Criminal Procedure Act, 1977 (Act 51 of 1977)

South African Government Gazette no. 5532
This is the latest version of this legislation.
Coat of Arms

Criminal Procedure Act, 1977

Act 51 of 1977

  1. [Amended by Criminal Procedure Matters Amendment Act, 1978 (Act 79 of 1978) on 2 June 1978]

  2. [Amended by Native Laws Amendment Proclamation, 1979 (Proclamation AG3 of 1979) on 1 August 1978]

  3. [Amended by Criminal Procedure Amendment Act, 1979 (Act 56 of 1979) on 1 June 1979]

  4. [Amended by Criminal Procedure Amendment Act, 1981 (Act 15 of 1981) on 1 January 1982]

  5. [Amended by Criminal Procedure Matters Amendment Act, 1985 (Act 31 of 1985) on 18 December 1985]

  6. [Amended by Appeals Amendment Act, 1985 (Act 29 of 1985) on 1 April 1986]

  7. [Amended by Criminal Procedure Amendment Act, 1991 (Act 5 of 1991) on 30 May 1991]

  8. [Amended by Criminal Procedure Amendment Act, 1993 (Act 26 of 1993) on 9 December 1993]

  9. [Amended by Combating of Rape Act, 2000 (Act 8 of 2000) on 15 June 2000]

  10. [Amended by Appeal Laws Amendment Act, 2001 (Act 10 of 2001) on 25 July 2001]

  11. [Amended by International Co-operation in Criminal Matters Act, 2000 (Act 9 of 2000) on 15 September 2001]

  12. [Amended by Combating of Domestic Violence Act, 2003 (Act 4 of 2003) on 17 November 2003]

  13. [Amended by Maintenance Act, 2003 (Act 9 of 2003) on 17 November 2003]

  14. [Amended by Criminal Procedure Amendment Act, 2003 (Act 24 of 2003) on 30 December 2003]

  15. [Amended by Criminal Procedure Amendment Act, 2010 (Act 13 of 2010) on 30 August 2010]

  16. [Amended by Correctional Service Act, 2012 (Act 9 of 2012) on 1 January 2014]

  17. [Amended by Child Care and Protection Act, 2015 (Act 3 of 2015) on 30 January 2019]


[applied to Rehoboth insofar as it relates to matters which fell under the Legislative Authority of Rehoboth, by section 1(1) of the Criminal Procedure Act 3 of 1982 (Rehoboth) (Official Gazette 70 of Rehoboth, dated 11 March 1983), with effect immediately prior to the date on which a government for Rehoboth came into being in terms of section 11(1) of the Rehoboth Self-Government Act 56 of 1976 (see section 1(2) of the Criminal Procedure Act 3 of 1982 (Rehoboth))][APPLICABILITY TO SOUTH WEST AFRICA: Section 1 defines “Republic” to include “the territory”, which is defined as “the territory of South West Africa”. “State”, in relation to a department of State, is defined to include “the Administration of the territory”. Section 343 states “This Act shall apply also in the territory, including the Eastern Caprivi Zipfel.” The wording of section 343 did not make amendments to the Act in South Africa automatically applicable to South West Africa, and none of the amendments to the Act in South Africa prior to Namibian independence were made expressly applicable to South West Africa. However amendments to the Act in South Africa prior to the date of transfer appear to have been applicable to South West Africa by virtue of the definition of “Republic”.][TRANSFER TO SOUTH WEST AFRICA: The administration of this Act was transferred to South West Africa by the Executive Powers (Justice) Transfer Proclamation, AG 33 of 1979, dated 12 November 1979. None of the amendments to the Act in South Africa after the date of transfer were applicable to South West Africa because none were made expressly so applicable.

Section 3(1)(t) of the transfer proclamation excluded all references to the State in the Act, in relation to the authority to institute and conduct a prosecution and to make seizures, from the operation of section 3(1) of the Executive Powers Transfer (General Provisions) Proclamation, AG 7 of 1977, meaning that the administration of these provisions was not transferred to South West Africa prior to Namibian independence. Section 3(1)(t) of the transfer proclamation (as amended) also excluded various provisions of the Act from the operation of certain sections of AG 7 of 1977. These are noted in the annotations to individual provisions of the Act.]
[This Act is also amended by the Witness Protection Act 11 of 2017 (GG 6451). However, that Act has not yet been brought into force, so the amendments made by it are not reflected here.

