentence is passed
the court must record a plea of not guilty and require the prosecutor to proceed with the prosecution, but any allegation, other that an allegation referred to in paragraph (b), admitted by the accused up to the stage at which the court records a plea of not guilty, stands as proof in any court of such allegation.
(2) If the court records a plea of not guilty in terms of subsection (1) before any evidence has been led, the prosecution must proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise.
127. (1) If a district court, after conviction following on a plea of guilty but before sentence, is of the opinion
the court must stop the proceedings and commit the accused for sentence by a divisional court having jurisdiction.
(2) Where an accused is committed in terms of subsection (1) for sentence by a divisional court, the record of the proceedings in the district court must, upon proof thereof in the divisional court, be received by the divisional court and forms part of the record of that court, and the plea of guilty and any admission by the accused stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(3) (a) Unless the divisional court
that court must make a formal finding of guilty and sentence the accused.
(b) If the divisional court
the court must enter a plea of not guilty and proceed with the trial as a summary trial in that court, but any admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.
(4) Section 125(3) applies in respect of the proceedings under this section.
CHAPTER 22
PLEA OF NOT GUILTY AT SUMMARY TRIAL
Plea of not guilty and procedure in regard to issues
128. (1) Where an accused at a summary trial
the presiding judge or magistrate must, subject to subsection (2), ask the accused whether he or she wishes to make an unsworn statement indicating the basis of his or her defence.
129. (1) Where an accused in a district court
the court must, subject to section 128, at the request of the prosecutor made before any evidence is tendered, refer the accused for trial to a divisional court having jurisdiction.
(2) Where an accused is referred in terms of subsection (1) to a divisional court for trial, the record of the proceedings in the district court must, upon proof thereof in the divisional court, be received by the divisional court and forms part of the record of that court.
130. (1) If a district court, after conviction following on a plea of not guilty but before sentence, is of the opinion
the court must stop the proceedings and commit the accused for sentence by a divisional court having jurisdiction.
(2) Where an accused is committed in terms of subsection (1) for sentence by a divisional court, the record of the proceedings in the district court must, upon proof thereof in the divisional court, be received by the divisional court and forms part of the record of that court.
131. Where an accused in a magistrate’s court pleads not guilty to the offence charged against him or her and a ground of his or her defence is the alleged invalidity of any law on which the charge against him or her is founded and upon the validity of which a district court is in terms of the Magistrates’ Courts Act not competent to pronounce, the accused must, notwithstanding anything to the contrary in that Act contained, be committed for a summary trial before the High Court.
132. (1) If the judge or magistrate before whom an accused at a summary trial
is for any reason not available, whether temporarily or permanently, to continue with the trial and no evidence has been adduced yet, the trial may, subject to subsection (2), continue before any other judge or magistrate of the same court.
(2) Where evidence has in the circumstances contemplated in subsection (1) been adduced, the trial must start anew.
CHAPTER 23
COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT
AFTER CONVICTION IN DIVISIONAL COURT
Committal of accused for sentence by High Court after conviction in divisional court
133. (1) If a divisional court, following on
has convicted an accused of an offence and that court is of the opinion that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a divisional court, the court must stop the proceedings and commit the accused for sentence by the High Court.
the High Court must make a formal finding of guilty and sentence the accused.
(c) If the High Court
(i) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded; or
(ii) is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge,
the High Court must enter a plea of not guilty and proceed with the trial as a summary trial in that Court, but any admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.
(iii) set aside the conviction;
CHAPTER 24
PLEA IN DISTRICT COURT ON CHARGE
JUSTICIABLE IN HIGH COURT
Accused to plead in district court on charge to be tried in High Court
134. When an accused appears in a district court and the alleged offence may be tried by the High Court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a district court, the prosecutor may, notwithstanding section 82, on the directions of the Prosecutor-General, whether in general or in any particular case, put the relevant charge, as well as any other charge that must in terms of section 89 be disposed of in the High Court, to the accused in the district court, and the accused must, subject to sections 84 and 92, be required by the magistrate to plead thereto immediately.
135. The proceedings are commenced by the lodging of a charge sheet with the clerk of the court in question, and section 83(2) and (3) applies with the necessary changes in respect of the charge sheet and the record of the proceedings.
136. (1) Where an accused under section 134 pleads guilty to the offence charged, the magistrate must question the accused in terms of paragraph (b) of section 125(1).
(a) in the district court in question, dispose of the case on the charge on which the accused is arraigned; or
137. (1) Where an accused under section 134 pleads not guilty to the offence charged, the court must act in terms of section 128 and when that section has been complied with, the magistrate must stop the proceedings and adjourn the case pending the decision of the Prosecutor-General.
(2) Where the proceedings have been adjourned in terms of subsection (1), the Prosecutor-General may
and the Prosecutor-General must inform the district court in question of his or her decision.
(3) The magistrate, who need not be the magistrate before whom the proceedings under section 134 or subsection (1) of this section were conducted, must inform the accused of the decision of the Prosecutor-General and, if the decision is that the accused be arraigned
(4) The record of the proceedings in the district court must, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court, and any admission by the accused stands at the trial of the accused as proof of such admission.
CHAPTER 25
PLEA IN DISTRICT COURT ON CHARGE
TO BE TRIED IN DIVISIONAL COURT
Accused to plead in district court on charge to be tried in divisional court
138. When an accused appears in a district court and the alleged offence may be tried by a divisional court but not by a district court, or the prosecutor informs the court that he or she is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a district court but not of the jurisdiction of a divisional court, the prosecutor may, notwithstanding section 82, put the relevant charge, as well as any other charge that must in terms of section 89 be disposed of by a divisional court, to the accused, who must, subject to sections 84 and 92, be required by the magistrate to plead thereto immediately.
139. Section 135 applies with the necessary changes in respect of the proceedings under section 138 and the record of the proceedings.
140. (1) Where an accused under section 138 pleads guilty to the offence charged, the magistrate must question the accused in terms of paragraph (b) of section 125(1).
admission by the accused stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(b) Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he or she has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his or her plea of guilty of the offence to which he or she has pleaded guilty and impose any competent sentence.
141. (1) Where an accused under section 138 pleads not guilty to the offence charged, the court must act in terms of section 128 and when that section has been complied with, the magistrate must commit the accused for a summary trial in the divisional court in question on the charge to which he or she has pleaded not guilty or on a charge in respect of which a plea of not guilty has been entered under section 140(2)(b).
CHAPTER 26
PREPARATORY EXAMINATION
Prosecutor-General may direct that preparatory examination be held
142. If the Prosecutor-General is of the opinion that it is necessary for the more effective administration of justice
(a) that a trial in the High Court be preceded by a preparatory examination in a district court into the allegations against the accused, the Prosecutor-General may, where he or she does not follow the procedure under section 134, or, where he or she does follow that procedure and the proceedings are adjourned in terms of section 136(2)(a) or 137(1) pending the decision of the Prosecutor-General, direct that a preparatory examination be instituted against the accused;
(b) that a trial in a district court or a divisional court be converted into a preparatory examination, the Prosecutor-General may at any stage of the proceedings, but before conviction, direct that the trial be converted into a preparatory examination.
143. Where the Prosecutor-General acts under paragraph (a) or (b) of section 142
144. (1) Where the Prosecutor-General directs that a preparatory examination be instituted or that a trial be converted into a preparatory examination, the Prosecutor-General may, if it appears to him or her expedient on account of the number of accused involved or of excessive inconvenience or of possible disturbance of the public order, that the preparatory examination be held in a court other than the court in which the relevant proceedings were commenced, direct that the preparatory examination be instituted in that other court or, where a trial has been converted into a preparatory examination, be continued in that other court.
145. Where the Prosecutor-General directs that a preparatory examination be held against an accused, the presiding magistrate must inform the accused of the decision of the Prosecutor-General and proceed in the manner hereinafter provided to enquire into the charge against the accused.
146. (1) Where the Prosecutor-General directs that a trial be converted into a preparatory examination, it is, subject to subsection (2), not necessary for the presiding magistrate to recall any witness who has already given evidence at the trial, but the record of the evidence so given, certified as correct by that magistrate, or, if such evidence was recorded in shorthand or by mechanical means, any document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed it, has the same legal force and effect and is admissible in evidence in the same circumstances as the evidence given in the course of a preparatory examination.
(2) If it appears to the presiding magistrate that it may be in the interests of justice to have a witness already examined recalled for further examination, then that witness must be recalled and further examined, and the evidence given by that witness must be recorded in the same manner as other evidence given at a preparatory examination.
147. The prosecutor may, at a preparatory examination, call any witness in support of the charge to which the accused has pleaded or to testify in relation to any other offence allegedly committed by the accused.
148. (1) The evidence given at a preparatory examination must be recorded, and if such evidence is recorded in shorthand or by mechanical means, a document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed such evidence, has the same legal force and effect as the original record.
(2) The record of a preparatory examination may be proved in a court by the mere production thereof or of a copy thereof in terms of section 266.
149. The prosecutor must, at the conclusion of evidence in support of the charge, put to the accused such charge or charges as may arise from the evidence and which the prosecutor may prefer against the accused.
150. The presiding magistrate must, subject to sections 84 and 92, require an accused to whom a charge is put under section 149 immediately to plead to the charge.
151. (1) (a) Where an accused who has been required under section 150 to plead to a charge to which he or she has not pleaded before, pleads guilty to the offence charged, the presiding magistrate must question the accused in accordance with paragraph (b) of section 125(1).
(b) If the presiding magistrate is not satisfied that the accused admits all the allegations in the charge, that magistrate must record in what respect he or she is not so satisfied and enter a plea of not guilty, but an allegation with reference to which that magistrate is so satisfied and which has been recorded as an admission, stands at the trial of the accused as proof of that allegation.
(2) Where an accused who has been required under section 150 to plead to a charge to which he or she has not pleaded before, pleads not guilty to the offence charged, the presiding magistrate must act in accordance with section 128.
152. An accused may, after section 151 has been complied with but subject to section 169(1)(b) that applies with the necessary changes, give evidence or make an unsworn statement in relation to a charge put to him or her under section 149, and the record of such evidence or statement must be received in evidence before any court in criminal proceedings against the accused on its mere production without further proof.
153. An accused may call any competent witness on behalf of the defence.
154. As soon as a preparatory examination is concluded and the presiding magistrate is on the whole of the evidence of the opinion that no sufficient case has been made out to put the accused on trial on any charge put to the accused under section 149 or on any charge in respect of an offence of which the accused may on such charge be convicted, that magistrate may discharge the accused in respect of the charge.
155. The presiding magistrate must cause every document and every article produced or identified as an exhibit by any witness at a preparatory examination to be inventoried and labelled or otherwise marked, and must cause those documents and articles to be kept in safe custody pending any trial following on the preparatory examination.
156. The presiding magistrate must, at the conclusion of a preparatory examination and whether or not the accused is under section 154 discharged in respect of any charge, send a copy of the record of the preparatory examination to the Prosecutor-General and, where the accused is not discharged in respect of all the charges put to him or her under section 149, adjourn the proceedings pending the decision of the Prosecutor-General.
157. A preparatory examination may at any stage be continued by a magistrate other than the magistrate before whom the proceedings were commenced, and, if necessary, again be continued by the magistrate before whom the proceedings were commenced.
158. After considering the record of a preparatory examination transmitted to the Prosecutor-General under section 156, the Prosecutor-General may
and the Prosecutor-General must inform the magistrate’s court in question of his or her decision.
159. (1) Where an accused is under section 158(a) arraigned for sentence, a magistrate of the court in which the preparatory examination was held must inform the accused of the decision of the Prosecutor-General and, if the decision is that the accused be arraigned
160. (1) Where an accused is under section 158(b) arraigned for trial, a magistrate of the court in which the preparatory examination was held must inform the accused of the decision of the Prosecutor-General and, if the accused is to be arraigned in a court other than the court in question, commit the accused for trial by that other court.
161. Where the Prosecutor-General under section 158(c) declines to prosecute an accused, the Prosecutor-General must inform the magistrate of the district in which the preparatory examination was held of the decision, and that magistrate must immediately have the accused released from custody or, if the accused is not in custody, inform the accused in writing of the decision of the Prosecutor-General, whereupon no criminal proceedings may again be instituted against the accused in respect of the charge in question.
162. (1) An accused who is arraigned for sentence or for trial under section 158 may, without payment, inspect the record of the preparatory examination at the time of his or her arraignment before the court.
CHAPTER 27
TRIAL BEFORE HIGH COURT
Charge in High Court to be laid in an indictment
163. (1) Where the Prosecutor-General arraigns an accused for sentence or for trial by the High Court, the charge must be contained in a document called an indictment, which must be issued in the name of the Prosecutor-General.
(2) The indictment must, in addition to the charge against the accused, include the name and, where known and where applicable, the address, sex, nationality and age of the accused.
164. (1) An accused arraigned before the High Court must be tried by a judge of that Court sitting with or without assessors as hereinafter provided.
the presiding judge may summon not more than two assessors to assist him or her at the trial.
165. A judge presiding at a criminal trial in the High Court must
(d) where the judge sits with assessors and there is a difference of opinion on any question of fact or on the question referred to in section 164(4)(c), give the reasons for the decision or finding of the member of the court who is in the minority or, where the presiding judge sits with only one assessor, of that assessor.
166. (1) If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during the trial, the presiding judge may direct
(2) Where the presiding judge acts under subsection (1)(b), the plea already recorded stands.
167. (1) The High Court may, at any time after an indictment has been lodged with the registrar and before the date of trial, on application by the prosecution and after notice to the accused, or on application by the accused after notice to the prosecution, order that the trial be held at a place within Namibia other than the place determined for the trial, and that it be held on a date and at a time other than the date and time determined for the trial.
(2) If the accused is not present or represented at an application under subsection
(1) by the prosecution or if the prosecution is not represented at such an application by the accused, the court must direct that a copy of the order be served
and on service of the copy of the order, the venue and date and time as changed are deemed to be the venue and date and time, respectively, that were originally appointed for the trial.
CHAPTER 28
CONDUCT OF PROCEEDINGS
Prosecutor may address court and adduce evidence
168. (1) The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he or she intends adducing in support of the charge.
169. (1) (a) If an accused is not under section 197 discharged at the close of the case for the prosecution, the court must ask the accused whether he or she intends adducing any evidence on behalf of the defence, and if the accused answers in the affirmative, the accused may address the court for the purpose of indicating to the court, without comment, what evidence he or she intends adducing on behalf of the defence.
170. (1) In this section “evidence in support of an alibi” means evidence tending to show that, by reason of the presence of the accused at a particular place or in a particular area at a particular time, the accused was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.
(i) the court is satisfied that the accused, before giving notice, took and thereafter continued to take all reasonable steps to ensure that the other person’s name and address would be ascertained; and
(ii) the accused, when he or she subsequently ascertains the other person’s name and address or receives information that might be of material assistance in finding that other person, immediately gives notice of that name, address or other information.
(4) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed
(iii) by the presiding judge or magistrate during plea proceedings,
whichever may be applicable, of the requirements of subsections (2), (3) and (7).
(b) For the purposes of paragraph (a), an endorsement on the notice referred to in subparagraph (i) of that paragraph, or an endorsement by the magistrate on the record of the committal proceedings, or an endorsement by the presiding judge or magistrate on the record of the plea proceedings that the accused was informed of the requirements of subsections (2), (3) and (7), is sufficient evidence that the accused was so informed.
171. (1) (a) An accused or his or her legal practitioner may not, without the leave of the court, allege at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged unless, at any time before plea proceedings or during plea proceedings, the accused or his or her legal practitioner gives notice of that allegation.
(iii) by the presiding judge or magistrate during plea proceedings, whichever may be applicable, of the requirements of subsections (1) and (5).
(b) For the purposes of paragraph (a), an endorsement on the notice referred to in subparagraph (i) of that paragraph, or an endorsement by the magistrate on the record of the committal proceedings, or an endorsement by the presiding judge or magistrate on the record of the plea proceedings that the accused was informed of the requirements of subsections (1) and (5), is sufficient evidence that the accused was so informed.
172. (1) An accused or his or her legal practitioner may not, without the leave of the court, raise
unless, at any time before plea proceedings or during plea proceedings, the accused or his or her legal practitioner gives notice of such ground of justification or defence.
