- CHAPTER 1 PRELIMINARY
- CHAPTER 2 PROSECUTING AUTHORITY
- Authority to prosecute vests in State
- Delegation of authority to prosecute
- Power to withdraw charge or stop prosecution
- Private prosecution on certificate nolle prosequi
- Private prosecution under statutory right
- Security by private prosecutor
- Private prosecution in name of private prosecutor
- Failure of private prosecutor to appear
- Mode of conducting private prosecution
- Prosecutor-General may intervene in private prosecution
- Costs in respect of process
- Costs of private prosecution
- Costs of accused in private prosecution
- Taxation of costs
- Prescription of right to institute prosecution
- CHAPTER 3 LEGAL REPRESENTATION OF ACCUSED AND OF VICTIM IN CRIMINAL PROCEEDINGS
- 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
- State may seize certain articles
- Article to be seized under search warrant
- Circumstances in which article may be seized without search warrant
- Search of arrested person and seizure of article
- Search of premises
- Power of police to enter premises in connection with State security or any offence
- Entering of premises for purposes of obtaining evidence
- Resistance against entry or search
- Wrongful search an offence, and award of compensation
- Search to be conducted in decent and orderly manner
- Disposal by member of police of article after seizure
- Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings
- Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid
- Article to be transferred to court for purposes of trial
- Disposal of article after commencement of criminal proceedings
- Forfeiture of article to State
- Disposal of article concerned in an offence committed outside Namibia
- CHAPTER 5 QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME, ASCERTAINMENT OF BODILY FEATURES OF ACCUSED AND VICTIM IMPACT STATEMENT
- CHAPTER 6 METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
- CHAPTER 7 ARREST
- Manner and effect of arrest
- Arrest by peace officer without warrant
- Name and address of certain persons and power of arrest by peace officer without warrant
- Arrest by private person without warrant
- Warrant of arrest may be issued by district magistrate or justice of the peace
- Execution of warrants
- Arrest on facsimile or telegraphic authority
- Non-liability for wrongful arrest
- Private persons to assist in arrest when called upon
- Breaking open premises for purpose of arrest
- Use of force in effecting arrest
- Procedure after arrest
- Escaping and aiding escaping before incarceration and from police-cells and lockups
- Saving of other powers of arrest
- Saving of civil rights and liabilities
- CHAPTER 8 SUMMONS
- CHAPTER 9 WRITTEN NOTICE TO APPEAR IN COURT
- CHAPTER 10 ADMISSION OF GUILT
- CHAPTER 11 BAIL
- Effect of bail
- Bail before first appearance of accused in magistrate’s court
- Bail application of accused in court
- Rights of complainant in bail application where accused is charged with rape or a domestic violence offence
- Addition of further conditions of bail
- Amendment of conditions of bail
- Proceedings with regard to bail and conditions to be recorded in full
- Appeal to High Court with regard to bail
- Appeal by Prosecutor-General against decision of court to release accused on bail
- Failure by accused to observe condition of bail
- Failure of accused on bail to appear
- Criminal liability of person who is on bail because of failure to appear or to comply with condition of bail
- Cancellation of bail
- Cancellation of bail at request of accused
- Payment of bail money by person other than accused
- Remission of bail money
- Juvenile may be placed in place of safety instead of release on bail or detention in custody
- CHAPTER 12 RELEASE ON WARNING
- CHAPTER 13 ASSISTANCE TO ACCUSED
- CHAPTER 14 SUMMARY TRIAL
- CHAPTER 15 ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS: MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
- CHAPTER 16 THE CHARGE
- Accused entitled to copy of charge sheet
- Joinder of charges
- Several charges to be disposed of by same court
- Charge where it is doubtful which offence committed
- Essentials of charge
- Objection to charge
- Court may order that charge be amended
- Court may order delivery of particulars
- Defect in charge cured by evidence
- Previous conviction not to be alleged in charge
- Charge need not specify or negative exception, exemption, proviso, excuse or qualification
- Charge need not state manner or means of act
- Certain omissions or imperfections not to invalidate charge
- Alibi and date of act or offence
- Charge may allege commission of offence on divers occasions
- Rules applicable to particular charges
- Naming of company, close corporation, firm or partnership in charge
- Naming of joint owners of property in charge
- Charge of murder or culpable homicide sufficient if it alleges fact of killing
- Charge relating to document sufficient if it refers to document by name
- Charge alleging theft may allege general deficiency
- Charge relating to false evidence
- Charge relating to insolven
- 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
- Reference in charge to objectionable matter not necessary
- CHAPTER 17 DISCLOSURE
- CHAPTER 18 CURTAILMENT OF PROCEEDINGS: PRE-TRIAL CONFERENCES
- CHAPTER 19 THE PLEA
- CHAPTER 20 JURISDICTION
- CHAPTER 21 PLEA OF GUILTY AT SUMMARY TRIAL
- CHAPTER 22 PLEA OF NOT GUILTY AT SUMMARY TRIAL
- CHAPTER 23 COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT AFTER CONVICTION IN DIVISIONAL COURT
- CHAPTER 24 PLEA IN DISTRICT COURT ON CHARGE JUSTICIABLE IN HIGH COURT
- CHAPTER 25 PLEA IN DISTRICT COURT ON CHARGE TO BE TRIED IN DIVISIONAL COURT
- CHAPTER 26 PREPARATORY EXAMINATION
- Prosecutor-General may direct that preparatory examination be held
- Proceedings preceding holding of preparatory examination to form part of preparatory examination record
- Prosecutor-General may direct that preparatory examination be conducted at a specified place
- Procedure to be followed by magistrate at preparatory examination
- Recalling of witnesses after conversion of trial into preparatory examination
- Examination of prosecution witnesses at preparatory examination
- Recording of evidence at preparatory examination and proof of record
- Charge to be put at conclusion of evidence for prosecution
- Accused to plead to charge
- Procedure after plea
- Accused may testify at preparatory examination
- Accused may call witnesses at preparatory examination
- Discharge of accused at conclusion of preparatory examination
- Procedure with regard to exhibits at preparatory examination
- Magistrate to transmit record of preparatory examination to Prosecutor-General
- Preparatory examination may be continued before different magistrate
- Prosecutor-General may arraign accused for sentence or trial
- Procedure where accused arraigned for sentence
- Procedure where accused arraigned for trial
- Procedure where Prosecutor-General declines to prosecute
- Accused may inspect preparatory examination record and is entitled to copy thereof
- CHAPTER 27 TRIAL BEFORE HIGH COURT
- CHAPTER 28 CONDUCT OF PROCEEDINGS
- Prosecutor may address court and adduce evidence
- Accused may address court and adduce evidence
- Notice of alibi
- Notice of allegation that accused is by reason of mental illness or mental defect not criminally responsible for the offence charged
- Notice of intention to raise certain defences
- Notice to call expert witness
- Criminal proceedings to be conducted in open court
- Circumstances in which criminal proceedings not to take place in open court
- Prohibition of publication of certain information relating to criminal proceedings
- Persons implicated in same offence may be tried together
- Persons committing separate offences at same time and place may be tried together
- Joinder of accused and separation of trials
- Criminal proceedings to take place in presence of accused
- Circumstances in which criminal proceedings may take place in absence of accused
- Procedure at criminal proceedings where accused is absent
- Witness to testify orally
- Witness to be examined under oath or affirmation
- When unsworn or unaffirmed evidence admissible
- Oath, affirmation or admonition may be administered by or through an interpreter or intermediary
- Cross-examination and re-examination of witnesses
- Court may examine witness or person in attendance
- Special arrangements for vulnerable witnesses
- Court may adjourn proceedings to any date
- Court may adjourn proceedings to any place
- Failure of accused to appear after adjournment or to remain in attendance
- Evidence through intermediaries
- Evidence on commission
- Parties may examine witness
- Evidence on commission part of court record
- Accused may be discharged at close of case for prosecution
- Prosecution and defence may address court at conclusion of evidence
- Judgment may be corrected
- Court may defer final decision
- Arrest of person committing offence in court and removal from court of person disturbing proceedings
- CHAPTER 29 WITNESSES
- Process for securing attendance of witness
- Service of subpoena
- Pre-payment of witness expenses
- Witness from prison
- Witness to keep police informed of whereabouts
- Witness about to abscond and witness evading service of subpoena