This Act was to be repealed by the Criminal Procedure Act 25 of 2004 (GG 3358), but that Act was itself repealed before coming into force.]
ACTTo make provision for procedures and related matters in criminal proceedings.(Afrikaans text signed by the State President)BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:-[The Act contains a number of references to the death penalty. Although these have not been amended, they would have no force or effect in light of Article 6 of the Namibian Constitution, which states “The right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia.”][Act 9 of 2012 amends several sections of the Act to substitute “correctional facility” for “prison” (and to similarly substitute related terms). It is not clear why the term “prison” has been retained in some provisions.]


Definitions

1. Definitions

(1)In this Act, unless the context otherwise indicates -aggravating circumstances”, in relation to -(a)any offence, whether under the common law or a statutory provision, of housebreaking or attempted housebreaking with intent to commit an offence, means -(i)the possession of a dangerous weapon; or(ii)the commission of an assault or a threat to commit an assault,by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence;(b)robbery or attempted robbery, means -(i)the wielding of a fire-arm or any other dangerous weapon;(ii)the infliction of grievous bodily harm; or(iii)a threat to inflict grievous bodily harm,by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence;bank” means a banking institution as defined in section l of the Banks Act, 1965 (Act 23 of 1965), and includes the Land and Agricultural Bank of South Africa referred to in section 3 of the Land Bank Act, 1944 (Act 13 of 1944), and a building society as defined in section 1 of the Building Societies Act, 1965 (Act 24 of 1965);[The Banks Act 23 of 1965 has been replaced by the Banking Institutions Act 2 of 1998. The Land Bank Act 13 of 1944, which was re-named the Agricultural Bank Act, has been replaced by the Agricultural Bank of Namibia Act 5 of 2003. The Building Societies Act 24 of 1965 has been replaced by the Building Societies Act 2 of 1986.]charge” includes an indictment and a summons;complainant”, in relation to an offence of a sexual or indecent nature, means 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;[definition of “complainant” inserted by Act 8 of 2000]criminal proceedings” includes a preparatory examination under Chapter 20;day” means the space of time between sunrise and sunset;justice” means a person who is a justice of the peace under the provisions of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);law”, in relation to the territory, includes a law as defined in “The Interpretation of Laws Proclamation, 1920” (Proclamation 37 of 1920 of the territory);local division” means a local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959);[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]lower court” means any court established under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944);magistrate” includes an additional magistrate and an assistant magistrate but not a regional magistrate;magistrate’s court” means a court established for any district under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), and includes any other court established under such provisions, other than a court for a regional division;Minister” means the Minister of Justice;night” means the space of time between sunset and sunrise;offence” means an act or omission punishable by law;peace officer” includes any magistrate, justice, police official, correctional officer as defined in section 1 of the Correctional Service Act, 2012 (Act No. 9 of 2012), and, in relation to any area, offence, class of offence or power referred to in a notice issued under section 334(1), any person who is a peace officer under that section;[definition of “peace officer” amended by Act 9 of 2012]police official” means any member of the Force as defined in section 1 of the Police Act, 1958 (Act 7 of 1958), and any member of the Railway Police Force appointed under section 57(1) of the Railways and Harbours Control and Management (Consolidation) Act, 1957 (Act 70 of 1957); and “police” has a corresponding meaning;[The Police Act 7 of 1958 has been replaced by the Police Act 19 of 1990. The Railways and Harbours Control and Management Consolidation Act 70 of 1957 (RSA GG 5908) was repealed in part by the Liquor Act 6 of 1998 (GG 1843) and repealed in its entirety in South Africa by the South African Transport Services Act 65 of 1981 (RSA GG 7786), which was made expressly applicable to South West Africa by virtue of section 78. Thus, even if the Railways and Harbours Control and Management Consolidation Act 70 of 1957 had already been transferred to South West Africa, the repealing Act would have repealed it in respect of South West Africa because it was explicitly made applicable to South West Africa.]probation officer” means a probation officer referred to in section 1 of the Child Care and Protection Act, 2015 (Act No. 3 of 2015);[definition of “probation officer” inserted by section 257(7) of Act 3 of 2015]premises” includes land, any building or structure, or any vehicle, conveyance, ship, boat or aircraft;province” includes the territory;provincial administration” includes the Administration of the territory;provincial division” means a provincial division of the Supreme Court established under the Supreme Court Act, 1959 (Act 5 of 1959);[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]regional court” means a court established for a regional division under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944);regional magistrate” means a magistrate appointed under the provisions of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), to the court for a regional division;Republic” includes the territory;rules of court” means the rules made under section 43 of the Supreme Court Act, 1959 (Act 59 of 1959), or under section 25 the Magistrates’ Courts Act, 1944 (Act 32 of 1944);[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]special superior court” means the special superior court constituted under section 148;State”, in relation to a department of State, includes the Administration of the territory;superior court” means a provincial or local division of the Supreme Court established under the Supreme Court Act, 1959 (Act 59 of 1959);[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]supreme court” means the Supreme Court of South Africa established under the Supreme Court Act, 1959 (Act 59 of 1959)[The Supreme Court Act 59 of 1959 has been replaced by the Supreme Court Act 15 of 1990.]territory” means the territory of South West Africa;this Act” includes the rules of court and any regulations made under this Act.
(2)Any reference in any law to an inferior court shall, unless the context of such law indicates otherwise, be construed as a reference to a lower court as defined in subsection (1).

