To make provision for procedures and related matters in criminal proceedings.

(Signed by the President on 9 December 2004)

ARRANGEMENT OF SECTIONS

Definitions

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

(a)

in relation to an offence of a sexual or indecent nature, a person towards or in connection with whom any such offence is alleged to have been committed, irrespective of whether or not that person has actually laid a complaint or gives evidence in the criminal proceedings in question; or

(b)

in relation to a domestic violence offence, a complainant as defined in section 1 of the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003);

“correctional supervision” means a community-based punishment to which a person is subject in accordance with the laws relating to prisons if

(a)

it has been imposed on that person under section 307(1)(d);

(b)

it is a condition on which the passing of that person’s sentence has been postponed and that person has been released under section 322(1)(a)(i)(dd); or

(c)

it is a condition on which the operation of

(i)

the whole or a part; or

(ii)

only a part,

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

(a)

the spouse of that victim;

(b)

a child of that victim, including a posthumous child, an adopted child and an illegitimate child, who, at the time of the victim’s death, was in fact dependent on the victim; or

(c)

any other person in respect of whom that victim was legally liable for maintenance;

“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

(a)

is the majority or controlling shareholder; or

(b)

has a controlling interest;
“superior court” means the High Court or the Supreme Court;
“Supreme Court” means the Supreme Court of Namibia constituted in terms of Article

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

(a)

any person who suffered any such harm as a result of that person intervening to assist the person in respect of whom the offence was committed; and

(b)

for the purposes of awarding compensation under this Act in respect of public money or other public property stolen, damaged or misappropriated, the State,

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

Delegation of authority to prosecute

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

(a)

conduct any prosecution in criminal proceedings in any court and perform any necessary functions incidental to conducting such prosecution;

(b)

prosecute or defend in any superior court any appeal arising from criminal proceedings.

Power to withdraw charge or stop prosecution

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.

Private prosecution on certificate nolle prosequi

5. (1) In any case in which the Prosecutor-General declines to prosecute for an alleged offence

(a)

any private person who proves some substantial interest in the issue of the trial arising out of some injury that that person individually suffered in consequence of the commission of the said offence;

(b)

a spouse, if the said offence was committed in respect of the other spouse;

(c)

the spouse or child or, if there is no spouse or child, any of the next of kin of any deceased person, if the death of that person is alleged to have been caused by the said offence; or

(d)

the legal guardian or curator of a minor or lunatic, if the said offence was committed against his or her ward,

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.

(2)

(a) No private prosecutor under this section may obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the person authorized by law to issue such process a certificate signed by the Prosecutor-General that he or she has seen the statements or affidavits on which the charge is based and that he or she declines to prosecute at the instance of the State.

(b)

The Prosecutor-General must, in any case in which the Prosecutor-General declines to prosecute

(i)

at the written request of the person intending to prosecute, grant the certificate referred to in paragraph (a);

(ii)

at the written request of any witness who made a statement in writing in relation to the alleged offence or, if authorized thereto in writing by such witness, the person intending to prosecute, furnish that witness or other person with a copy of the statement so made,

within 30 days of receipt of any such request.

(c)

A certificate issued under this subsection lapses unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within six months of the date of the certificate.

(d)

Paragraph (c) applies also in respect of a certificate granted before the commencement of this Act under any law repealed by this Act, and the date of such certificate is for the purposes of this paragraph deemed to be the date of commencement of this Act.

(3)

(a) The Prosecutor-General must as soon as practicable, but not later than six months after receipt of the police docket relating to the investigation in a criminal case, decide whether or not to prosecute, unless the Prosecutor-General is for good reason unable to do so.

(b)

If the Prosecutor-General is unable to make a decision whether or not to prosecute within the period mentioned in paragraph (a), the Prosecutor-General must, at the written request of the person intending to prosecute, give reasons therefor to that person in writing.

(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.

Private prosecution under statutory right

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.

(2)

A body which or person who intends exercising a right of prosecution under subsection (1), may exercise such right only after consultation with the Prosecutor-General and after the Prosecutor-General has withdrawn his or her right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which that body or person may by law exercise such right of prosecution.

(3)

The Prosecutor-General may withdraw his or her right of prosecution under subsection (2) on such conditions as the Prosecutor-General may consider fit, including a condition that the appointment by a body or person referred to in subsection (1) of a prosecutor to conduct a prosecution under that subsection is subject to the approval of the Prosecutor-General, and that the Prosecutor-General may at any time exercise with reference to any such prosecution any power that the Prosecutor-General might have exercised if he or she had not withdrawn the right of prosecution.

Security by private prosecutor

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.

(2)

The accused in respect of whom a private prosecution is instituted may, when called upon to plead to the charge, apply to the court hearing the charge to review the amount determined under subsection (1), whereupon the court may, before the accused pleads

(a)

require the private prosecutor to deposit such additional amount as the court may determine with the district court in which the said amount was deposited; or

(b)

direct that the private prosecutor enter into a recognizance, with or without sureties, in such additional amount as the court may determine.

(3)

Nothing in subsection (1) contained is to be construed as precluding a district court referred to in that subsection from determining, when the interests of justice so require, that no amount is payable as security for costs, in which event subsection (2) applies with the necessary charges.

Private prosecution in name of private prosecutor

8. (1) A private prosecution must be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor.

(2)

The indictment, charge sheet or summons issued must describe the private prosecutor with certainty and precision and must, except in the case of a body referred to in section 6, be signed by the private prosecutor or his or her legal practitioner.

(3)

Two or more persons may not prosecute in the same charge, except where two or more persons have been injured by the same offence.

Failure of private prosecutor to appear

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.

Mode of conducting private prosecution

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.

Prosecutor-General may intervene in private prosecution

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.

Costs in respect of process

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.

Costs of private prosecution

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.

Costs of accused in private prosecution

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.

Taxation of costs

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.

Prescription of right to institute prosecution

16. (1) The right to institute a prosecution for any offence, other than the offences of

(a)

treason;

(b)

murder;

(c)

rape, whether under a statute or at common law;

(d)

kidnapping;

(e)

childstealing; or

(f)

robbery, when committed in any of the circumstances contemplated in Part I of Schedule 5,

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

Legal representation of victim

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

(a)

hold a watching brief at that trial on behalf of the victim, without any right to adduce evidence or to cross-examine witnesses or to address the court, except when bringing an application contemplated in paragraph (c) and then only for that purpose;

(b)

be available to consult with and advise, where necessary, the prosecutor and the victim; and

(c)

apply, immediately after the conviction of the accused, to the court for the award of compensation to the victim in terms of section 326.

(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

Saving as to certain powers conferred by other laws

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.

State may seize certain articles

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;

(b)

which may afford evidence of the commission or suspected commission of an offence, whether within Namibia or elsewhere;

(c)

which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence; or

(d)

which was used for escape after the commission of an offence.

Article to be seized under search warrant

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

(a)

by a district magistrate or justice of the peace, if it appears to that magistrate or justice of the peace from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or on any person or on or at any premises within his or her area of jurisdiction; or

(b)

by a judge or magistrate presiding at criminal proceedings, if it appears to that judge or magistrate that any such article in the possession or under the control of any person or on or at any premises is required in evidence at such proceedings.

(2)

A search warrant issued under subsection (1) must require a member of the police to seize the article in question and must to that end authorize such member to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3)

(a) A search warrant must be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.

(b)

A search warrant may be issued on any day and is of force until it is executed or is cancelled by the person who issued it or, if that person is not available, by a person with like authority.

(4)

A member of the police executing a warrant under this section or section 25 must, after such execution, hand to any person whose rights in respect of any search or article seized under the warrant have been affected a copy of the warrant and, if any article is so seized, an inventory of articles seized.

(5)

To the extent that subsection (2) 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.

Circumstances in which article may be seized without search warrant

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

(a)

if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to the search and the seizure of the article in question; or

(b)

if such member on reasonable grounds believes

(i)

that a search warrant will be issued to him or her under paragraph (a) of section 21(1) if he or she applies for such warrant; and

(ii)

that the delay in obtaining a search warrant would defeat the object of the search.

(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.

Search of arrested person and seizure of article

23. (1) On the arrest of any person, the person making the arrest may

(a)

if such person is a peace officer, search the person arrested and seize any article referred to in section 20 that is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a member of the police, that peace officer must immediately deliver any such article to a member of the police; or

(b)

if such person is not a peace officer, seize any article referred to in section 20 that is in the possession of or in the custody or under the control of the person arrested and must immediately deliver any such article to a member of the police.

(2)

On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which is capable of being used to cause bodily harm to himself or herself or to others.

(3)

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.

Search of premises

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.

Power of police to enter premises in connection with State security or any offence

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

(a)

that the security of Namibia or the maintenance of law and order is likely to be endangered by or in consequence of any meeting that is being held or is to be held in or on any premises within his or her area of jurisdiction; or

(b)

that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or on any premises within his or her area of jurisdiction,

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

(i)

of carrying out such investigations and of taking such steps as the member of the police may consider necessary for the preservation of the security of Namibia or for the maintenance of law and order or for the prevention of any offence;

(ii)

of searching the premises or any person in or on the premises for any article referred to in section 20 that the member of the police on reasonable grounds suspects to be in or on or at the premises or on that person; and

(iii) of seizing any such article.

(2)

A warrant under subsection (1) may be issued on any day and is of force until it is executed or is cancelled by the person who issued it or, if that person is not available, by a person with like authority.

(3)

A member of the police may without warrant act under paragraphs (i), (ii) and (iii) of subsection (1) if such member on reasonable grounds believes

(a)

that a warrant will be issued to him or her under paragraph (a) or (b) of subsection (1) if he or she applies for such warrant; and

(b)

that the delay in obtaining a search warrant would defeat the object of the search.

(4)

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.

Entering of premises for purposes of obtaining evidence

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.

Resistance against entry or search

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.

(2)

A member of the police who intends using force under subsection (1) must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter that premises.

(3)

Subsection (2) does not apply where the member of the police referred to therein is on reasonable grounds of the opinion that any article that is the subject of the search may be destroyed or disposed of if that subsection is first complied with.

Wrongful search an offence, and award of compensation

28. (1) A member of the police

(a)

who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25(1); or

(b)

who, without being authorized thereto under this Chapter

(i)

searches any person or container or premises or seizes or detains any article; or

(ii)

performs any act contemplated in paragraph (i), (ii) or (iii) of section 25(1),

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.

Search to be conducted in decent and orderly manner

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.

Disposal by member of police of article after seizure

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

(a)

may, if the article is perishable, with due regard to the interests of the persons concerned, dispose of the article in such a manner as the circumstances may require; or

(b)

may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of the member of the police, it was stolen, and must warn that person to hold the article available for production at any resultant criminal proceedings, if required to do so; or

(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.

Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings

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.

Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid

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.

Article to be transferred to court for purposes of trial

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

(i)

transfer any article received under subsection (1), other than money deposited in a banking account under paragraph (a), to the clerk of the court in which the trial is to be conducted or, if the trial is to be conducted in the High Court, to the registrar, and the clerk of the court or the registrar must place the article so received in safe custody;

(ii)

in the case of an article retained in police custody or in some other custody in accordance with subsection (2) or in the case of money deposited in a banking account under paragraph (a), advise the clerk of such other court or the registrar of the fact of such custody or such deposit.

Disposal of article after commencement of criminal proceedings

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

(a)

be returned to the person from whom it was seized, if that person may lawfully possess the article; or

(b)

if the person from whom it was seized is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if that person may lawfully possess the article; or

(c)

if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

(2)

The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may consider fit.

(3)

If the judge or magistrate presiding at criminal proceedings does not, at the conclusion of such proceedings, make an order under subsection (1), that judge or magistrate or, if he or she is not available, any other judge or magistrate of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he or she may consider fit.

(4)

Any order made under subsection (1) or (3) may be suspended pending any appeal or review.

(5)

Where the court makes an order under subsection (1)(a) or (b), section 31(2) applies with the necessary changes to the person in whose favour such order is made.

(6)

If the circumstances so require or if the criminal proceedings in question cannot for any reason be concluded, the presiding judge or magistrate may make any order referred to in subsection (1)(a), (b) or (c) at any stage of the proceedings.

Forfeiture of article to State

35. (1) Subject to subsection (2), a court that convicts an accused of an offence may, without notice to any person, declare

(a)

any weapon, instrument or other article by means whereof the offence in question was committed or that was used in the commission of the offence; or

(b)

if the conviction is in respect of an offence referred to in Schedule 2, any vehicle, container or other article that was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property in question,

and that was seized under this Act, forfeited to the State.

(2)

A forfeiture under subsection (1) does not affect any right referred to in subsection (5)(a)(i) or (ii), if it is proved that the person who claims such right did not know that the weapon, instrument, vehicle, container or other article in question was being used or would be used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property in question, or that he or she could not prevent such use, and that he or she may lawfully possess such weapon, instrument, vehicle, container or other article.

(3)

A court that convicts an accused or that finds an accused not guilty of an offence, must declare forfeited to the State any article seized under this Act that is forged or counterfeited or that cannot lawfully be possessed by any person.

(4)

Any weapon, instrument, vehicle, container or other article declared forfeited under subsection (1) must be kept for a period of 30 days with effect from the date of declaration of forfeiture or, if an application is within that period received from any person for the determination of any right referred to in subsection (5)(a)(i) or (ii), until a final decision in respect of the application has been given.