(2) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed
(iii) by the presiding judge or magistrate during plea proceedings,
whichever may be applicable, of the requirements of subsections (1) and (5).
(b) For the purposes of paragraph (a), an endorsement on the notice referred to in subparagraph (i) of that paragraph, or an endorsement by the magistrate on the record of the committal proceedings, or an endorsement by the presiding judge or magistrate on the record of the plea proceedings that the accused was informed of the requirements of subsections (1) and (5), is sufficient evidence that the accused was so informed.
(3) Any evidence to disprove a ground of justification or defence contemplated in subsection (1), may, subject to any direction by the court, be given before or after evidence is given in support of that ground of justification or defence.
173. (1) An accused or his or her legal practitioner may not, without the leave of the court, call an expert witness unless, at any time before plea proceedings or during plea proceedings, the accused or his or her legal practitioner gives notice of the intention to call an expert witness and discloses the name and address of that witness and the nature of the expert evidence to be given.
(2) (a) The court may not refuse leave under this section if it appears to the court that the accused was not informed
(iii) by the presiding judge or magistrate during plea proceedings,
whichever may be applicable, of the requirements of subsections (1) and (5).
(b) For the purposes of paragraph (a), an endorsement on the notice referred to in subparagraph (i) of that paragraph, or an endorsement by the magistrate on the record of the committal proceedings, or an endorsement by the presiding judge or magistrate on the record of the plea proceedings that the accused was informed of the requirements of subsections (1) and (5), is sufficient evidence that the accused was so informed.
174. Except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court must take place in open court.
175. (1) If it appears to a court that it would, in criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals that such proceedings be held behind closed doors, the court may direct that the public or any category thereof may not be present at such proceedings or any part thereof.
the court before which such proceedings are pending must, to the extent authorized thereto by the provisos to Article 12(1)(a) and (c) of the Namibian Constitution, direct that any person whose presence is not necessary at such proceedings, may not be present at such proceedings, unless the complainant in such proceedings, or, if he or she is a minor, his or her parent or guardian, otherwise requests.
176. (1) (a) Where a court under section 175(1) on any of the grounds mentioned in that section directs that the public or any category thereof may not be present at criminal proceedings or any part thereof, the court may direct that no information relating to such proceedings or any part thereof held behind closed doors may be published in any manner whatever.
(4) No prohibition or direction under this section applies to the publication in a bona fide law report of
if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed.
177. (1) Any number of participants in the same offence may be tried together and any number of accessories after the same fact may be tried together or any number of participants in the same offence and any number of accessories after that fact may be tried together, and each such participant and each such accessory may be charged at such trial with the relevant substantive offence alleged against him or her.
(2) A receiver of property obtained by means of an offence is for purposes of this section deemed to be a participant in the offence in question.
178. Any number of persons charged in respect of separate offences committed at the same place and at the same time or at about the same time, may be charged and tried together in respect of such offences if the prosecutor informs the court that evidence admissible at the trial of one of such persons will, in his or her opinion, also be admissible as evidence at the trial of any other such person or such persons.
Joinder of accused and separation of trials
179. (1) An accused may be joined with any other accused in the same criminal proceedings at any time before evidence has been led in respect of the charge in question.
(2) Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, on the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused must be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of the accused.
180. (1) Except where otherwise expressly provided by this Act or any other law, all criminal proceedings in any court must take place in the presence of the accused.
(3) A court may make an order contemplated in subsection (2) only if facilities therefor are readily available or obtainable and if it appears to the court that to do so would
181. (1) If an accused at criminal proceedings conducts himself or herself in a manner which makes the continuance of the proceedings in his or her presence impracticable, the court may direct that the accused be removed and that the proceedings continue in his or her absence.
(1) or without leave of the court, the court, if it is of the opinion that the proceedings cannot be adjourned without undue prejudice, embarrassment or inconvenience to the prosecution or any co-accused or any witness in attendance or subpoenaed to attend, may
(3) Where an accused becomes absent from the proceedings in the circumstances contemplated in subsection (2), the court may, instead of directing that the proceedings be proceeded with in the absence of the accused concerned, on the application of the prosecutor direct that the proceedings in respect of the absent accused be separated from the proceedings in respect of the accused who are present, and thereafter, when that absent accused is again in attendance, the proceedings against him or her must continue from the stage at which he or she became absent, and the court is not required to be differently constituted only by reason of that separation.
182. (1) If an accused referred to in section 181(1) or (2) again attends the criminal proceedings in question, that accused may, unless he or she was legally represented during his or her absence, examine any witness who testified during his or her absence, and inspect the record of the proceedings or require the court to have that record read over to him or her.
(2) If the examination of a witness under subsection (1) takes place after the evidence on behalf of the prosecution or any co-accused has been concluded, the prosecution or that co-accused may in respect of any issue raised by the examination, lead evidence in rebuttal of evidence relating to the issue so raised.
183. (1) A witness at criminal proceedings must, except where this Act or any other law expressly provides otherwise, give his or her evidence orally.
(2) In this section the expression “orally” is, in the case of a deaf and dumb witness, deemed to include sign language and, in the case of a witness under the age of 18 years, deemed to include demonstrations, gestures or any other form of non-verbal expression.
184. (1) Subject to section 185, no person may be examined as a witness in criminal proceedings unless that person is under oath or affirmation, which must be administered by the presiding magistrate or, in the case of the High Court, by the presiding judge or the registrar, and which must
“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.”.
(2) An affirmation has the same legal force and effect as if the person making it had taken the oath.
185. (1) A person
but that person must, instead of the oath or affirmation, be admonished by the presiding judge or magistrate to speak the truth, the whole truth and nothing but the truth.
186. Where the person concerned is to give his or her evidence through an interpreter or an intermediary appointed under section 193(1), the oath, affirmation or admonition under section 184 or 185 must be administered by the presiding magistrate or, in the case of the High Court, by the presiding judge or the registrar through the interpreter or intermediary or by the interpreter in the presence or under the eyes of the presiding magistrate or, in the case of the High Court, the presiding judge.
187. (1) An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings or any witness called on behalf of that co-accused at criminal proceedings, and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence at criminal proceedings, and a witness called at such proceedings on behalf of the prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence at such proceedings may likewise be re-examined by the accused.
188. The court may at any stage of criminal proceedings examine any person, other than an accused, who has been subpoenaed as a witness to attend such proceedings or who is in attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings, and the court must examine, or recall and re-examine, the person concerned if his or her evidence appears to the court essential to the just decision of the case.
189. (1) In this section “vulnerable witness” means a person other than an accused
(2) A court before which a vulnerable witness gives evidence in criminal proceedings may, of its own motion or on the application of the prosecutor, the accused or that witness, order that special arrangements be made for the giving of the evidence of that witness.
(3) Special arrangements under subsection (2) may consist of one or more of the following steps:
(a) The issuing, subject to section 175 and notwithstanding section 180(2), of a direction that the vulnerable witness gives his or her evidence
(i) at any place, whether within or outside the courtroom
(aa) which is informally arranged to set that witness at ease;
(bb) which is so situated that any person whose presence may upset that witness, is outside the sight of that witness; and
(cc) which enables the court and any person whose presence is necessary at the proceedings in question to see and hear, either directly or through the medium of closed circuit television or similar electronic media or a one-way mirror or otherwise, that witness during his or her testimony and, if the witness is accompanied by a support person, to also see and hear the support person in like manner; or
(ii) behind a screen in the courtroom in the same manner and subject to the same requirements prescribed in item (cc) of subparagraph (i);
but, subject to subsection (5), the support person is not entitled to assist that witness with the answering of a question or to instruct that witness in the giving of evidence.
(a) | The interests of the State in adducing the complete and undistorted evidence |
of the vulnerable witness concerned; | |
(b) | the interests and well-being of the vulnerable witness concerned; |
(c) | the availability of necessary equipment and facilities; |
(d) | the interests of justice in general. |
190. A court before which criminal proceedings are pending may from time to time during such proceedings, if the court considers it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with this Act.
191. A court before which criminal proceedings are pending may from time to time during such proceedings, if the court considers it necessary or expedient that the proceedings be continued at any place within its area of jurisdiction other than the one where the court is sitting, adjourn the proceedings to such other place, or, if the court with reference to any circumstance relevant to the proceedings considers it necessary or expedient that the proceedings be adjourned to a place other than the place at which the court is sitting, adjourn the proceedings, on the terms which to the court may seem proper, to any such place, whether within or outside the area of jurisdiction of that court, for the purpose of performing at such place any function of the court relevant to such circumstance.
192. (1) An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, commits an offence and is liable on conviction to the punishment prescribed by subsection (2).
(2) The court may, if satisfied that an accused referred to in subsection (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for the arrest of that accused, and must, when he or she is brought before the court, in a summary manner enquire into his or her failure so to appear or so to remain in attendance and, unless that accused satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, convict the accused of the offence referred to in subsection (1) and sentence him or her to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
193. (1) When criminal proceedings are pending before a court and it appears to the court that it would expose a witness under the age of 18 years to undue mental stress or suffering if that witness testifies at such proceedings, the court may, subject to subsection (4), appoint a competent person as an intermediary to enable that witness to give his or her evidence through that intermediary.
(2) (a) Notwithstanding section 187(1) and (2) or anything to the contrary in any other law contained, no examination, cross-examination or reexamination of a witness in respect of whom a court has appointed an intermediary under subsection (1), except examination by the court, may take place in any manner other than through that intermediary.
(b) | The intermediary so appointed may, unless the court directs otherwise, |
convey the general purport of any question to the witness concerned. | |
(3) | If a court appoints an intermediary under subsection (1), the court may |
direct that the witness concerned gives his or her evidence at any place
(iii) the likelihood that real and substantial justice will be impaired if that evidence is admitted.
(6) Nothing in subsection (5) contained is to be construed as preventing the prosecution from presenting anew any evidence that was presented through an intermediary referred to in that subsection.
194. (1) (a) When criminal proceedings are pending before a court and it appears to the court on application made to it that the examination of a witness who is resident in Namibia is necessary in the interests of justice and that the attendance of that witness cannot be obtained without undue delay, expense or inconvenience, the court may dispense with such attendance and issue a commission to any magistrate.
and, if the witness adheres thereto, be subscribed, or, where the evidence is on videotape, be confirmed on the video recording, by the witness and the magistrate concerned.
195. Any party to proceedings in which a commission is issued under section 194, may
196. The magistrate must return the evidence in question to the court that issued the commission, and such evidence must be open to the inspection of the parties to the proceedings and forms, in so far as it is admissible as evidence in such proceedings, part of the record of that court.
197. If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which the accused may be convicted on the charge, it may return a verdict of not guilty.
198. (1) After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court.
(2) The prosecutor may reply on any matter of law raised by the accused in his or her address, and may, with the leave of the court, reply on any matter of fact raised by the accused in his or her address.
199. (1) When by mistake a wrong judgment is delivered, the court may, before or immediately after it is recorded, correct the judgment subject to subsection (2).
(2) A wrong judgment may be corrected under subsection (1) only where it is delivered in consequence of a mistake inherent in the judgment that does not relate to the merits of the particular case.
200. The court may at criminal proceedings defer its reasons for any decision on any question raised at such proceedings, and the reasons so deferred are, when given, deemed to have been given at the time of the proceedings.
201. (1) Where an offence is committed in the presence of the court, the presiding judge or magistrate may order the arrest of the offender.
(2) If any person, other than an accused, who is present at criminal proceedings, disturbs the peace or order of the court, the court may order that that person be removed from the court and that he or she be detained in custody until the rising of the court.
CHAPTER 29
WITNESSES
Process for securing attendance of witness
202. (1) In this section “prescribed officer of the court” means the registrar, clerk of the court or any other officer prescribed by the rules of court.
(3) Where an accused desires to have a witness subpoenaed, a sum of money sufficient to cover the costs of serving the subpoena must be deposited with the prescribed officer of the court, and that officer must then subpoena the witness.
(4) (a) Where an accused desires to have a witness subpoenaed and the accused satisfies the prescribed officer of the court
that officer must subpoena the witness at the expense of the State.
(b) In any case where the prescribed officer of the court is not so satisfied, that officer must, at the request of the accused, refer the relevant application to the judge or magistrate presiding over the court, who may grant or refuse the application or defer his or her decision until he or she has heard other evidence in the case.
203. (1) A subpoena in criminal proceedings must be served in the manner provided by the rules of court by a person empowered to serve a subpoena in criminal proceedings.
(2) A return by the person empowered to serve a subpoena in criminal proceedings that the service thereof has been duly effected, may, on the failure of a witness to attend the relevant proceedings, be handed in at such proceedings and is prima facie proof of such service.
204. Where a subpoena is served on a witness at a place outside the magisterial district from which the subpoena is issued, or, in the case of the High Court, at a place outside the magisterial district in which the proceedings at which the witness is to appear are to take place, and the witness is required to travel from that place to the court in question, the necessary expenses to travel to and from that court and of sojourn at the court in question must, on demand, be paid to the witness at the time of service of the subpoena.
205. A prisoner who is in a prison may be subpoenaed as a witness only if the court before which the prisoner is to appear as a witness authorizes that the prisoner be subpoenaed as a witness, and the court may give such authority only if it is satisfied that the evidence in question is reasonably necessary and material and that the public safety or order will not be endangered by the calling of the witness.
206. (1) A person who is informed in writing by a member of the police that he or she will be required as a witness in criminal proceedings, must, until such proceedings have been finally disposed of or until he or she is officially informed that he or she will no longer be required as a witness, keep the member of the police informed at all times of his or her full residential address or any other address where he or she may be found.
(2) A person who fails to comply with subsection (1) commits an offence and is liable on conviction to a fine not exceeding N$1 000 or to imprisonment for a period not exceeding three months.
207. (1) When a person is likely to give material evidence in criminal proceedings with reference to any offence, a magistrate or judge of the court before which the proceedings in question are pending may, on information in writing and on oath that that person is about to abscond, issue a warrant for the arrest of that person.
208. (1) (a) When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person
the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.
(b) The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction does not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.
issue an order for the placement under protection of that person.
(b) Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.
209. The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court must so subpoena a witness or so cause a witness to be subpoenaed if the evidence of the witness appears to the court essential to the just decision of the case.
210. (1) A witness who is subpoenaed to attend criminal proceedings must attend such proceedings and remain in attendance at the proceedings, and a person who is in attendance at criminal proceedings, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, must remain in attendance at the proceedings unless that witness or that person is excused by the court.
(2) Notwithstanding subsection (1), the court may, at any time during the criminal proceedings in question, order that any person, other than the accused, who is to be called as a witness, must leave the court and remain absent from the proceedings until that person is called, and that that person must remain in court after he or she has given evidence.
211. (1) A person who is subpoenaed to attend criminal proceedings and who fails to attend or to remain in attendance at such proceedings, and a person who is warned by the court to remain in attendance at criminal proceedings and who fails to remain in attendance at such proceedings, and a person so subpoenaed or so warned who fails to appear at the place and on the date and at the time to which the proceedings in question may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, commits an offence and is liable on conviction to the punishment contemplated in subsection (2).
(2) Section 192(2) applies with the necessary changes to a person referred to in subsection (1).
212. (1) If a person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or her or refuses or fails to produce any book, paper or document required to be produced by him or her, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuse for his or her refusal or failure, sentence that person to imprisonment for a period not exceeding five years.
(2) After the expiration of any sentence imposed under subsection (1), the person concerned may from time to time again be dealt with under that subsection with regard to any further refusal or failure.
213. (1) Any party may in criminal proceedings impeach or support the credibility of a witness called against or on behalf of that party in any manner in which and by any evidence by which the credibility of that witness might in terms of the law in force immediately before 21 March 1990 have been impeached or supported by that party.
(2) Any party who has called a witness who has given evidence in criminal proceedings (whether that witness is or is not, in the opinion of the court, adverse to the party calling him or her) may, after that party or the court has asked the witness whether he or she did or did not previously make a statement with which his or her evidence in the proceedings in question is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been given to the witness, prove that the witness previously made a statement with which such evidence is inconsistent.
214. (1) In this section “witness” includes any person necessarily required to accompany a witness for the State on account of his or her youth, old age or infirmity.