- Protection of witness
- Court may subpoena witness
- Witness to attend proceedings and to remain in attendance
- Failure by witness to attend or to remain in attendance
- Powers of court with regard to recalcitrant witness
- Impeachment or support of credibility of witness
- Payment of expenses of witness
- Witness services
- Every witness competent and compellable unless expressly excluded
- Court to decide on competency of witness
- Incompetency due to state of mind
- Evidence for prosecution by spouse of accused
- Evidence for defence by accused and spouse of accused
- Accused to give evidence on oath or affirmation
- Privileges of accused when giving evidence
- Privilege arising out of marital status
- No witness compelled to answer question that the witness’s spouse may decline
- Witness not excused from answer establishing civil liability on the witness’s part
- Privilege of legal practitioner
- Privilege from disclosure on ground of public policy or public interest
- Witness excused from answering incriminating question
- Incriminating evidence by witness for prosecution
- Judge or magistrate may take evidence as to alleged offence
- The law in cases not provided for
- Saving of special provisions in other laws
- CHAPTER 30 EVIDENCE
- Conviction may follow on evidence of single witness
- Conviction may follow on confession by accused
- Irrelevant evidence inadmissible
- Evidence during criminal proceedings of previous convictions
- Evidence during criminal proceedings of similar offences by accused
- Proof of certain facts by affidavit or certificate
- Proof of certain facts by affidavit from person in foreign country
- Proof of undisputed facts
- Proof of written statement by consent
- Evidence recorded at preparatory examination admissible at trial in certaincircumstances
- Evidence recorded at former trial admissible at later trial in certain circumstances
- Hearsay evidence
- Admissibility of certain statements made by young children
- Admissibility of confession by accused
- Admissibility of facts discovered by means of inadmissible confession
- Confession not admissible against another
- Admissibility of admission by accused
- Admissions in court
- Admissibility of certain trade or business records
- Admissibility of, and weight to be attached to, documentary evidence as to facts in issue
- Admissibility of dying declaration
- Judicial notice of laws and other published matter
- Evidence of prints or bodily appearance of accused
- Evidence of no sexual intercourse between spouses admissible
- Evidence of character
- Evidence of sexual conduct or experience of complainant of rape or offence of an indecent nature
- Evidence of disputed writing
- Evidence of times of sunrise and sunset
- Evidence of signature of public officer262. A
- Article may be proved in evidence by means of photograph thereof
- Proof of public documents
- Proof of official documents
- Proof of judicial proceedings
- Proof of entries in accounting records and documentation of banking institutions
- Proof of entries in accounting records and documentation of banking institutions in countries outside Namibia
- Evidence on charge of bigamy
- Evidence of relationship on charge of incest
- Evidence on charge of infanticide or concealment of birth
- Evidence on charge of receiving stolen property
- Evidence on charge of defamation
- Evidence of receipt of money or property and general deficiency on charge of theft
- Evidence on charge of which false representation is an element
- Presumptions relating to certain documents
- Presumptions relating to absence from Namibia of certain persons
- Presumption that accused possessed particular qualification or acted in particularcapacity
- Presumption of failure to pay tax or to furnish information relating to tax
- Presumption of lack of authority
- Unstamped instrument admissible in criminal proceedings
- Use of traps and undercover operations and admissibility of evidence so obtained
- The law in cases not provided for
- Saving of special provisions in other laws
- CHAPTER 31 CONVERSION OF TRIAL INTO ENQUIRY
- CHAPTER 32 COMPETENT VERDICTS
- Attempt
- Accessory after the fact
- Murder and attempted murder
- Culpable homicide
- Robbery
- Rape and indecent assault
- Housebreaking with intent to commit an offence
- Statutory offence of breaking and entering or of entering premises
- Theft
- Receiving stolen property knowing it to have been stolen
- Assault with intent to do grievous bodily harm
- Common assault
- Statutory offence of committing a sexual act or of unlawful carnal intercourse
- Sodomy
- Offences not specified in this Chapter
- Acts committed under influence of certain substances
- CHAPTER 33 PREVIOUS CONVICTIONS
- CHAPTER 34 SENTENCE
- Evidence on sentence
- Sentence by magistrate or judge other than magistrate or judge who convicted accused
- Nature of punishments
- Imposition and conversion of correctional supervision
- Minimum sentences for certain serious offences
- Cumulative or concurrent sentences
- Interpretation of certain provisions in laws relating to imprisonment and fines
- Antedating sentence of imprisonment
- Minimum period of imprisonment four days
- Periodical imprisonment
- Declaration of certain persons as habitual criminals
- Imprisonment in default of payment of fine
- Recovery of fine
- Court may enforce payment of fine
- Manner of dealing with convicted juvenile
- Period of supervision or custody of juveniles
- Committal to rehabilitation centre
- Conditional or unconditional postponement or suspension of sentence, and caution or reprimand
- Agreement on operation of suspended sentences
- Sentence may be corrected
- Warrant for execution of sentence
- CHAPTER 35 COMPENSATION AND RESTITUTION
- Court may award compensation or order restitution where offence caused injury, damage or loss
- Compensation to innocent purchaser of property unlawfully obtained
- CHAPTER 36 REVIEWS AND APPEALS IN CASES OF CRIMINALPROCEEDINGS IN MAGISTRATES’ COURTS
- Sentences subject to review in the ordinary course
- Transmission of record
- Procedure on review
- Special review before imposition of sentence
- Accused may set down case for argument
- Execution of sentence not suspended unless bail granted
- Correctional supervision not suspended unless bail granted
- Appeal from magistrate’s court by person convicted
- Explanation of certain rights to unrepresented accused
- Appeal from magistrate’s court by Prosecutor-General or other prosecutor
- Appeal from High Court to Supreme Court
- Review or appeal and failure to comply with subsection (1)(b) or (2) of section 125
- Institution of proceedings anew when conviction set aside on appeal or review
- Obtaining presence of convicted person in magistrate’s court after setting aside of sentence or order
- CHAPTER 37 APPEALS IN CASES OF CRIMINALPROCEEDINGS IN HIGH COURT
- Court of appeal in respect of High Court judgments
- Applications for condonation, for leave to appeal and for leave to lead further evidence
- Appeal from High Court by Prosecutor-General or other prosecutor
- Special entry of irregularity or illegality
- Appeal on special entry under section 345
- Reservation of question of law
- Report of trial judge to be furnished on appeal
- When execution of sentence may be suspended
- Powers of Supreme Court
- Institution of proceedings anew when conviction set aside on appeal
- CHAPTER 38 GENERAL PROVISIONS
- Force of process
- Court process may be served or executed by member of police
- Transmission of court process by facsimile or telegraph or similar communication
- Irregular warrant or process
- Prosecution of corporations and members of associations
- Attorney-General may invoke decision of Supreme Court on question of law
- Minister may declare certain persons peace officers for specific purposes
- Person who makes statement entitled to copy thereof
- Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed
- Medical examination of minors towards or in connection with whom certain offences have been committed
- Act or omission constituting offence under two or more laws
- Estimating age of person
- Production of document by accused at criminal proceedings
- Removal of accused from one prison to another for purposes of attending criminal proceedings
- Prison list of unsentenced prisoners
- Compounding of certain minor offences
- Charges for giving conflicting statements
- Binding over of persons to keep the peace
- Conviction or acquittal no bar to civil action for damages
- Unreasonable delays in trials
- Repeal and amendment of laws, and savings
- Short title and commencement
- SCHEDULE 1
- SCHEDULE 2
- SCHEDULE 3
- SCHEDULE 4
- SCHEDULE 5
- SCHEDULE 6
- SCHEDULE 7
- SCHEDULE 8
GOVERNMENT GAZETTE
OF THE
REPUBLIC OF NAMIBIA
N$29.30 WINDHOEK - 24 December 2004 No.3358 CONTENTS Page GOVERNMENT NOTICE No. 285 Promulgation of Criminal Procedure Act, 2004 (Act No. 25 of 2004), of the Parliament .......................................................................................................... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 285 2004
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 25 of 2004: Criminal Procedure Act, 2004.
ACT
To make provision for procedures and related matters in criminal proceedings.