(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

(i)

is the property of that person, the court must set aside the declaration of forfeiture and direct that the weapon, instrument, vehicle, container or other article in question be returned to that person, or, if the State has disposed of such weapon, instrument, vehicle, container or other article, direct that that person be compensated by the State to the extent to which the State has been enriched by the disposal;

(ii)

was sold to the accused in pursuance of a contract under which the accused becomes the owner of the weapon, instrument, vehicle, container or other article in question on the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of such weapon, instrument, vehicle, container or other article on default of payment of the stipulated price or any part thereof

(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.

(b)

If a determination by the court under paragraph (a) is adverse to the applicant, the applicant may appeal therefrom as if it were a conviction by the court making the determination, and that appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made, or against a sentence imposed as a result of the conviction.

(c)

When determining any rights under this subsection, the record of the criminal proceedings in which the declaration of forfeiture was made forms part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it may consider fit.

Disposal of article concerned in an offence committed outside Namibia

36. (1) Where an article is seized in connection with which

(a)

an offence was committed or is on reasonable grounds suspected to have been committed in a country other than Namibia;

(b)

there are reasonable grounds for believing that it will afford evidence as to the commission in a country other than Namibia of any offence or that it was used for the purpose of or in connection with such commission of any offence,

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

Power and duty of police to question certain persons in connection with crime, and warning explanations to be given in respect thereof

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

(a)

subject to section 26, any person who is likely to give material or relevant information as to any such offence, whether or not it is known by whom the offence was committed or allegedly committed;

(b) subject to subsections (2) and (3), any person, whether or not arrested or detained in custody or charged, who is reasonably suspected of having committed or having attempted to commit the offence or alleged offence under investigation.

(2)

A member of the police conducting an investigation under subsection (1) must, before questioning a person reasonably suspected of having committed an offence, give a warning explanation substantially in the following form to that person:

(a)

That the member of the police is investigating an offence or alleged offence, and the nature thereof;

(b)

that the purpose of the investigation is to attempt to establish the truth and to establish whether an offence has in fact been committed and, if so, by whom and under what circumstances;

(c)

that the member of the police would welcome any assistance that that person can give to establish the truth and to bring the investigation to a speedy conclusion;

(d)

that the person to be questioned is a suspect in respect of the offence under investigation and, where applicable, that the member of the police is in possession of evidence under oath indicating that that person has committed the offence;

(e)

that the person to be questioned not only has the right to remain silent but also has the right to answer questions put to him or her or to give an explanation of his or her conduct or of his or her defence, if any;

(f)

that the person to be questioned has the right to consult a legal practitioner of his or her own choice before deciding whether or not to remain silent or to answer questions or give an explanation of his or her conduct or defence and that the legal practitioner is entitled to be present during the questioning;

(g)

that the warning explanation and any statement made in response thereto will be recorded in writing or mechanically and a certified copy of such recording be made available to that person in the circumstances contemplated in section 359; and

(h)

that the warning explanation and any statement made in response thereto may be used in evidence in any criminal proceedings instituted against that person in respect of the offence in question, whether it be against or in favour of that person.

(3)

The provisions of subsection (2) apply, to the extent that they can with the necessary changes be applied, to a person charged with an offence, but before questioning the person so charged the member of the police conducting the investigation must warn that person that he or she is charged with the offence in respect of which he or she is to be questioned.

(4)

A warning explanation given under subsection (2) or (3) and any statement made in response thereto must

(a)

be in writing or be reduced to writing; or

(b)

where, by reason of the urgency of the matter or any other just cause, paragraph (a) cannot at the relevant time be complied with, be recorded in writing by the member of the police as soon as practicable after the questioning of the person suspected or accused of having committed the offence under investigation, and such member must then

(i)

give the person concerned an opportunity to comment thereon; and

(ii)

record in writing any comments made under subparagraph (i); or

(c)

where mechanical means are available, be mechanically recorded and as soon as practicable thereafter be transcribed.

Powers in respect of prints and bodily appearance of accused

38. (1) Subject to subsection (2), a member of the police may

(a)

take the fingerprints, palm-prints or footprints or cause any such prints to be taken

(i)

of any person arrested on any charge;

(ii)

of any such person released on bail under Chapter 11 or on warning under section 78;

(iii) of any person arrested in respect of any matter referred to in paragraph (m), (n) or (o) of section 42(1);

(iv)

of any person on whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or

(v)

of any person convicted by a court;

(b)

make a person referred to in paragraph (a)(i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the member of the police may determine;

(c)

take such steps or cause such steps to be taken (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) as the member of the police may consider necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance, but no member of the police may personally

(i)

take any blood or other bodily fluid sample of such person; or

(ii)

make any examination of the body of such person where that person is not of the same sex as the member of the police intending to make such examination;

(d)

take a photograph or cause a photograph to be taken of a person referred to in paragraph (a)(i) or (ii).

(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.

(3)

(a) A medical officer of any prison or a district surgeon must, and any other registered medical practitioner or registered nurse may, if requested thereto by a member of the police acting in the execution of his or her duties, take such steps (including the taking of a blood or other bodily fluid sample, or a hair or skin sample, or nail clippings or scrapings) as may be considered necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) of subsection (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance, and may in taking any such steps be assisted where necessary by a member of the police of the same sex as that person.

(b)

If a registered medical practitioner or registered nurse attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to the hospital for medical attention or treatment may be relevant at any later criminal proceedings, the medical practitioner or registered nurse may take a blood sample of that person or cause such sample to be taken.

(c)

Nothing in paragraph (a) contained is to be construed as preventing a medical officer of any prison or a district surgeon from taking any steps contemplated in that paragraph without having been requested thereto by a member of the police.

(4)

A court before which criminal proceedings are pending may

(a)

in any case in which a member of the police is not empowered under subsection (1) to take fingerprints, palm-prints or footprints or to take steps to ascertain whether the body of a person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that any such prints be taken of an accused at such proceedings or that the steps (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) be taken which the court may consider necessary to ascertain whether the body of an accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance;

(b)

order that the steps, including the taking of a blood or other bodily fluid sample, be taken which the court may consider necessary to ascertain the state of health of an accused at such proceedings.

(5)

A court that has convicted a person of any offence or that has concluded a preparatory examination against a person on any charge, or a district magistrate, may order that the fingerprints, palm-prints or footprints or a photograph of that person be taken.

(6)

Fingerprints, palm-prints or footprints, photographs and the record of steps taken under this section must be destroyed if the person concerned is found not guilty at his or her trial or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to which any such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute that person.

(7)

A person who, without sufficient cause, refuses or fails to comply with

(a)

a request made under subsection (1) by a member of the police to submit to

(i)

the taking of fingerprints, palm-prints or footprints or a photograph;

(ii)

an identification parade; or

(iii) any other steps to be lawfully taken under paragraph (c) of that subsection;

(b)

a request made under subsection (3)(a) by any person referred to therein to submit to any steps to be lawfully taken under that subsection; or

(c)

an order made under subsection (4)(a) or (b) or (5),

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.

Victim impact statement

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

(a)

the victim’s legal practitioner or the spouse or any dependant or other relative of the victim or, where the victim is a minor, his or her parent or guardian, may prepare the victim impact statement on behalf of the victim; and

(b)

where no person referred to in paragraph (a) is available to prepare the victim impact statement, any member of the police referred to in subsection

(1)

must, with the assistance of

(i)

the victim; and

(ii)

where necessary, the Prosecutor-General or any public prosecutor designated by the Prosecutor-General for that purpose or the public prosecutor conducting the prosecution of the accused concerned or any other prosecutor attached to the same court,

prepare the victim impact statement on behalf of the victim.

(3)

A victim impact statement must

(a)

be prepared in writing substantially in the form prescribed by Schedule 8;

(b)

contain full particulars of any injury, damage or loss suffered by the victim concerned, including the amount of compensation to be applied for in respect thereof; and

(c)

be sworn to or affirmed before a commissioner of oaths that the contents thereof are true.

(4)

(a) A victim impact statement is, subject to paragraph (b), on its mere production at criminal proceedings admissible in evidence to the same extent as oral evidence to the same effect by the victim concerned, but only for the purposes of

(i)

informing the court, without derogating from section 305, as to the proper sentence to be passed;

(ii)

applying for the award of compensation to a victim in terms of section

326.

(b) A victim impact statement

(i)

complying with the requirements of subsection (3); and

(ii)

of which a copy, together with a notification that such statement will be tendered in evidence at the trial of the accused but that the accused may dispute the correctness of any fact contained therein before it being so tendered, was handed or delivered to the accused or his or her legal practitioner a reasonable time before the statement is to be tendered in evidence,

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.

(c)

If a victim impact statement is admitted in evidence only to the extent that the facts contained therein are not disputed by the accused, oral evidence may be adduced to prove the fact or facts placed in issue.

(d)

Notwithstanding that a victim impact statement may be admitted or partly admitted in evidence under this subsection, the court may of its own motion, and must on the application of any party to the criminal proceedings in question, cause the victim concerned or other person by whom such statement was prepared to be subpoenaed to give oral evidence before the court regarding any fact, whether or not disputed, contained in the statement.

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.

Manner and effect of arrest

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.

(2)

The person effecting an arrest must, at the time of effecting the arrest or immediately thereafter, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, on demand of the person arrested, hand that person a copy of the warrant.

(3)

The effect of an arrest is that the person arrested is in lawful custody and that that person is detained in custody until he or she is lawfully discharged or released from custody.

(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.

Arrest by peace officer without warrant

42. (1) A peace officer may without warrant arrest any person

(a)

who commits or attempts to commit any offence in his or her presence;

(b)

whom the peace officer reasonably suspects of having committed an offence referred to in Schedule 1, other than the offence of escaping from lawful custody;

(c)

who has escaped or who attempts to escape from lawful custody;

(d)

who has in his or her possession any implement of housebreaking and who is unable to account for such possession to the satisfaction of the peace officer;

(e)

who is found in possession of anything that the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;

(f)

who is found at any place by night in circumstances that afford reasonable grounds for believing that that person has committed or is about to commit an offence;

(g)

who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;

(h)

who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or substances or the possession or disposal of arms or ammunition;

(i)

who willfully obstructs the peace officer in the execution of his or her duty;

(j)

who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that that person has been concerned in any act committed outside Namibia which, if committed in Namibia, would have been punishable as an offence, and for which that person is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in Namibia;

(k)

who is reasonably suspected of being a prohibited immigrant in Namibia in contravention of any law regulating entry into or residence in Namibia;

(l)

who is reasonably suspected of being a deserter from the Namibian Defence Force;

(m)

who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act;

(n)

who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act; or

(o)

who fails to surrender himself or herself in order that he or she may undergo periodical imprisonment when and where he or she is required to do so under an order of court or any law relating to prisons.

(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.

Name and address of certain persons and power of arrest by peace officer without warrant

43. (1) A peace officer may call upon any person

(a)

whom the peace officer has power to arrest;

(b)

who is reasonably suspected of having committed or having attempted to commit an offence;

(c)

who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of an offence,

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.

Arrest by private person without warrant

44. (1) A private person may without warrant arrest any person

(a)

who commits or attempts to commit in his or her presence or whom such private person reasonably suspects of having committed an offence referred to in Schedule 1;

(b)

whom such private person reasonably believes to have committed an offence and to be escaping from and to be immediately pursued by a person whom that private person reasonably believes to have authority to arrest that person for that offence;

(c)

whom such private person is by law authorized to arrest without warrant in respect of any offence specified in that law;

(d)

whom such private person sees engaged in an affray.

(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.

Warrant of arrest may be issued by district magistrate or justice of the peace

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

(a)

which sets out the offence alleged to have been committed;

(b)

which alleges that the offence in question was committed within the area of jurisdiction of the district magistrate or, in the case of a justice of the peace, within the area of jurisdiction of the district magistrate within whose district or area application is made to the justice of the peace for the warrant of arrest, or where the offence was not committed within that area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within that area of jurisdiction; and

(c)

which states that from information taken on oath there is a reasonable suspicion that the person in respect of whom the warrant of arrest is applied for has committed the alleged offence.

(2)

A warrant of arrest issued under this section must direct that the person described in the warrant be arrested by a peace officer in respect of the offence mentioned in the warrant and that that person be brought before a magistrate’s court in accordance with section 52.

(3)

A warrant of arrest may be issued on any day and remains in force until it is cancelled by the person who issued it or, if that person is not available, by any person with like authority, or until it is executed.

Execution of warrants

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.

Arrest on facsimile or telegraphic authority

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).

Non-liability for wrongful arrest

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.

Private persons to assist in arrest when called upon

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

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.

Breaking open premises for purpose of arrest

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.

Use of force in effecting arrest

51. (1) In this section “serious offence” means

(a)

treason;

(b)

sedition;

(c)

public violence;

(d)

murder;

(e)

rape, whether under a statute or at common law;

(f)

assault, when a dangerous wound is inflicted;

(g)

kidnapping;

(h)

childstealing;

(i)

robbery;

(j)

housebreaking with the intent to commit an offence;

(k)

escaping from lawful custody;

(l)

any other offence involving the use of life threatening violence or the infliction or threatened infliction of grievous bodily harm; or

(m)

an attempt to commit any offence mentioned in paragraphs (a) to (n( �

“suspect” means a person who is liable to be arrested by a person authorized under this Act in respect of an offence committed or reasonably suspected of being or having been committed by the person so liable.