215. (1) The Minister may determine services to be provided to a witness who is required to give evidence in a court of law.
(2) | The Minister may make regulations relating to |
(a) | the assistance of, and support to, witnesses at courts; |
(b) | the establishment of reception centres for witnesses at courts; |
(c) | the counselling of witnesses; and |
(d) | any other matter that the Minister considers expedient to prescribe to provide |
services to witnesses at courts. |
(3) A regulation made under this section which may result in financial expenditure for the State must be made in consultation with the Minister responsible for finance.
216. Every person not expressly excluded by this Act from giving evidence is, subject to Article 12(1)(f) of the Namibian Constitution and section 231 of this Act, competent and compellable to give evidence in criminal proceedings.
217. The court in which criminal proceedings are conducted must decide any question concerning the competency or compellability of a witness to give evidence.
218. No person appearing or proved to be afflicted with mental illness or to be labouring under any imbecility of mind due to intoxication or drugs or the like, and who is thereby deprived of the proper use of his or her reason, is competent to give evidence while so afflicted or disabled.
219. The spouse of an accused is competent but not compellable to give evidence for the prosecution in criminal proceedings.
220. (1) Every accused and spouse of an accused is a competent witness for the defence at every stage of criminal proceedings, whether or not the accused is charged jointly with any other person, but
(2) The evidence that an accused may, on his or her own application, give in his or her own defence at joint criminal proceedings, is not inadmissible against a co-accused at such proceedings by reason only that the accused is for any reason not a competent witness for the prosecution against that co-accused.
221. An accused may not make an unsworn statement at his or her trial in place of evidence but must, if he or she wishes to give evidence, do so on oath or affirmation.
222. An accused who gives evidence at criminal proceedings may not be asked or required to answer any question tending to show that the accused has committed or has been convicted of or has been charged with any offence other than the offence with which he or she is charged, or that the accused is of bad character, unless
223. (1) A husband is not at criminal proceedings compelled to disclose any communication that his wife made to him during the marriage, and a wife is not at criminal proceedings compelled to disclose any communication that her husband made to her during the marriage.
(2) Subsection (1) also applies to a communication made during the subsistence of a marriage or a putative marriage that has been dissolved or annulled by a competent court.
224. No person is at criminal proceedings compelled to answer any question or to give any evidence, if the question or evidence is such that under the circumstances the spouse of that person, if under examination as a witness, may lawfully refuse and cannot be compelled to answer or to give it.
225. Notwithstanding section 228, a witness in criminal proceedings may not refuse to answer any question relevant to the issue by reason only that the answer establishes or may establish a civil liability on his or her part.
226. No legal practitioner is competent, without the consent of the person concerned, to give evidence at criminal proceedings against a person by whom he or she is professionally engaged or consulted as to any fact, matter or thing with regard to which the legal practitioner would not in terms of the law in force immediately before 21 March 1990, by reason of such engagement or consultation, have been competent to give evidence without such consent, but the legal practitioner is competent and compellable to give evidence as to any fact, matter or thing that relates to or is connected with the commission of any offence with which the person by whom the legal practitioner is professionally engaged or consulted, is charged, if such fact, matter or thing came to the knowledge of the legal practitioner before he or she was professionally engaged or consulted with reference to the defence of the person concerned.
227. Except as provided by this Act and subject to any other law, no witness in criminal proceedings is compellable or permitted to give evidence as to any fact, matter or thing or as to any communication made to or by that witness, if that witness would in terms of the law in force immediately before 21 March 1990 not have been compellable or permitted to give evidence with regard to such fact, matter or thing or communication by reason that it should not, on account of public policy or having regard to public interest, be disclosed, and that it is privileged from disclosure, but a person may in criminal proceedings adduce evidence of any communication alleging the commission of an offence, if the making of that communication prima facie constitutes an offence, and the judge or magistrate presiding at the criminal proceedings may determine whether the making of such communication prima facie does or does not constitute an offence.
228. No witness in criminal proceedings is compelled to answer any question that the witness is pursuant to Article 12(1)(f) of the Namibian Constitution not compelled to answer.
229. (1) Notwithstanding section 228, when the prosecutor at criminal proceedings informs the court that a person called as a witness on behalf of the prosecution will be required by the prosecution to answer questions that may incriminate that witness with regard to an offence specified by the prosecutor
(a) the court, if satisfied that that witness is otherwise a competent witness for the prosecution, must
(aa) that he or she is obliged to give evidence at the proceedings in question;
(bb) that questions may be put to him or her that may incriminate him or her with regard to the offence specified by the prosecutor;
(cc) that he or she will be obliged to answer any question put to him or her, whether by the prosecution, the accused or the court, notwithstanding that the answer may incriminate him or her with regard to the offence specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent on a charge relating to the offence so specified; and
(dd) that if he or she answers frankly and honestly all questions put to him or her, he or she will be indemnified against prosecution with regard to the offence specified by the prosecutor and with regard to any offence in respect of which a verdict of guilty would be competent on a charge relating to the offence so specified; and
(b) that witness must thereupon give evidence and answer any question put to him or her whether by the prosecution, the accused or the court, notwithstanding that the reply thereto may incriminate him or her with regard to the offence specified by the prosecutor or with regard to any offence in respect of which a verdict of guilty would be competent on a charge relating to the offence so specified.
230. (1) A judge of the High Court or a magistrate may, subject to Article 12(1)(f) of the Namibian Constitution and subsection (4) of this section, at the request of the Prosecutor-General or a public prosecutor authorized thereto in writing by the Prosecutor-General, require the attendance before him or her or, in the case of a judge, any other judge or, in the case of a magistrate, any other magistrate, for examination by the Prosecutor-General or the public prosecutor authorized thereto in writing by the Prosecutor-General, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed, but if that person furnishes such information to the satisfaction of the Prosecutor-General or that public prosecutor before the date on which he or she is required to appear before the judge or magistrate, that person is under no further obligation so to appear.
231. The law as to the competency, compellability or privilege of witnesses that was in force in respect of criminal proceedings immediately before 21 March 1990 applies, to the extent that such law does not conflict with the Namibian Constitution, in any case not expressly provided for by this Act or any other law.
232. Nothing in this Chapter contained is to be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such other law a person is deemed a competent witness.
CHAPTER 30
EVIDENCE
Conviction may follow on evidence of single witness
233. (1) An accused may be convicted of any offence on the evidence of a single competent witness.
(2) No court may regard the evidence of a child as inherently unreliable and treat such evidence with special caution only because that witness is a child.
234. An accused may be convicted of any offence on the single evidence of a confession by that accused that he or she committed the offence in question, if such confession is confirmed in a material respect or, where the confession is not so confirmed, if the offence is proved by evidence, other than such confession, to have been actually committed.
235. No evidence as to any fact, matter or thing is admissible which is irrelevant or immaterial and which cannot conduce to prove or disprove any point or fact at issue in criminal proceedings.
236. Except where otherwise expressly provided by this Act or any other law or except where the fact of a previous conviction is an element of an offence with which an accused is charged, evidence is not admissible at criminal proceedings in respect of an offence to prove that an accused at such proceedings had previously been convicted of an offence, whether in Namibia or elsewhere, and no accused, if called as a witness, may be asked whether he or she has been so convicted.
237. (1) Subject to subsection (2), in criminal proceedings at which an accused is charged with rape or an offence of an indecent nature, evidence of the commission of other similar offences by the accused must, on application by the prosecutor, be admitted by the court at such proceedings and may be considered on any matter to which it is relevant, but such evidence must only be so admitted if the court is satisfied that it has significant probative value that is not substantially outweighed by its potential for unfair prejudice to the accused.
(2) Evidence of previous similar offences by an accused is not admissible only to prove the character of the accused.
(3) The court’s reasons for its decision to admit or refuse to admit evidence of previous similar offences must be recorded, and those reasons form part of the record of the proceedings.
238. (1) In this section
“Namibia Institute of Pathology” means the Namibia Institute of Pathology Limited established by section 2 of the Namibia Institute of Pathology Act, 1999 (Act No. 15 of 1999);
“National Transport Services” means the Holding Company and any subsidiary company thereof providing transport services under and in accordance with the National Transport Services Holding Company Act, 1998 (Act No. 28 of 1998);
“office”, “ministry” and “agency” means respectively an office, ministry and agency as defined in section 1(1) of the Public Service Act, 1995 (Act No. 13 of 1995).
(2) When in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place in any particular office, ministry or agency, or in any department of such office, ministry or agency, or in any particular court of law or in any particular banking institution, or the question arises in such proceedings whether any particular functionary in any such office, ministry, agency or department did or did not perform any particular act or did or did not take part in any particular transaction, a document purporting to be an affidavit made by a person who in that affidavit alleges
it would in the ordinary course of events have come to his or her, the deponent’s, knowledge and a record thereof, available to him or her, would have been kept; and
(c) that it has not come to his or her knowledge
and that there is no record thereof,
is, on its mere production at such proceedings, prima facie proof that the act, transaction or occurrence in question did not take place or that the functionary concerned did not perform the act in question or did not take part in the transaction in question.
(5) (a) When any fact established by any examination or process requiring any skill
(iii) in computer science or in any discipline of engineering;
(vii) in ballistics, in the identification of fingerprints or palm-prints or in the examination of disputed documents,
is or may become relevant to the issue at criminal proceedings, a document purporting to be an affidavit made by a person who in that affidavit alleges that he or she is in the employment of the State or is in the employment of or is attached to the Namibia Institute of Pathology or any university in Namibia or any other body designated by the Minister for the purposes of this subsection by notice in the Gazette, and that he or she has established such fact by means of such an examination or process, is, on its mere production at such proceedings, prima facie proof of such fact, but the person who may make such affidavit may, in any case in which skill is required in chemistry, anatomy or pathology, issue a certificate instead of such affidavit, in which event this paragraph applies with the necessary changes in respect of that certificate.
(b) A person who issues a certificate under paragraph (a) and who in that certificate willfully states anything that is false, commits an offence and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
is, on the mere production thereof at such proceedings, prima facie proof that such fingerprint or palm-print was so found or was so dealt with.
(8) In criminal proceedings in which the physical condition or the identity, in or at any hospital, nursing home, ambulance or mortuary, of any deceased person or of any dead body is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges
is, on the mere production thereof at such proceedings, prima facie proof of the matter so alleged.
(9) (a) In criminal proceedings in which the injuries suffered by a person towards or in connection with whom an offence prescribed by regulation under paragraph (c) was committed or allegedly committed are relevant to the issue, a medical record containing the information likewise prescribed and accompanied by a document purporting to be an affidavit made by a registered medical practitioner who in that affidavit alleges
(i) that, on a date and at a time specified in the affidavit, he or she examined and treated the person named in the affidavit; and
(ii) that the person named in the affidavit suffered the injuries set out in the medical record that is attached to the affidavit,
is, on the mere production thereof at such proceedings, prima facie proof that the person concerned suffered the injuries set out in that medical record, but the medical practitioner who may make such affidavit may issue a certificate instead of such affidavit, in which event this paragraph applies with the necessary changes in respect of that certificate.
(b) A person who issues a certificate under paragraph (a) and who in that certificate willfully states anything that is false, commits an offence and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
(c) | (i) | The Minister may, in consultation with the Minister responsible for |
health, make regulations requiring every registered medical | ||
practitioner to record such information as may be prescribed in those | ||
regulations when treating a person whom that medical practitioner | ||
has reason to believe is a victim of any such offence as may be | ||
prescribed in those regulations. | ||
(ii) | Regulations made under subparagraph (i) may prescribe the manner | |
in which registered medical practitioners must deal with medical | ||
records kept in compliance with any duty imposed in terms of those | ||
regulations and may also impose a duty on such medical practitioners | ||
to make those records available when becoming aware of criminal | ||
investigations or proceedings in respect of which those records may | ||
be relevant. | ||
(10) | (a) | In criminal proceedings in which the receipt, custody, packing, |
marking, delivery or dispatch of any fingerprint or palm-print, article of clothing, specimen, tissue (as defined in section 1 of the Anatomical Donations and Post-Mortem Examinations Ordinance, 1977 (Ordinance No. 12 of 1977), or any object of whatever nature is relevant to the issue, a document purporting to be an affidavit made by a person who in that affidavit alleges
(aa) received from any person, institute, or office, ministry or agency, or body specified in the affidavit, a fingerprint or palm-print, article of clothing, specimen, tissue or object described in the affidavit, which was packed or marked or which he or she packed or marked in the manner described in the affidavit;
(bb) delivered or dispatched to any person, institute, or office, ministry or agency, or body specified in the affidavit, a fingerprint or palm-print, article of clothing, specimen, tissue or object described in the affidavit, which was packed or marked or which he or she packed or marked in the manner described in the affidavit;
(cc) during a period specified in the affidavit, had a fingerprint or palm-print, article of clothing, specimen, tissue or object described in the affidavit in his or her custody in the manner described in the affidavit, which was packed or marked in the manner described in the affidavit,
is, on the mere production thereof at such proceedings, prima facie proof of the matter so alleged, but the person who may make such affidavit may, in any case relating to any article of clothing, specimen or tissue, issue a certificate instead of such affidavit, in which event this paragraph applies with the necessary changes in respect of that certificate.
is, on the mere production thereof at such proceedings, prima facie proof of the matter so alleged; or
(b) that the goods referred to in paragraph (a) was received by the National Transport Services for conveyance to a specified consignee or that such goods were handled or transhipped en route by the National Transport Services, a document purporting to be an affidavit made by a person who in that affidavit alleges
is, on the mere production thereof at such proceedings, prima facie proof of the matter so alleged.
(12) (a) The Minister may in respect of any measuring instrument as defined in section 1 of the Trade Metrology Act, 1973 (Act No. 77 of 1973), by notice in the Gazette prescribe the conditions and requirements that must be complied with before any reading by such measuring instrument may be accepted in criminal proceedings as proof of the fact that it purports to prove, and if the Minister has so prescribed such conditions and requirements and on proof that such conditions and requirements have been complied with in respect of any particular measuring instrument, the measuring instrument in question must, for the purposes of proving the fact that it purports to prove, in the absence of evidence to the contrary be accepted at criminal proceedings as proving the fact recorded by it.
proof at criminal proceedings that the seal, as so prescribed, of such syringe or receptacle was immediately before the use of such syringe or receptacle for that purpose intact, is deemed to constitute prima facie proof that the syringe or receptacle in question was then free from any substance or contamination that could materially affect the result of the analysis in question.
(b) An affidavit in which the deponent declares that he or she had satisfied himself or herself before using the syringe or receptacle in question for the purpose contemplated in paragraph (a)
is, on the mere production thereof at the proceedings in question, prima facie proof that the syringe or receptacle was so sealed, that the seal was so intact and that the syringe, receptacle or holder was so endorsed.
(c) A person who for the purposes of this subsection makes or causes to be made a false endorsement on any syringe, receptacle or holder, knowing it to be false, commits an offence and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.
(14) The court before which an affidavit or certificate is under any of the preceding subsections produced as prima facie proof of the relevant contents thereof, may cause the person who made the affidavit or issued the certificate to be subpoenaed to give oral evidence in the proceedings in question, or may cause written interrogatories to be submitted to that person for reply, and such interrogatories and any reply thereto purporting to be a reply from that person, are likewise admissible in evidence at such proceedings.
(15) Nothing in this section contained is to be construed as affecting any other law under which any certificate or other document is admissible in evidence, and the provisions of this section are deemed to be additional to and not in substitution of any such law.
239. (1) When in criminal proceedings the question arises whether any particular act, transaction or occurrence did or did not take place
(a) | in any particular department or subdepartment of a state or territory outside Namibia; |
(b) | in any branch or office of a department or subdepartment contemplated in paragraph (a); |
(c) | in any particular court of law in a state or territory outside Namibia; or |
(d) | in any particular institution in a state or territory outside Namibia which is similar to a banking institution in Namibia, |
or when the question arises in such proceedings whether any particular functionary in any such department, subdepartment, branch, office, court or institution did or did not perform any particular act or did or did not take part in any particular transaction, section 238(2), (3) and (4) applies with the necessary changes, but, for the purposes of this section, a document purporting to be an affidavit has no effect unless
(iii) it is authenticated by a person, and in the manner, contemplated in section 8 of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963).