(Signed by the President on 9 December 2004)
ARRANGEMENT OF SECTIONS
CHAPTER 1
PRELIMINARY
Section
1. Definitions
CHAPTER 2
PROSECUTING AUTHORITY
- Authority to prosecute vests in State
- Delegation of authority to prosecute
- Power to withdraw charge or stop prosecution
- Private prosecution on certificate nolle prosequi
- Private prosecution under statutory right
- Security by private prosecutor
- Private prosecution in name of private prosecutor
- Failure of private prosecutor to appear
- Mode of conducting private prosecution
- Prosecutor-General may intervene in private prosecution
- Costs in respect of process
- Costs of private prosecution
- Costs of accused in private prosecution
- Taxation of costs
- Prescription of right to institute prosecution
CHAPTER 3
LEGAL REPRESENTATION OF ACCUSED
AND OF VICTIM IN CRIMINAL PROCEEDINGS
- Legal representation of accused
- Legal representation of victim
CHAPTER 4
SEARCH WARRANT, ENTERING OF PREMISES, SEIZURE,
FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES
- Saving as to certain powers conferred by other laws
- State may seize certain articles
- Article to be seized under search warrant
- Circumstances in which article may be seized without search warrant
- Search of arrested person and seizure of article
- Search of premises
- Power of police to enter premises in connection with State security or any offence
- Entering of premises for purposes of obtaining evidence
- Resistance against entry or search
- Wrongful search an offence, and award of compensation
- Search to be conducted in decent and orderly manner
- Disposal by member of police of article after seizure
- Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings
- Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid
- Article to be transferred to court for purposes of trial
- Disposal of article after commencement of criminal proceedings
- Forfeiture of article to State
- Disposal of article concerned in an offence committed outside Namibia
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
- Powers in respect of prints and bodily appearance of accused
- Victim impact statement
CHAPTER 6
METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
40. Methods of securing attendance of accused in court
CHAPTER 7
ARREST
- Manner and effect of arrest
- Arrest by peace officer without warrant
- Name and address of certain persons and power of arrest by peace officer without warrant
- Arrest by private person without warrant
- Warrant of arrest may be issued by district magistrate or justice of the peace
- Execution of warrants
- Arrest on facsimile or telegraphic authority
- Non-liability for wrongful arrest
- Private persons to assist in arrest when called upon
- Breaking open premises for purpose of arrest
- Use of force in effecting arrest
- Procedure after arrest
- Escaping and aiding escaping before incarceration and from police-cells and lockups
- Saving of other powers of arrest
- Saving of civil rights and liabilities
CHAPTER 8
SUMMONS
- Summons as method of securing attendance of accused in magistrate’s court
- Failure of accused to appear on summons
CHAPTER 9
WRITTEN NOTICE TO APPEAR IN COURT
58. Written notice as method of securing attendance of accused in magistrate’s court
CHAPTER 10
ADMISSION OF GUILT FINE
- Admission of guilt and payment of fine without appearance in court
- Admission of guilt and payment of fine after appearing in court
CHAPTER 11
BAIL
- Effect of bail
- Bail before first appearance of accused in magistrate’s court
- Bail application of accused in court
- Rights of complainant in bail application where accused is charged with rape or a domestic violence offence
- Addition of further conditions of bail
- Amendment of conditions of bail
- Proceedings with regard to bail and conditions to be recorded in full
- Appeal to High Court with regard to bail
- Appeal by Prosecutor-General against decision of court to release accused on bail
- Failure by accused to observe condition of bail
- Failure of accused on bail to appear
- Criminal liability of person who is on bail because of failure to appear or to comply with condition of bail
- Cancellation of bail
- Cancellation of bail at request of accused
- Payment of bail money by person other than accused
- Remission of bail money
- Juvenile may be placed in place of safety instead of release on bail or detention in custody
CHAPTER 12
RELEASE ON WARNING
- Accused may be released on warning instead of bail
- Cancellation of release on warning
CHAPTER 13
ASSISTANCE TO ACCUSED
- Accused entitled to assistance after arrest and at criminal proceedings
- Parent or guardian of accused under 18 years to attend proceedings
CHAPTER 14
SUMMARY TRIAL
- Summary trial and court of trial
- Charge sheet and proof of record of criminal case
CHAPTER 15
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS:
MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
- Capacity of accused to understand proceedings
- Mental illness or mental defect and criminal responsibility
- Panel for purposes of enquiry and report under sections 84 and 85
CHAPTER 16
THE CHARGE
- Accused entitled to copy of charge sheet
- Joinder of charges
- Several charges to be disposed of by same court
- Charge where it is doubtful which offence committed
- Essentials of charge
- Objection to charge
- Court may order that charge be amended
- Court may order delivery of particulars
- Defect in charge cured by evidence
- Previous conviction not to be alleged in charge
- Charge need not specify or negative exception, exemption, proviso, excuse or qualification
- Charge need not state manner or means of act
- Certain omissions or imperfections not to invalidate charge
- Alibi and date of act or offence
- Charge may allege commission of offence on divers occasions
- Rules applicable to particular charges
- Naming of company, close corporation, firm or partnership in charge
- Naming of joint owners of property in charge
- Charge of murder or culpable homicide sufficient if it alleges fact of killing
- Charge relating to document sufficient if it refers to document by name
- Charge alleging theft may allege general deficiency
- Charge relating to false evidence
- Charge relating to insolvency
- 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
- Reference in charge to objectionable matter not necessary
CHAPTER 17
DISCLOSURE
- Application of Chapter, and general interpretation
- Disclosure by prosecutor
- Disclosure by accused
- Failure or faults in disclosure of accused
- Reconsideration of decision not to disclose
- Confidentiality of disclosed information
CHAPTER 18
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES
118. Pre-trial conferences
CHAPTER 19
THE PLEA
- Accused to plead to charge
- Pleas
- Truth and publication for public benefit of defamatory matter to be specially pleaded
- Issues raised by plea to be tried
- Accused refusing to plead
CHAPTER 20 JURISDICTION 124. Accused before court that has no jurisdiction CHAPTER 21 PLEA OF GUILTY AT SUMMARY TRIAL 125. Plea of guilty 126. Change of plea of guilty 127. Committal by district court of accused for sentence by divisional court after plea of guilty CHAPTER 22 PLEA OF NOT GUILTY AT SUMMARY TRIAL 128. Plea of not guilty and procedure in regard to issues 129. Committal of accused for trial by divisional court 130. Committal of accused for sentence by divisional court after trial in district court 131. Committal to High Court in special case 132. Non-availability of judge or magistrate after plea of not guilty CHAPTER 23 COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT AFTER CONVICTION IN DIVISIONAL COURT 133. Committal of accused for sentence by High Court after conviction in divisional court CHAPTER 24 PLEA IN DISTRICT COURT ON CHARGE JUSTICIABLE IN HIGH COURT 134. Accused to plead in district court on charge to be tried in High Court 135. Charge sheet and proof of record 136. Plea of guilty 137. Plea of not guilty CHAPTER 25 PLEA IN DISTRICT COURT ON CHARGE TO BE TRIED IN DIVISIONAL COURT 138. Accused to plead in district court on charge to be tried in divisional court 139. Charge sheet and proof of record 140. Plea of guilty 141. Plea of not guilty CHAPTER 26 PREPARATORY EXAMINATION 142. Prosecutor-General may direct that preparatory examination be held 143. Proceedings preceding holding of preparatory examination to form part of preparatory examination record 144. Prosecutor-General may direct that preparatory examination be conducted at a specified place 145. Procedure to be followed by magistrate at preparatory examination 146. Recalling of witnesses after conversion of trial into preparatory examination 147. Examination of prosecution witnesses at preparatory examination 148. Recording of evidence at preparatory examination and proof of record
- Charge to be put at conclusion of evidence for prosecution
- Accused to plead to charge
- Procedure after plea
- Accused may testify at preparatory examination
- Accused may call witnesses at preparatory examination
- Discharge of accused at conclusion of preparatory examination
- Procedure with regard to exhibits at preparatory examination
- Magistrate to transmit record of preparatory examination to Prosecutor-General
- Preparatory examination may be continued before different magistrate
- Prosecutor-General may arraign accused for sentence or trial
- Procedure where accused arraigned for sentence
- Procedure where accused arraigned for trial
- Procedure where Prosecutor-General declines to prosecute
- Accused may inspect preparatory examination record and is entitled to copy thereof
CHAPTER 27
TRIAL BEFORE HIGH COURT
- Charge in High Court to be laid in an indictment
- Trial in High Court by judge sitting with or without assessors
- Reasons for decision by High Court in criminal trial
- Death or incapacity of assessor
- Change of venue for trial in High Court after indictment has been lodged
CHAPTER 28
CONDUCT OF PROCEEDINGS
- Prosecutor may address court and adduce evidence
- Accused may address court and adduce evidence
- Notice of alibi
- Notice of allegation that accused is by reason of mental illness or mental defect not criminally responsible for the offence charged
- Notice of intention to raise certain defences
- Notice to call expert witness
- Criminal proceedings to be conducted in open court
- Circumstances in which criminal proceedings not to take place in open court
- Prohibition of publication of certain information relating to criminal proceedings
- Persons implicated in same offence may be tried together
- Persons committing separate offences at same time and place may be tried together
- Joinder of accused and separation of trials
- Criminal proceedings to take place in presence of accused
- Circumstances in which criminal proceedings may take place in absence of accused
- Procedure at criminal proceedings where accused is absent
- Witness to testify orally
- Witness to be examined under oath or affirmation
- When unsworn or unaffirmed evidence admissible
- Oath, affirmation or admonition may be administered by or through an interpreter or intermediary
- Cross-examination and re-examination of witnesses
- Court may examine witness or person in attendance
- Special arrangements for vulnerable witnesses
- Court may adjourn proceedings to any date
- Court may adjourn proceedings to any place
- Failure of accused to appear after adjournment or to remain in attendance