(2)

If a person authorized under this Act to arrest or to assist in arresting another, attempts to arrest a suspect and the suspect

(a)

resists the attempt; or

(b)

flees; or

(c)

resists the attempt and flees,

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

(i)

the seriousness of the offence committed or reasonably suspected of being or having been committed by the suspect; and

(ii)

the circumstances surrounding such resistance or fleeing.

(3)

A person authorized under subsection (2) to use force in effecting an arrest, is justified in terms of this section in using force that is likely to cause death or grievous bodily harm to a suspect, only if the suspect

(a)

is to be arrested for a serious offence; and

(b)

cannot be prevented by reasonable means in a less violent manner from fleeing.

(4)

Notwithstanding section 42, a person who, under and in accordance with this section, used force in order to effect the arrest of a suspect, is not liable to be arrested or detained pending that person’s trial on a charge arising from such use of force or the killing or injury of the suspect in the course of the attempted arrest if

(a)

that person raises the claim of lawfulness of his or her action at the earliest possible opportunity, gives a full explanation in writing of the facts and circumstances relating to the incident and gives his or her full cooperation to the member of the police investigating the incident; and

(b)

there are no reasonable grounds for believing that the claim of lawfulness is false or does not constitute a sufficient defence or that that person did not act in the bona fide belief that the force used by him or her in effecting the arrest was lawful in the circumstances.

(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

(a)

to act in self-defence or in the defence of another when necessary for the purpose of protecting himself or herself, or any person lawfully assisting him or her, or any other person from imminent or future death or grievous bodily harm;

(b)

to raise the defence of self-defence or defence of another in conjunction with the justification provided for in subsection (2) or (3), if charged with an offence arising from the killing or injury of the suspect in the course of the attempted arrest.

Procedure after arrest

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.

(2)

(a) A person who is arrested with or without warrant for allegedly committing an offence, or for any other reason under this Act, must as soon as practicable be brought to a police station or, in the case of an arrest by warrant, to any other place that is expressly mentioned in the warrant.

(b)

A person who is detained in custody as contemplated in paragraph (a) must, as soon as reasonably practicable, be informed of his or her right to institute bail proceedings.

(c)

Subject to paragraph (d), if an arrested person referred to in paragraph (a) is not released by reason that

(i)

no charge is to be brought against the arrested person; or

(ii)

bail is not granted to the arrested person under section 62,

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

(i)

outside ordinary court hours or on a day that is not an ordinary court day, the arrested person must be brought before a magistrate’s court not later than the end of the first court day following the expiration of the period of 48 hours;

(ii)

at a time when the arrested person is outside the area of jurisdiction of the magistrate’s court to which he or she is being brought for the purposes of further detention and he or she is at such time in transit from a police station or other place of detention to that court, the period of 48 hours is deemed to expire at the end of the court day next succeeding the day on which the arrested person is brought within the area of jurisdiction of that court;

(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.

(3)

The parent or guardian of an arrested person under the age of 18 years must, if it is known that the parent or guardian can be readily reached or can be traced without undue delay, be notified immediately of the arrest of that person by the member of the police charged with the investigation of the case.

(4)

The probation officer in whose area of jurisdiction the arrest of a person under the age of 18 years has taken place, must as soon as practicable thereafter be notified thereof by the member of the police charged with the investigation of the case, unless there is no probation officer in the area in question or that probation officer is not readily available.

(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

(i)

the court is of the opinion that it does not have sufficient information or evidence at its disposal to reach a decision on the bail application;

(ii)

it appears to the court that it is necessary to provide the State with a reasonable opportunity to

(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.

Escaping and aiding escaping before incarceration and from police-cells and lockups

53. (1) A person who escapes or attempts to escape from custody

(a)

after he or she has been lawfully arrested and before he or she has been lodged in a prison, police-cell or lock-up; or

(b)

while he or she is lawfully detained in a police-cell or lock-up,

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.

(2)

A person who

(a)

rescues or attempts to rescue from custody another person

(i)

after that person has been lawfully arrested and before that person has been lodged in a prison, police-cell or lock-up; or

(ii)

while that person is lawfully detained in a police-cell or lock-up;

(b)

in the circumstances contemplated in subparagraph (i) or (ii) of paragraph (a), aids the person so arrested or detained to escape or to attempt to escape from any such custody; or

(c)

harbours or conceals or assists in harbouring or concealing a person who escapes from custody

(i)

after that person has been lawfully arrested and before that person has been lodged in a prison, police-cell or lock-up; or

(ii)

while that person is lawfully detained in a police-cell or lock-up,

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.

Saving of other powers of arrest

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.

Saving of civil rights and liabilities

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

(a)

issue a summons containing the charge and the information handed to him or her by the prosecutor, and specifying the place, date and time for the appearance of the accused in court on that charge; and

(b)

deliver such summons, together with so many copies thereof as there are accused to be summoned on the same charge, to a person empowered to serve a summons in criminal proceedings.

(2)

(a) Except where otherwise expressly provided by any law, the summons must be served by a person referred to in subsection (1)(b) by delivering it to the person named therein or, if that person cannot be found, by delivering it at his or her residence or place of employment or business to a person apparently over the age of 16 years and apparently residing or employed there.

(b)

A return by the person who served the summons that the service thereof has been effected in terms of paragraph (a) may, on the failure of the person concerned to attend the relevant proceedings, be handed in at such proceedings and is prima facie proof of the service.

(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.

Failure of accused to appear on summons

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

(b)

of section 56(2) that the summons was served on the accused in terms of paragraph

(a)

of that section and that the accused has failed to appear at the place and on the date and at the time specified in the summons, or if satisfied that the accused has failed to remain in attendance at the proceedings in question, issue a warrant for the arrest, subject to subsection (3), of the accused and, when the accused 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 the 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$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

(a)

may, where it appears to that person that the accused received the summons in question and that the accused will appear in court in accordance with a warning under section 78; or

(b)

must, where it appears to that person that the accused did not receive the summons in question or that the accused has paid an admission of guilt fine in terms of section 59 or that there are other grounds on which it appears that the failure of the accused to appear on the summons was not due to any fault on the part of the accused, for which purpose that person may require the accused to furnish an affidavit or affirmation,

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.

(4)

(a) If, in any case in which a warrant of arrest is issued, it was permissible for the accused under section 59 to admit his or her guilt in respect of the summons on which he or she failed to appear and to pay a fine in respect thereof without appearing in court, and the accused is arrested under that warrant in the area of jurisdiction of a district court other than the district court that issued the warrant of arrest, such other district court may, notwithstanding anything to the contrary in this Act or any other law contained, and if satisfied that the accused has, since the date on which he or she failed to appear on the summons in question, admitted his or her guilt in respect of that summons and has paid a fine in respect thereof without appearing in court, in a summary manner enquire into his or her failure to appear on such summons and, unless the 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$2 000 or to imprisonment for a period not exceeding six months.

(b)

In proceedings under paragraph (a) before such other district court, it is, on production in that court of the relevant warrant of arrest and in the absence of evidence to the contrary, presumed that the accused failed to appear on the summons in question.

CHAPTER 9
WRITTEN NOTICE TO APPEAR IN COURT

Written notice as method of securing attendance of accused in district 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;

(b)

call upon the accused to appear at a place and on a date and at a time specified in the written notice to answer a charge of having committed the offence in question;

(c)

contain 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; and

(d)

contain a certificate under the hand of the peace officer that he or she has handed the original of the written notice to the accused and that he or she has explained to the accused the import thereof.

(2)

If an accused is in custody, the effect of a written notice handed to the accused under subsection (1) is that the accused be released immediately from custody.

(3)

The peace officer who under subsection (1) handed a written notice to an accused must immediately forward a duplicate original of the written notice to the clerk of the court having jurisdiction in the matter.

(4)

The mere production to the court of the duplicate original of a written notice referred to in subsection (3) is prima facie proof of the issue of the original thereof to the accused and that such original was handed to the accused.

(5)

Section 57 applies with the necessary changes in respect of a written notice handed to an accused under subsection (1).

CHAPTER 10
ADMISSION OF GUILT

Admission of guilt and payment of fine without appearance in court

59. (1) Where

(a)

a summons is issued against an accused under section 56 (in this section referred to as a summons) and the public prosecutor concerned on reasonable grounds believes that a district court, on convicting the accused of the offence in question, will not impose a sentence of imprisonment only or of a fine exceeding N$3 000, and that public prosecutor endorses the summons to the effect 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 summons in respect of that offence without appearing in court; or

(b)

a written notice under section 58 (in this section referred to as a written notice) is handed to the accused and the endorsement in terms of paragraph

(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.

(2)

(a) A summons or written notice may stipulate that the admission of guilt must be paid before a date specified in the summons or written notice.

(b)

An admission of guilt fine may be accepted by the clerk of the court concerned, notwithstanding the fact that the date referred to in paragraph

(a) or the date on which the accused should have appeared in court has expired.

(3)

An admission of guilt fine may not be accepted under subsection (1) or (2)(b), unless the accused surrenders the relevant summons or written notice at the time of the payment of the fine.

(4)

(a) An admission of guilt fine stipulated in respect of a summons or written notice must be in accordance with a determination that the magistrate of the magisterial district in question may from time to time make in respect of any offence or, if that magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of that magistrate or a member of the police of the rank of commissioned officer attached to a police station within the magisterial district in question or, in the absence of such a member of the police at any such police station, by the member of the police in charge of that police station.

(b)

An admission of guilt fine determined under paragraph (a) may not exceed the maximum of the fine prescribed in respect of the offence in question or the amount of N$3 000, whichever is the lesser.

(5)

An admission of guilt fine paid at a police station in terms of subsection (1) and the relevant summons or written notice surrendered under subsection (3), must, as soon as is expedient, be forwarded to the clerk of the district court having jurisdiction, and that clerk of the court must thereafter, as soon as is expedient, enter the essential particulars of that summons or written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned is, subject to subsection (6), deemed to have been convicted and sentenced by the court in respect of the offence in question.

(6)

The magistrate presiding at the court in question must examine the documents and if it appears to that magistrate that a conviction or sentence under subsection (5) is not in accordance with justice or that any such sentence is not in accordance with a determination made by the magistrate of the magisterial district under subsection (4)(a) or, where the determination under that subsection has not been made by that magistrate, that the sentence is not adequate, the magistrate so presiding may set aside the conviction and sentence and direct that the amount of the admission of guilt fine paid by the accused be refunded to the accused and that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may consider fit to prefer, but where the admission of guilt fine that has been paid exceeds the amount determined by the magistrate of the magisterial district under subsection (4)(a), the magistrate so presiding may, instead of setting aside the conviction and sentence in question, direct that the amount by which the admission of guilt fine exceeds the determination so made be refunded to the accused concerned.

Admission of guilt and payment of fine after appearing in court

60. (1) Subject to subsection (2), if an accused who is alleged to have committed an offence has appeared in court and is

(a)

in custody awaiting trial on that charge and not on another more serious charge;

(b)

released on bail under section 62 or 63; or

(c)

released on warning under section 78,

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.

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.

Effect of bail

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

(a)

the fact that the accused has been convicted of that offence; and

(b)

the likely sentence that the court might impose.

Bail before first appearance of accused in magistrate’s court

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

(i)

the member of the police charged with the investigation; and

(ii)

in the case of an offence against the person, the victim of that offence, but only if that victim is readily available,

if the accused deposits at the police station the sum of money determined by that member of the police.

(b)

The member of the police referred to in paragraph (a) must, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt is given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.

(c)

The member of the police who released an accused on bail must immediately forward a duplicate original of the recognizance to the clerk of the court having jurisdiction in the matter.

(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.

Bail application of accused in court

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.

(b)

The court referring an accused to any other court for trial or sentencing retains jurisdiction relating to the powers, functions and duties in respect of bail under this Act until the accused appears in such other court for the first time.

(c)

If the question of the possible release of an accused on bail is not raised by the accused or the prosecutor, the court must ascertain from the accused whether he or she wishes that question to be considered by the court.

(2)

In bail proceedings the court in question

(a)

may postpone any such proceedings as contemplated in section 52(5)(b);

(b)

may, in respect of matters that are not in dispute between the accused and the prosecutor, acquire in an informal manner the information that is needed for its decision or order regarding bail;

(c)

may, in respect of matters that are in dispute between the accused and the prosecutor, require of the prosecutor or the accused that evidence be adduced;

(d)

must, where the prosecutor does not oppose bail in respect of matters referred to in subsection (12)(a) and (b), require of the prosecutor to place on record the reasons for not opposing the bail application.

(3)

If the court considering a bail application is of the opinion that it does not have reliable or sufficient information or evidence at its disposal or that it lacks certain important information to reach a decision on the bail application, the judge or magistrate presiding at the bail proceedings must order that such information or evidence be placed before the court.

(4)

The interests of justice do not permit the release from detention of an accused where one or more of the following grounds are established:

(a)

Where there is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the public or any particular person or will commit an offence referred to in Schedule 1; or

(b)

where there is the likelihood that the accused, if he or she were released on bail, will attempt to evade his or her trial; or

(c)

where there is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(d)

where there is the likelihood that the accused, if he or she were released on bail, will undermine or jeopardize the objectives or the proper functioning of the criminal justice system, including the bail system; or

(e)

where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine the public peace or security.