240. (1) If an accused has appointed a legal practitioner and, at any stage during the criminal proceedings in question, it appears to the prosecutor that a particular fact or facts which must be proved in a charge against the accused is or are not in issue or will not be placed in issue in such proceedings against the accused, the prosecutor may, notwithstanding section 250, send or hand a notice to the accused or his or her legal practitioner setting out such fact or facts and stating that such fact or facts will be deemed to have been proved at such proceedings unless notice is given that any such fact will be placed in issue.
241. (1) In criminal proceedings a written statement by any person, other than an accused at such proceedings, is, subject to subsection (2), admissible as evidence to the same extent as oral evidence to the same effect by that person.
242. The evidence of a witness recorded at a preparatory examination
(a) is admissible in evidence at the trial of the accused following on the preparatory examination, if it is proved to the satisfaction of the court
(i) that the witness
(aa) is dead;
(bb) is incapable of giving evidence;
(cc) is too ill to attend the trial; or
(dd) is being kept away from the trial by the means and contrivance of the accused; and
(ii) that the evidence tendered is the evidence recorded at the preparatory examination,
and if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or the State had a full opportunity of cross-examining that witness;
(b) may, if that witness cannot, after diligent search, be found for the purposes of the trial of the accused following on the preparatory examination, or cannot be compelled to attend the trial, in the discretion of the court but subject to paragraph (a)(ii), be read as evidence at that trial if it appears from the preparatory examination record or it is proved to the satisfaction of the court that the accused or the State had a full opportunity of cross-examining that witness.
243. The evidence of a witness given at a former trial may, in the circumstances referred to in section 242, with the necessary changes be admitted in evidence at any later trial of the same person on the same charge.
244. (1) In this section
“hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence;
“party” means the accused or party against whom hearsay evidence is to be adduced, including the prosecution.
(2) Subject to this Act or any other law, hearsay evidence may not be admitted as evidence in criminal proceedings unless
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(vii) any other factor that should in the opinion of the court be taken into account,
is of the opinion that such evidence should be admitted in the interests of justice.
245. (1) Evidence of a statement made by a child under the age of 14 years is admissible at criminal proceedings as proof of any fact alleged in that statement if the court
246. (1) Evidence of a confession made by a person in relation to the commission of an offence is, if the confession is proved to have been freely and voluntarily made by that person in his or her sound and sober senses and without having been unduly influenced thereto, admissible in evidence against that person at criminal proceedings relating to that offence, but
(a) a confession made to a peace officer, other than a magistrate or a justice of the peace who is not a member of the police involved in the investigation of the offence to which the confession relates, or, in the case of a peace officer referred to in section 358, a confession made to such peace officer that relates to an offence with reference to which such peace officer is authorized to exercise any power conferred on him or her under that section, is not admissible in evidence unless
(aa) that member of the police was not involved in the investigation of the offence to which the confession relates; and
(bb) a magistrate was not readily available;
(b) where the confession
the confession is, on the mere production at the proceedings in question of the document in which the confession is contained or, where the confession was recorded on tape, of a document that purports to be a transcription of the original record of the confession
(aa) admissible in evidence against that person if it appears from such document or transcription that the confession was made by a person whose name corresponds to that of that person and
(A) in the case of a confession recorded on tape, if the transcription thereof purports to be certified as correct under the hand of the person who transcribed the confession; and
(B) in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document or transcription to the effect that he or she interpreted truly and correctly and to the best of his or her ability with regard to the contents of the confession and any question put to that person by the magistrate; and
(bb) presumed, in the absence of evidence to the contrary, to have been freely and voluntarily made by that person in his or her sound and sober senses and without having been unduly influenced thereto, if it appears from the document or transcription in which the confession is contained that the confession was made freely and voluntarily by that person in his or her sound and sober senses and without having been unduly influenced thereto.
247. (1) Evidence may be admitted at criminal proceedings of any fact otherwise admissible in evidence, notwithstanding that the witness who gives evidence of such fact, discovered such fact or obtained knowledge of such fact only in consequence of information given by an accused appearing at such proceedings in a confession or statement which by law is not admissible in evidence against that accused at such proceedings, and notwithstanding that the fact was discovered or came to the knowledge of that witness against the wish or will of that accused.
(2) The court may, if in its opinion it will be in the interests of justice to do so, admit evidence at criminal proceedings that anything was pointed out by an accused appearing at such proceedings or that any fact or thing was discovered in consequence of information given by that accused, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against that accused at such proceedings.
248. No confession made by any person is admissible as evidence against another person.
249. (1) Evidence of an admission made extra-judicially by a person in relation to the commission of an offence is, if the admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, admissible in evidence against that person at criminal proceedings relating to that offence, but where the admission
the admission is, on the mere production at the proceedings in question of the document in which the admission is contained or, where the admission was recorded on tape, of a document that purports to be a transcription of the original record of the admission
(i) admissible in evidence against that person if it appears from such document or transcription that the admission was made by a person whose name corresponds to that of that person and
(aa) in the case of an admission recorded on tape, if the transcription thereof purports to be certified as correct under the hand of the person who transcribed the admission; and
(bb) in the case of an admission made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document or transcription to the effect that he or she interpreted truly and correctly and to the best of his or her ability with regard to the contents of the admission and any question put to that person by the magistrate; and
(ii) presumed, in the absence of evidence to the contrary, to have been voluntarily made by that person if it appears from the document or transcription in which the admission is contained that the admission was made voluntarily by that person.
(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under subsection (1)(ii).
250. An accused or his or her legal practitioner or the prosecutor may in criminal proceedings admit any fact placed in issue at such proceedings, and any such admission is sufficient proof of that fact.
251. (1) In this section
“business” includes any public transport, public utility or similar undertaking carried on by a local authority, and the activities of any State-owned enterprise;
“document” includes any device by means of which information is recorded or stored;
“statement” includes any representation of fact, whether made in words or otherwise.
(2) In criminal proceedings in which direct oral evidence of a fact would be admissible, a statement contained in a document and tending to establish that fact is, on production of the document, admissible as evidence of that fact if
(a) the document is or forms part of a record relating to any trade or business and has been compiled in the course of that trade or business from information supplied, directly or indirectly, by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with in the information they supply; and
(b) the person who supplied the information recorded in the statement in question is dead or is outside Namibia or is unfit by reason of his or her physical or mental condition to attend as a witness or cannot with reasonable diligence be identified or found or cannot reasonably be expected, having regard to the time that has elapsed since that person supplied the information as well as all the circumstances, to have any recollection of the matters dealt with in the information he or she supplied.
252. (1) In this section
“document” includes any book, map, plan, drawing or photograph;
“statement” includes any representation of fact, whether made in words or otherwise.
(2) (a) In criminal proceedings in which direct oral evidence of a fact would be admissible, a statement made by a person in a document and tending to establish that fact is, on production of the original document, admissible as evidence of that fact if
(i) the person who made the statement either
(aa) had personal knowledge of the matters dealt with in the statement; or
(bb) where the document is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with therein are not within that person’s personal knowledge) in the performance of a duty to record information supplied, directly or indirectly, by persons who have or may reasonably be supposed to have personal knowledge of the matters dealt with in the information they supply; and
(ii) the person who made the statement is called as a witness in such proceedings unless that person is dead or is unfit by reason of his or her physical or mental condition to attend as a witness or is outside Namibia, and it is not reasonably practicable to secure that person’s attendance or all reasonable efforts to find him or her have been made without success.
253. Without derogating from section 244(2)(c), the declaration made by a deceased person is admissible in evidence at criminal proceedings if such a declaration
254. Judicial notice must in criminal proceedings be taken of any law or any matter published in a publication that purports to be the Gazette.
255. (1) When it is relevant at criminal proceedings to ascertain whether any fingerprint, palm-print or footprint of an accused at such proceedings corresponds to any other fingerprint, palm-print or footprint, or whether the body of that accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, evidence of the fingerprints, palm-prints or footprints of the accused or that the body of the accused has or had any mark, characteristic or distinguishing feature or shows or showed any condition or appearance, including evidence of the result of any blood test of the accused, is admissible at such proceedings.
(2) Evidence referred to in subsection (1) is not inadmissible by reason only thereof that the fingerprint, palm-print or footprint in question was not taken or that the mark, characteristic, feature, condition or appearance in question was not ascertained in accordance with section 38, or that it was taken or ascertained against the wish or the will of the accused concerned.
256. For the purposes of rebutting the presumption that a child to whom a married woman has given birth is the offspring of her husband, that woman or her husband or both of them may in criminal proceedings give evidence that they had no sexual intercourse with one another during the period when the child was conceived.
257. Evidence as to the character of an accused is admissible or inadmissible if such evidence would have been admissible or inadmissible in terms of the law in force immediately before 21 March 1990.
258. (1) No evidence as to any previous sexual conduct or experience of a complainant in criminal proceedings at which an accused is charged with rape or an offence of an indecent nature, may be adduced, and no question regarding such sexual conduct or experience may be put to the complainant or any other witness in such proceedings, unless the court has, on application made to it, granted leave to adduce such evidence or to put such question, which leave may only be granted if the court is satisfied
259. Comparison at criminal proceedings of a disputed writing with any writing proved to be genuine, may be made by a witness, and such writings and the evidence of any witness with respect thereto, may be submitted as proof of the genuineness or otherwise of the writing in dispute.
260. (1) The Minister may from time to time by notice in the Gazette approve of tables prepared at any official observatory in Namibia of the times of sunrise and sunset on particular days at particular places in Namibia or any portion thereof, and appearing in any publication specified in the notice, and thereupon such tables are, until the notice is withdrawn, on the mere production thereof in criminal proceedings admissible as proof of those times.
(2) Tables in force immediately before the commencement of this Act by virtue of section 229(2) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), are deemed to be tables approved under subsection (1) of this section.
261. Any evidence that in terms of the law in force immediately before 21 March 1990
262. A document
is, on the mere production thereof at criminal proceedings, prima facie proof that that person signed that document.
263. (1) A court may in respect of any article, other than a document, which a party to criminal proceedings may wish to produce to the court as admissible evidence at such proceedings, permit that party to produce as evidence, instead of that article, any photograph thereof, notwithstanding that that article is available and can be produced in evidence.
(2) The court may, notwithstanding the admission under subsection (1) of the photograph of any article, on good cause require the production of the article in question.
264. (1) When any book or other document is of such a public nature as to be admissible in evidence on its mere production from proper custody, a copy thereof or extract therefrom is admissible in evidence at criminal proceedings if it is proved to be an examined copy or extract, or if it purports to be signed and certified as a true copy or extract by the official to whose custody the original is entrusted.
(2) An official referred to in subsection (1) must furnish a certified copy or extract referred to in that subsection to any person applying therefor, on payment of an amount in accordance with the tariff of fees prescribed by or under any law or, if no such tariff has been so prescribed, an amount in accordance with a tariff determined by the Minister in consultation with the Minister responsible for finance.
265. (1) In this section
“office”, “ministry” and “agency” means respectively an office, ministry and agency as defined in section 1(1) of the Public Service Act, 1995 (Act No. 13 1995);
“official”, when used as a noun, means an official in the employment of the State.
(2) It is at criminal proceedings sufficient to prove an original official document that is in the custody or under the control of an official by virtue of his or her office, if a copy thereof or an extract therefrom, certified as a true copy or extract by the head of the office, ministry or agency concerned or by an official authorized thereto by such head, is produced in evidence at such proceedings.
(4) An official who, under subsection (2), certifies a copy or extract as a true copy of or extract from the original official document knowing that that copy or extract is false, commits an offence and is liable on conviction to a fine not exceeding N$8 000 or to imprisonment for a period not exceeding two years.
266. (1) It is at criminal proceedings sufficient to prove the original record of judicial proceedings if a copy of such record, certified or purporting to be certified by the registrar or the clerk of the court or any other official in the employment of the State having the custody of the record of the judicial proceedings or by the deputy of such registrar, clerk of the court or other official or, in the case where judicial proceedings are taken down in shorthand or by mechanical means, by the person who transcribed such proceedings, as a true copy of such record, is produced in evidence at such proceedings, and that copy is prima facie proof that any matter purporting to be recorded thereon was correctly recorded.
(2) A person who, under subsection (1), certifies a copy as a true copy of the original record of judicial proceedings knowing that that copy is false, commits an offence and is liable on conviction to a fine not exceeding N$8 000 or to imprisonment for a period not exceeding two years.
267. (1) In this section
“document” includes a recording or transcribed computer print-out produced by any mechanical or electronic device or any device by means of which information is recorded or stored;
“entry” includes any notation in the accounting records of a banking institution by any means whatever.
(2) The entries in the accounting records of a banking institution, and any document which is in the possession of a banking institution and which refers to those entries or to any business transaction of the banking institution, are on the mere production at criminal proceedings of a document purporting to be an affidavit made by a person who in that affidavit alleges
(d) that such accounting records or document is in the custody or under the control of that banking institution,
prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document.
(3) An entry in any accounting record referred to in subsection (2) or any document referred to in that subsection may be proved at criminal proceedings on the mere production at such proceedings of a document purporting to be an affidavit made by a person who in that affidavit alleges
(a) | that he or she is in the employment of the banking institution in question; |
(b) | that he or she has examined the entry, accounting record or document in question; and |
(c) | that a copy of that entry or document set out in the affidavit or in an annexure thereto is a correct copy of that entry or document. |
(4) | A party to the proceedings in question against whom evidence is adduced in |
terms of this section or against whom it is intended to adduce evidence in terms of this section, may, on the order of the court before which such proceedings are pending, inspect the original of the document or entry in question and any accounting record in which that entry appears or of which that entry forms part, and that party may make copies of that document or entry, and the court must, on the application of the party concerned, adjourn the proceedings for the purpose of the inspection or the making of the copies.
(5) No banking institution is compelled to produce any accounting record referred to in subsection (2) at criminal proceedings unless the court in question orders that any such record be produced.
268. (1) In this section
“document” includes a recording or transcribed computer print-out produced by any mechanical or electronic device or any device by means of which information is recorded or stored;
“entry” includes any notation, by any means whatever, in the accounting records of an institution referred to in subsection (2).
(2) The entries in the accounting records of an institution in a state or territory outside Namibia which is similar to a banking institution in Namibia, and any document which is in the possession of such an institution and which refers to those entries or to any business transaction of that institution, are, on the mere production at criminal proceedings of a document purporting to be an affidavit made by a person who in that affidavit alleges
(d) that such accounting records or document is in the custody or under the control of that institution,
prima facie proof at such proceedings of the matters, transactions and accounts recorded in such accounting records or document.
(3) An entry in any accounting record referred to in subsection (2) or any document referred to in that subsection may be proved at criminal proceedings on the mere production at such proceedings of a document purporting to be an affidavit made by a person who in that affidavit alleges
(a) | that he or she is in the employment of the institution in question; |
(b) | that he or she has examined the entry, accounting record or document in question; and |
(c) | that a copy of that entry or document set out in the affidavit or in an annexure thereto is a correct copy of that entry or document. |
(4) | A document purporting to be an affidavit has for the purposes of this section |
no effect unless
269. (1) At criminal proceedings at which an accused is charged with bigamy, it is, as soon as it is proved that a marriage ceremony, other than the ceremony relating to the alleged bigamous marriage, took place within Namibia between the accused and another person, presumed, in the absence of evidence to the contrary, that the marriage was on the date of the solemnization thereof lawful and binding.
(2) At criminal proceedings at which an accused is charged with bigamy, it is presumed, in the absence of evidence to the contrary, that at the time of the solemnization of the alleged bigamous marriage there subsisted between the accused and another person a lawful and binding marriage
(a) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized within Namibia, an extract from the marriage register that purports
(b) if there is produced at such proceedings, in any case in which the marriage is alleged to have been solemnized outside Namibia, a document that purports
(3) At criminal proceedings at which an accused is charged with bigamy, evidence
is, as soon as the alleged bigamous marriage, wherever solemnized, has been proved, prima facie proof that there was a lawful and binding marriage subsisting between the accused and that person at the time of the solemnization of the alleged bigamous marriage.