- Evidence through intermediaries
- Evidence on commission
- Parties may examine witness
- Evidence on commission part of court record
- Accused may be discharged at close of case for prosecution
- Prosecution and defence may address court at conclusion of evidence
- Judgment may be corrected
- Court may defer final decision
- Arrest of person committing offence in court and removal from court of person disturbing proceedings
CHAPTER 29
WITNESSES
- Process for securing attendance of witness
- Service of subpoena
- Pre-payment of witness expenses
- Witness from prison
- Witness to keep police informed of whereabouts
- Witness about to abscond and witness evading service of subpoena
- Protection of witness
- Court may subpoena witness
- Witness to attend proceedings and to remain in attendance
- Failure by witness to attend or to remain in attendance
- Powers of court with regard to recalcitrant witness
- Impeachment or support of credibility of witness
- Payment of expenses of witness
- Witness services
- Every witness competent and compellable unless expressly excluded
- Court to decide on competency of witness
- Incompetency due to state of mind
- Evidence for prosecution by spouse of accused
- Evidence for defence by accused and spouse of accused
- Accused to give evidence on oath or affirmation
- Privileges of accused when giving evidence
- Privilege arising out of marital status
- No witness compelled to answer question that the witness’s spouse may decline
- Witness not excused from answer establishing civil liability on the witness’s part
- Privilege of legal practitioner
- Privilege from disclosure on ground of public policy or public interest
- Witness excused from answering incriminating question
- Incriminating evidence by witness for prosecution
- Judge or magistrate may take evidence as to alleged offence
- The law in cases not provided for
- Saving of special provisions in other laws
CHAPTER 30
EVIDENCE
- Conviction may follow on evidence of single witness
- Conviction may follow on confession by accused
- Irrelevant evidence inadmissible
- Evidence during criminal proceedings of previous convictions
- Evidence during criminal proceedings of similar offences by accused
- Proof of certain facts by affidavit or certificate
- Proof of certain facts by affidavit from person in foreign country
- Proof of undisputed facts
- Proof of written statement by consent
- Evidence recorded at preparatory examination admissible at trial in certain circumstances
- Evidence recorded at former trial admissible at later trial in certain circumstances
- Hearsay evidence
245. Admissibility of certain statements made by young children 246. Admissibility of confession by accused 247. Admissibility of facts discovered by means of inadmissible confession 248. Confession not admissible against another 249. Admissibility of admission by accused 250. Admissions in court 251. Admissibility of certain trade or business records 252. Admissibility of, and weight to be attached to, documentary evidence as to facts in issue 253. Admissibility of dying declaration 254. Judicial notice of laws and other published matter 255. Evidence of prints or bodily appearance of accused 256. Evidence of no sexual intercourse between spouses admissible 257. Evidence of character 258. Evidence of sexual conduct or experience of complainant of rape or offence of an indecent nature 259. Evidence of disputed writing 260. Evidence of times of sunrise and sunset 261. Evidence and sufficiency of evidence of appointment to public office 262. Evidence of signature of public officer 263. Article may be proved in evidence by means of photograph thereof 264. Proof of public documents 265. Proof of official documents 266. Proof of judicial proceedings 267. Proof of entries in accounting records and documentation of banking institutions 268. Proof of entries in accounting records and documentation of banking institutions in countries outside Namibia 269. Evidence on charge of bigamy 270. Evidence of relationship on charge of incest 271. Evidence on charge of infanticide or concealment of birth 272. Evidence on charge of receiving stolen property 273. Evidence on charge of defamation 274. Evidence of receipt of money or property and general deficiency on charge of theft 275. Evidence on charge of which false representation is an element 276. Presumptions relating to certain documents 277. Presumptions relating to absence from Namibia of certain persons 278. Presumption that accused possessed particular qualification or acted in particular capacity 279. Presumption of failure to pay tax or to furnish information relating to tax 280. Presumption of lack of authority 281. Unstamped instrument admissible in criminal proceedings 282. Use of traps and undercover operations and admissibility of evidence so obtained 283. The law in cases not provided for 284. Saving of special provisions in other laws CHAPTER 31 CONVERSION OF TRIAL INTO ENQUIRY 285. Court may refer juvenile accused to children’s court CHAPTER 32 COMPETENT VERDICTS 286. Attempt 287. Accessory after the fact 288. Murder and attempted murder 289. Culpable homicide
290. Robbery 291. Rape and indecent assault 292. Housebreaking with intent to commit an offence 293. Statutory offence of breaking and entering or of entering premises 294. Theft 295. Receiving stolen property knowing it to have been stolen 296. Assault with intent to do grievous bodily harm 297. Common assault 298. Statutory offence of committing a sexual act or of unlawful carnal intercourse 299. Sodomy 300. Offences not specified in this Chapter 301. Acts committed under influence of certain substances CHAPTER 33 PREVIOUS CONVICTIONS 302. Previous convictions may be proved 303. Fingerprint record prima facie evidence of previous conviction 304. Evidence of further particulars relating to previous conviction CHAPTER 34 SENTENCE 305. Evidence on sentence 306. Sentence by magistrate or judge other than magistrate or judge who convicted accused 307. Nature of punishments 308. Imposition and conversion of correctional supervision 309. Minimum sentences for certain serious offences 310. Cumulative or concurrent sentences 311. Interpretation of certain provisions in laws relating to imprisonment and fines 312. Antedating sentence of imprisonment 313. Minimum period of imprisonment four days 314. Periodical imprisonment 315. Declaration of certain persons as habitual criminals 316. Imprisonment in default of payment of fine 317. Recovery of fine 318. Court may enforce payment of fine 319. Manner of dealing with convicted juvenile 320. Period of supervision or custody of juveniles 321. Committal to rehabilitation centre 322. Conditional or unconditional postponement or suspension of sentence, and caution or reprimand 323. Agreement on operation of suspended sentences 324. Sentence may be corrected 325. Warrant for execution of sentence CHAPTER 35 COMPENSATION AND RESTITUTION 326. Court may award compensation or order restitution where offence caused injury, damage or loss 327. Compensation to innocent purchaser of property unlawfully obtained CHAPTER 36 REVIEWS AND APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN MAGISTRATES’ COURTS 328. Sentences subject to review in the ordinary course
329. Transmission of record 330. Procedure on review 331. Special review before imposition of sentence 332. Accused may set down case for argument 333. Execution of sentence not suspended unless bail granted 334. Correctional supervision not suspended unless bail granted 335. Appeal from magistrate’s court by person convicted 336. Explanation of certain rights to unrepresented accused 337. Appeal from magistrate’s court by Prosecutor-General or other prosecutor 338. Appeal from High Court to Supreme Court 339. Review or appeal and failure to comply with subsection (1)(b) or (2) of section 125 340. Institution of proceedings anew when conviction set aside on appeal or review 341. Obtaining presence of convicted person in magistrate’s court after setting aside of sentence or order CHAPTER 37 APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN HIGH COURT 342. Court of appeal in respect of High Court judgments 343. Applications for condonation, for leave to appeal and for leave to lead further evidence 344. Appeal from High Court by Prosecutor-General or other prosecutor 345. Special entry of irregularity or illegality 346. Appeal on special entry under section 345 347. Reservation of question of law 348. Report of trial judge to be furnished on appeal 349. When execution of sentence may be suspended 350. Powers of Supreme Court 351. Institution of proceedings anew when conviction set aside on appeal CHAPTER 38 GENERAL PROVISIONS 352. Force of process 353. Court process may be served or executed by member of police 354. Transmission of court process by facsimile or telegraph or similar communication 355. Irregular warrant or process 356. Prosecution of corporations and members of associations 357. Attorney-General may invoke decision of Supreme Court on question of law 358. Minister may declare certain persons peace officers for specific purposes 359. Person who makes statement entitled to copy thereof 360. Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed 361. Medical examination of minors towards or in connection with whom certain offences have been committed 362. Act or omission constituting offence under two or more laws 363. Estimating age of person 364. Production of document by accused at criminal proceedings 365. Removal of accused from one prison to another for purposes of attending criminal proceedings 366. Prison list of unsentenced prisoners 367. Compounding of certain minor offences 368. Charges for giving conflicting statements 369. Binding over of persons to keep the peace 370. Conviction or acquittal no bar to civil action for damages 371. Unreasonable delays in trials
- Repeal and amendment of laws, and savings
- Short title and commencement
SCHEDULES
BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:
CHAPTER 1
PRELIMINARY
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
Authority to prosecute vests in State
2. (1) The authority to institute and conduct a prosecution in criminal proceedings in respect of any offence in relation to which a magistrate’s court or the High Court in Namibia has jurisdiction, vests in the State and must, pursuant to and in accordance with Article 88(2) of the Namibian Constitution, be exercised by the Prosecutor-General in the name of the Republic of Namibia.
(2) Criminal proceedings purporting to be instituted in the name of the State in any court in Namibia are for all purposes deemed to be instituted in the name of the Republic of Namibia.
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.
REPUBLIC OF NAMIBIA
N$29.30 WINDHOEK - 24 December 2004 No.3358 CONTENTS Page GOVERNMENT NOTICE No. 285 Promulgation of Criminal Procedure Act, 2004 (Act No. 25 of 2004), of the Parliament .......................................................................................................... 1 _______________ Government Notice
OFFICE OF THE PRIME MINISTER
No. 285 2004
PROMULGATION OF ACT
OF PARLIAMENT
The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 25 of 2004: Criminal Procedure Act, 2004.
ACT
To make provision for procedures and related matters in criminal proceedings.