(5)

In considering whether the ground in subsection (4)(a) has been established, the court may, where applicable, take into account the following factors:

(a)

The degree of violence towards others implicit in the charge against the accused;

(b)

any threat of violence that the accused may have made to any person;

(c)

any resentment the accused is alleged to harbour against any person;

(d)

any disposition to violence on the part of the accused, as is evident from the accused’s past conduct;

(e)

any disposition of the accused to commit offences referred to in Schedule 1, as is evident from the accused’s past conduct;

(f)

the prevalence of a particular type of offence;

(g)

any evidence that the accused previously committed an offence referred to in Schedule 1 while released on bail;

(h)

whether the victim of the offence in question objects to bail being granted to the accused;

(i) any other factor that in the opinion of the court should be taken into account.

(6)

In considering whether the ground in subsection (4)(b) has been established, the court may, where applicable, take into account the following factors:

(a)

The family, community or occupational ties of the accused to the place at which he or she is to be tried;

(b)

the assets held by the accused and where such assets are situated;

(c)

the means, and travel documents held by the accused, which may enable the accused to leave the country;

(d)

the extent, if any, to which the accused can afford to forfeit the amount of bail that may be set;

(e)

the question whether the extradition of the accused could be readily effected should the accused flee across the borders of Namibia in an attempt to evade his or her trial;

(f)

the nature and the gravity of the charge on which the accused is to be tried;

(g)

the strength of the case against the accused and the incentive that the accused may in consequence have to attempt to evade his or her trial;

(h)

the nature and gravity of the punishment that is likely to be imposed should the accused be convicted of the charges against him or her;

(i)

the binding effect and enforceability of the conditions of bail that may be imposed and the ease with which those conditions could be breached;

(j)

any other factor that in the opinion of the court should be taken into account.

(7)

In considering whether the ground in subsection (4)(c) has been established, the court may, where applicable, take into account the following factors:

(a)

The fact that the accused is familiar with the identity of witnesses and with the evidence that they may bring against him or her;

(b)

whether the witnesses have already made statements and agreed to testify;

(c)

whether the investigation against the accused has already been completed;

(d)

the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated;

(e)

how effective and enforceable the conditions of bail prohibiting communication between the accused and witnesses are likely to be;

(f)

whether the accused has access to evidentiary material that is to be presented at his or her trial;

(g)

the ease with which evidentiary material could be concealed or destroyed;

(h)

any other factor that in the opinion of the court should be taken into account.

(8)

In considering whether the ground in subsection (4)(d) has been established, the court may, where applicable, take into account the following factors:

the court may, where applicable, take into account the following factors:

(a)

Whether the nature of the offence or the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed;

(b)

whether the outrage of the community might lead to public disorder if the accused is released;

(c)

whether the safety of the accused might be jeopardized by his or her release;

(d)

whether the sense of peace and security among members of the public will be undermined or jeopardized by the release of the accused;

(e)

whether the release of the accused will undermine or jeopardize the public confidence in the criminal justice system;

(f)

any other factor that in the opinion of the court should be taken into account.

(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:

(a)

The period for which the accused has already been in custody since his or her arrest;

(b)

the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail;

(c)

the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to the delay;

(d)

any financial loss that the accused may suffer owing to his or her detention;

(e)

any impediment to the preparation of the accused’s defence or any delay in obtaining legal representation that may be brought about by the detention of the accused;

(f)

the state of health of the accused;

(g)

any other factor that in the opinion of the court should be taken into account.

(11)

Notwithstanding the fact that the prosecution does not oppose the granting of bail, the court has the duty contemplated in subsection (10) to weigh up the personal interests of the accused against the interests of justice.

(12)

Notwithstanding anything to the contrary in this Act contained, where an accused is charged with an offence referred to

(a)

in Schedule 4, the court must order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence that satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release;

(b)

in Schedule 3, but not in Schedule 4, the court must order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence that satisfies the court that the interests of justice permit his or her release.

(13)

(a) In bail proceedings the accused, or his or her legal practitioner, is compelled to inform the court whether

(i)

the accused has previously been convicted of any offence; and

(ii)

there are any charges pending against the accused and whether the accused has been released on bail in respect of those charges.

(b)

Where the legal practitioner of an accused on behalf of the accused submits the information contemplated in paragraph (a), whether in writing or orally, the accused must be required by the court to declare whether he or she confirms such information or not.

(c)

The record of the bail proceedings, excluding the information contemplated in paragraph (a), forms part of the record of the trial of the accused following on the bail proceedings, but, if the accused elects to testify during the course of the bail proceedings the court must inform the accused of the fact that anything he or she says, may be used against him or her at his or her trial and such evidence becomes admissible in any subsequent proceedings.

(d)

An accused who willfully

(i)

fails or refuses to comply with any provision of paragraph (a); or

(ii)

furnishes the court with false information required in terms of paragraph (a),

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.

(14)

The court may make the release of an accused on bail subject to conditions that, in the court’s opinion, are in the interests of justice.

(15)

The court releasing an accused on bail in terms of this section, may order that the accused

(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.

Rights of complainant in bail application where accused is charged with rape or a domestic violence offence

64. (1) A complainant of rape or of a domestic violence offence has the right

(a)

to attend any proceedings where the question is considered whether an accused who is in custody on a charge of rape or a domestic violence offence should be released on bail or, if bail has been granted to the accused, whether any further conditions of bail should be imposed under section 65 or whether any such conditions of bail should be amended or supplemented under section 66; and

(b)

to request the prosecutor in proceedings referred to in paragraph (a) to present any information or evidence to the court that might be relevant to any question under consideration by the court in such proceedings.

(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

(a)

cannot be readily reached or cannot be traced without undue delay; or

(b)

is unable or unwilling to attend the bail proceedings in question,

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.

(3)

If an accused is in custody on a charge of rape or a domestic violence offence, the person in charge of the police station or any other place where the accused is detained in terms of section 52(2)(a), or any other person designated by the person so in charge, must as soon as practicable inform the complainant concerned of

(a)

the place, date and time of the first appearance of the accused in court; and

(b)

the rights of the complainant under subsection (1).

(4)

If an accused who is in custody on a charge of rape or a domestic violence offence intends to apply to the court for bail on a date or at a time of which the complainant has not been otherwise informed in terms of this section, the accused or his or her legal practitioner must request the person referred to in subsection (3) to inform the complainant accordingly, whereupon that person must so inform the complainant.

(5)

The person who informs, or who is required to inform, the complainant in terms of subsection (3) or (4) must prepare an affidavit stating

(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;

or magistrate presiding at the proceedings at which bail is considered, and that affidavit forms part of the record of the bail proceedings.

(7)

If a complainant is present at proceedings at which bail is considered in respect of an accused who is in custody on a charge of rape or a domestic violence offence, and such proceedings are postponed, the court must inform the complainant of the date and time to which the proceedings have been postponed and of the complainant’s rights under subsection (1).

(8)

If a complainant is not present at proceedings referred to in subsection (7), the court must enquire into the question whether the complainant has had knowledge of such proceedings, and

(a)

must, if it is satisfied that it is likely that the complainant has had knowledge of the proceedings, direct that the matter be dealt with in the absence of the complainant; or

(b)

must, if it is not so satisfied, postpone the proceedings in order to obtain the presence of the complainant, but, if it is in the interests of justice (with due regard to the interests of the complainant) that the matter be dealt with immediately, the matter may be dealt with in the absence of the complainant.

(9)

If a complainant is not present as contemplated in subsection (8), the prosecutor in the bail proceedings in question must inform the complainant

(a)

where bail has been granted to the accused, of the granting of bail and the conditions of bail imposed;

(b)

where such proceedings have been postponed, of the date and time to which such proceedings have been postponed and of the complainant’s rights under subsection (1).

(10)

Subsections (5) and (6) apply with the necessary changes in respect of a notification given in terms of subsection (9)(b).

Addition of further conditions of bail

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

(a)

with regard to the reporting in person by the accused at any specified time and place to any specified person or authority;

(b)

with regard to any place to which the accused is forbidden to go;

(c)

with regard to the prohibition of or control over communication by the accused with witnesses for the prosecution;

(d)

with regard to the place at which any document may be served on the accused under this Act;

(e)

which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy by the release of the accused;

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.

(3)

(a) If an accused who is in custody on a charge of a domestic violence offence is released on bail, the court must, notwithstanding section 63(14) and subsection (1) of this section, add the following further conditions of bail, unless the court finds special circumstances that would make any or all of those conditions inappropriate, which circumstances must then be entered by the court in the record of the bail proceedings:

(i)

A condition prohibiting any direct or indirect contact with the complainant during the course of the relevant criminal proceedings;

(ii)

a condition prohibiting the possession by the accused, while so released on bail, of any firearm or other weapon specified by the court; and

(iii) where the accused is legally liable to maintain the complainant or any child or other dependant of the complainant, a condition requiring the accused to support the complainant or any such child or other dependant at the same or greater level as before the arrest.

(b)

Where the court imposes a condition of bail contemplated in paragraph (a)(ii), any firearm or other weapon specified by the court that is in the possession of the accused, must, on the release on bail of the accused, be delivered to the member of the police charged with the investigation and be retained in police custody for the duration of such release.

Amendment of conditions of bail

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.

Proceedings with regard to bail and conditions to be recorded in full

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.

Appeal to High Court with regard to bail

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.

(2)

No appeal lies in respect of new facts that arise or are discovered after the decision against which the appeal is brought, unless such new facts are first placed before the magistrate against whose decision the appeal is brought and that magistrate gives a decision against the accused on such new facts.

(3)

(a) An accused noting an appeal under subsection (1)(a) must serve a copy of the notice of appeal, setting out the grounds of appeal, on the Prosecutor-General and on the magistrate against whose decision the appeal is brought, within 14 days of the refusal of bail or the imposition of a condition of bail.

(b)

The magistrate against whose decision the appeal is brought, must as soon as practicable, but not later than 14 days after receipt of the notice of appeal, prepare and transmit, or cause to be prepared and transmitted, to the registrar a certified copy of the record of the bail proceedings, together with the reasons for his or her decision.

(c)

On receipt of the copy of the record of the bail proceedings in terms of paragraph (b), the registrar must, in consultation with the Judge President and after notice to the parties concerned, place the matter on the roll for hearing by the High Court or by a judge of the High Court in chambers if the High Court is not then sitting.

(d)

An appeal under this section must be heard as a matter of urgency.

(4)

The High Court or judge hearing an appeal under this section may not set aside the decision against which the appeal is brought, unless the High Court or judge is satisfied that the decision was wrong, in which event the High Court or judge may give the decision that in its or his or her opinion the magistrate’s court should have given.

Appeal by Prosecutor-General against decision of court to release accused on bail

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).

(2)

(a) Where a magistrate’s court has ordered the release of an accused on bail and an appeal is noted by the Prosecutor-General under subsection (1)(a), the order for the release of the accused remains in force pending the decision on appeal, unless the court granting the release suspends the order for the release and orders the continued detention of the accused pending the decision on appeal

(i)

on application by the Prosecutor-General, of which notice is given as soon as practicable, but not later than 14 days after the order has been made for the release of the accused, by the Prosecutor-General; and

(ii)

if the court is satisfied that there is a reasonable prospect of success on appeal and that, on reconsideration, there is a reasonable possibility that the ends of justice may be defeated by the release of the accused on bail before the decision on appeal.

(b)

If the application under paragraph (a)(i) for the suspension of an order for the release of an accused pending the decision on appeal is successful, and the accused has been released, the court ordering the suspension must issue a warrant for the arrest and further detention of the accused pending the decision on appeal.

(3)

(a) The Prosecutor-General may appeal to the Supreme Court against a decision of the High Court to release an accused on bail.

(b)

Except where otherwise expressly provided by any law, section 343, to the extent that it relates to an application or appeal by an accused under that section, applies with the necessary changes in respect of the noting and prosecution of an appeal lodged by the Prosecutor-General under paragraph (a).

(4)

If an appeal brought by the Prosecutor-General under subsection (1)(a) or (3)(a) is dismissed, the court dismissing the appeal may order that the State pay the accused concerned the whole or any part of the costs to which the accused may have been put in opposing the appeal, taxed according to the scale in civil cases of that court.

(5)

If an appeal by the Prosecutor-General under subsection (1)(a) or (3)(a) is successful, the court hearing the appeal must issue a warrant for the arrest of the accused if the accused has been released on bail before the appeal has been decided, unless the accused has been arrested under a warrant issued in terms of subsection (2)(b).

Failure by accused to observe condition of bail

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.

Failure of accused on bail to appear

71. (1) If an accused who is released on bail

(a)

fails to appear at the place and on the date and at the time

(i)

appointed for his or her trial; or

(ii)

to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned; or

(b)

fails to remain in attendance at such trial or at such proceedings,

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.

(2)

(a) If the accused appears before court within 14 days of the issue under subsection (1) of the warrant of arrest, the court must confirm the provisional cancellation of the bail and the provisional forfeiture of the bail money, unless the accused satisfies the court that his or her failure under subsection

(1) to appear or to remain in attendance was not due to fault on his or her part.

(b)

If the accused satisfies the court that his or her failure under subsection (1) to appear or to remain in attendance was not due to fault on his or her part, the provisional cancellation of the bail and the provisional forfeiture of the bail money lapse.

(c)

If the accused does not appear before court within 14 days of the issue under subsection (1) of the warrant of arrest or within such extended period as the court may on good course determine, the provisional cancellation of the bail and the provisional forfeiture of the bail money automatically become final.

(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.