Chapter 1
Prosecuting authority

2. Authority to prosecute vested in State

(1)The authority to institute and to conduct a prosecution in respect of any offence in relation to which any lower or superior court in the Republic exercises jurisdiction, shall vest in the State.
(2)Criminal proceedings purporting to be instituted in the name of the State in any court in the Republic, shall for all purposes be deemed to be instituted in the name of the Republic of South Africa.

3. Attorney-general the prosecuting authority on behalf of State

(1)The State President shall, subject to the laws relating to the government service mentioned in section 2 of the Government Service Act, 1980 (Act 2 of 1980), appoint in respect of the area of jurisdiction of each provincial division an attorney-general, who, on behalf of the State and subject to the provisions of this Act -(a)shall have authority to prosecute, in the name of the Republic in criminal proceedings in any court in the area in respect of which he has been appointed, any person in respect of any offence in regard to which any court in the said area has jurisdiction; and(b)may perform all functions relating to the exercise of such authority.
(2)The authority conferred upon an attorney-general under subsection (1) shall include the authority to prosecute in any court any appeal arising from any criminal proceedings within the area of jurisdiction of the attorney-general concerned.
(3)The Minister may, subject to the laws relating to the government service mentioned in section 2 of the Government Service Act, 1980 (Act 2 of 1980), in respect of each area for which an attorney-general has been appointed, appoint one or more deputy attorneys-general, who may, subject to the control and directions of the attorney-general concerned, do anything which may lawfully be done by the attorney-general.
(4)Whenever it becomes necessary that an acting attorney-general be appointed, the Minister may appoint any competent officer in the government service mentioned in section 2 of the Government Service Act, 1980 (Act 2 of 1980) to act as attorney-general for the period for which such appointment may be necessary.
(5)An attorney-general shall exercise his authority and perform his functions under this Act or under any other law subject to the control and directions of the Minister, who may reverse any decision arrived at by an attorney-general and may himself in general or in any specific matter exercise any part of such authority and perform any of such functions.[Subsection (5) was found unconstitutional by Ex Parte Attorney-General In Re: The Constitutional Relationship Between the Attorney-General and the Prosecutor-General 1998 NR 282 (SC) at page 301. However, it is not clear whether this case technically invalidates subsection (5); it holds that subsection (5) is not applicable to the relationship between the Attorney-General and the Prosecutor-General, but this conclusion appears to be based on the inconsistency between subsection (5) and the Namibian Constitution, which takes precedence:
“Section 3(5) of the Act referring to Act 51 of 1977 is not the product of a Rechtsstaat and is not compatible with the Grundnorm relating to the separation of powers. It paves the way for executive domination and state despotism. It represents a denial of the cardinal values of the constitution.

The reasons advanced above would in themselves justify the conclusion that s 3(5) of the Act should be regarded by this Court as unconstitutional. But there are other reasons why in my view s 3(5) is not applicable.

In the first place art 140(1) of the Constitution commences by stating ‘subject to the provisions of this Constitution’ which signifies to me that art 87 and 88 of the Constitution which provide specifically for the powers and functions of the Attorney-General and the Prosecutor-General take precedence over the provisions of s 3(5).