(Signed by the President on 9 December 2004)
ARRANGEMENT OF SECTIONS
CHAPTER 1
PRELIMINARY
Section
1. Definitions
CHAPTER 2
PROSECUTING AUTHORITY
- Authority to prosecute vests in State
- Delegation of authority to prosecute
- Power to withdraw charge or stop prosecution
- Private prosecution on certificate nolle prosequi
- Private prosecution under statutory right
- Security by private prosecutor
- Private prosecution in name of private prosecutor
- Failure of private prosecutor to appear
- Mode of conducting private prosecution
- Prosecutor-General may intervene in private prosecution
- Costs in respect of process
- Costs of private prosecution
- Costs of accused in private prosecution
- Taxation of costs
- Prescription of right to institute prosecution
CHAPTER 3
LEGAL REPRESENTATION OF ACCUSED
AND OF VICTIM IN CRIMINAL PROCEEDINGS
- Legal representation of accused
- Legal representation of victim
CHAPTER 4
SEARCH WARRANT, ENTERING OF PREMISES, SEIZURE,
FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES
- Saving as to certain powers conferred by other laws
- State may seize certain articles
- Article to be seized under search warrant
- Circumstances in which article may be seized without search warrant
- Search of arrested person and seizure of article
- Search of premises
- Power of police to enter premises in connection with State security or any offence
- Entering of premises for purposes of obtaining evidence
- Resistance against entry or search
- Wrongful search an offence, and award of compensation
- Search to be conducted in decent and orderly manner
- Disposal by member of police of article after seizure
- Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings
- Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid
- Article to be transferred to court for purposes of trial
- Disposal of article after commencement of criminal proceedings
- Forfeiture of article to State
- Disposal of article concerned in an offence committed outside Namibia
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
- Powers in respect of prints and bodily appearance of accused
- Victim impact statement
CHAPTER 6
METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
40. Methods of securing attendance of accused in court
CHAPTER 7
ARREST
- Manner and effect of arrest
- Arrest by peace officer without warrant
- Name and address of certain persons and power of arrest by peace officer without warrant
- Arrest by private person without warrant
- Warrant of arrest may be issued by district magistrate or justice of the peace
- Execution of warrants
- Arrest on facsimile or telegraphic authority
- Non-liability for wrongful arrest
- Private persons to assist in arrest when called upon
- Breaking open premises for purpose of arrest
- Use of force in effecting arrest
- Procedure after arrest
- Escaping and aiding escaping before incarceration and from police-cells and lockups
- Saving of other powers of arrest
- Saving of civil rights and liabilities
CHAPTER 8
SUMMONS
- Summons as method of securing attendance of accused in magistrate’s court
- Failure of accused to appear on summons
CHAPTER 9
WRITTEN NOTICE TO APPEAR IN COURT
58. Written notice as method of securing attendance of accused in magistrate’s court
CHAPTER 10
ADMISSION OF GUILT FINE
- Admission of guilt and payment of fine without appearance in court
- Admission of guilt and payment of fine after appearing in court
CHAPTER 11
BAIL
- Effect of bail
- Bail before first appearance of accused in magistrate’s court
- Bail application of accused in court
- Rights of complainant in bail application where accused is charged with rape or a domestic violence offence
- Addition of further conditions of bail
- Amendment of conditions of bail
- Proceedings with regard to bail and conditions to be recorded in full
- Appeal to High Court with regard to bail
- Appeal by Prosecutor-General against decision of court to release accused on bail
- Failure by accused to observe condition of bail
- Failure of accused on bail to appear
- Criminal liability of person who is on bail because of failure to appear or to comply with condition of bail
- Cancellation of bail
- Cancellation of bail at request of accused
- Payment of bail money by person other than accused
- Remission of bail money
- Juvenile may be placed in place of safety instead of release on bail or detention in custody
CHAPTER 12
RELEASE ON WARNING
- Accused may be released on warning instead of bail
- Cancellation of release on warning
CHAPTER 13
ASSISTANCE TO ACCUSED
- Accused entitled to assistance after arrest and at criminal proceedings
- Parent or guardian of accused under 18 years to attend proceedings
CHAPTER 14
SUMMARY TRIAL
- Summary trial and court of trial
- Charge sheet and proof of record of criminal case
CHAPTER 15
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS:
MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
- Capacity of accused to understand proceedings
- Mental illness or mental defect and criminal responsibility
- Panel for purposes of enquiry and report under sections 84 and 85
CHAPTER 16
THE CHARGE
- Accused entitled to copy of charge sheet
- Joinder of charges
- Several charges to be disposed of by same court
- Charge where it is doubtful which offence committed
- Essentials of charge
- Objection to charge
- Court may order that charge be amended
- Court may order delivery of particulars
- Defect in charge cured by evidence
- Previous conviction not to be alleged in charge
- Charge need not specify or negative exception, exemption, proviso, excuse or qualification
- Charge need not state manner or means of act
- Certain omissions or imperfections not to invalidate charge
- Alibi and date of act or offence
- Charge may allege commission of offence on divers occasions
- Rules applicable to particular charges
- Naming of company, close corporation, firm or partnership in charge
- Naming of joint owners of property in charge
- Charge of murder or culpable homicide sufficient if it alleges fact of killing
- Charge relating to document sufficient if it refers to document by name
- Charge alleging theft may allege general deficiency
- Charge relating to false evidence
- Charge relating to insolvency
- 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
- Reference in charge to objectionable matter not necessary
CHAPTER 17
DISCLOSURE
- Application of Chapter, and general interpretation
- Disclosure by prosecutor
- Disclosure by accused
- Failure or faults in disclosure of accused
- Reconsideration of decision not to disclose
- Confidentiality of disclosed information
CHAPTER 18
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES
118. Pre-trial conferences
CHAPTER 19
THE PLEA
- Accused to plead to charge
- Pleas
- Truth and publication for public benefit of defamatory matter to be specially pleaded
- Issues raised by plea to be tried
- Accused refusing to plead
CHAPTER 20 JURISDICTION 124. Accused before court that has no jurisdiction CHAPTER 21 PLEA OF GUILTY AT SUMMARY TRIAL 125. Plea of guilty 126. Change of plea of guilty 127. Committal by district court of accused for sentence by divisional court after plea of guilty CHAPTER 22 PLEA OF NOT GUILTY AT SUMMARY TRIAL 128. Plea of not guilty and procedure in regard to issues 129. Committal of accused for trial by divisional court 130. Committal of accused for sentence by divisional court after trial in district court 131. Committal to High Court in special case 132. Non-availability of judge or magistrate after plea of not guilty CHAPTER 23 COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT AFTER CONVICTION IN DIVISIONAL COURT 133. Committal of accused for sentence by High Court after conviction in divisional court CHAPTER 24 PLEA IN DISTRICT COURT ON CHARGE JUSTICIABLE IN HIGH COURT 134. Accused to plead in district court on charge to be tried in High Court 135. Charge sheet and proof of record 136. Plea of guilty 137. Plea of not guilty CHAPTER 25 PLEA IN DISTRICT COURT ON CHARGE TO BE TRIED IN DIVISIONAL COURT 138. Accused to plead in district court on charge to be tried in divisional court 139. Charge sheet and proof of record 140. Plea of guilty 141. Plea of not guilty CHAPTER 26 PREPARATORY EXAMINATION 142. Prosecutor-General may direct that preparatory examination be held 143. Proceedings preceding holding of preparatory examination to form part of preparatory examination record 144. Prosecutor-General may direct that preparatory examination be conducted at a specified place 145. Procedure to be followed by magistrate at preparatory examination 146. Recalling of witnesses after conversion of trial into preparatory examination 147. Examination of prosecution witnesses at preparatory examination 148. Recording of evidence at preparatory examination and proof of record
- Charge to be put at conclusion of evidence for prosecution
- Accused to plead to charge
- Procedure after plea
- Accused may testify at preparatory examination
- Accused may call witnesses at preparatory examination
- Discharge of accused at conclusion of preparatory examination
- Procedure with regard to exhibits at preparatory examination
- Magistrate to transmit record of preparatory examination to Prosecutor-General
- Preparatory examination may be continued before different magistrate
- Prosecutor-General may arraign accused for sentence or trial
- Procedure where accused arraigned for sentence
- Procedure where accused arraigned for trial
- Procedure where Prosecutor-General declines to prosecute
- Accused may inspect preparatory examination record and is entitled to copy thereof
CHAPTER 27
TRIAL BEFORE HIGH COURT
- Charge in High Court to be laid in an indictment
- Trial in High Court by judge sitting with or without assessors
- Reasons for decision by High Court in criminal trial
- Death or incapacity of assessor
- Change of venue for trial in High Court after indictment has been lodged
CHAPTER 28
CONDUCT OF PROCEEDINGS
- Prosecutor may address court and adduce evidence
- Accused may address court and adduce evidence
- Notice of alibi
- Notice of allegation that accused is by reason of mental illness or mental defect not criminally responsible for the offence charged
- Notice of intention to raise certain defences
- Notice to call expert witness
- Criminal proceedings to be conducted in open court
- Circumstances in which criminal proceedings not to take place in open court
- Prohibition of publication of certain information relating to criminal proceedings
- Persons implicated in same offence may be tried together
- Persons committing separate offences at same time and place may be tried together
- Joinder of accused and separation of trials
- Criminal proceedings to take place in presence of accused
- Circumstances in which criminal proceedings may take place in absence of accused
- Procedure at criminal proceedings where accused is absent
- Witness to testify orally
- Witness to be examined under oath or affirmation
- When unsworn or unaffirmed evidence admissible
- Oath, affirmation or admonition may be administered by or through an interpreter or intermediary
- Cross-examination and re-examination of witnesses
- Court may examine witness or person in attendance
- Special arrangements for vulnerable witnesses
- Court may adjourn proceedings to any date
- Court may adjourn proceedings to any place