Criminal liability of person who is on bail because of failure to appear or to comply with condition of bail

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.

Cancellation of bail

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

(a)

on information on oath that

(i)

the accused is about to evade justice or is about to abscond in order to evade justice;

(ii)

the accused has interfered or threatened or attempted to interfere with witnesses;

(iii) the accused has defeated or attempted to defeat the ends of justice;

(iv)

the accused poses a threat to the safety of the public or of a particular person;

(v)

further evidence has since become available or factors have arisen, including the fact that the accused has furnished false information in the bail proceedings, that might have affected the decision to grant bail; or

(vi)

it is in the interests of justice to do so; or

(b)

if satisfied from evidence placed before it at the trial of the accused that circumstances relevant to the granting of bail to the accused have since changed substantially and that as a result thereof the ends of justice would otherwise be defeated, of its own motion,

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

(a)

he or she has reason to believe that an accused who has been released on bail

(i)

is about to evade justice or is about to abscond in order to evade justice;

(ii)

has interfered or threatened or attempted to interfere with witnesses;

(iii) has defeated or attempted to defeat the ends of justice; or (iv) poses a threat to the safety of the public or of a particular person;

(b)

further evidence has since become available or factors have arisen, including the fact that the accused has furnished false information in the bail proceedings, that might have affected the decision to release the accused on bail; or

(c)

it is in the interests of justice to do so,

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.

Cancellation of bail at request of accused

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.

Payment of bail money by person other than accused

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.

(2)

Bail money, whether deposited by an accused or any other person on behalf of the accused, may, notwithstanding that the bail money or any part thereof may have been ceded to any person, be refunded only to the depositor.

(3)

No person is allowed to deposit on behalf of an accused any bail money under this section if the person to whom the deposit is to be made has reason to believe that such other person, at any time before or after depositing the bail money, has been indemnified or will be indemnified by another in any manner against loss of the bail money or that such other person has received or will receive any financial benefit in connection with the deposit of the bail money.

(4)

Subject to section 74, no person who paid bail money on behalf of an accused is entitled to a refund of the bail money before the conclusion of the relevant criminal proceedings.

Remission of bail money

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.

Juvenile may be placed in place of safety instead of release on bail or detention in custody

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

(a)

release the accused from custody and warn the accused to appear before a specified court at a specified time on a specified date in connection with the offence in question or to remain in attendance at the proceedings relating to that offence and, if so released by a court, that court may, at the time of the release or at any time thereafter, impose any condition referred to in section 65 in connection with the release;

(b)

in the case of an accused under the age of 18 years who is released under paragraph (a), place the accused in the care of the person in whose custody he or she is, and warn that person to bring the accused or cause the accused to be brought before a specified court at a specified time on a specified date and to have the accused remain in attendance at the proceedings relating to the offence in question and, if a condition has been imposed under paragraph (a), to ensure that the accused complies with that condition.

(2)

(a) An accused who is released under subsection (1)(a) and who fails to appear or to remain in attendance at the proceedings in question in accordance with a warning under that subsection, or who fails to comply with a condition imposed under that subsection, commits an offence and is liable on conviction to the punishment prescribed by subsection (4).

(b)

A person in whose care an accused is placed under subsection (1)(b) and who fails in accordance with a warning under that subsection to bring the accused or cause the accused to be brought before court or to have the accused remain in attendance at the proceedings in question, or who fails to ensure that the accused complies with a condition imposed under subsection (1)(a), commits an offence and is liable on conviction to the punishment prescribed by subsection (4).

(3)

(a) A member of the police who releases an accused under subsection (1)(a) must, at the time of releasing the accused, complete and hand to the accused and, in the application of subsection (1)(b), to the person in whose care the accused is placed, a written notice on which must be entered the offence in respect of which the accused is being released on warning and the court before which and the time at which and the date on which the accused is to appear.

(b)

A court that releases an accused under subsection (1) must, at the time of releasing the accused, record or cause the relevant 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 warning relating to the court before which and the time at which and the date on which the accused is to appear or the condition on which the accused was released, is, on its mere production in any court in which the relevant charge is pending, prima facie proof of such warning.

(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.

Cancellation of release on warning

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.

(2)

An accused is, as contemplated in section 17, entitled to be defended by a legal practitioner of his or her choice at criminal proceedings.

(3)

An accused who is under the age of 18 years may be assisted by his or her parent or guardian at criminal proceedings, and any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.

Parent or guardian of accused under 18 years to attend proceedings

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.

(2)

The parent or guardian of an accused, if the parent or guardian is known to be within the magisterial district in question and can be traced without undue delay, must, for the purposes of subsection (1), be warned to attend the criminal proceedings in question

(a)

in any case in which the accused is arrested, by the peace officer effecting the arrest or, where the arrest is effected by a person other than a peace officer, the member of the police to whom the accused is handed over, and that peace officer or member of the police must inform the parent or guardian of the place and date and time at which the accused is to appear; or

(b)

in the case of a summons under section 56 or a written notice under section 58, by the person serving the summons on or handing the written notice to the accused, and that person must serve a copy of the summons or written notice on the parent or guardian, as well as a notice warning the parent or guardian to attend the proceedings in question at the place and on the date and at the time specified in the summons or written notice.

(3)

A parent or guardian who has been warned in terms of subsection (2), may apply to a magistrate of the court in which the accused is to appear for exemption from the obligation to attend the proceedings in question, and if that magistrate exempts that parent or guardian, the magistrate must do so in writing.

(4)

A parent or guardian who has been warned in terms of subsection (2) and who has not under subsection (3) been exempted from the obligation to attend the proceedings in question, or a parent or guardian who is present at criminal proceedings

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.

(5)

If a parent or guardian has not been warned under subsection (2), the court before which the relevant proceedings are pending may, at any time during the proceedings, direct any person to warn the parent or guardian of the accused to attend such proceedings.

(6) A parent or guardian who has been warned in terms of subsection (2), (4) or

(5)

and who fails to attend the criminal proceedings in question or who fails to remain in attendance at such proceedings in accordance with subsection (4), commits an offence and is liable on conviction to the punishment prescribed by subsection (7).

(7)

The court, if satisfied from evidence placed before it that a parent or guardian has been warned to attend the criminal proceedings in question and that that parent or guardian has failed to attend such proceedings, or that a parent or guardian has failed to remain in attendance at such proceedings, may issue a warrant for the arrest of that parent or guardian and, when he or she is brought before the court, in a summary manner enquire into his or her failure to attend or to remain in attendance and, unless that parent or guardian 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.

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

(a)

a court which has jurisdiction and in which the accused appeared for the first time in respect of that offence in accordance with any method referred to in section 40;

(b)

a court which has jurisdiction and to which the accused was referred under subsection (2); or

(c)

any other court which has jurisdiction and which has been designated by the Prosecutor-General for the purposes of the summary trial.

(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.

Charge sheet and proof of record of criminal case

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.

(3)

(a) The court must keep a record of the proceedings, whether in writing or mechanical, or must cause such record to be so kept, and the charge sheet, summons or indictment forms part thereof.

(b)

The record referred to in paragraph (a) may be proved in a court by the mere production thereof or of a copy thereof in terms of section 266.

(c)

Where the correctness of any record of proceedings is challenged, the court in which the record is challenged may, in order to satisfy itself whether any matter was correctly recorded or not, either orally or on affidavit hear such evidence as it may consider necessary.

(4)

(a) Where at any stage of the proceedings at a summary trial, but before sentence is passed, the record of the proceedings is lost or, in the case of a mechanical record, the recording is found to be defective and that record cannot be reconstructed to the satisfaction of the court, the court must make a formal finding to that effect, whereupon the trial must start anew.

(b)

Where the trial starts anew in terms of paragraph (a), the accused is deemed

(i)

not to have pleaded to the charge; and

(ii)

if the trial starts anew after the accused has been convicted of the offence charged but before sentence is passed, not to have been convicted on that charge.

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.

(2)

If the finding contained in the relevant report is the unanimous finding of the persons who under section 86 enquired into the mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on that report without hearing further evidence.

(3)

If the finding referred to in subsection (2) is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court must determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 86 enquired into the mental condition of the accused.

(4)

Where the finding is disputed as contemplated in subsection (3), the party disputing the finding may subpoena and cross-examine any person who under section 86 has enquired into the mental condition of the accused.

(5)

If the court finds that the accused is capable of understanding the proceedings so as to make a proper defence, the proceedings must be continued in the ordinary way.

(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.

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.

(9)

Where an appeal against a finding under subsection (5) is allowed, the court of appeal must set aside the conviction and sentence and direct that the person concerned 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).

(10)

Where an appeal against a finding under subsection (6) is allowed, the court of appeal must set aside the direction issued under that subsection and remit the case to the court that made the finding, whereupon the proceedings in question must be continued in the ordinary way.

Mental illness or mental defect and criminal responsibility

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

(a)

of appreciating the wrongfulness of his or her act; or

(b)

of acting in accordance with an appreciation of the wrongfulness of his or her act,

is not criminally responsible for that act.

(2)

If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court must direct that the matter be enquired into and be reported on in accordance with section 86.

(3)

If the finding contained in the relevant report is the unanimous finding of the persons who under section 86 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on that report without hearing further evidence.

(4)

If the finding referred to in subsection (3) is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court must determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 86 enquired into the mental condition of the accused.

(5)

Where the finding is disputed as contemplated in subsection (4), the party disputing the finding may subpoena and cross-examine any person who under section 86 enquired into the mental condition of the accused.

(6)

If the court finds that the accused committed the act in question and that the accused at the time of such commission was by reason of mental illness or mental defect not criminally responsible for that act

(a)

the court must find the accused not guilty; or

(b)

if the court so finds after the accused has been convicted of the offence charged but before sentence is passed, the court must set the conviction aside and find the accused not guilty,

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).

(7)

If the court finds that the accused at the time of the commission of the act in question was criminally responsible for that act but that the accused’s capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.

(8)

(a) An accused against whom a finding is made under subsection (6) may appeal against that finding if the finding is not made in consequence of an allegation by the accused under subsection (2).

(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.

(9)

Where an appeal against a finding under subsection (6) is allowed, the court of appeal must set aside the finding and the direction under that subsection and remit the case to the court that made the finding, whereupon the proceedings in question must be continued in the ordinary way.

Panel for purposes of enquiry and report under sections 84 and 85

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

(a)

where the accused is charged with an offence other than an offence referred to in paragraph (b), by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by that medical superintendent at the request of the court; or

(b)

where the accused is charged with murder or culpable homicide or rape (whether under a statute or at common law) or any other offence involving serious violence, or where the court in any particular case so directs

(i)

by the medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by that medical superintendent at the request of the court;

(ii)

by a psychiatrist appointed by the court and who is not in the full-time employment of the State; and

(iii) by a psychiatrist appointed by the accused if the accused so wishes.

(3)

The prosecutor undertaking the prosecution of the accused or any other prosecutor attached to the same court must provide the person or persons who, in terms of subsection (2), have to conduct the enquiry and report on the accused’s mental condition or mental capacity with a report in which the following are stated:

(a)

Whether the referral is taking place in terms of section 84 or 85;

(b)

at whose request or on whose initiative the referral is taking place;

(c)

the nature of the charge against the accused;

(d)

the stage of the proceedings at which the referral took place;

(e)

the purport of any statement made by the accused before or during the court proceedings that is relevant with regard to the accused’s mental conditions or mental capacity;

(f)

the purport of evidence that has been given that is relevant to the accused’s mental condition or mental capacity;

(g)

in so far as it is within the knowledge of the prosecutor, the accused’s social background and family composition and the names and addresses of the accused’s near relatives; and

(h)

any other fact that may, in the opinion of the prosecutor, be relevant in the evaluation of the accused’s mental condition or mental capacity.

(4)

(a) The court may for the purposes of the relevant enquiry commit the accused to a psychiatric hospital or to any other place designated by the court, for such periods, not exceeding 30 days at a time, as the court may from time to time determine, and where the accused is in custody when he or she is so committed, the accused is, while so committed, deemed to be in the lawful custody of the person or authority in whose custody he or she was at the time of the committal.

(b)

When the period of committal is for the first time extended under paragraph (a), such extension may be granted in the absence of the accused, unless the accused or his or her legal practitioner requests otherwise.

(5)

The report in terms of subsection (2) must be in writing and must be submitted in triplicate to the registrar or the clerk of the court in question, who must make a copy thereof available to the prosecutor and the accused.

(6)

The report in terms of subsection (2) must

(a)

include a description of the nature of the enquiry; and

(b)

include a diagnosis of the mental condition of the accused; and

(c)

if the enquiry is under section 84(1), include a finding as to whether the accused is capable of understanding the proceedings in question so as to make a proper defence; or

(d)

if the enquiry is under section 85(2), include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of the act in question or to act in accordance with an appreciation of the wrongfulness of that act was, at the time of the commission thereof, affected by mental illness or mental defect.

(7)

If the persons conducting the relevant enquiry are not unanimous in their finding under subsection (6)(c) or (d), that fact must be mentioned in the report and each of those persons must give his or her finding on the matter in question.

(8)

Subject to subsection (9), the contents of the report are admissible in evidence at criminal proceedings.

(9)

A statement made by an accused at the relevant enquiry is not admissible in evidence against the accused at criminal proceedings, except to the extent to which it may be relevant to the determination of the mental condition of the accused, in which event that statement is admissible notwithstanding that it may otherwise be inadmissible.