270. (1) At criminal proceedings at which an accused is charged with incest
(2) When the fact that any lawful and binding marriage was contracted is relevant to the issue at criminal proceedings at which an accused is charged with incest, that fact may be proved prima facie in the manner provided in section 269 for the proof of the existence of a lawful and binding marriage of a person charged with bigamy.
271. (1) At criminal proceedings at which an accused is charged with the killing of a newly born child, that child is deemed to have been borne alive if the child is proved to have breathed, whether or not the child had an independent circulation, and it is not necessary to prove that that child was, at the time of its death, entirely separated from the body of its mother.
(2) At criminal proceedings at which an accused is charged with the concealment of the birth of a child, it is not necessary to prove whether the child died before or after the birth.
272. (1) At criminal proceedings at which an accused is charged with receiving stolen property that he or she knew to be stolen property, evidence may be given at any stage of such proceedings that the accused was, within the period of 12 months immediately preceding the date on which the accused first appeared in a magistrate’s court in respect of that charge, found in possession of other stolen property, but no such evidence may be given against the accused unless at least three days’ notice in writing has been given to the accused that it is intended to adduce such evidence against him or her.
273. If at criminal proceedings at which an accused is charged with the unlawful publication of defamatory matter that is contained in a periodical, it is proved that such periodical or the part in which such defamatory matter is contained, was published by the accused, other writings or prints purporting to be other numbers or parts of the same periodical, previously or subsequently published, and containing a printed statement that they were published by or for the accused, are admissible in evidence without further proof of their publication.
274. (1) At criminal proceedings at which an accused is charged with theft
an entry in any book of account kept by the accused or kept under or subject to his or her charge or supervision, and that purports to be an entry of the receipt of money or of property, is proof that such money or such property was received by the accused.
(2) It is not necessary at proceedings referred to in subsection (1) to prove the theft by the accused of a specific sum of money or of specific goods if
275. If at criminal proceedings at which an accused is charged with an offence of which a false representation is an element, it is proved that the false representation was made by the accused, the accused is deemed, in the absence of evidence to the contrary, to have made that representation knowing it to be false.
276. Any document, including any book, pamphlet, letter, circular letter, list, record, placard or poster, which was at any time on premises occupied by any association of persons, incorporated or unincorporated, or in the possession or under the control of any office-bearer, officer or member of such association, and
277. Any document, including any newspaper, periodical, book, pamphlet, letter, circular letter, list, record placard or poster, on the face whereof it appears that a person of a name corresponding to that of an accused person has at any particular time been outside Namibia or has at any particular time made a statement outside Namibia, is, on the mere production thereof by the prosecution at criminal proceedings, prima facie proof that the accused was outside Namibia at such time or that the accused made such statement outside Namibia at such time, if such document is accompanied by a certificate purporting to have been signed by the Permanent Secretary: Foreign Affairs to the effect that he or she is satisfied that such document is of foreign origin.
278. (1) If an act or an omission constitutes an offence only when committed by a person possessing a particular qualification or quality, or vested with a particular authority or acting in a particular capacity, an accused charged with such an offence on a charge alleging that the accused possessed such qualification or quality or was vested with such authority or was acting in such capacity, is at criminal proceedings deemed to have possessed such qualification or quality or to have been vested with such authority or to have been acting in such capacity at the time of the commission of the offence, unless such allegation is at any time during the criminal proceedings expressly denied by the accused or is disproved.
(2) If an allegation referred to in subsection (1) is denied or evidence is led to disprove it after the prosecution has closed its case, the prosecution may adduce any evidence and submit any argument in support of the allegation as if it had not closed its case.
279. When an accused is at criminal proceedings charged with any offence of which the failure to pay any tax or impost to the State, or of which the failure to furnish any official in the employment of the State with any information relating to any tax or impost that is or may be due to the State, is an element, the accused is deemed, in the absence of evidence to the contrary, to have failed to pay such tax or impost or to furnish such information.
280. (1) If a person would commit an offence if that person
without being the holder of a licence, permit, permission or other authority or qualification (in this section referred to as the necessary authority), an accused at criminal proceedings on a charge that he or she committed such an offence, is deemed, in the absence of evidence to the contrary, not to have been the holder of the necessary authority.
(3) A person who is the holder of the necessary authority and who fails without sufficient cause to produce immediately that authority to the person making the demand under subsection (2) for the production thereof, or who fails without sufficient cause to submit that authority to a person and at a place and within such reasonable time as the person making the demand may specify, commits an offence and is liable on conviction to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months.
281. An instrument liable to stamp duty may not be held inadmissible at criminal proceedings on the ground only that it is not stamped as required by law.
282. (1) A law enforcement officer may make use of a trap or engage in an undercover operation to detect, investigate or uncover the commission of an offence, or to prevent the commission of an offence, and the evidence so obtained is admissible if that conduct does not go beyond providing an opportunity to commit an offence, but where the conduct goes beyond providing an opportunity to commit an offence a court may admit evidence so obtained subject to subsection (3).
(2) In considering the question whether the conduct goes beyond providing an opportunity to commit an offence, the court must have regard to the following factors:
(i) The nature and seriousness of the offence, including
(aa) whether it is of such a nature and of such an extent that the security of the State, the safety of the public, the maintenance of public order or the national economy is seriously threatened thereby;
(bb) whether, in the absence of the use of a trap or an undercover operation, it would be difficult to detect, investigate, uncover or prevent its commission;
(cc) whether it is so frequently committed that special measures are required to detect, investigate or uncover it or to prevent its commission; and
(dd) whether it is so indecent or serious that the setting of a trap or the engaging of an undercover operation was justified;
(ii) the extent of the effect of the trap or undercover operation on the interests of the accused, if regard is had to
(aa) the deliberate disregard, if at all, of the accused’s rights or any applicable legal and statutory requirements;
(bb) the ease, or otherwise, with which the requirements contemplated in item (aa) could have been complied with, having regard to the circumstances in which the offence was committed; and
(cc) the prejudice to the accused resulting from any improper or unfair conduct;
(iii) the nature and seriousness of any infringement of any fundamental right contained in the Namibian Constitution;
283. The law as to the admissibility of evidence that was in force in respect of criminal proceedings immediately before 21 March 1990 applies, to the extent that such law does not conflict with the Namibian Constitution, in any case not expressly provided for by this Act or any other law.
284. Nothing in this Chapter contained is to be construed as modifying any provision of any other law whereby in any criminal proceedings referred to in such other law certain specified facts and circumstances are deemed to be evidence or a particular fact or circumstance may be proved in a manner specified therein.
CHAPTER 31
CONVERSION OF TRIAL INTO ENQUIRY
Court may refer juvenile accused to children’s court
285. (1) If it appears to the court at the trial on any charge of an accused under the age of 18 years that the accused is a child in need of care as defined in section 1(1) of the Children’s Act, 1960 (Act No. 33 of 1960), and that it is desirable to deal with the accused under and in accordance with sections 30 and 31 of that Act, it may stop the trial and order that the accused be brought before a children’s court mentioned in section 4 or 5 of that Act and that the accused be dealt with under and in accordance with the said sections 30 and 31.
(2) If the order under subsection (1) is made after conviction, the verdict is of no force in relation to the person in respect of whom the order is made and is deemed not to have been returned.
CHAPTER 32 COMPETENT VERDICTS
286. If the evidence in criminal proceedings does not prove the commission of the offence charged but proves an attempt to commit that offence or an attempt to commit any other offence of which an accused may be convicted on the offence charged, the accused may be found guilty of an attempt to commit that offence or such other offence.
287. If the evidence in criminal proceedings does not prove the commission of the offence charged but proves that the accused is guilty as an accessory after that offence or any other offence of which the accused may be convicted on the offence charged, the accused may be found guilty as an accessory after that offence or such other offence, and is, in the absence of any punishment expressly provided by law, liable to punishment at the discretion of the court, but such punishment may not exceed the punishment that may be imposed in respect of the offence with reference to which the accused is convicted as an accessory.
288. If the evidence on a charge of murder or attempted murder does not prove the offence of murder or attempted murder but
(a) | the offence of culpable homicide; |
(b) | the offence of assault with intent to do grievous bodily harm; |
(c) | the offence of robbery; |
(d) | in a case relating to a child, the offence of exposing an infant, whether under a statute or at common law, or the offence of disposing of the body of a child in contravention of section 7 of the General Law Amendment Ordinance, 1962 (Ordinance No. 13 of 1962), with intent to conceal the fact of its birth; |
(e) | the offence of common assault; |
(f) | the offence of public violence; or |
(g) | the offence of pointing a firearm, air gun or air pistol in contravention of any law, |
the accused may be found guilty of the offence so proved.
289. If the evidence on a charge of culpable homicide does not prove the offence of culpable homicide but
(a) the offence of assault with intent to do grievous bodily harm;
the accused may be found guilty of the offence so proved.
290. If the evidence on a charge of robbery or attempted robbery does not prove the offence of robbery or attempted robbery but
the accused may be found guilty of the offence so proved, or, where the offence of assault with intent to do grievous bodily harm or the offence of common assault and the offence of theft are proved, of both such offences.
291. (1) If the evidence on a charge of rape or attempted rape, whether the charge is brought under a statute or at common law, does not prove the offence of rape or attempted rape but
(iii) soliciting or enticing such a child to the commission of a sexual act or an immoral or indecent act; or
(f) the statutory offence of
(iii) soliciting or enticing such a female to the commission of an immoral or indecent act,
the accused may be found guilty of the offence so proved.
(2) If the evidence on a charge of indecent assault does not prove the offence of indecent assault but
the accused may be found guilty of the offence so proved.
292. (1) If the evidence on a charge of housebreaking with intent to commit an offence specified in the charge, whether the charge is brought under a statute or at common law, does not prove the offence of housebreaking with intent to commit the offence so specified but the offence of housebreaking with intent to commit an offence other than the offence so specified or the offence of housebreaking with intent to commit an offence unknown or the offence of malicious injury to property, the accused may be found guilty of the offence so proved.
293. (1) If the evidence on a charge for the statutory offence of breaking and entering or of the entering of any premises with intent to commit an offence specified in the charge, does not prove the offence of breaking and entering or of entering the premises with intent to commit the offence so specified but the offence of breaking and entering or of entering the premises with intent to commit an offence other than the offence so specified or of breaking and entering or of entering the premises with intent to commit an offence unknown, the accused may be found guilty
(a) | of the offence so proved; or |
(b) | where it is a statutory offence to be in or on any dwelling, premises or enclosed area between sunset and sunrise without lawful excuse, of such offence, if such be the facts proved. |
(2) | If the evidence on a charge for the statutory offence of breaking and entering |
or of the entering of any premises with intent to commit an offence to the prosecutor unknown, does not prove the offence of breaking and entering or of entering the premises with intent to commit an offence to the prosecutor unknown but the offence of breaking and entering or of entering the premises with intent to commit a specific offence, the accused may be found guilty of the offence so proved.
294. (1) If the evidence on a charge of theft does not prove the offence of theft but
the accused may be found guilty of the offence so proved.
(2) If a charge of theft alleges that the property referred to therein was stolen on one occasion and the evidence proves that the property was stolen on different occasions, the accused may be convicted of the theft of such property as if it had been stolen on that one occasion.
295. If the evidence on a charge of receiving stolen property knowing it to have been stolen does not prove that offence but
the accused may be found guilty of the offence so proved.
296. If the evidence on a charge of assault with intent to do grievous bodily harm does not prove the offence of assault with intent to do grievous bodily harm but the offence of
(a) | common assault; |
(b) | indecent assault; or |
(c) | pointing a firearm, air gun or air pistol in contravention of any law, |
the accused may be found guilty of the offence so proved.
297. If the evidence on a charge of common assault proves the offence of indecent assault, the accused may be found guilty of indecent assault, or, if the evidence on such a charge does not prove the offence of common assault but the offence of pointing a firearm, air gun or air pistol in contravention of any law, the accused may be found guilty of that offence.
298. If the evidence on a charge of committing a sexual act or attempting to commit a sexual act, other than rape under a statute, or of unlawful carnal intercourse or attempted unlawful carnal intercourse with another person in contravention of any statute does not prove that offence but
(iii) soliciting, enticing or importuning that other person to commit an immoral or indecent act; or
(iv) conspiring with that other person to commit a sexual act or to have unlawful carnal intercourse,
the accused may be found guilty of the offence so proved.
299. If the evidence on a charge of sodomy or attempted sodomy does not prove the offence of sodomy or attempted sodomy but the offence of indecent assault or common assault, the accused may be found guilty of the offence so proved.
300. If the evidence on a charge for an offence not mentioned in the preceding sections of this Chapter does not prove the commission of the offence so charged but proves the commission of an offence which by reason of the essential elements of that offence is included in the offence so charged, the accused may be found guilty of the offence so proved.
301. (1) A person who voluntarily consumes or uses any substance that impairs his or her faculties to appreciate the wrongfulness of his or her acts or to act in accordance with that appreciation, while he or she knew or reasonably ought to have foreseen that such substance has that effect, and who while such faculties are thus impaired commits an act prohibited by law under any penalty, but is not criminally liable because his or her faculties were impaired as aforesaid, commits an offence and is liable on conviction to the penalty that may be imposed in respect of the commission of that act.
(2) If in any prosecution for an offence it is found that the accused is not criminally liable for the offence charged on account of the fact that the accused’s faculties referred to in subsection (1) were impaired by the consumption or use of any substance, the accused may be found guilty of a contravention of subsection (1), if the evidence proves the commission of such contravention.
CHAPTER 33
PREVIOUS CONVICTIONS
Previous convictions may be proved
302. (1) The prosecution may, after an accused has been convicted but before sentence has been imposed on the accused, produce to the court for admission or denial by the accused a record of previous convictions alleged against the accused.
303. When a previous conviction may be proved under this Act, a record, photograph or document that relates to a fingerprint and that purports to emanate from the officer commanding the Criminal Record Centre or, in the case of any other country, from an officer having charge of the criminal records of the country concerned, is, whether or not such record, photograph or document was obtained under any law or against the wish or the will of the person concerned, admissible in evidence at criminal proceedings on production thereof by a member of the police having the custody thereof, and is prima facie proof of the facts contained therein.
304. When a court in criminal proceedings requires particulars or further particulars or clarification of any previous conviction admitted by or proved against an accused at such proceedings
and which purports to furnish such particulars or such clarification, is, on the mere production thereof at the proceedings in question, admissible as prima facie proof of the facts contained therein.
CHAPTER 34
SENTENCE
305. (1) A court may, before passing sentence, receive such evidence as it thinks fit to inform itself as to the proper sentence to be passed.
(2) The accused may address the court on any evidence received under subsection (1), as well as on the matter of the sentence, and thereafter the prosecution may likewise address the court.
306. (1) If sentence is not passed on an accused immediately on conviction in a magistrate’s court, or if, by reason of any decision or order of the High Court on appeal, review or otherwise, it is necessary to add to or vary any sentence passed in a magistrate’s court or to pass sentence afresh in that court, any magistrate of that court may, in the absence of the magistrate who convicted the accused or passed the sentence and after consideration of the evidence recorded and in the presence of the accused, pass sentence on the accused or take such other steps as the magistrate who is absent could lawfully have taken in the proceedings in question if he or she had not been absent.
and that judge is for any reason not available, any other judge of the High Court may, after consideration of the evidence recorded and in the presence of the accused, sentence the accused or take such other steps as the judge who is not available could lawfully have taken in the proceedings in question if he or she had been available.
307. (1) Subject to this Act or any other law, including the common law, the following sentences may be imposed on a person convicted of an offence:
308. (1) Punishment may only be imposed under section 307(1)(d)
(d) When a court reconsiders a sentence under this subsection, it has the same powers as it would have had if it were considering sentence after conviction of a person, and the procedure adopted at such proceedings applies with the necessary changes during such reconsideration.
309. (1) In this section “parole or probation or remission of sentence” means parole or probation or remission of sentence contemplated in Part XII of the Prisons Act, 1998 (Act No. 17 of 1998), but does not include a pardon or reprieve contemplated in section 93 of that Act.