- Failure of accused to appear after adjournment or to remain in attendance
- Evidence through intermediaries
- Evidence on commission
- Parties may examine witness
- Evidence on commission part of court record
- Accused may be discharged at close of case for prosecution
- Prosecution and defence may address court at conclusion of evidence
- Judgment may be corrected
- Court may defer final decision
- Arrest of person committing offence in court and removal from court of person disturbing proceedings
CHAPTER 29
WITNESSES
- Process for securing attendance of witness
- Service of subpoena
- Pre-payment of witness expenses
- Witness from prison
- Witness to keep police informed of whereabouts
- Witness about to abscond and witness evading service of subpoena
- Protection of witness
- Court may subpoena witness
- Witness to attend proceedings and to remain in attendance
- Failure by witness to attend or to remain in attendance
- Powers of court with regard to recalcitrant witness
- Impeachment or support of credibility of witness
- Payment of expenses of witness
- Witness services
- Every witness competent and compellable unless expressly excluded
- Court to decide on competency of witness
- Incompetency due to state of mind
- Evidence for prosecution by spouse of accused
- Evidence for defence by accused and spouse of accused
- Accused to give evidence on oath or affirmation
- Privileges of accused when giving evidence
- Privilege arising out of marital status
- No witness compelled to answer question that the witness’s spouse may decline
- Witness not excused from answer establishing civil liability on the witness’s part
- Privilege of legal practitioner
- Privilege from disclosure on ground of public policy or public interest
- Witness excused from answering incriminating question
- Incriminating evidence by witness for prosecution
- Judge or magistrate may take evidence as to alleged offence
- The law in cases not provided for
- Saving of special provisions in other laws
CHAPTER 30
EVIDENCE
- Conviction may follow on evidence of single witness
- Conviction may follow on confession by accused
- Irrelevant evidence inadmissible
- Evidence during criminal proceedings of previous convictions
- Evidence during criminal proceedings of similar offences by accused
- Proof of certain facts by affidavit or certificate
- Proof of certain facts by affidavit from person in foreign country
- Proof of undisputed facts
- Proof of written statement by consent
- Evidence recorded at preparatory examination admissible at trial in certain circumstances
- Evidence recorded at former trial admissible at later trial in certain circumstances
- Hearsay evidence
245. Admissibility of certain statements made by young children 246. Admissibility of confession by accused 247. Admissibility of facts discovered by means of inadmissible confession 248. Confession not admissible against another 249. Admissibility of admission by accused 250. Admissions in court 251. Admissibility of certain trade or business records 252. Admissibility of, and weight to be attached to, documentary evidence as to facts in issue 253. Admissibility of dying declaration 254. Judicial notice of laws and other published matter 255. Evidence of prints or bodily appearance of accused 256. Evidence of no sexual intercourse between spouses admissible 257. Evidence of character 258. Evidence of sexual conduct or experience of complainant of rape or offence of an indecent nature 259. Evidence of disputed writing 260. Evidence of times of sunrise and sunset 261. Evidence and sufficiency of evidence of appointment to public office 262. Evidence of signature of public officer 263. Article may be proved in evidence by means of photograph thereof 264. Proof of public documents 265. Proof of official documents 266. Proof of judicial proceedings 267. Proof of entries in accounting records and documentation of banking institutions 268. Proof of entries in accounting records and documentation of banking institutions in countries outside Namibia 269. Evidence on charge of bigamy 270. Evidence of relationship on charge of incest 271. Evidence on charge of infanticide or concealment of birth 272. Evidence on charge of receiving stolen property 273. Evidence on charge of defamation 274. Evidence of receipt of money or property and general deficiency on charge of theft 275. Evidence on charge of which false representation is an element 276. Presumptions relating to certain documents 277. Presumptions relating to absence from Namibia of certain persons 278. Presumption that accused possessed particular qualification or acted in particular capacity 279. Presumption of failure to pay tax or to furnish information relating to tax 280. Presumption of lack of authority 281. Unstamped instrument admissible in criminal proceedings 282. Use of traps and undercover operations and admissibility of evidence so obtained 283. The law in cases not provided for 284. Saving of special provisions in other laws CHAPTER 31 CONVERSION OF TRIAL INTO ENQUIRY 285. Court may refer juvenile accused to children’s court CHAPTER 32 COMPETENT VERDICTS 286. Attempt 287. Accessory after the fact 288. Murder and attempted murder 289. Culpable homicide
290. Robbery 291. Rape and indecent assault 292. Housebreaking with intent to commit an offence 293. Statutory offence of breaking and entering or of entering premises 294. Theft 295. Receiving stolen property knowing it to have been stolen 296. Assault with intent to do grievous bodily harm 297. Common assault 298. Statutory offence of committing a sexual act or of unlawful carnal intercourse 299. Sodomy 300. Offences not specified in this Chapter 301. Acts committed under influence of certain substances CHAPTER 33 PREVIOUS CONVICTIONS 302. Previous convictions may be proved 303. Fingerprint record prima facie evidence of previous conviction 304. Evidence of further particulars relating to previous conviction CHAPTER 34 SENTENCE 305. Evidence on sentence 306. Sentence by magistrate or judge other than magistrate or judge who convicted accused 307. Nature of punishments 308. Imposition and conversion of correctional supervision 309. Minimum sentences for certain serious offences 310. Cumulative or concurrent sentences 311. Interpretation of certain provisions in laws relating to imprisonment and fines 312. Antedating sentence of imprisonment 313. Minimum period of imprisonment four days 314. Periodical imprisonment 315. Declaration of certain persons as habitual criminals 316. Imprisonment in default of payment of fine 317. Recovery of fine 318. Court may enforce payment of fine 319. Manner of dealing with convicted juvenile 320. Period of supervision or custody of juveniles 321. Committal to rehabilitation centre 322. Conditional or unconditional postponement or suspension of sentence, and caution or reprimand 323. Agreement on operation of suspended sentences 324. Sentence may be corrected 325. Warrant for execution of sentence CHAPTER 35 COMPENSATION AND RESTITUTION 326. Court may award compensation or order restitution where offence caused injury, damage or loss 327. Compensation to innocent purchaser of property unlawfully obtained CHAPTER 36 REVIEWS AND APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN MAGISTRATES’ COURTS 328. Sentences subject to review in the ordinary course
329. Transmission of record 330. Procedure on review 331. Special review before imposition of sentence 332. Accused may set down case for argument 333. Execution of sentence not suspended unless bail granted 334. Correctional supervision not suspended unless bail granted 335. Appeal from magistrate’s court by person convicted 336. Explanation of certain rights to unrepresented accused 337. Appeal from magistrate’s court by Prosecutor-General or other prosecutor 338. Appeal from High Court to Supreme Court 339. Review or appeal and failure to comply with subsection (1)(b) or (2) of section 125 340. Institution of proceedings anew when conviction set aside on appeal or review 341. Obtaining presence of convicted person in magistrate’s court after setting aside of sentence or order CHAPTER 37 APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN HIGH COURT 342. Court of appeal in respect of High Court judgments 343. Applications for condonation, for leave to appeal and for leave to lead further evidence 344. Appeal from High Court by Prosecutor-General or other prosecutor 345. Special entry of irregularity or illegality 346. Appeal on special entry under section 345 347. Reservation of question of law 348. Report of trial judge to be furnished on appeal 349. When execution of sentence may be suspended 350. Powers of Supreme Court 351. Institution of proceedings anew when conviction set aside on appeal CHAPTER 38 GENERAL PROVISIONS 352. Force of process 353. Court process may be served or executed by member of police 354. Transmission of court process by facsimile or telegraph or similar communication 355. Irregular warrant or process 356. Prosecution of corporations and members of associations 357. Attorney-General may invoke decision of Supreme Court on question of law 358. Minister may declare certain persons peace officers for specific purposes 359. Person who makes statement entitled to copy thereof 360. Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed 361. Medical examination of minors towards or in connection with whom certain offences have been committed 362. Act or omission constituting offence under two or more laws 363. Estimating age of person 364. Production of document by accused at criminal proceedings 365. Removal of accused from one prison to another for purposes of attending criminal proceedings 366. Prison list of unsentenced prisoners 367. Compounding of certain minor offences 368. Charges for giving conflicting statements 369. Binding over of persons to keep the peace 370. Conviction or acquittal no bar to civil action for damages 371. Unreasonable delays in trials
- Repeal and amendment of laws, and savings
- Short title and commencement
SCHEDULES
BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:
CHAPTER 1
PRELIMINARY
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
Authority to prosecute vests in State
2. (1) The authority to institute and conduct a prosecution in criminal proceedings in respect of any offence in relation to which a magistrate’s court or the High Court in Namibia has jurisdiction, vests in the State and must, pursuant to and in accordance with Article 88(2) of the Namibian Constitution, be exercised by the Prosecutor-General in the name of the Republic of Namibia.
(2) Criminal proceedings purporting to be instituted in the name of the State in any court in Namibia are for all purposes deemed to be instituted in the name of the Republic of Namibia.
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.
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GOVERNMENT NOTICE |
No. 285 Promulgation of Criminal Procedure Act, 2004 (Act No. 25 of 2004), of the Parliament .......................................................................................................... 1 |
_______________ |
Government Notice |
OFFICE OF THE PRIME MINISTER
No. 285 2004
PROMULGATION OF ACT The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.
No. 25 of 2004: Criminal Procedure Act, 2004.