(10)

A psychiatrist appointed under subsection (2), other than a psychiatrist appointed by an accused, must, subject to subsection (12), be appointed from the list of psychiatrists referred to in subsection (11).

(11)

The Permanent Secretary: Health and Social Services must compile and keep a list of psychiatrists who are prepared to conduct any enquiry under this section, and must provide the registrar and all clerks of magistrates’ courts with a copy thereof.

(12)

Where the list compiled and kept under subsection (11) does not include a sufficient number of psychiatrists who may conveniently be appointed for any enquiry under this section, a psychiatrist may be appointed for the purposes of such enquiry notwithstanding that that psychiatrist’s name does not appear on that list.

(13)

(a) A psychiatrist designated or appointed under subsection (2) by or at the request of the court to enquire into the mental condition of an accused and who is not in the full-time employment of the State, must be compensated for his or her services in connection with the enquiry by the Ministry of Justice in accordance with a tariff determined by the Minister in consultation with the Minister responsible for finance.

(b)

A psychiatrist appointed under subsection (2)(b)(iii) by an accused to enquire into the mental condition of the accused and who is not in the full-time employment of the State, must be compensated for his or her services in connection with the enquiry by the Ministry of Justice in the circumstances and in accordance with a tariff determined by the Minister in consultation with the Minister responsible for finance.

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.

Joinder of charges

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.

(2)

(a) The court may, if in its opinion it will be in the interests of justice to do so, direct that an accused be tried separately in respect of any charge joined with any other charge.

(b)

An order under paragraph (a) may be made before or during a trial, and the effect thereof is that the charge in respect of which an accused is not then tried, must be proceeded with in all respects as if the accused had in respect thereof been charged separately.

Several charges to be disposed of by same court

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.

Charge where it is doubtful which offence committed

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.

Essentials of charge

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.

(2)

Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it is sufficient to state that fact in the charge.

(3)

In criminal proceedings the description of any statutory offence in the words of the law creating the offence, or in similar words, is sufficient.

Objection to 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

(a)

that the charge does not comply with the provisions of this Act relating to the essentials of the charge;

(b)

that the charge does not set out an essential element of the offence in question;

(c)

that the charge does not disclose an offence;

(d)

that the charge does not contain sufficient particulars of any matter alleged in the charge; or

(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.

(3)

(a) If the court decides that an objection under subsection (1) is well-founded, the court must make such order relating to the amendment of the charge or the delivery of particulars as it may consider fit.

(b)

Where the prosecution fails to comply with an order under paragraph (a), the court may quash the charge.

Court may order that charge be amended

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.

(2)

The amendment under subsection (1) may be made on such terms as to an adjournment of the proceedings as the court may consider fit.

(3)

On the amendment of the charge in accordance with the order of the court, the trial must proceed at the appointed time on the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.

(4)

The fact that a charge is not amended as provided in this section, does not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.

Court may order delivery of particulars

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.

(2)

The particulars must be delivered to the accused without charge and must be entered in the record, and the trial of the accused must proceed as if the charge had been amended in conformity with such particulars.

(3)

In determining whether a particular is required or whether a defect in the indictment before the High Court is material to the substantial justice of the case, the court may have regard to the summary of the substantial facts under section 163(3)(a) or the record of the preparatory examination.

Defect in charge cured by evidence

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.

Previous conviction not to be alleged in charge

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.

Charge need not specify or negative exception, exemption, proviso, excuse or qualification

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.

Charge need not state manner or means of act

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.

Certain omissions or imperfections not to invalidate charge

99. (1) A charge is not to be held defective

(a)

for want of the averment of any matter that need not be proved;

(b)

because any person mentioned in the charge is designated by a name of office or other descriptive appellation instead of by his or her proper name;

(c)

because of an omission, in any case where time is not of the essence of the offence, to state the time at which the offence was committed;

(d)

because the offence is stated to have been committed on a day subsequent to the laying of the complaint or the service of the charge or on a nonexistent day or on a day that never happened;

(e)

for want of, or imperfection in, the addition of any accused or any other person;

(f)

for want of the statement of the value or price of any matter or thing, or the amount of damage, injury or spoil in any case where the value or price or the amount of damage, injury or spoil is not of the essence of the offence.

(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.

Alibi and date of act or offence

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).

Charge may allege commission of offence on divers occasions

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.

Rules applicable to particular charges

102. (1) A charge relating to a testamentary instrument need not allege that the instrument is the property of any person.

(2)

A charge relating to anything fixed in a square, street or open place or in a place appropriated for public use or decoration, or relating to anything in a public place or office or taken therefrom, need not allege that the thing in question is the property of any person.

(3)

A charge relating to a document that is the evidence of title to land or of an interest in land may describe the document as being the evidence of the title of the person or of one of the persons having an interest in the land to which the document relates, and must describe the land or any relevant part thereof in a manner sufficient to identify it.

(4)

A charge relating to the theft of anything leased to the accused may describe the thing in question as the property of the person who leased it to the accused.

(5)

A charge against a person in the Public Service for an offence committed in connection with anything that came into that person’s possession by virtue of his or her employment may describe the thing in question as the property of the State.

(6)

A charge relating to anything in the possession or under the control of any public officer may describe the thing in question as being in the lawful possession or under the lawful control of the public officer without referring to him or her by name.

(7)

A charge relating to movable or immovable property whereof any body corporate has by law the management, control or custody, may describe the property in question as being under the lawful management or control or in the lawful custody of the body corporate in question.

(8)

If it is uncertain to which of two or more persons property in connection with which an offence has been committed belonged at the time when the offence was committed, the relevant charge may describe the property as the property of one or other

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.

(9)

If property alleged to have been stolen was not in the physical possession of the owner thereof at the time when the theft was committed but in the physical possession of another person who had the custody thereof on behalf of the owner, it is sufficient to allege in a charge for the theft of that property that it was in the lawful custody or under the lawful control of that other person.

(10)

A charge relating to theft from any grave need not allege that anything in the grave is the property of any person.

(11)

In a charge in which any trade mark or forged trade mark is proposed to be mentioned, it is sufficient, without further description and without any copy or facsimile, to state that the trade mark or forged trade mark is a trade mark or forged trade mark.

(12)

A charge relating to housebreaking or the entering of any house or premises with intent to commit an offence, whether the charge is brought under a statute or at common law, may state either that the accused intended to commit a specified offence or that the accused intended to commit an offence unknown to the prosecutor.

Naming of company, close corporation, firm or partnership in charge

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.

Naming of joint owners of property in charge

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.

Charge of murder or culpable homicide sufficient if it alleges fact of killing

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.

Charge relating to document sufficient if it refers to document by name

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.

Charge alleging theft may allege general deficiency

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.

Charge relating to false evidence

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

(a)

need not set out the words of the oath or the affirmation or the evidence or the statement, if it sets out so much of the purport thereof as is material;

(b)

need not allege, nor need it be established at the trial, that the false evidence or statement was material to any issue at the relevant proceedings or that it was to the prejudice of any person.

(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.

Charge relating to insolvency

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.

Charge alleging intent to defraud need not allege or prove that intent in respect of particular person or mention owner of property or set out details of deceit

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.

Reference in charge to objectionable matter not necessary

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

(i)

at a summary trial in terms of section 82; or

(ii)

in an indictment in terms of section 163; and

(b) the accused pleads not guilty to the charge.

(2)

Where more than one accused is charged, this Chapter applies separately to each of the accused.

(3)

Any reference in this Chapter to material is to be construed as a reference to material of all kind, and includes in particular a reference to

(a)

any information; and

(b)

any object.

(4)

Any reference in this Chapter to the recording of information is to putting it in a retrievable form.

Disclosure by prosecutor

113. (1) In this section “prosecution material” means material which

(a)

is in the prosecutor’s possession, and which came into the prosecutor’s possession in connection with the case against the accused; or

(b)

is not in the prosecutor’s possession, but which the prosecutor has inspected in connection with the case against the accused.

(2)

(a) An accused may, at any stage before any evidence in respect of any particular charge has been led, in writing request the prosecution to disclose any prosecution material, and the court before which the charge is pending may, at any time before any evidence in respect of that charge has been led but having regard to subsection (6), direct the prosecutor to

(i)

disclose to the accused any prosecution material that has not previously been disclosed to the accused; or

(ii)

give to the accused a written statement that there is no material of a description mentioned in subparagraph (i).

(b)

The court may, if necessary, postpone the proceedings for a period determined by the court to enable the prosecutor to disclose the material contemplated in paragraph (a)(i).

(c)

The court may, on application by the prosecutor and if good reasons exist for doing so, extend the period determined under paragraph (b).

(3)

(a) Where prosecution material consists of information that has been recorded in whatever form, the prosecutor must disclose such information

(i)

by ensuring that a copy is made of it and that the copy is given to the accused; or

(ii)

if in the prosecutor’s opinion it is not practicable or desirable to comply with subparagraph (i), by allowing the accused to inspect such material at a reasonable time and at a reasonable place by taking steps to ensure that the accused is allowed to do so.

(b)

A copy of the prosecution material may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.

(4)

(a) Where prosecution material consists of information that has not been recorded, the prosecutor must disclose such information by ensuring that it is recorded in such form as the prosecutor thinks fit and

(i)

by ensuring that a copy is made of it and that the copy is given to the accused; or

(ii)

if in the prosecutor’s opinion it is not practicable or desirable to comply with subparagraph (i), by allowing the accused to inspect such material at a reasonable time and at a reasonable place or by taking steps to ensure that the accused is allowed to do so.

(b)

A copy of the prosecution material may be in such form as the prosecutor thinks fit and need not be in the same form as that in which the information has already been recorded.

(5)

Where prosecution material does not consist of information, the prosecutor must disclose such material by allowing the accused to inspect it at a reasonable time and at a reasonable place or by taking steps to ensure that the accused is allowed to do so.

(6)

The prosecutor may refuse to disclose prosecution material in terms of this section where the court, on application by the prosecutor, orders 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 such disclosure may lead to the intimidation of witnesses or otherwise defeat the ends of justice.

Disclosure by accused

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.

(2)

A statement by an accused in terms of subsection (1) must

(a)

set out in detailed manner the nature of the accused’s defence;

(b)

indicate the matters on which the accused takes issue with the prosecution;

(c)

set out, in the case of each matter contemplated in paragraph (b), the reason why the accused takes issue with the prosecution; and

(d)

include a list of witnesses, but witnesses not on the list may be called with the court’s consent.

(3)

(a) The court may, if necessary, postpone the proceedings for a period determined by the court to enable the accused to disclose the material required by subsection (2).

(b)

The court may, on application by the accused and if good reasons exist for doing so, extend the period determined under paragraph (a).

(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.

Failure or faults in disclosure of accused

115. (1) Where an accused

(a)

fails to give a written statement in terms of section 114(1);

(b)

gives a written statement in terms of section 114(1) after the expiration of the period determined under paragraph (a) of section 114(3) or, if that period has been extended by the court under paragraph (b) of that section, after the expiration of that extended period;

(c)

sets out inconsistent defences in his or her written statement given in terms of section 114(1) or (4);

(d)

at his or her trial puts forward a defence that is different from any defence set out in the written statement given in terms of section 114(1) or (4),

subsection (2) applies.

(2)

When in criminal proceedings the court has to decide whether

(a)

the accused may under section 197 be discharged at the close of the case for the prosecution;

(b)

the accused is guilty of the offence charged; or

(c)

the accused is guilty of another offence that constitutes a competent verdict on the offence charged,

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).

Reconsideration of decision not to disclose

116. (1) This section applies at all times before

(a)

the accused is discharged under section 197;

(b)

the accused is acquitted;

(c)

the accused is convicted; or

(d)

the prosecutor decides to withdraw the case against the accused.

(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;

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.

Confidentiality of disclosed information

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.

(2)

The accused or his or her legal practitioner or the prosecutor may only use or disclose

(a)

the document or other object referred to in subsection (1), or the information recorded in it, in connection with the criminal proceedings for which purpose he or she was given the document or other object or was allowed to inspect it;

(b)

the document or other object contemplated in paragraph (a) to the extent that the document or other object has been displayed to the public in open court;

(c)

the information contemplated in paragraph (a) to the extent that the information has been communicated to the public in open court.

(3)

If the accused or the prosecutor applies to the court for an order granting permission to use or disclose, otherwise than in accordance with subsection (2), the document or other object referred to in subsection (1), or the information recorded in it, and the court makes such an order, the accused or the prosecutor may use or disclose that document or other object or information for the purposes and to the extent specified by the court.

(4)

A person who contravenes this section 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.

CHAPTER 18
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES

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

(a)

the proposed plea by the accused, the plea explanation, and the basis for such plea;

(b)

the willingness of the State to accept the proposed plea and, if acceptable, the basis on which the plea will be accepted;

(c)

in the case of an offence against the person or against property, the victim impact statement, including the extent of agreement on the facts alleged therein, the willingness or otherwise of the accused to compensate the victim in accordance with the applicable provisions of this Act for any injury, damage or loss suffered and, having regard to section 18, the amount of compensation to be awarded to the victim;

(d)

in the case of a proposed plea of guilty, the sentence agreed on as the sentence that will be proposed to the court;

(e)

in the case of a proposed plea of not guilty, facts or issues not in dispute, including facts alleged by the State and not disputed by the defence and facts alleged by the defence and not disputed by the State;

(f)

facts or issues that are in dispute;

(g)

the possibility of agreeing on further facts or admissions;

(h)

the holding of inspections of the scene of the alleged offence and other relevant places and objects;

(i)

the making of further discovery of statements or documents where such discovery had not been made in the ordinary course to date of the conference to the satisfaction of the parties;

(j)

the exchange between the parties of the reports of experts not yet discovered or exchanged;

(k)

the giving of any particulars or any further particulars reasonably required for the purpose of the trial;

(l)

the places, diagrams, photographs, models and the like to be used by both parties at the trial;

(m)

the preparation and handing in at the trial of copies of correspondence and other documents in the form of a paginated bundle of documentation in chronological order; and

(n)

any other matter or issue which the parties think may contribute to curtail the proceedings at the trial.