(i) when committed in any of the circumstances contemplated in Part I of Schedule 5, sentence that person to life imprisonment without the prospect of parole or probation or remission of sentence; or
(ii) when committed in circumstances other than those contemplated in Part I or II of Schedule 5, sentence that person to life imprisonment with the prospect of parole or probation or remission of sentence after having served a period of imprisonment of not less than 15 years.
(4) Notwithstanding anything to the contrary in any other law contained but subject to subsections (5) and (7), a divisional court or the High Court, including where a matter has been referred under section 133(1) to the High Court for sentence, must in respect of a person who has been convicted of an offence referred to in
(iii) a third or subsequent offender of any such offence, to imprisonment for a period of not less than 10 years,
but the maximum sentence that a divisional court may impose in terms of this subsection may not be more than five years longer than the minimum sentence that it may impose in terms of this subsection.
(6) The operation of a minimum sentence imposed in terms of this section may, notwithstanding section 322(5), not be suspended as contemplated in that section, but, if the sentence imposed in terms of this section exceeds such minimum sentence, the operation of that part of the sentence so imposed that exceeds such minimum sentence may, either in whole or in part, be suspended as contemplated in section 322(5).
310. (1) When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence that person to such several punishments for such offences or to the punishment for such other offence, as the court is competent to impose.
311. In construing a provision of any law (not being an Act of Parliament passed on or after 21 March 1990, or anything enacted by virtue of powers conferred by such an Act), in so far as it prescribes or confers the powers to prescribe a punishment for any offence, any reference in that law
312. When a sentence of imprisonment, imposed on a person on conviction for an offence, is set aside on appeal or review and any sentence of imprisonment or other sentence of imprisonment is thereafter imposed on that person in respect of that offence in place of the sentence of imprisonment imposed on conviction, or any other offence that is substituted for that offence on appeal or review, the sentence that was later imposed may, if the court imposing it is satisfied that the person concerned has served any part of the sentence of imprisonment imposed on conviction, be antedated by the court to a specified date, which may not be earlier than the date on which the sentence of imprisonment imposed on conviction was imposed, and thereupon the sentence that was later imposed is deemed to have been imposed on the date so specified.
313. No person may be sentenced by a court to imprisonment for a period of less than four days unless the sentence is that the person concerned be detained until the rising of the court.
314. (1) A court convicting a person of any offence, other than an offence in respect of which any law prescribes a minimum punishment, may, instead of any other punishment, sentence that person to undergo in accordance with the laws relating to prisons, periodical imprisonment for a period of not less than 100 hours and not more than 2 000 hours.
(a) to be served on that person.
(3) A copy of the notice issued under subsection (2) serves as a warrant for the reception into custody of the convicted person by the officer referred to in paragraph (a) of that subsection.
commits an offence and is liable on conviction to imprisonment for a period not exceeding six months.
(5) If, before the expiration of a sentence of periodical imprisonment imposed on a person for an offence, that person is undergoing a punishment of any other form of detention imposed by a court, a magistrate before whom that person is brought, must set aside the unexpired portion of the sentence of periodical imprisonment and, after considering the evidence recorded in respect of that offence, may impose instead of such unexpired portion any punishment within the limits of his or her jurisdiction and of any punishment prescribed by any law as a punishment for that offence.
315. (1) Subject to subsection (2), the High Court or a divisional court that convicts a person of one or more offences, may, if it is satisfied that that person has previously been convicted and sentenced to imprisonment on more than five occasions for any offence, and that the community should be protected against that person, declare that person a habitual criminal in addition to the imposition of any other punishment for the offence or offences of which he or she is so convicted.
.
(3) A person declared a habitual criminal must be dealt with in accordance with the laws relating to prisons.
316. (1) When a court convicts a person of any offence punishable by a fine (whether with or without any other direct or alternative punishment), it may, in imposing a fine on that person, impose, as a punishment alternative to such fine, a sentence of imprisonment of any period within the limits of its jurisdiction, but the period of such alternative sentence of imprisonment may not, either alone or together with any period of imprisonment imposed as a direct punishment, exceed the longest period of imprisonment prescribed by any law as a punishment (whether direct or alternative) for such offence.
(2) When a court has imposed on a person a fine without an alternative sentence of imprisonment and the fine is not paid in full or is not recovered in full in accordance with section 317, the court that passed sentence on that person may issue a warrant directing that that person be arrested and brought before the court, which may thereupon sentence that person to such term of imprisonment as could have been imposed on him or her as an alternative punishment under subsection (1).
317. (1) (a) When a person is sentenced to pay a fine without an alternative period of imprisonment, the court passing the sentence may issue a warrant addressed to the sheriff or messenger of the court authorizing him or her to levy, in default of payment by that person of the fine, the amount of the fine by attachment and sale of any movable property belonging to that person.
(b) The amount that may be levied must be sufficient to cover, in addition to the fine, the costs and expenses of the warrant and of the attachment and sale thereunder.
318. Where a person is sentenced to pay a fine without an alternative period of imprisonment, the court may, without prejudice to any other power under this Act relating to the payment of a fine, enforce payment of the fine, whether as to the whole or any part thereof
319. (1) A court in which a person under the age of 18 years is convicted of any offence may, instead of imposing punishment on that person for that offence
may, instead of imposing punishment on that person for that offence, order that that person be placed under the supervision of a probation officer.
320. A person who has been dealt with in terms of section 319 remains under the supervision under which or in the custody in which that person was placed
(a) if at the time of the making of the order of the court that person was under the age of 16 years, until he or she attains the age of 18 years;
or, in any case, until that person is discharged or released on licence in accordance with the Children’s Act, 1960 (Act No. 33 of 1960), before having attained the prescribed age.
321. A court convicting a person of any offence may, in addition to or instead of any sentence in respect of that offence, order that that person be detained at a rehabilitation centre established by or under any law if the court is satisfied from the evidence or from any other information placed before it, which must include a report of a probation officer or a social worker, that that person is a person who is in need of treatment provided in that rehabilitation centre, but such an order may not be made in addition to any sentence of imprisonment (whether direct or as an alternative to a fine) unless the operation of the whole of such sentence is suspended.
322. (1) When a court convicts a person of any offence, other than an offence in respect of which this Act or any other law prescribes a minimum sentence, the court may
(a) postpone for a period not exceeding five years the passing of sentence and release the person concerned
(i) on one or more conditions whether as to
(aa) compensation;
(bb) the rendering to the person aggrieved of some specific benefit or service instead of compensation for damage or pecuniary loss;
(cc) the performance without remuneration and outside a prison of some service for the benefit of the community under the supervision or control of an organization or institution which, or person who, in the opinion of the court, promotes the interests of the community (in this section referred to as community service);
(dd) submission to correctional supervision;
(ee) submission to instruction or treatment;
(ff) submission to the supervision or control (including control over the earnings or other income of the person concerned) of a probation officer;
(gg) the compulsory attendance or residence at some specified centre for a specified purpose;
(hh) good conduct;
(ii) any other matter,
and order that person to appear before the court at the expiration of the relevant period; or
(ii) unconditionally, and order that person to appear before the court if called upon before the expiration of the relevant period; or
whether differently constituted or not, or any court of equal or superior jurisdiction may, if satisfied that the person concerned has through circumstances beyond his or her control been unable to comply with any relevant condition, or for any other good and sufficient reason, further postpone the passing of sentence or further suspend the operation of a sentence or the payment of a fine subject to any existing condition or such further conditions as could have been imposed at the time of such postponement or suspension.
on condition that the person concerned must perform community service, or submit himself or herself to instruction or treatment or to the supervision or control of a probation officer, or attend or reside at a specified centre for a specified purpose, may, whether or not the court is constituted differently than it was at the time of such postponement or suspension, at any time during the period of postponement or suspension on good cause shown, amend any such condition or substitute any other competent condition for such condition, or cancel the order of postponement or suspension and impose a competent sentence or put the suspended sentence into operation.
commits an offence and is liable on conviction to imprisonment for a period not exceeding six months.
(12) (a) If a condition imposed under this section is not complied with, the person concerned may on the order of any court, or, if it appears from information under oath or affirmation that the person concerned has failed to comply with such condition, on the order of a magistrate or judge, be arrested or detained and, where the condition in question
and that court, whether or not it is, in the case of a court other than a court of equal or superior jurisdiction, constituted differently than it was at the time of such postponement or suspension, may then, in the case of subparagraph (i), impose any competent sentence, which may, where the person concerned is under the age of 21 years, include an order under section 319, or, in the case of subparagraph (ii), put into operation the sentence that was suspended.
(b) A person who has been called upon under paragraph (a)(ii) of subsection
(1) to appear before the court may, on the order of the court in question, be arrested and brought before that court, and that court, whether or not constituted differently than it was at the time of the postponement of sentence, may impose on that person any competent sentence.
323. (1) The Minister acting under a delegation in terms of Article 32(3)(e) of the Namibian Constitution may, on such conditions as the Minister may consider necessary, enter into an international agreement with any state, so as to provide, on a reciprocal basis, for the putting into operation of suspended sentences in respect of persons convicted, within the jurisdiction of Namibia or of such state, of any offence mentioned in the agreement.
324. (1) When by mistake a wrong sentence is passed, the court may, before or immediately after it is recorded, correct the sentence subject to subsection (2).
(2) A wrong sentence may be corrected under subsection (1) only where it is passed in consequence of a mistake inherent in the sentence that does not relate to the merits of the particular case.
325. A warrant for the execution of a sentence may be issued by the judge or magistrate who passed the sentence or by any other judge or magistrate of the court in question, or, in the case of a divisional court, by any magistrate, and that warrant commits the person concerned to the prison for the magisterial district in which that person is sentenced.
CHAPTER 35
COMPENSATION AND RESTITUTION
Court may award compensation or order restitution where offence caused injury, damage or loss
326. (1) (a) Where a person is convicted by the High Court or a magistrate’s court of an offence against the person or against property and it has been proved during the trial of that person that the act or omission constituting the offence caused injury, damage or loss, whether patrimonial or otherwise, to the victim of that offence, the court must, subject to section 24(2) of the Community Courts Act, 2003 (Act No. 10 of 2003), on the application of the victim or of the victim’s legal practitioner or the prosecutor acting on the instructions of the victim, award the victim compensation for that injury, damage or loss, or make an order of restitution in respect of the property involved in the offence, but
(iii) where a person is convicted under section 25(1) of the Children’s Act, 1960 (Act No. 33 of 1960), of having conduced to the commission of an offence, the court may make such an award or order against that person notwithstanding that the victim has not applied for compensation.
(b) Subparagraph (ii) of paragraph (a) does not apply where the court makes an order for the restitution of property.
327. Where a person is convicted of theft or any other offence whereby that person has unlawfully obtained any property, and it appears to the court on the evidence that that person sold that property or part thereof to another person who had no knowledge that the property was stolen or unlawfully obtained, the court may, on the application of the purchaser and on restitution of that property to the owner thereof, order that, out of money belonging to the convicted person taken from him or her on his or her arrest, a sum not exceeding the amount paid by the purchaser be returned to the purchaser.
CHAPTER 36
REVIEWS AND APPEALS IN CASES OF CRIMINAL
PROCEEDINGS IN MAGISTRATES’ COURTS
Sentences subject to review in the ordinary course
328. (1) (a) A sentence imposed by a district court
(i) which, in the case of imprisonment, exceeds a period of three months if imposed by a magistrate who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds a period of six months if imposed by a magistrate who has held the substantive rank of magistrate or higher for a period of seven years or longer; or
(ii) which, in the case of a fine, exceeds the amount of N$3 000 if imposed by a magistrate who has not held the substantive rank of magistrate or higher for a period of seven years, or which exceeds the amount of N$6 000 if imposed by a magistrate who has held the substantive rank of magistrate or higher for a period of seven years or longer,
is subject in the ordinary course to review by a judge of the High Court.
(b) Paragraph (a) is suspended in respect of an accused who has appealed against a conviction or sentence and has not abandoned the appeal, and ceases to apply to such an accused when judgment on appeal is given.
329. The clerk of the court in question must, within 30 working days after the determination of a case referred to in section 328(1)(a), forward to the registrar the record of the proceedings in the case or a copy thereof certified by such clerk, together with such written remarks as the presiding magistrate may wish to add to his or her judgment, and with any written statement or argument that the person convicted may, within 14 working days after imposition of the sentence, furnish to the clerk of the court, and the registrar must, as soon as practicable, lay the same in chambers before a judge for his or her consideration.
330. (1) If, on considering the proceedings referred to in section 329 and any further information or evidence that may, by direction of the judge, be supplied or taken by the district court in question, it appears to the judge that the proceedings are in accordance with justice, the judge must endorse his or her certificate to that effect on the record thereof, and the registrar must then return the record to the district court in question.
(i) either
(aa) confirm, alter or quash the conviction, and in the event of the conviction being quashed, where the accused was convicted on one of two or more alternative charges, convict the accused on the other alternative charge or on one or other of the alternative charges;
(bb) confirm, reduce, alter or set aside the sentence or any order of the district court;
(cc) set aside or correct the proceedings of the district court;
(dd) generally give such judgment or impose such sentence or make such order as the district court ought to have given, imposed or made on any matter that was before it at the trial of the case in question; or
(ee) remit the case to the district court with instructions to deal with any matter in such manner as the High Court may think fit; and
(ii) make any such order in regard to the suspension of the execution of any sentence against the person convicted or the admission of that person to bail, or, generally, in regard to any matter or thing connected with that person or the proceedings in regard to that person as to the High Court seems likely to promote the ends of justice.
331. (1) If a district magistrate or a divisional magistrate after conviction but before sentence is passed is of the opinion that the proceedings in respect of which he or she brought in a conviction are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he or she must, without sentencing the accused, record the reasons for his or her opinion and transmit them, together with the record of the proceedings, to the registrar, and the registrar must, as soon as practicable, lay the same for review in chambers before a judge, who has the same powers in respect of such proceedings as if the record thereof had been laid before the judge in terms of section 329.
(2) When a district magistrate or a divisional magistrate acts in terms of subsection (1), he or she must inform the accused accordingly and adjourn the case to some future date pending the outcome of the review proceedings and, if the accused is in custody, the district magistrate or divisional magistrate may make such order with regard to the detention or release of the accused as he or she may think fit.
332. (1) A district court imposing a sentence that under section 328 is subject to review, must immediately inform the person convicted that the record of the proceedings will be transmitted within 30 working days, and that person may then inspect and make a copy of such record before transmission or whilst in the possession of the registrar, and may set down the case for argument before the High Court in like manner as if the record had been returned or transmitted to the High Court in compliance with any order made by it for the purpose of bringing in review the proceedings of a district court.
333. (1) The execution of a sentence is not suspended by the transmission of or the obligation to transmit the record for review unless the court that imposed the sentence releases the person convicted on bail.
(3) It must be a condition of the release of the person convicted that that person must
surrender himself or herself in order that effect may be given to any sentence in respect of the proceedings in question.
(5) The court may add any condition of release on bail that it may consider necessary or advisable in the interests of justice, among others, as to
(a) | the reporting in person by the person convicted at any specified time and |
place to any specified person or authority; | |
(b) | any place to which such person is prohibited to go; |
(c) | any other matter relating to the conduct of such person. |
(6) | The court considering an application for bail under this section must record |
the relevant proceedings in full, including the details referred to in subsection (3) and any conditions imposed under subsection (5).
(7) Sections 66, 67, 68, 70 and 73 apply with the necessary changes in respect of the granting of bail pending review.
334. The execution of a sentence of correctional supervision is not suspended by the transmission of the record for review in terms of section 330(4) unless the court which imposed the sentence releases the person convicted
335. (1) A person convicted of an offence by a magistrate’s court (including a person discharged after conviction) may appeal against that conviction and against any resultant sentence or order to the High Court.
333.
336. An accused who is unrepresented at the time he or she is convicted and sentenced, must be informed by the presiding magistrate of his or her rights in respect of appeal and of the correct procedures to give effect to those rights.
337. (1) The Prosecutor-General or, if a body or a person other than the Prosecutor-General or his or her representative was the prosecutor in the proceedings, then such other prosecutor, may appeal against any decision given in favour of an accused in a criminal case in a magistrate’s court, including
to the High Court, provided an application for leave to appeal has been granted by a judge of the High Court in chambers.