ACT (Signed by the President on 9 December 2004)
ARRANGEMENT OF SECTIONS
Section
1. Definitions
CHAPTER 4 CHAPTER 5 CHAPTER 6 40. Methods of securing attendance of accused in court
CHAPTER 8 CHAPTER 9 58. Written notice as method of securing attendance of accused in magistrate’s court CHAPTER 10 CHAPTER 12 CHAPTER 13 CHAPTER 14 CHAPTER 15 CHAPTER 16 CHAPTER 17 CHAPTER 18 118. Pre-trial conferences
CHAPTER 27 CHAPTER 28 CHAPTER 29 CHAPTER 30 BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:
1. (1) In this Act, unless the context otherwise indicates
“alibi” means a defence in a criminal trial according to which the accused alleges that he or she was elsewhere on the day or at the time when the offence with which he or she is charged was allegedly committed;
“assessor”, in relation to a criminal trial, means a person who, in the opinion of the judge who presides at the trial, has experience in the administration of justice or skill in any matter that may be considered at the trial;
“banking institution” means a banking institution authorized under the Banking Institutions Act, 1998 (Act No. 2 of 1998), to conduct business as such, and includes the Agribank referred to in section 3 of the Agricultural Bank of Namibia Act, 2003 (Act No. 5 of 2003), and a building society as defined in section 1 of the Building Societies Act, l986 (Act No. 2 of l986);
“charge” means an indictment, charge sheet, summons or written notice;
“clerk of the court” means a clerk of the court appointed in terms of the Magistrates’ Courts Act, and includes an assistant clerk of the court so appointed;
“complainant” means of that person’s sentence has been suspended under section 322(1)(b) or (5), respectively;
“criminal proceedings” includes a preparatory examination under Chapter 26;
“day” means the space of time between sunrise and sunset;
“dependant”, in relation to a deceased victim, means “district court” means a court established for a magisterial district under the Magistrates’ Courts Act, and includes any other court established under that Act, other than a court for a magisterial division;
“district magistrate” means a magistrate appointed under the Magistrates’ Courts Act for a magisterial district established under that Act, but does not include a divisional magistrate;
“divisional court’’ means a court established for a magisterial division under the Magistrates’ Courts Act;
“divisional magistrate” means a magistrate appointed under the Magistrates’ Courts Act for a magisterial division established under that Act;
“domestic violence offence” means a domestic violence offence within the meaning of the Combating of Domestic Violence Act, 2003 (Act No. 4 of 2003);
“High Court” means the High Court of Namibia constituted in terms of Article 80(1) of the Namibian Constitution;
“informer” means a person who provides information to the police, in writing or orally, relating to the commission of an offence, for the purpose of assisting the police in the investigation of offences, whether for reward or otherwise and on the express or implied condition that the identity of the informer will not be disclosed;
“justice of the peace” means a person who is a justice of the peace under the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act No. 16 of 1963);
“law enforcement officer” includes a member of the prison service and a member of the Namibia Central Intelligence Service constituted in terms of section 3 of the Namibia Central Intelligence Service Act, 1997 (Act No. 10 of 1997);
“legal practitioner” means a person who, in terms of the Legal Practitioners Act, 1995 (Act No. 15 of 1995), has been admitted and authorized to practise as a legal practitioner or is deemed to have been so admitted and authorized;
“life imprisonment” means imprisonment for the rest of the natural life of a convicted person;
“local authority” means any municipal council, town council or village council established under the Local Authorities Act, 1992 (Act No. 23 of 1992);
“magistrate” means a district magistrate or a divisional magistrate;
“magistrate’s court” means any district court or divisional court established under the Magistrates’ Courts Act pursuant to Article 83(1) of the Namibian Constitution;
“Magistrates’ Courts Act” means the Magistrates’ Courts Act, 2004; “marriage”, for the purposes of the law of evidence in criminal proceedings, includes a 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 “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; “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; “sexual act” means a sexual act as defined in section 1(1) of the Combating of Rape Act, 2000 (Act No. 8 of 2000); “spouse” means a person’s partner in marriage, and includes a partner in a marriage by customary law;
“State” means the Republic of Namibia; “State-owned enterprise” means a company, corporation or other entity in which the State 79(1) of the Namibian Constitution; “this Act” includes the rules of court and any regulations made under this Act;
“victim”, in relation to an offence against the person or against property, means a person who directly or indirectly suffered harm, including physical or mental injury, emotional suffering, damage or loss, as a result of the commission of the offence, regardless of any familial relationship between that person and the person who committed the offence, and includes and, where the victim is deceased, also a dependant of the victim;
“victim impact statement” means a victim impact statement referred to in section 39(3).
(2) Any reference in any other law to an inferior court is, unless the context of such other law indicates otherwise, to be construed as a reference to a magistrate’s court as defined in subsection (1).
CHAPTER 2 2. (1) The authority to institute and conduct a prosecution in criminal proceedings in respect of any offence in relation to which a magistrate’s court or the High Court in Namibia has jurisdiction, vests in the State and must, pursuant to and in accordance with Article 88(2) of the Namibian Constitution, be exercised by the Prosecutor-General in the name of the Republic of Namibia.
(2) Criminal proceedings purporting to be instituted in the name of the State in any court in Namibia are for all purposes deemed to be instituted in the name of the Republic of Namibia.
3. Pursuant to Article 88(2)(d) of the Namibian Constitution, the Prosecutor-General may in writing delegate to any person employed in the Public Service, subject to the control and direction of the Prosecutor-General, authority to 4. The Prosecutor-General or any person delegated by the Prosecutor-General under section 3 to conduct a prosecution at the instance of the State, or any body or person conducting a prosecution under section 6, may
(a) before an accused pleads to a charge, withdraw that charge, in which event the accused is not entitled to an acquittal in respect of that charge;
(b) at any time after an accused has pleaded, but before conviction, stop the prosecution in respect of that charge, in which event the court trying the accused must acquit the accused in respect of that charge, but where a prosecution is conducted by a person other than the Prosecutor-General or a body or person referred to in section 6, the prosecution may not be stopped unless the Prosecutor-General or any person authorized thereto by the Prosecutor-General, whether in general or in a particular case, has consented thereto in writing.
5. (1) In any case in which the Prosecutor-General declines to prosecute for an alleged offence may, subject to section 7, either in person or by a legal practitioner, institute and conduct a prosecution in respect of the said offence in any court competent to try that offence. within 30 days of receipt of any such request. (4) A person authorized under subsection (1) to institute a private prosecution who feels aggrieved by any failure of the Prosecutor-General to comply with subsection (2)(b)(i) or (ii) or (3)(a) or (b), may apply to the High Court for an order compelling the Prosecutor-General to comply therewith.
6. (1) Any body on which or person on whom the right to prosecute in respect of any offence is expressly conferred by law may, subject to subsection (2), institute and conduct a prosecution in respect of such offence in any court competent to try that offence. 7. (1) No private prosecutor referred to in section 5 may take out or issue any process commencing a private prosecution unless such prosecutor deposits with the district court in whose area of jurisdiction the offence in question was committed the amount that court may determine as security for the costs that may be incurred in respect of the accused’s defence to the charge. 8. (1) A private prosecution must be instituted and conducted and all process in connection therewith issued in the name of the private prosecutor. 9. (1) If the private prosecutor fails to appear on the day set down for the appearance of the accused in the district court or for the trial of the accused, the charge against the accused must be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his or her control, in which event the court may adjourn the case to a later date.
(2) Where the charge is dismissed in terms of subsection (1), the accused must immediately be discharged from custody and may not in respect of that charge be prosecuted privately again, but the Prosecutor-General or a public prosecutor with the written consent of the Prosecutor-General, may at the instance of the State prosecute the accused in respect of that charge.
10. (1) A private prosecution must, subject to this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State, but the accused may be brought before the court only by way of a summons in the case of a magistrate’s court, or an indictment in the case of the High Court, except where the accused is under arrest in respect of an offence with regard to which a right of private prosecution is vested in any body or person under section 6.
(2) Where a prosecution is instituted under section 5(1) and the accused pleads guilty to the charge, the prosecution may be continued at the instance of the State, but only if the private prosecutor or the person on whose behalf the private prosecutor so prosecutes consents thereto.
11. (1) The Prosecutor-General or a public prosecutor with the written consent of the Prosecutor-General, may in respect of any private prosecution apply by motion to the court before which the private prosecution is pending to stop all further proceedings in the case in order that a prosecution for the offence in question may be instituted or continued at the instance of the State, and the court must, subject to subsection (2), make such an order if the private prosecutor or the person on whose behalf the private prosecutor so prosecutes consents thereto.
OF PARLIAMENT
To make provision for procedures and related matters in criminal proceedings.