In New Modderfontein Gold Mining Company v Transvaal Provincial Administration 1919 AD 367 at 397 the Court cites with approval the following passage from an American decision (Gorham v Luckett):
‘And if this last Act professes or manifestly intends, to regulate the whole subject to which it relates, it necessarily supersedes and repeals all former Acts, so far as it differs from them in its prescriptions. The great object, then, is to ascertain the true interpretation of the last Act. That being ascertained, the necessary consequence is that the legislative intention to be deduced from it must prevail over any prior inconsistent intention to be deduced from a previous Act.’

Secondly and allied to the last point is the significant change in language between s 3(5) and arts 87 and 88. Section 3(5) of the Act expressly makes the Attorney-General subject to the directions of the minister while arts 87(a) and 88 use quite different language. Under art 87(a) the Attorney-General exercises ‘the final responsibility for the office of the Prosecutor-General’ while under art 88 the ‘Prosecutor-General prosecutes, subject to the provisions of the Constitution, and performs all functions relating to the exercise of his powers.’ Section 3(5) of the Act does not therefore apply.”]
(6)(a)Any reference in any law to the solicitor-general or a deputy solicitor-general in respect of the area of jurisdiction of the Eastern Cape Division of the Supreme Court, shall be construed as a reference to the attorney-general and deputy attorney-general respectively appointed in respect of the area of jurisdiction of that Division.(b)Any reference in any law of the territory to the Crown Prosecutor shall be construed as a reference to the attorney-general appointed in respect of the area of jurisdiction of the South West Africa Division of the Supreme Court.[Section 2 of AG 24 of 1983 provides that the words “public service” throughout section 3 shall be “deemed to be amended” by being substituted by the expression “government service mentioned in section 2 of the Government Service Act, 1980 (Act 2 of 1980)”; this change has been incorporated as an amendment to section 3. The Government Service Act 2 of 1980, which was re-named the public Service Act, has been replaced by the Public Service Act 13 of 1995; section 38(c) of Act 13 of 1995 provides that a reference to the government service in any other law “shall be construed” as a reference to the public service. This rule of construction has not been treated as an amendment to section 3. With respect to the “Crown Prosecutor”, the Republic of South Africa Constitution Act 32 of 1961 provided in Article 3(b) that as from 31 May 1961, any reference to the Crown in any law in force in the Union of South Africa or in any other territory in respect of which Parliament is competent to legislate shall be construed as a reference to the Republic or the State President as the circumstances may require.][Section 3(1)(t) of the transfer proclamation excluded section 3 from the operation of section 3(1)(c) of the Executive Powers Transfer (General Provisions) Proclamation, AG 7 of 1977, which concerned the interpretation of the term “Republic”. Therefore, prior to Namibian independence, in this section “Republic” retained the meaning it was given in section 1 of the Act (South Africa and the territory of South West Africa). Section 1(2) of AG 24 of 1983 (OG 4854), which amends the transfer proclamation, states: “In the application of the provisions of the Executive Powers Transfer (General Provisions) Proclamation, 1977 (Proclamation AG. 7 of 1977) (hereinafter referred to as the General Proclamation), in respect of section 3 of the Criminal Procedure Act, 1977 (Act 51 of 1977), this proclamation shall be deemed to be a transfer proclamation as defined in section 1 of the General Proclamation, and the reference in section 5 of the General Proclamation to a law referred to in section 2 of that Proclamation, shall be construed as a reference to section 3 of the said Criminal Procedure Act, 1977.” Section 2 of AG 24 of 1983 (OG 4854) states: “In the application of the provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977), section 3 thereof shall be deemed to be amended by the substitution for the words “public service”, wherever they occur, of the expression “government service mentioned in section 2 of the Government Service Act, 1980 (Act 2 of 1980).” This change has been incorporated as an amendment to section 3 above.]

4. Delegation, and local public prosecutor

An attorney-general may in writing -(a)delegate to any person, subject to the control and directions of the attorney-general, authority to conduct on behalf of the State any prosecution in criminal proceedings in any court within the area of jurisdiction of such attorney-general, or to prosecute in any court on behalf of the State any appeal arising from criminal proceedings within the area of jurisdiction of such attorney-general;(b)appoint any officer of the State as public prosecutor to any lower court within his area of jurisdiction who shall, as the representative of the attorney-general and subject to his control and directions, institute and conduct on behalf of the State any prosecution in criminal proceedings in such lower court.