(8) For the purposes of paragraph (a) of subsection (1), any reference in that subsection to an accused is to be construed as including a reference to any person, other than the accused, who claims that any right is vested in him or her in respect of any matter or article declared forfeited by the magistrate’s court as if it were a decision by that court, and that appeal may be heard either separately or jointly with an appeal against a decision as a result whereof the declaration of forfeiture was made.
338. (1) Where the High Court on appeal, whether brought by the Prosecutor-General or other prosecutor or the accused, gives a decision in favour of the Prosecutor-General or other prosecutor or the accused, the Prosecutor-General or other prosecutor or the accused against whom the decision is given may appeal to the Supreme Court which must, if it decides the matter in issue in favour of the appellant, set aside or vary the decision appealed from and, if the matter was brought before the High Court under
339. (1) Where a conviction and sentence under section 125 are set aside on review or appeal on the ground that any provision of subsection (1)(b) or (2) of that section was not complied with, or on the ground that section 126 should have been applied, the court in question must remit the case to the court by which the sentence was imposed and direct that court to comply with the provision in question or to act in terms of section 126.
(2) When the provision referred to in subsection (1) is complied with and the magistrate is after such compliance not satisfied as is required by section 125(1)(b) or section 125(2), whichever may be applicable, the magistrate must enter a plea of not guilty, whereupon section 126 applies in respect of the matter.
340. Section 351 applies with the necessary changes in respect of any conviction and sentence of a magistrate’s court that are set aside on appeal or review on any ground referred to in that section.
341. (1) Where a sentence or order imposed or made by a magistrate’s court is set aside on appeal or review and the person convicted is not in custody and the court setting aside the sentence or order remits the matter to the magistrate’s court in order that a fresh sentence or order may be imposed or made, the presence before that court of the person convicted may be obtained by means of a written notice addressed to that person calling upon that person to appear at the stated place and time on a stated date in order that such sentence or order may be imposed or made.
(2) Sections 56(2) and 57(1), (2) and (3) apply with the necessary changes in respect of a written notice issued under subsection (1).
CHAPTER 37
APPEALS IN CASES OF CRIMINAL
PROCEEDINGS IN HIGH COURT
Court of appeal in respect of High Court judgments
342. (1) In respect of appeals and questions of law reserved in connection with criminal cases heard by the High Court, the court of appeal is the Supreme Court.
(2) An appeal referred to in subsection (1) lies to the Supreme Court only as provided in sections 343 to 347, inclusive, and not as of right.
343. (1) An accused convicted of an offence before the High Court may, within 14 days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply to the judge who presided at the trial or, if that judge is not available, to any other judge of the High Court for leave to appeal against his or her conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of an offence before the High Court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.
(a) | that further evidence that would presumably be accepted as true, is available; |
(b) | that, if accepted, the evidence could reasonably lead to a different verdict or sentence; and |
(c) | except in exceptional cases, that there is a reasonably acceptable explanation for the failure to produce the evidence before the close of the trial, |
the High Court hearing the application may receive that evidence and further evidence rendered necessary thereby, including evidence in rebuttal called by the prosecutor and evidence called by that Court.
(4) Any evidence received in pursuance of an application under subsection (1) for leave to appeal, is for the purposes of an appeal deemed to be evidence taken or admitted at the trial.
(10) Notice must be given to the Prosecutor-General and the accused of the date fixed for the hearing of an application under this section, and of the place appointed under subsection (8) for a hearing.
344. (1) The Prosecutor-General or, if a body or a person other than the Prosecutor-General or his or her representative was the prosecutor in the proceedings, then such other prosecutor, may appeal against any decision given in favour of an accused in a criminal case in the High Court, including
to the Supreme Court.
345. (1) If an accused thinks that any of the proceedings in connection with or during his or her trial before the High Court are irregular or not according to law, the accused may, either during his or her trial or within 14 days after his or her conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply for a special entry to be made on the record (in this section referred to as an application for a special entry) stating in what respect the proceedings are alleged to be irregular or not according to law, and such special entry must, on such application for a special entry, be made unless the court to which or the judge to whom the application for a special entry is made is of the opinion that the application is not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of the court.
346. (1) If a special entry under section 345 is made on the record, the person convicted may appeal to the Supreme Court against his or her conviction on the ground of the irregularity or illegality stated in the special entry if, within 21 days after entry is so made or within such extended period as may on good cause be allowed, notice of appeal has been given to the registrar of the Supreme Court and to the registrar of the High Court.
(2) The registrar of the High Court must immediately after receiving the notice of appeal in terms of subsection (1) give notice thereof to the Prosecutor-General and transmit to the registrar of the Supreme Court a certified copy of the record, including copies of the evidence, whether oral or documentary, taken or admitted at the trial and of the special entry, but with the consent of the person convicted and the Prosecutor-General, the registrar of the High Court may, instead of transmitting the whole record, transmit copies, one of which must be certified, of such parts of the record as may be agreed on by the person convicted and the Prosecutor-General to be sufficient, in which event the Supreme Court may nevertheless call for the production of the whole record.
347. (1) If a question of law arises at the trial in the High Court of a person for an offence, the High Court may, of its own motion or at the request of the prosecutor or the accused, reserve that question for the consideration of the Supreme Court, and thereupon the High Court must state the question reserved and direct that it be specially entered in the record and that a copy thereof be transmitted to the registrar of the Supreme Court.
348. The judge or judges of the High Court before whom a person was on trial for an offence must, in the case of an appeal under section 343 or 344 or of an application for a special entry under section 345 or the reservation of a question of law under section 347 or an application to the Supreme Court for leave to appeal or for a special entry under this Act, furnish to the registrar of the High Court a report giving his or her or their opinion on the case or on any point arising in the case, and such report, which forms part of the record, must immediately be transmitted by the registrar of the High Court to the registrar of the Supreme Court.
349. (1) The execution of the sentence of the High Court is not suspended by reason of any appeal or by reason of any question of law having been reserved for consideration by the Supreme Court unless the High Court thinks fit to order that the accused be released on bail or that the accused be treated as an unconvicted prisoner until the appeal or the question reserved has been heard and decided, but
(2) If the High Court under subsection (1) orders that the accused be released on bail, sections 70, 71, 73 and 333(2), (3), (4), (5) and (6) apply with the necessary changes in respect of bail so granted, and any reference in
350. (1) In the case of an appeal or of any question of law reserved, the Supreme Court may
but, notwithstanding that the Supreme Court is of the opinion that a point raised might be decided in favour of the accused, no conviction or sentence may be set aside or altered by reason of an irregularity or defect in the record or proceedings unless it appears to the Supreme Court that a failure of justice has in fact resulted from that irregularity or defect.
Institution of proceedings anew when conviction set aside on appeal
351. | When a conviction and sentence are set aside by the Supreme Court on the |
ground | |
(a) | that the court that convicted the accused was not competent to do so; or |
(b) | that the indictment on which the accused was convicted was invalid or |
defective in any respect; or | |
(c) | that there has been any other technical irregularity or defect in the procedure, |
proceedings in respect of the same offence to which the conviction and sentence referred may again be instituted either on the original charge, suitably amended where necessary, or on any other charge as if the accused had not previously been arraigned, tried and convicted, but no judge or assessor before whom the original trial took place may take part in such proceedings.
CHAPTER 38 GENERAL PROVISIONS
352. A warrant, subpoena, summons or other process relating to any criminal matter is of force throughout Namibia and may be executed anywhere within Namibia.
353. A member of the police is, subject to the rules of court, qualified to serve or execute a subpoena or summons or other document under this Act as if he or she had been appointed deputy sheriff or deputy messenger or other like officer of the court.
354. A document, order or other court process that under this Act or the rules of court is required to be served or executed with reference to a person, may be transmitted by facsimile or telegraph or similar written or printed communication, and a copy of such facsimile, telegraph or communication, served or executed in the same manner as the original document, order or other court process is required to be served or executed, is of the same force and effect as if the document, order or other court process in question had itself been served or executed.
355. A person who acts under a warrant or process that is bad in law on account of a defect in the substance or form thereof is, if he or she has no knowledge that the warrant or process is bad in law and whether or not such defect is apparent on the face of the warrant or process, exempt from liability in respect of that act as if the warrant or process were good in law.
356. (1) In this section “director”, in relation to a corporate body, means a person who controls or governs that corporate body or who is a member of a body or group of persons that controls or governs that corporate body or, where there is no such body or group, who is a member of that corporate body.
(2) For the purpose of imposing on a corporate body criminal liability for an offence, whether under a statute or at common law
in the exercise of his or her powers or in the performance of his or her duties as such a director or employee or in furthering or in endeavouring to further the interests of that corporate body, is deemed to have been performed ( and with the same intent, if any) by that corporate body or to have been an omission (and with the same intent, if any) on the part of that corporate body.
(3) In any prosecution against a corporate body, a director or employee of that corporate body must be cited, as representative of that corporate body, as the offender, and thereupon the person so cited may, as such representative, be dealt with as if he or she were the person accused of having committed the offence in question, but
357. When a decision in a criminal case on a question of law is given by the High Court that is in conflict with a previous decision in a criminal case on a question of law given by the High Court, the Attorney-General may submit such conflicting decisions to the Supreme Court and cause the matter to be argued before the Supreme Court in order that it may determine that question of law for the future guidance of all courts.
358. (1) (a) The Minister may by notice in the Gazette declare that a person who by virtue of his or her office falls within any category specified in that notice, is, within an area specified in that notice, a peace officer for the purpose of exercising, with reference to any provision of this Act or any offence or any class of offences likewise specified, the powers specified in that notice.
(4) Where the employer of a person who becomes a peace officer under this section would be liable for damages arising out of any act or omission by that person in the discharge of any power conferred on him or her under this section, the State is not liable for such damages unless the State is the employer of that person, in which event the office, ministry or agency in whose service that person is, is so liable.
359. When a person has in relation to any matter made to a peace officer a statement in writing or a statement that was reduced to writing, and criminal proceedings are thereafter instituted against that person in connection with that matter, the person in possession of that statement must furnish the person who made the statement, at his or her request, with a certified copy of the statement.
360. (1) No person may, with regard to an offence referred to in paragraph (a), (b) or (c) of section 175(4), as from the date on which the offence in question was committed or allegedly committed until the prohibition in terms of section 176(2)(c) of the publication of information contemplated in that section commences, publish any information that might reveal the identity of the person towards or in connection with whom the offence was committed or allegedly committed, except with the authorization of a magistrate granted, on application in chambers, with due regard to the wishes of the person towards or in connection with whom the offence was committed.
361. (1) If a member of the police charged with the investigation of a case is of the opinion that it is necessary that a minor in respect of whom it is alleged that an offence of a sexual or indecent or violent nature has been committed be examined by a district surgeon or, if a district surgeon is not available, by a registered medical practitioner, but that the parent or guardian of that minor
(a) | cannot be traced within a reasonable time; |
(b) | cannot grant consent in time; |
(c) | is a suspect in respect of the offence in consequence of which the examination |
must be conducted; | |
(d) | unreasonably refuses to consent that the examination be conducted; |
(e) | is incompetent on account of mental disorder to consent that the examination |
be conducted; or | |
(f) | is deceased, |
a magistrate may, on the written application of that member of the police and if the magistrate is satisfied that the medical examination is necessary, grant the necessary consent that such examination be conducted.
(2) If a magistrate is not available to grant consent as contemplated in subsection (1), a member of the police of the rank of commissioned officer or the member of the police in charge of the local police station may in writing grant such consent if the member of the police charged with the investigation of the case declares under oath or affirmation that the consent of a magistrate cannot be obtained within a reasonable period of time and the district surgeon or registered medical practitioner declares under oath or affirmation that the purpose of the medical examination will be defeated if the examination is not conducted immediately.
362. Where an act or omission constitutes an offence under two or more statutory provisions or is an offence under a statute and at common law, the person alleged to have committed that act or omission is, unless the contrary intention appears, liable to be prosecuted and punished under either statutory provision or under the statute or at common law, but is not liable to more than one punishment for the act or omission constituting the offence.
363. If in criminal proceedings the age of a person is a relevant fact of which no or insufficient evidence is available at such proceedings, the presiding judge or magistrate may estimate the age of that person by his or her appearance or from any information that may be available, and the age so estimated is deemed to be the correct age of that person unless
364. Where a law requires a person to produce a document at criminal proceedings at which that person is an accused, and that person fails to produce that document at such proceedings, that person commits an offence, and the court may in a summary manner enquire into his or her failure to produce that document and, unless that person satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, sentence him or her to any punishment provided for in that law, or, if no punishment is so provided, to a fine not exceeding N$1 000 or to imprisonment for a period not exceeding three months.
365. When an accused is in custody and it becomes necessary that the accused be removed from one prison to another prison for the purpose of attending his or her trial, the magistrate of the district in which the accused is in custody must issue a warrant for the removal of the accused to such other prison.
366. Every head of a prison within the area for which any session or circuit of the High Court is held for the trial of criminal cases must deliver to that court, at the commencement of each such session or circuit, a list of the unsentenced prisoners who, at such commencement, have been detained within his or her prison for a period of 90 days or longer, and that list must, in respect of each such prisoner, specify the date of his or her admission to the prison, the authority for his or her detention and the cause of his or her detention.
367. (1) If a person receives from a peace officer a notification in writing alleging that that person has committed, at a place and on a date and at a time or during a period specified in the notification, an offence likewise specified, of any class mentioned in Schedule 6, and specifying the amount of the fine that a court trying that person for the offence in question would probably impose on him or her, that person may within 30 days after the receipt of the notification deliver or transmit the notification, together with a sum of money equal to that amount, to the magistrate of the district or area wherein the offence is alleged to have been committed, and thereupon that person may not be prosecuted for having committed that offence.
368. If a person has made a statement on oath, whether orally or in writing, and that person thereafter on another oath makes another statement, whether orally or in writing, that is in conflict with the first-mentioned statement, that person commits an offence and may, on a charge alleging that he or she made the two conflicting statements, and on proof of those two statements and without proof as to which of those statements was false, be convicted, in the absence of evidence that when that person made each statement he or she believed it to be true, of that offence and punished with the penalties that may lawfully be imposed for the offence of perjury.
369. (1) When a complaint on oath is made to a magistrate that a person is conducting himself or herself violently towards, or is threatening injury to the person or property of, another or that that person has used language or behaved in a manner towards another likely to provoke a breach of the peace or assault, the magistrate may, whether such conduct occurred or such language was used or such threat was made in a public or private place, order that person to appear before him or her and, if necessary, may cause that person to be arrested and brought before him or her, and thereupon the magistrate must enquire into and determine on such complaint and may place the parties or any witnesses thereat on oath and may order the person against whom the complaint is made to give for a period not exceeding six months recognizances, with or without sureties, in an amount not exceeding N$5 000 to keep the peace towards the complainant and refrain from doing or threatening injury to the complainant’s person or property.
370. Subject to section 326(6)(b), a conviction or an acquittal in respect of an offence does not bar a civil action for damages at the instance of a person who has suffered injury, damage or loss in consequence of the commission of that offence.
371. (1) A court before which criminal proceedings are pending must investigate any delay in the completion of proceedings that appears to the court to be unreasonable and that could cause substantial prejudice to the prosecution, the accused or his or her legal practitioner, the State or a witness.
(2) In considering the question whether any delay is unreasonable, the court must consider the following factors:
(a) | The duration of the delay; |
(b) | the reasons advanced for the delay; |
(c) | whether any person is responsible for the delay; |
(d) | the effect of the delay on the personal circumstances of the accused and witnesses; |
(e) | the seriousness, extent or complexity of the charge or charges; |
(f) | actual or potential prejudice caused to the State or the defence by the delay, including a weakening of the quality of evidence, the possible death or disappearance or non-availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost; |
(g) | the effect of the delay on the administration of justice; |
(h) | the adverse effect on the interests of the public or the victims in the event of |
the prosecution being stopped or discontinued; | |
(i) | any other factor that in the opinion of the court ought to be taken into account. |
(3) | If the court finds that the completion of the proceedings is being delayed |
unreasonably, the court may issue such order as it considers fit to eliminate the delay and any prejudice arising from it or to prevent further delay or prejudice, including an order
(6) If, on notice of motion, it appears to the High Court that the institution or continuance of criminal proceedings is being delayed unreasonably in a magistrate’s court that is seized with a case but does not have jurisdiction to try the case, the High Court may, with regard to such proceedings, institute the investigation contemplated in subsections (1) and (2) and issue any order contemplated in subsection (3) to the extent that it is applicable.