CHAPTER 1
PRELIMINARY
CHAPTER 2
PROSECUTING AUTHORITY
CHAPTER 3
LEGAL REPRESENTATION OF ACCUSED
AND OF VICTIM IN CRIMINAL PROCEEDINGS
SEARCH WARRANT, ENTERING OF PREMISES, SEIZURE,
FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES
QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME,
ASCERTAINMENT OF BODILY FEATURES OF ACCUSED
AND VICTIM IMPACT STATEMENT
METHODS OF SECURING ATTENDANCE OF ACCUSED IN COURT
CHAPTER 7
ARREST
SUMMONS
WRITTEN NOTICE TO APPEAR IN COURT
ADMISSION OF GUILT FINE
CHAPTER 11
BAIL
RELEASE ON WARNING
ASSISTANCE TO ACCUSED
SUMMARY TRIAL
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS:
MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
THE CHARGE
DISCLOSURE
CURTAILMENT OF PROCEEDINGS:
PRE-TRIAL CONFERENCES
CHAPTER 19
THE PLEA
CHAPTER 20 JURISDICTION 124. Accused before court that has no jurisdiction CHAPTER 21 PLEA OF GUILTY AT SUMMARY TRIAL 125. Plea of guilty 126. Change of plea of guilty 127. Committal by district court of accused for sentence by divisional court after plea of guilty CHAPTER 22 PLEA OF NOT GUILTY AT SUMMARY TRIAL 128. Plea of not guilty and procedure in regard to issues 129. Committal of accused for trial by divisional court 130. Committal of accused for sentence by divisional court after trial in district court 131. Committal to High Court in special case 132. Non-availability of judge or magistrate after plea of not guilty CHAPTER 23 COMMITTAL OF ACCUSED FOR SENTENCE BY HIGH COURT AFTER CONVICTION IN DIVISIONAL COURT 133. Committal of accused for sentence by High Court after conviction in divisional court CHAPTER 24 PLEA IN DISTRICT COURT ON CHARGE JUSTICIABLE IN HIGH COURT 134. Accused to plead in district court on charge to be tried in High Court 135. Charge sheet and proof of record 136. Plea of guilty 137. Plea of not guilty CHAPTER 25 PLEA IN DISTRICT COURT ON CHARGE TO BE TRIED IN DIVISIONAL COURT 138. Accused to plead in district court on charge to be tried in divisional court 139. Charge sheet and proof of record 140. Plea of guilty 141. Plea of not guilty CHAPTER 26 PREPARATORY EXAMINATION 142. Prosecutor-General may direct that preparatory examination be held 143. Proceedings preceding holding of preparatory examination to form part of preparatory examination record 144. Prosecutor-General may direct that preparatory examination be conducted at a specified place 145. Procedure to be followed by magistrate at preparatory examination 146. Recalling of witnesses after conversion of trial into preparatory examination 147. Examination of prosecution witnesses at preparatory examination 148. Recording of evidence at preparatory examination and proof of record
TRIAL BEFORE HIGH COURT
CONDUCT OF PROCEEDINGS
WITNESSES
EVIDENCE
245. Admissibility of certain statements made by young children 246. Admissibility of confession by accused 247. Admissibility of facts discovered by means of inadmissible confession 248. Confession not admissible against another 249. Admissibility of admission by accused 250. Admissions in court 251. Admissibility of certain trade or business records 252. Admissibility of, and weight to be attached to, documentary evidence as to facts in issue 253. Admissibility of dying declaration 254. Judicial notice of laws and other published matter 255. Evidence of prints or bodily appearance of accused 256. Evidence of no sexual intercourse between spouses admissible 257. Evidence of character 258. Evidence of sexual conduct or experience of complainant of rape or offence of an indecent nature 259. Evidence of disputed writing 260. Evidence of times of sunrise and sunset 261. Evidence and sufficiency of evidence of appointment to public office 262. Evidence of signature of public officer 263. Article may be proved in evidence by means of photograph thereof 264. Proof of public documents 265. Proof of official documents 266. Proof of judicial proceedings 267. Proof of entries in accounting records and documentation of banking institutions 268. Proof of entries in accounting records and documentation of banking institutions in countries outside Namibia 269. Evidence on charge of bigamy 270. Evidence of relationship on charge of incest 271. Evidence on charge of infanticide or concealment of birth 272. Evidence on charge of receiving stolen property 273. Evidence on charge of defamation 274. Evidence of receipt of money or property and general deficiency on charge of theft 275. Evidence on charge of which false representation is an element 276. Presumptions relating to certain documents 277. Presumptions relating to absence from Namibia of certain persons 278. Presumption that accused possessed particular qualification or acted in particular capacity 279. Presumption of failure to pay tax or to furnish information relating to tax 280. Presumption of lack of authority 281. Unstamped instrument admissible in criminal proceedings 282. Use of traps and undercover operations and admissibility of evidence so obtained 283. The law in cases not provided for 284. Saving of special provisions in other laws CHAPTER 31 CONVERSION OF TRIAL INTO ENQUIRY 285. Court may refer juvenile accused to children’s court CHAPTER 32 COMPETENT VERDICTS 286. Attempt 287. Accessory after the fact 288. Murder and attempted murder 289. Culpable homicide
290. Robbery 291. Rape and indecent assault 292. Housebreaking with intent to commit an offence 293. Statutory offence of breaking and entering or of entering premises 294. Theft 295. Receiving stolen property knowing it to have been stolen 296. Assault with intent to do grievous bodily harm 297. Common assault 298. Statutory offence of committing a sexual act or of unlawful carnal intercourse 299. Sodomy 300. Offences not specified in this Chapter 301. Acts committed under influence of certain substances CHAPTER 33 PREVIOUS CONVICTIONS 302. Previous convictions may be proved 303. Fingerprint record prima facie evidence of previous conviction 304. Evidence of further particulars relating to previous conviction CHAPTER 34 SENTENCE 305. Evidence on sentence 306. Sentence by magistrate or judge other than magistrate or judge who convicted accused 307. Nature of punishments 308. Imposition and conversion of correctional supervision 309. Minimum sentences for certain serious offences 310. Cumulative or concurrent sentences 311. Interpretation of certain provisions in laws relating to imprisonment and fines 312. Antedating sentence of imprisonment 313. Minimum period of imprisonment four days 314. Periodical imprisonment 315. Declaration of certain persons as habitual criminals 316. Imprisonment in default of payment of fine 317. Recovery of fine 318. Court may enforce payment of fine 319. Manner of dealing with convicted juvenile 320. Period of supervision or custody of juveniles 321. Committal to rehabilitation centre 322. Conditional or unconditional postponement or suspension of sentence, and caution or reprimand 323. Agreement on operation of suspended sentences 324. Sentence may be corrected 325. Warrant for execution of sentence CHAPTER 35 COMPENSATION AND RESTITUTION 326. Court may award compensation or order restitution where offence caused injury, damage or loss 327. Compensation to innocent purchaser of property unlawfully obtained CHAPTER 36 REVIEWS AND APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN MAGISTRATES’ COURTS 328. Sentences subject to review in the ordinary course
329. Transmission of record 330. Procedure on review 331. Special review before imposition of sentence 332. Accused may set down case for argument 333. Execution of sentence not suspended unless bail granted 334. Correctional supervision not suspended unless bail granted 335. Appeal from magistrate’s court by person convicted 336. Explanation of certain rights to unrepresented accused 337. Appeal from magistrate’s court by Prosecutor-General or other prosecutor 338. Appeal from High Court to Supreme Court 339. Review or appeal and failure to comply with subsection (1)(b) or (2) of section 125 340. Institution of proceedings anew when conviction set aside on appeal or review 341. Obtaining presence of convicted person in magistrate’s court after setting aside of sentence or order CHAPTER 37 APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN HIGH COURT 342. Court of appeal in respect of High Court judgments 343. Applications for condonation, for leave to appeal and for leave to lead further evidence 344. Appeal from High Court by Prosecutor-General or other prosecutor 345. Special entry of irregularity or illegality 346. Appeal on special entry under section 345 347. Reservation of question of law 348. Report of trial judge to be furnished on appeal 349. When execution of sentence may be suspended 350. Powers of Supreme Court 351. Institution of proceedings anew when conviction set aside on appeal CHAPTER 38 GENERAL PROVISIONS 352. Force of process 353. Court process may be served or executed by member of police 354. Transmission of court process by facsimile or telegraph or similar communication 355. Irregular warrant or process 356. Prosecution of corporations and members of associations 357. Attorney-General may invoke decision of Supreme Court on question of law 358. Minister may declare certain persons peace officers for specific purposes 359. Person who makes statement entitled to copy thereof 360. Prohibition of publication of identity of persons towards or in connection with whom certain offences have been committed 361. Medical examination of minors towards or in connection with whom certain offences have been committed 362. Act or omission constituting offence under two or more laws 363. Estimating age of person 364. Production of document by accused at criminal proceedings 365. Removal of accused from one prison to another for purposes of attending criminal proceedings 366. Prison list of unsentenced prisoners 367. Compounding of certain minor offences 368. Charges for giving conflicting statements 369. Binding over of persons to keep the peace 370. Conviction or acquittal no bar to civil action for damages 371. Unreasonable delays in trials
SCHEDULES
CHAPTER 1
PRELIMINARY
Definitions
marriage by customary law;
“member of the police” means a member of the Namibian Police Force as defined in
the meaning of the Prisons Act, 1998 (Act No. 17 of 1998);
“Minister” means the Minister responsible for justice;
“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;
“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;
“social worker” means a social worker as defined in section 1 of the Social Work and
Psychology Act, 2004 (Act No. 6 of 2004);
“superior court” means the High Court or the Supreme Court;
“Supreme Court” means the Supreme Court of Namibia constituted in terms of Article
PROSECUTING AUTHORITY
Authority to prosecute vests in State
Delegation of authority to prosecute
Power to withdraw charge or stop prosecution
Private prosecution on certificate nolle prosequi
Private prosecution under statutory right
Security by private prosecutor
Private prosecution in name of private prosecutor
Failure of private prosecutor to appear
Mode of conducting private prosecution
Prosecutor-General may intervene in private prosecution