5. Presiding judicial officer may in certain circumstances appoint prosecutor

(1)If the person delegated or appointed to conduct a prosecution in criminal proceedings in any court is for any reason unable to discharge that function, or if no such person has been delegated or appointed, the judge or judicial officer presiding at such criminal proceedings may, in writing under his hand, designate any competent person to conduct such prosecution in particular criminal proceedings or in all criminal proceedings on any particular day.
(2)A person designated under subsection (1) shall in respect of the exercise of his powers and the discharge of his functions be subject to the control and directions of the attorney-general concerned.

6. Power to withdraw charge or stop prosecution

An attorney-general or any person conducting a prosecution at the instance of the State or any body or person conducting a prosecution under section 8, may -(a)before an accused pleads to a charge, withdraw that charge, in which event the accused shall not be entitled to a verdict of 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 shall acquit the accused in respect of that charge: Provided that where a prosecution is conducted by a person other than an attorney-general or a body or person referred to in section 8, the prosecution shall not be stopped unless the attorney-general or any person authorized thereto by the attorney-general, whether in general or in any particular case, has consented thereto.

7. Private prosecution on certificate nolle prosequi

(1)In any case in which an attorney-general declines to prosecute for an alleged offence -(a)any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;(b)a husband, if the said offence was committed in respect of his wife;(c)the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such 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 ward,may, subject to the provisions of section 9, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.
(2)(a)No private prosecutor under this section shall obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the officer authorized by law to issue such process a certificate signed by the attorney-general that he has seen the statements or affidavits on which the charge is based and that he declines to prosecute at the instance of the State.(b)The attorney-general shall, in any case in which he declines to prosecute, at the request of the person intending to prosecute, grant the certificate referred to in paragraph (a).(c)A certificate issued under this subsection shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within three months of the date of the certificate.(d)The provisions of paragraph (c) shall apply also with reference to a certificate granted before the commencement of this Act under the provisions of any law repealed by this Act, and the date of such certificate shall, for the purposes of this paragraph, be deemed to be the date of commencement of this Act.

8. Private prosecution under statutory right

(1)Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.
(2)A body which or a person who intends exercising a right of prosecution under subsection (1), shall exercise such right only after consultation with the attorney-general concerned and after the attorney-general has withdrawn his right of prosecution in respect of any specified offence or any specified class or category of offences with reference to which such body or person may by law exercise such right of prosecution.
(3)An attorney-general may, under subsection (2), withdraw his right of prosecution on such conditions as he may deem fit, including a condition that the appointment by such body or person of a prosecutor to conduct the prosecution in question shall be subject to the approval of the attorney-general, and that the attorney-general may at any time exercise with reference to any such prosecution any power which he might have exercised if he had not withdrawn his right of prosecution.

9. Security by private prosecutor

(1)No private prosecutor referred to in section 7 shall take out or issue any process commencing the private prosecution unless he deposits with the magistrate’s court in whose area of jurisdiction the offence was committed -(a)the sum of one hundred rand as security that he will prosecute the charge against the accused to a conclusion without undue delay; and(b)the amount such court may determine as security for the costs which the accused may incur in respect of his defence to the charge.
(2)The accused may, when he is called upon to plead to the charge, apply to the court hearing the charge to review the amount determined under subsection (1)(b), 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 magistrate’s 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)Where a private prosecutor fails to prosecute a charge against an accused to a conclusion without undue delay or where a charge is dismissed under section 11, the amount referred to in subsection (1)(a) shall be forfeited to the State.

10. Private prosecution in name of private prosecutor

(1)A private prosecution shall 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, as the case may be, shall describe the private prosecutor with certainty and precision and shall, except in the case of a body referred to in section 8, be signed by such prosecutor or his legal representative.
(3)Two or more persons shall not prosecute in the same charge except where two or more persons have been injured by the same offence.

11. Failure of private prosecutor to appear

(1)If the private prosecutor does not appear on the day set down for the appearance of the accused in the magistrate’s court or for the trial of the accused, the charge against the accused shall be dismissed unless the court has reason to believe that the private prosecutor was prevented from being present by circumstances beyond his control, in which event the court may adjourn the case to a later date.
(2)Where the charge is so dismissed, the accused shall forthwith be discharged from custody and may not in respect of that charge be prosecuted privately again but the attorney-general or a public prosecutor with the consent of the attorney-general may at the instance of the State prosecute the accused in respect of that charge.