372. (1) Subject to subsection (2), the laws mentioned in Schedule 7 are repealed or amended to the extent indicated in the third column thereof.
373. (1) This Act is called the Criminal Procedure Act, 2004, and comes into operation on a date determined by the Minister by notice in the Gazette.
(2) Different dates may be determined under subsection (1) in respect of different provisions of this Act.
(Sections 38, 42, 44, 63 and 112 and Schedules 3, 4 and 5)
Treason.
Sedition.
Public violence.
Murder.
Culpable homicide.
Rape, whether under a statute or at common law.
Indecent assault.
Sodomy.
Bestiality.
Robbery.
Assault, when a dangerous wound is inflicted.
Kidnapping.
Childstealing.
Arson.
Malicious injury to property.
Breaking or entering any premises, whether under a statute or at common law, with
intent to commit an offence.
Theft, whether under a statute or at common law.
Receiving stolen property knowing it to have been stolen.
Fraud.
Forgery or uttering a forged document knowing it to have been forged.
An offence relating to the illicit dealing in or smuggling of ammunition, firearms,
explosives or armament.
An offence relating to the smuggling of migrants or trafficking in persons.
An offence relating to money laundering.
An offence relating to the coinage.
Any offence, except the offence of escaping from lawful custody in circumstances other
than the circumstances referred to immediately hereunder, the punishment wherefor may
be a period of imprisonment exceeding six months without the option of a fine.
Escaping from lawful custody, where the person concerned is in such custody in respect
of an offence referred to in this Schedule or is in such custody in respect of the offence of
escaping from lawful custody.
Any conspiracy, incitement or attempt to commit an offence referred to in this Schedule.
(Section 35(1)(b))
An offence under any law relating to the illicit possession, conveyance or supply of
intoxicating liquor or dependence-producing drugs or substances.
An offence under any law relating to the illicit dealing in or possession of precious
metals or precious stones.
An offence under any law relating to the illicit dealing in or smuggling of ammunition,
firearms, explosives or armament.
An offence under any law relating to the smuggling of migrants or trafficking in persons.
Breaking or entering any premises, whether under a statute or at common law, with
intent to commit an offence.
Theft, whether under a statute or at common law.
(Sections 61, 62(1), 63(12) and 78(1) and Schedule 4)
Treason. Sedition. Public violence. Murder.
Rape, whether under a statute or at common law.
Indecent assault on a child under the age of 16 years.
Robbery.
Assault, when a dangerous wound is inflicted.
Kidnapping.
Childstealing.
Arson.
Breaking or entering any premises, whether under a statute or at common law, with
intent to commit an offence.
Housebreaking, whether under a statute or at common law, with intent to commit an
offence.
Theft, whether under a statute or at common law, or receiving stolen property knowing it
to have been stolen, in each case
(iii) a firearm. An offence relating to exchange control, corruption, extortion, fraud, forgery or uttering, in each case where the amount or value involved in the offence exceeds N$10 000. An offence under any law relating to the illicit dealing in or possession of precious metals or precious stones, in each case where the value involved in the offence exceeds N$5 000. An offence under any law relating to the illicit
(Sections 61 and 63(12)) Murder, when
(i) is a child
(aa) under the age of 16 years; or
(bb) of or over the age of 16 years, but under the age of 18 years, and the accused is the victim’s parent, guardian or caretaker or is otherwise in a position of trust or authority over the victim;
(ii) is, in circumstances other than those contemplated in subparagraph (i), due to age rendered particularly vulnerable;
(iii) is a physically disabled person who, due to physical disability, is rendered particularly vulnerable; or
(iv) is a mentally ill person as contemplated in section 1 of the Mental Health Act, 1973 (Act No. 18 of 1973); or
by the accused or any of the co-perpetrators or participants on the occasion when the offence is committed, whether before or during or after the commission of the offence; or
(Section 309(3) and (4)) PART 1
Treason, when committed in circumstances that caused death or grievous bodily harm to another person or serious damage to property. Murder, when
(i) is a child
(aa) under the age of 16 years; or
(bb) of or over the age of 16 years, but under the age of 18 years, and the accused is the victim’s parent, guardian or caretaker or is otherwise in a position of trust or authority over the victim;
(ii) is, in circumstances other than those contemplated in subparagraph (i), due to age rendered particularly vulnerable;
(iii) is a physically disabled person who, due to physical disability, is rendered particularly vulnerable; or
(iv) is a mentally ill person as contemplated in section 1 of the Mental Health Act, 1973 (Act No. 18 of 1973); or
by the accused or any of the co-perpetrators or participants on the occasion when the offence is committed, whether before or during or after the commission of the offence; or
Theft of
PART III
Indecent assault on a child under the age of 16 years, involving the infliction of bodily harm.
Assault with intent to do grievous bodily harm on a child under the age of 16 years.
An offence in contravention of section 33 of the Arms and Ammunition Act, 1996 (Act No. 7 of 1996), on account of being in possession of more than 1 000 rounds of ammunition intended for firing in an arm contemplated in section 38(2)(b)(i) of that Act.
PART IV
Arson.
Theft or fraud involving money or other property belonging to the State or a State-owned enterprise, committed in circumstances other than those contemplated in Part II, if it is proved that any such offence was committed by a person who, at the time of the commission of the offence, was in the employment of the State or a State-owned enterprise.
Any offence referred to in Schedule 1, other than
if the accused, at the time of the commission of that offence, had with him or her a firearm that was intended for use in the commission of the offence.
(Section 367(1) and (4))
A contravention of any bye-law or regulation made by or for any council, board or committee established by or under any law for the management of the affairs of any city, town, borough, village or other similar community.
Any offence committed by
No.3358 Act No. 25, 2004 | Government Gazette 24 December 2004 CRIMINAL PROCEDURE ACT, 2004 | 203 |
SCHEDULE 7 Laws repealed or amended (Section 372(1)) |
No. and year of law | Short title | Extent of repeal or amendment |
---|---|---|
Ordinance No. 34 of | Criminal Procedure | The repeal of sections 300(3) and 370 |
1963 | Ordinance, 1963 | |
Act No. 18 of 1973 | Mental Health Act, 1973 | 1. The amendment of section 1 (a) by the deletion of the definition of “President’s patient”; (b) by the insertion after the definition of “Secretary” of the following definition: “‘State patient’ means a person detained by order of any court of law or other competent authority at any place pending the decision of a judge in chambers;”; and (c) by the addition of the following subsection, the excisting section becoming subsection (1): “(2) Any reference in any other law or document to the expression ‘President’s patient’ or ‘State President’s patient’ or ‘State President’s decision patient’ shall be construed as a reference to the expression ‘State patient’.”. 2. The substitution for section 17 of the following section: “Official curator ad litem 17. The Prosecutor-General shall be the official curator ad litem of (a) any patient detained under a reception order issued by a magistrate or further detained under the order of a judge under section 19; (b) a State patient; (c) a patient referred to in paragraph (a) or (b) who has been conditionally discharged.”. 3. The substitution for section 29 of the following section: “Discharge of State patient or termination of detention as such 29. (1) (a) Where any person is, with reference to a charge of murder or culpable homicide or rape (whether under a statute or at common law) or any other charge involving serious violence, detained as a State patient in terms of section 84 or 85 of the Criminal Procedure Act, 2004, a judge in chambers may at any time after the order of detention, on written application being made to him or her |
(iii) order that the State patient
(aa) be discharged either absolutely or conditionally;
(bb) no longer be treated as such;
(cc) be further detained as a State patient; or
(dd) be further detained as a patient under Chapter 3;
(aa) application referred to in paragraph (a);
(bb) recommendation referred to in subparagraph (ii) of paragraph (d); or
(cc) reports referred to in paragraphs (d) and (f),
shall be furnished to the registrar of the High Court.
(ii) The registrar of the High Court shall forthwith submit (aa) such application, reports and recommendations to a judge in chambers; and (bb) a copy of the application to the official curator ad litem, if the application is made by someone other than the official curator ad litem. (d) The official curator ad litem shall upon receipt of an application from the registrar of the High Court as soon as practicable (i) obtain reports on the State patient concerned by (aa) the superintendent of the institution concerned, the person in charge of the place where the State patient is being detained or the medical practitioner in charge of that patient; and (bb) two medical practitioners, and either that superintendent or one of those two medical practitioners shall be a psychiatrist, provided that he or she may obtain a report by a registered clinical psychologist in addition to the aforementioned reports; (ii) compile his or her own report and recommendation regarding the application, provided that if it appears to the official curator ad litem upon the receipt of such application that a similar application in respect of the State patient concerned had been rejected by a judge in chambers less than 12 months before the date of the aforementioned application, he or she may, instead of obtaining the reports referred to in subparagraph (i), make a recommendation that the application be rejected; and (iii)furnish such reports and recommendation to the registrar of the High Court for submission to a judge in chambers. (e) The reports referred to in subparagraph (i) of paragraph (d) and subparagraph (i) of paragraph (f) shall contain a detailed history of the State patient and information as to, and a prognosis of, his or her mental condition. (f) The curator ad litem appointed under subparagraph (ii) of paragraph (a), shall (i) obtain a report as contemplated in paragraph (e) by a psychiatrist, but may also obtain a report by a registered clinical psychologist in addition to the report by the psychiatrist; (ii) adduce any available evidence relevant to the application; and |
---|
(iii) perform such other duties as the judge in chambers instructs. (g) A curator ad litem appointed under subparagraph (ii) of paragraph (a) shall be entitled to such remuneration as the Minister may from time to time determine in consultation with the Minister of Finance. (2) Notwithstanding anything to the contrary contained in section 84 or 85 of the Criminal Procedure Act, 2004, the Minister may, after obtaining a report from the hospital board concerned and a report from the official curator ad litem, either absolutely or conditionally order the discharge of a State patient, other than a State patient detained as such in respect of a charge referred to in subsection (1)(a), or order that he or she shall not longer be treated as such. (3) It shall be the function of the official curator ad litem to decide for the purposes of subsections (1)(a) and (2) whether any charge with reference to which a person is detained as a State patient, involves or does not involve serious violence. (4) On receipt of the order of the Minister under subsection (2) that a State patient shall no longer be treated as such, the superintendent of the institution or the person in charge of the place in which the patient is being detained shall forthwith transmit a report as to the condition of the patient to the official curator ad litem, who shall without delay transmit the report, together with such other documents as may be deemed necessary, to the registrar of the High Court for submission to a judge in chambers. (5) The judge may thereupon order the further detention of the person concerned as a patient under Chapter 3, or may make such other order under section 19 as he or she may think fit.”. 4. The substitution for the expression “President’s patient” or “State President’s decision patient”, wherever it occurs, of the expression “State patient”. | ||
Act No. 51 of 1977 | Criminal Procedure Act, 1977 | The repeal of the whole |
Act No. 79 of 1978 | Criminal Procedure Matters Amendment Act, 1978 | The repeal of the whole |
Act No. 56 of 1979 | Criminal Procedure Amendment Act, 1979 | The repeal of the whole |
Act No. 15 of 1981 | Criminal Procedure Amendment Act, 1981 | The repeal of the whole |
Act No. 29 of 1985 | Appeals Amendment Act, 1985 | The repeal of sections 6 to 11, inclusive |
Act No. 31 of 1985 | Criminal Procedure Matters Amendment Act, 1985 | The repeal of the whole |
No.3358 | Government Gazette 24 December 2004 | 207 | |
---|---|---|---|
Act No. 25, 2004 | CRIMINAL PROCEDURE ACT, 2004 | ||
Act No. 5 of 1991 | Criminal Procedure Amendment Act, 1991 | The repeal of the whole | |
Act No. 26 of 1993 | Criminal Procedure Amendment Act, 1993 | The repeal of the whole | |
Act No. 8 of 2000 | Combating of Rape Act, 2000 | The repeal of sections 11 to 18, inclusive | |
Act No. 9 of 2000 | International Co-operation in Criminal Matters Act, 2000 | The amendment of Schedule 2 by the deletion of the entries relating to the Criminal Procedure Act, 1977 | |
Act No. 10 of 2001 | Appeal Laws Amendment Act, 2001 | The repeal of sections 4 and 5 | |
Act No. 4 of 2003 | Combating of Domestic Violence Act, 2003 | The amendment of the Second Schedule by the deletion of the entries relating to the Criminal Procedure Act, 1977 | |
Act No. 24 of 2003 | Criminal Procedure Amendment Act, 2003 | The repeal of the whole |
(Section 39(3)(a))
(Annex additional pages with a reference to the paragraph in question if space in this form is insufficient. Items not applicable should be answered ‘not applicable’.)
1. Reference number ..................................................................................................
2. Offender’s name ....................................................................................................
3. Charge(s) ................................................................................................................
4. Victim (separate forms must be completed in respect of each victim) ...................
................................................................................................................................
5. Additional victim(s)..........Yes/No..................Number of additional victim(s)...........
6. (a) Name of direct victim ..................................................................................
(b) Address of direct victim ...............................................................................
(c) If direct victim is deceased:
(i) Names of dependants(s) .....................................................................
(ii) Address(es) of dependant(s) ..............................................................
............................................................................................................
(d) If indirect victim, such as third party who intervened and suffered harm:
(i) Name(s) of indirect victim(s) .............................................................
(ii) Address(es) of indirect victim(s) .......................................................
............................................................................................................
7. Age..........................................................................................................................
8. Occupation ..............................................................................................................
9. Is compensation sought in accordance with section 326 of the Criminal Procedure Act, 2004? Yes/No
10. Injury suffered:
(a) Full details of injuries (including physical, psychological and emotionan( � brief details of treatment; time spent in hospital; specialist treatment; has treatment ended; residual effects (annex summary of injuries where appropriate) .................................................................................................. ...................................................................................................................... ......................................................................................................................
(b) Where doctor(s) supplied medical report(s): Name, address and contact telephone number of doctor(s) ......................................................................
(c) Does victim consent to access to medical and other reports? Yes/No
(d) Details of estimated damages suffered for physical injury, pain and suffering, shock, loss of earnings and, in the case of victims who are dependants, loss of maintenance:
(i) Pain, suffering, shock .........................................................................
(ii) Medical expenses to date ...................................................................
(iii) Prospective medical expenses ............................................................
(iv) Loss of earnings to date: Time away from work ........................................................................ Prospective loss of earnings ...............................................................
(v) In the case of dependants: Loss of maintenance to date .................................................................... Prospective loss of maintenance ........................................................
(Annex all available medical and other reports and, where necessary, further particulars of method of calculation of damages)
11. Other expenses: Damage to clothes, spectacles, tools of trade, etc. Employment of persons because of injury, counseling expenses, etc. Receipts/valuations to be specified in annex ................................................................................................................................. ................................................................................................................................ ................................................................................................................................
12. Property stolen or damaged:
I declare that the particulars contained in this victim impact statement are correct.
............................................... .................................. Signature or mark of victim Date or other competent person
Oath/Affirmation
1. I certify that before administering the prescribed oath/affirmation I asked the deponent the following questions and wrote down his/her answers in his/her presence:
2. I certify that the deponent has acknowledged that he/she knows and understands the contents of this declaration that was sworn to/affirmed before me and the deponent’s signature/mark was affixed thereto in my presence.
.........................................................
Commissioner of Oaths
Full first names and surname ...............................................................................................
Area ...................................................................................................................................
Designation (if appointment is held ex officio) ................................................................
Street address of institution ..............................................................................................
Date ........................................................ Place ...........................................................
210 | Government Gazette 24 December 2004 | No.3358 |
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Act No. 25, 2004 | CRIMINAL PROCEDURE ACT, 2004 | |
Other relevant particulars |
Name of member of police, legal practitioner or other person who prepared the victim
impact statement or assisted in preparing it (if any) ........................................................
Designation of that person ................................................................................................
Signature of that person ....................................................................................................
Name and rank of investigating officer...............................................................................
Police station ....................................................................................................................
Name of interpreter (if any)...............................................................................................
Designation of interpreter..................................................................................................