(3)

(a) At the conclusion of the pre-trial conference, the parties must draw up a minute wherein are set out

(i)

the issues considered;

(ii)

the facts and issues agreed on; and

(iii) the facts and issues not agreed on.

(b)

The minute so drawn up must

(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.

(5)

When the minute is handed into court in terms of subsection (4), the court

(a)

may put any question

(i)

to the prosecutor, the accused or his or her legal practitioner to clarify any matter set out in the minute; and

(ii)

where the accused has in terms of subsection (2)(c) indicated his or her willingness to compensate the victim of an offence against the person or against property, also to the victim or his or her legal practitioner with regard to such compensation;

(b)

must require the accused to declare whether he or she confirms any agreement between the parties under subsection (3)(a)(ii) with regard to the alleged facts of the case and any admission made by the accused in the minute.

(6)

After compliance with subsection (5), and in accordance with section 119

(a)

the charge must be put to the accused; and

(b)

the accused must be required to plead to the charge.

(7)

(a) Where the accused 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, the court must act in terms of section 125 and, subject to paragraph (b), convict the accused of the offence to which he or she has pleaded guilty.

(b)

The court must, if

(i)

the court is not satisfied that the accused is guilty of the offence to which he or she has pleaded guilty; or

(ii)

it appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge; or

(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)

(i)

pleads not guilty to the offence charged; or

(ii)

pleads guilty to the offence charged, but the court records a plea of not guilty in terms of section 126(1),

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.

Accused to plead to charge

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.

Pleas

120. (1) When an accused pleads to a charge, the accused may plead

(a)

that he or she is guilty of the offence charged or of any offence of which he or she may be convicted on the charge; or

(b)

that he or she is not guilty; or

(c)

that he or she has already been convicted of the offence with which he or she is charged; or

(d)

that he or she has already been acquitted of the offence with which he or she is charged; or

(e)

that he or she has been indemnified under section 229 against prosecution for the offence charged; or

(f)

that the court has no jurisdiction to try the offence; or

(g)

that the prosecutor has no authority to prosecute; or

(h)

that the prosecution may not be resumed or instituted by reason of an order by a court under section 371(3)(c).

(2)

Two or more pleas may be pleaded together, except that a plea of guilty may not be pleaded with any other plea to the same charge.

(3)

An accused must give reasonable notice to the prosecution of his or her intention to plead a plea other than the plea of guilty or of not guilty, and must in such notice state the ground on which he or she bases his or her plea, but the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.

(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.

Truth and publication for public benefit of defamatory matter to be specially pleaded

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.

Issues raised by plea to be tried

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.

Accused refusing to plead

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

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

Plea of guilty

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

(i)

impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding N$3 000; or

(ii)

deal with the accused otherwise in accordance with law;

(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.

(2)

If an accused or his or her legal practitioner hands a written statement by the accused into court, in which the accused sets out the facts which he or she admits and on which he or she has pleaded guilty, the court may, instead of questioning the accused under subsection (1)(b), convict the accused on the strength of that statement and sentence the accused as provided in that subsection if the court is satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, but the court may put any question to the accused to clarify any matter raised in the statement.

(3)

Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

Change of plea of guilty

126. (1) If at any stage of the proceedings under section 125(1)(a) or (b) or 125(2) and before sentence is passed

(a)

the court is in doubt whether the accused is guilty of the offence to which he or she has pleaded guilty;

(b)

it is alleged or appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge; or

(c)

the court is of the opinion for any other reason that the accused’s plea of guilty should not stand,

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.

Committal by district court of accused for sentence by divisional court after plea of guilty

127. (1) If a district court, after conviction following on a plea of guilty but before sentence, is of the opinion

(a)

that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a district court; or

(b)

that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a district court,

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

(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,

that court must make a formal finding of guilty and sentence the accused.

(b) If the divisional 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 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

(a)

pleads not guilty to the offence charged; or

(b)

pleads guilty to the offence charged, but the court records a plea of not guilty in terms of section 126(1),

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.

(2)

The presiding judge or magistrate must, before taking an unsworn statement from the accused under subsection (1), give the following explanations to the accused:

(a)

That the purpose of the unsworn statement is to establish which allegations in the charge are in dispute between the prosecution and the accused so as to curtail the duration of the trial and to decide on the relevance and need for certain evidence and the relevance of certain cross-examination, but that the accused is under no obligation to make such a statement;

(b)

that the court may, whether the accused does or does not make an unsworn statement, question the accused under subsection (3) to establish which allegations in the charge are in dispute, but that the accused is under no obligation to answer any question so put to him or her by the court or to consent to the recording of any admission;

(c)

that the accused has the right not to be compelled to give self-incriminating evidence;

(d)

that, notwithstanding an unsworn statement made by the accused, the State is not relieved of the burden of proving the guilt of the accused beyond reasonable doubt, but that an admission made by the accused and recorded in terms of subsection (3)(b) is sufficient proof of the fact so admitted and relieves the State of the burden of adducing evidence to prove that fact;

(e)

that an unsworn statement by the accused is not considered to be evidence by the accused in substitution of evidence under oath or affirmation after the conclusion of the evidence for the prosecution;

(f)

that should the accused refuse or fail to make an unsworn statement or to answer questions in accordance with subsection (3), cross-examination of State witnesses by or on behalf of the accused may be curtailed by the court on the ground that the relevance of the questions cannot be ascertained in the absence of the disclosure of the basis of the accused’s defence.

(3)

(a) Where the accused does not make an unsworn statement under subsection (1) or does so and it is not clear from that statement to what extent the accused denies or admits the issues raised by the plea, the court may question the accused to establish which allegations in the charge are in dispute.

(b)

The court may put any question to the accused to clarify any matter raised under subsection (1) or this subsection, and must enquire from the accused whether an allegation that is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and, if the accused so consents, that admission must be recorded and is deemed to be an admission under section 250.

(4)

Where the legal practitioner of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused must be required by the court to declare whether he or she confirms that reply or not.

Committal of accused for trial by divisional court

129. (1) Where an accused in a district court

(a)

pleads not guilty to the offence charged; or

(b)

pleads guilty to the offence charged, but the court records a plea of not guilty in terms of section 126(1),

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.

Committal of accused for sentence by divisional court after trial in district court

130. (1) If a district court, after conviction following on a plea of not guilty but before sentence, is of the opinion

(a)

that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a district court; or

(b)

that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a district court,

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.

(3)

(a) The divisional court must, after considering the record of the proceedings in the district court but subject to paragraph (b), sentence the accused, and the judgment of the district court stands for this purpose and is sufficient for the divisional court to pass any competent sentence.

(b)

If the divisional magistrate, after considering the record of the proceedings in the district court, is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, that magistrate must, without sentencing the accused, record the reasons for his or her opinion and transmit those reasons, together with the record of the proceedings in the district court, to the registrar, and the registrar must, as soon as practicable, lay the same 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 under section 329.

(c)

If a divisional magistrate acts under paragraph (b), the divisional magistrate must inform the accused accordingly and postpone the case to some future date pending the outcome of the review proceedings, and, if the accused is in custody, the divisional magistrate may make such order with regard to the detention or release of the accused as that magistrate may consider fit.

Committal to High Court in special case

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.

Non-availability of judge or magistrate after plea of not guilty

132. (1) If the judge or magistrate before whom an accused at a summary trial

(a)

has pleaded not guilty; or

(b)

has pleaded guilty, but the court has recorded a plea of not guilty in terms of section 126(1),

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

(a)

a plea of guilty; or

(b)

a plea of not guilty,

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.

(2)

(a) Where an accused is committed in terms of subsection (1)(a) for sentence by the High Court, the record of the proceedings in the divisional court must, upon proof thereof in the High Court, be received by the High 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 High Court that such plea or such admission was incorrectly recorded.

(b)

Unless 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,

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.

(d)

Section 125(3) applies in respect of the proceedings under this subsection.

(3)

(a) Where an accused is committed in terms of subsection (1)(b) for sentence by the High Court, the record of the proceedings in the divisional court must, upon proof thereof in the High Court, be received by the High Court and forms part of the record of that Court.

(b)

The High Court must, after considering the record of the proceedings in the divisional court but subject to paragraph (c), sentence the accused, and the judgment of the divisional court stands for this purpose and is sufficient for the High Court to pass that sentence.

(c)

If the judge, after considering the record of the proceedings in the divisional court, is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, the judge must, without sentencing the accused, obtain from the divisional magistrate who presided at the trial a statement setting out his or her reasons for convicting the accused.

(d)

If a judge acts under paragraph (c), the judge must inform the accused accordingly and postpone the case for judgment, and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as the judge may consider fit.

(e)

The High Court may at any sitting thereof hear any evidence and for that purpose subpoena any person to appear to give evidence or to produce any document or other article.

(f)

The High Court, whether or not it has heard evidence and after it has obtained and considered a statement referred to in paragraph (c), may

(i)

confirm the conviction and thereupon impose a sentence;

(ii)

alter the conviction to a conviction of an offence of which the accused may be convicted on the charge, and thereupon impose the sentence the High Court may consider fit;

(iii) set aside the conviction;

(iv)

remit the case to the divisional court with instructions to deal with any matter in such manner as the High Court may consider fit; or

(v)

make any such order in regard to any matter or thing connected with the accused or the proceedings in regard to the accused as the High Court considers likely to promote the ends of justice.

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.

Charge sheet and proof of record

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.

Plea of guilty

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).

(2)

(a) If the magistrate is satisfied that the accused admits the allegations stated in the charge, the magistrate must stop the proceedings and adjourn the case pending the decision of the Prosecutor-General.

(b)

If the magistrate is not satisfied as provided in paragraph (a), the magistrate must record in what respect he or she is not satisfied and enter a plea of not guilty and deal with the matter in terms of section 137(1), but an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, stands at the trial of the accused as proof of that allegation.

(3)

Where the proceedings have been adjourned in terms of subsection (2)(a), the Prosecutor-General may

(a)

arraign the accused for sentence before the High Court or any other court having jurisdiction, including the district court in which the proceedings were adjourned in terms of subsection (2)(a);

(b)

decline to arraign the accused for sentence before any court, but arraign the accused for trial on any charge at a summary trial before the High Court or any other court having jurisdiction, including the district court in which the proceedings were adjourned in terms of subsection (2)(a);

(c)

institute a preparatory examination against the accused.

(4)

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 for sentence

(a) in the district court in question, dispose of the case on the charge on which the accused is arraigned; or

(b)

in a divisional court or the High Court, adjourn the case for sentence by the divisional court or the High Court.

(5)

(a) The record of the proceedings in the district court must, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court or, if the accused is arraigned in the district court in which the proceedings were adjourned in terms of subsection (2)(a), the record of such proceedings stands as the record of that court, and the plea of guilty and any 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)

The record of the proceedings in the district court must, upon proof thereof in the court in which the accused is arraigned for summary trial, be received as part of the record of that court, and any admission by the accused stands and forms part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded.

(c)

Unless the accused satisfies the court that a 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.

(6)

If the accused satisfies the court that the plea of guilty or an admission that is material to his or her guilt was incorrectly recorded, or if 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 must record a plea of not guilty and proceed with the trial as a summary trial in that court, but an admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.

(7)

Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

Plea of not guilty

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

(a)

arraign the accused on any charge at a summary trial before the High Court or any other court having jurisdiction, including the district court in which the proceedings were adjourned in terms of subsection (1); or

(b)

institute a preparatory examination against the accused,

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

(a)

in the district court in question, proceed with the trial from the stage at which the proceedings were adjourned in terms of subsection (1) or, if the accused is arraigned on a charge that is different from the charge to which he or she has pleaded, require the accused to plead to that charge, and, if the plea to that charge is one of guilty or the plea in respect of an offence of which the accused may on that charge be convicted is one of guilty and the prosecutor accepts the plea, deal with the matter in accordance with section 125, in which event section 127(1) does not apply, or, if the plea is one of not guilty, deal with the matter in accordance with section 128 and proceed with the trial;

(b)

in a divisional court or the High Court, commit the accused for a summary trial before the divisional court or the High Court.

(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.

Charge sheet and proof of record

139. Section 135 applies with the necessary changes in respect of the proceedings under section 138 and the record of the proceedings.

Plea of guilty

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).

(2)

(a) If the magistrate is satisfied that the accused admits the allegations stated in the charge, the magistrate must adjourn the case for sentence by the divisional court in question.

(b)

If the magistrate is not satisfied as provided in paragraph (a), the magistrate must record in what respect he or she is not satisfied and enter a plea of not guilty and deal with the matter in terms of section 141(1), but an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, stands at the trial of the accused as proof of that allegation.