12. Mode of conducting private prosecution

(1)A private prosecution shall, subject to the provisions of this Act, be proceeded with in the same manner as if it were a prosecution at the instance of the State: Provided that the person in respect of whom the private prosecution is instituted shall be brought before the court only by way of summons in the case of a lower court, or an indictment in the case of a superior court, except where he 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 8.
(2)Where the prosecution is instituted under section 7(1) and the accused pleads guilty to the charge, the prosecution shall be continued at the instance of the State.

13. Attorney-general may intervene in private prosecution

An attorney-general or a local public prosecutor acting on the instructions of the attorney-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, as the case may be, continued at the instance of the State, and the court shall make such an order.

14. Costs in respect of process

A private prosecutor, other than a prosecutor contemplated in section 8, shall in respect of any process relating to the private prosecution, pay to the clerk or, as the case may be, the registrar of the court in question, the fees prescribed under the rules of court for the service or execution of such process.

15. Costs of private prosecution

(1)The costs and expenses of a private prosecutor shall, subject to the provisions of subsection (2), be paid by the private prosecutor.
(2)The court may order a person convicted upon a private prosecution, including any person convicted under section 25(1) of the Children’s Act, 1960 (Act 33 of 1960) of having conduced to the commission of an offence, to pay the costs and expenses of the prosecution, including the costs of any appeal against such conviction or any sentence: Provided that the provisions of this subsection shall not apply with reference to any prosecution instituted and conducted under section 8: Provided further that where a private prosecution is instituted after the grant of a certificate by an attorney-general that he declines to prosecute and the accused is convicted, the court may order the costs and expenses of the private prosecution, including the costs of an appeal arising from such prosecution, to be paid by the State.

16. Costs of accused in private prosecution

(1)Where in a private prosecution, other than a prosecution contemplated in section 8, the charge against the accused is dismissed or the accused is acquitted or a decision in favour of the accused is given on appeal, the court dismissing the charge or acquitting the accused or deciding in favour of the accused on appeal, may order the private prosecutor to pay to such accused the whole or any part of the costs and expenses incurred by him in connection with the prosecution or, as the case may be, the appeal.
(2)Where the court is of the opinion that a private prosecution was unfounded and vexatious, it shall award to the accused at his request such costs and expenses incurred by him as it may deem fit.

17. Taxation of costs

(1)The provisions of section 300(3) shall apply with reference to any order or award made under section 15 or 16 in connection with costs and expenses.
(2)Costs awarded under section 15 or 16 shall be taxed according to the scale, in civil cases, of the court which makes the award or, if the award is made by a regional court, according to the scale, in civil cases, of a magistrate’s court, or, where there is more than one such scale, according to the scale determined by the court making the award.

18. Prescription of right to institute prosecution

(1)The right to institute a prosecution for any offence, other than an offence in respect of which the sentence of death may be imposed, shall, unless some other period is expressly provided by law, lapse after the expiration of a period of twenty years from the time when the offence was committed.
(2)The right to institute a prosecution for an offence in respect of which the sentence of death may be imposed, shall not be barred by lapse of time.

Chapter 2
Search warrants, entering of premises, seizure, forfeiture and disposal of property connected with offences

19. Saving as to certain powers conferred by other laws

The provisions of this Chapter shall not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter.

20. State may seize certain articles

The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article) -(a)which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;(b)which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or(c)which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

21. Article to be seized under search warrant

(1)Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20 shall be seized only by virtue of a search warrant issued -(a)by a magistrate or justice, if it appears to such magistrate or justice from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or upon any person or upon or at any premises within his area of jurisdiction; or(b)by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge or judicial officer that any such article in the possession or under the control of any person or upon or at any premises is required in evidence at such proceedings.
(2)A search warrant issued under subsection (1) shall require a police official to seize the article in question and shall to that end authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.
(3)(a)A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.(b)A search warrant may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.
(4)A police official executing a warrant under this section or section 25 shall, after such execution, upon demand of any person whose rights in respect of any search or article seized under the warrant have been affected, hand to him a copy of the warrant.

22. Circumstances in which article may be seized without search warrant

A police official may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20 -(a)if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or(b)if he on reasonable grounds believes -(i)that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applies for such warrant; and(ii)that the delay in obtaining such warrant would defeat the object of the search.