(3)

(a) The record of the proceedings in the district court must, upon proof thereof in the divisional court in which the accused is arraigned for sentence, be received as part of the record of that court, and the plea of guilty and any

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.

(4)

If the accused satisfies the court that the plea of guilty or an admission that is material to his or her guilt was incorrectly recorded, or if 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 must record a plea of not guilty and proceed with the trial as a summary trial in that court, but an admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.

(5)

Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purpose of determining an appropriate sentence.

Plea of not guilty

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).

(2)

The divisional court may try the accused on the charge in respect of which he or she has been committed for a summary trial in terms of subsection (1) or on any other or further charge which the prosecutor may prefer against the accused and which that court is competent to try.

(3)

The record of proceedings in the district court must, upon proof thereof in the divisional 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 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.

Proceedings preceding holding of preparatory examination to form part of preparatory examination record

143. Where the Prosecutor-General acts under paragraph (a) or (b) of section 142

(a)

the record of any proceedings under section 136(1) or 137(1) or of any proceedings in the district court or divisional court before the trial was converted into a preparatory examination, forms part of the preparatory examination record;

(b)

and the accused has pleaded to the charge, the preparatory examination must continue on the charge to which the accused has pleaded, but, where evidence is led at the preparatory examination which relates to an offence, other than the offence contained in the charge to which the accused has pleaded, allegedly committed by the accused, such evidence may not be excluded on the ground only that the evidence does not relate to the offence to which the accused has pleaded.

Prosecutor-General may direct that preparatory examination be conducted at a specified place

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.

(2)

The presiding magistrate must inform the accused of the decision of the Prosecutor-General under subsection (1) and adjourn the proceedings to that other court, and thereafter forward a copy of the record of the proceedings, certified as correct by the clerk of the court, to the court to which the proceedings have been adjourned.

(3)

The court to which the proceedings are adjourned under subsection (2), must receive the copy of the record referred to in that subsection, which then forms part of the proceedings of that court, and must proceed to conduct the preparatory examination as if it were a preparatory examination instituted in that court.

Procedure to be followed by magistrate at preparatory examination

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.

Recalling of witnesses after conversion of trial into preparatory examination

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.

Examination of prosecution witnesses at 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.

Recording of evidence at preparatory examination and proof of record

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.

Charge to be put at conclusion of evidence for prosecution

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.

Accused to plead to charge

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.

Procedure after plea

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.

Accused may testify at preparatory examination

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.

Accused may call witnesses at preparatory examination

153. An accused may call any competent witness on behalf of the defence.

Discharge of accused at conclusion of preparatory examination

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.

Procedure with regard to exhibits at preparatory examination

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.

Magistrate to transmit record of preparatory examination to Prosecutor-General

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.

Preparatory examination may be continued before different magistrate

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.

Prosecutor-General may arraign accused for sentence or trial

158. After considering the record of a preparatory examination transmitted to the Prosecutor-General under section 156, the Prosecutor-General may

(a)

in respect of any charge to which the accused has under section 150 pleaded guilty, arraign the accused for sentence before any court having jurisdiction;

(b)

arraign the accused for trial before any court having jurisdiction, whether the accused has under section 150 pleaded guilty or not guilty to any charge and whether or not the accused has been discharged under section 154;

(c)

decline to prosecute the accused,

and the Prosecutor-General must inform the magistrate’s court in question of his or her decision.

Procedure where accused arraigned for sentence

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

(a)

in the court in question, dispose of the case on the charge on which the accused is arraigned; or

(b)

in a court other than the court in question, adjourn the case for sentence by that other court.

(2)

(a) The record of the preparatory examination must, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court or, if the accused is arraigned in the court in which the preparatory examination was held, the record of the preparatory examination stands as the record of that court, and the plea of guilty and any 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.

(3)

If the accused satisfies the court that the plea of guilty or an admission that is material to his or her guilt was incorrectly recorded, or if 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 must record a plea of not guilty and proceed with the trial as a summary trial in that court, but an admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.

(4)

Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

Procedure where accused arraigned for trial

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.

(2)

Where an accused is arraigned for trial after a preparatory examination, the case must be dealt with in all respects as with a summary trial.

(3)

The record of the preparatory examination must, upon proof thereof in the court in which the accused is arraigned for 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, but the evidence adduced at the preparatory examination does not form part of the record of the trial of the accused unless

(a)

the accused pleads guilty at his or her trial to the offence charged, or to an offence of which he or she may be convicted on the charge and the prosecutor accepts that plea; or

(b)

the parties to the proceedings agree that any part of such evidence be admitted at the proceedings.

(4)

(a) Where an accused who has been discharged under section 154 is arraigned for trial under section 158(b), the clerk of the court where the preparatory examination was held must issue to the accused a written notice to that effect and stating the place, date and time for the appearance of the accused in that court for committal for trial, or, if the accused is to be arraigned in that court, to plead to the charge on which he or she is to be arraigned.

(b)

The notice referred to in paragraph (a) must be served on the accused in the manner provided in section 56(2) and (3) for the service of a summons in a magistrate’s court, and section 57(1), (2) and (3) applies with the necessary changes in respect of such a notice.

(c)

If the accused is committed for trial by another court, the court committing the accused may direct that the accused be detained in custody, whereupon Chapter 11 applies in respect of the release of the accused on bail.

Procedure where Prosecutor-General declines to prosecute

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.

Accused may inspect preparatory examination record and is entitled to copy thereof

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.

(2)

(a) An accused who is arraigned for sentence or for trial under section 158 is entitled to a copy of the record of the preparatory examination on payment, except where a legal practitioner under the Legal Aid Act, 1990 (Act No. 29 of 1990), or pro Deo counsel is appointed to defend the accused or where the accused is not legally represented, of the fee determined by the Minister.

(b)

The clerk of the court in question must as soon as practicable provide the accused or his or her legal practitioner with a copy of the preparatory examination record in accordance with paragraph (a).

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.

(3)

(a) Where the Prosecutor-General under section 82, 136(3)(b) or 137(2)(a) arraigns an accused for a summary trial in the High Court, the indictment must be accompanied by a summary of the substantial facts of the case that, in the opinion of the Prosecutor-General, are necessary to inform the accused of the allegations against him or her and that will not be prejudicial to the administration of justice or the security of the State, as well as a list of the names and addresses of witnesses the Prosecutor-General intends calling at the summary trial on behalf of the State, but

(i)

this paragraph is not to be so construed that the State is bound by the contents of the summary of the substantial facts;

(ii)

the Prosecutor-General may withhold the name and address of a witness if the Prosecutor-General is of the opinion that the witness may be tampered with or be intimidated or that it would be in the interests of the security of the State that the name and address of the witness be withheld;

(iii) the omission of the name or address of a witness from such list does not in any way affect the validity of the trial.

(b)

Where the evidence for the State at the trial of the accused differs in a material respect from the summary referred to in paragraph (a), the trial court may, at the request of the accused and if it appears to the court that the accused might be prejudiced in his or her defence by reason of such difference, adjourn the trial for such period as the court may consider adequate to enable the accused to prepare for his or her defence.

(4)

(a) An indictment, together with a notice of trial referred to in the rules of court, must, unless an accused agrees to a shorter period, be served on an accused at least 10 days (Saturdays, Sundays and public holidays excluded) before the date appointed for the trial

(i)

in accordance with the procedure and manner laid down by the rules of court, by handing it to the accused personally, or, if the accused cannot be found, by delivering it at his or her place of residence or place of employment or business to a person apparently over the age of 16 years and apparently residing or employed there, or, if the accused has been released on bail, by leaving it at the place determined under section 65(1)(d) for the service of any document on him or her; or

(ii)

by the magistrate committing him or her to the High Court, by handing it to him or her.

(b)

A return of the mode of service by the person who served the indictment and the notice of trial, or, if those documents were served in court on the accused by a magistrate, an endorsement to that effect on the record of proceedings, may, on the failure of the accused to attend the proceedings in the High Court, be handed in at the proceedings and is prima facie proof of the service.

(c)

Section 57(1), (2) and (3) applies with the necessary changes in respect of a notice of trial served on an accused in terms of this subsection.

Trial in High Court by judge sitting with or without assessors

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.

(2)

Where the Prosecutor-General arraigns an accused before the High Court

(a)

for trial and the accused pleads not guilty; or

(b)

for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge,

the presiding judge may summon not more than two assessors to assist him or her at the trial.

(3)

No assessor may hear any evidence unless the assessor first takes an oath or makes an affirmation, administered by the presiding judge, that he or she will, on the evidence placed before him or her, give a true verdict on the issues to be tried.

(4)

(a) An assessor who takes an oath or makes an affirmation in terms of subsection (3) is, subject to paragraphs (b), (c) and (d), a member of the court.

(b)

The decision or finding of the majority of the members of the court on any question of fact or on the question referred to in paragraph (c) is, subject to paragraphs (c) and (d) and section 246(3)(b), the decision or finding of the court, except when the presiding judge sits with only one assessor, in which case the decision or finding of the judge is, in the case of a difference of opinion, the decision or finding of the court.

(c)

If the presiding judge is of the opinion that it would be in the interests of the administration of justice that the assessor or the assessors assisting him or her do not take part in any decision on the question whether evidence of any confession or other statement made by an accused is admissible as evidence against the accused, the judge alone must decide on such a question, and the judge may for this purpose sit alone.

(d)

The presiding judge alone must decide on any other question of law or on any question whether any matter constitutes a question of law or a question of fact, and the judge may for this purpose sit alone.

(5)

If an assessor is not in the full-time employment of the State, the assessor is entitled to such compensation as the Minister, in consultation with the Minister responsible for finance, may determine in respect of expenses incurred by the assessor in connection with his or her attendance at the trial, and in respect of his or her services as assessor.

Reasons for decision by High Court in criminal trial

165. A judge presiding at a criminal trial in the High Court must

(a)

where the judge decides any question of law, including any question under section 164(4)(d) whether any matter constitutes a question of law or a question of fact, give the reasons for his or her decision;

(b)

whether the judge sits with or without assessors, give the reasons for the decision or finding of the court on any question of fact;

(c)

where the judge sits with assessors, give the reasons for the decision or finding of the court on the question referred to in section 164(4)(c);

(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.

Death or incapacity of 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

(a)

that the trial proceed before the remaining member or members of the court; or

(b)

that the trial start anew, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as assessor.

(2) Where the presiding judge acts under subsection (1)(b), the plea already recorded stands.

Change of venue for trial in High Court after indictment has been lodged

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

(a)

in the case of an application by the prosecution, on the accused; or

(b)

in the case of an application by the accused, on the prosecution,

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.

(2)

(a) The prosecutor may then examine the witnesses for the prosecution and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or that the accused committed an offence of which he or she may be convicted on the charge.

(b)

Where any document may be received in evidence before any court on its mere production, the prosecutor must read out that document in court.

Accused may address court and adduce evidence

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.

(b)

The court must also ask the accused whether the accused himself or herself intends giving evidence on behalf of the defence, and

(i)

if the accused answers in the affirmative, the accused must, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence; or

(ii)

if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself or herself, the court may draw such inference from the accused’s conduct as may be reasonable in the circumstances.

(2)

(a) The accused may then examine any other witness for the defence and adduce such other evidence on behalf of the defence as may be admissible.

(b)

Where any document may be received in evidence before any court on its mere production and the accused wishes to place such evidence before the court, the accused must read out that document in court.

Notice of alibi

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.

(2)

An accused or his or her legal practitioner may not, without the leave of the court, adduce evidence in support of a defence, commonly called an alibi, unless, at any time before plea proceedings or during plea proceedings, the accused or his or her legal practitioner gives notice of particulars of the alibi.

(3)

Without detracting from the generality of subsection (2), the accused or his or her legal practitioner may not, without the leave of the court, call any other person to give evidence in support of an alibi unless

(a)

the notice under that subsection includes the other person’s name and address or, if the other person’s name or address is not known to the accused at the time the accused or his or her legal practitioner gives notice, any information in the accused’s possession that might be of material assistance in finding the other person; or

(b)

if the other person’s name or address is not included in the notice under that subsection

(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

(i)

in the notice contemplated in section 163(4)(a)(i);

(ii)

by the magistrate committing the accused to the High Court in terms of section 163(4)(a)(ii); or

(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.

(5)

Any evidence to disprove an alibi may, subject to any direction by the court, be given before or after evidence is given in support of the alibi.

(6)

A notice purporting to be given under this section on behalf of the accused by his or her legal practitioner is, in the absence of evidence to the contrary, deemed to have been given on the authority of the accused.

(7)

A notice under subsection (2) before plea proceedings, must be given in writing to the prosecution.

Notice of allegation that accused is by reason of mental illness or mental defect not criminally responsible for the offence charged

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.

(b)

Where the accused or his or her legal practitioner gives notice or if the court grants leave under paragraph (a), the court must act in terms of section 85(2).

(2)

(a) The court may not refuse leave under this section if it appears to the court that the accused was not informed

(i)

in the notice contemplated in section 163(4)(a)(i);

(ii)

by the magistrate committing the accused to the High Court in terms of section 163(4)(a)(ii); or

(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 an allegation contemplated in subsection (1)(a), may, subject to any direction by the court, be given before or after evidence is given in support of that allegation.

(4)

A notice purporting to be given under this section on behalf of the accused by his or her legal practitioner is, in the absence of evidence to the contrary, deemed to have been given on the authority of the accused.

(5)

A notice under subsection (1)(a) before plea proceedings, must be given in writing to the prosecution.