23. Search of arrested person and seizure of article

On the arrest of any person, the person making the arrest may -(a)if he is a peace officer, search the person arrested and seize any article referred to in section 20 which is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official; or(b)if he is not a peace officer, seize any article referred to in section 20 which is in the possession of or in the custody or under the control of the person arrested and shall forthwith deliver any such article to a police official.

24. Search by occupant of land

Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises concerned, or that any article has been placed thereon or therein or is in the custody or possession of any person upon or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs, arms and ammunition or explosives, may at any time, if a police official is not readily available, enter such premises for the purpose of searching such premises and any person thereon or therein, and if any such stock, produce or article is found, he shall take possession thereof and forthwith deliver it to a police official.[section 24 amended by Act 31 of 1985]

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

(1)If it appears to a magistrate or justice from information on oath that there are reasonable grounds for believing -(a)that the internal security of the Republic or the maintenance of law and order is likely to be endangered by or in consequence of any meeting which is being held or is to be held in or upon any premises within his area of jurisdiction; or(b)that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or upon any premises within his area of jurisdiction,he may issue a warrant authorizing a police official to enter the premises in question at any reasonable time for the purpose -(i)of carrying out such investigations and of taking such steps as such police official may consider necessary for the preservation of the internal security of the Republic or for the maintenance of law and order or for the prevention of any offence;(ii)of searching the premises or any person in or upon the premises for any article referred to in section 20 which such police official on reasonable grounds suspects to be in or upon or at the premises or upon such person; and(iii)of seizing any such article.
(2)A warrant under subsection (1) may be issued on any day and shall be of force until it is executed or is cancelled by the person who issued it or, if such person is not available, by a person with like authority.
(3)A police official may without warrant act under subparagraphs (i), (ii) and (iii) of subsection (1) if he on reasonable grounds believes -(a)that a warrant will be issued to him under paragraph (a) or (b) of subsection (1) if he applies for such warrant; and(b)that the delay in obtaining such warrant would defeat the object thereof.

26. Entering of premises for purposes of obtaining evidence

Where a police official in the investigation of an offence or alleged offence reasonably suspects that a person who may furnish information with reference to any such offence is on any premises, such police official may without warrant enter such premises for the purpose of interrogating such person and obtaining a statement from him: Provided that such police official shall not enter any private dwelling without the consent of the occupier thereof.

27. Resistance against entry or search

(1)A police official who may lawfully search any person or any premises or who may enter any premises under section 26, may use such force as may be reasonably necessary to overcome any resistance against such search or against entry of the premises, including the breaking of any door or window of such premises: Provided that such police official shall first audibly demand admission to the premises and notify the purpose for which he seeks to enter such premises.
(2)The proviso to subsection (1) shall not apply where the police official concerned is on reasonable grounds of the opinion that any article which is the subject of the search may be destroyed or disposed of if the provisions of the said proviso are first complied with.

28. Wrongful search an offence, and award of damages

(1)A police official -(a)who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25 (1); or(b)who, without being authorized thereto under this Chapter -(i)searches any person or container or premises or seizes or detains any article; or(ii)performs any act contemplated in subparagraph (i), (ii) or (iii) of section 25 (1),shall be guilty of an offence and liable on conviction to a fine not exceeding two hundred rand or to imprisonment for a period not exceeding six months, and shall in addition be subject to an award under subsection (2).
(2)Where any person falsely gives information on oath under section 21(1) or 25(1) and a search warrant or, as the case may be, a warrant is issued and executed on such information, and such person is in consequence of such false information convicted of perjury, the court convicting such person may, upon the application of any person who has suffered damage in consequence of the unlawful entry, search or seizure, as the case may be, or upon the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon the provisions of section 300 shall mutatis mutandis apply with reference to such award.

29. Search to be conducted in decent and orderly manner

A search of any person or premises shall be conducted with strict regard to decency and order, and a woman shall be searched by a woman only, and if no female police official is available, the search shall be made by any woman designated for the purpose by a police official.

30. Disposal by police official of article after seizure

A police official who seizes any article referred to in section 20 or to whom any such article is under the provisions of this Chapter delivered(a)may, if the article is perishable, with due regard to the interests of the persons concerned, dispose of the article in such manner as the circumstances may require; or(b)may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of such police official, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so; or(c)shall, if the article is not disposed of or delivered under the provisions of paragraph (a) or (b), give it a distinctive identification mark and retain it in police custody or make such other arrangements with regard to the custody thereof as the circumstances may require.

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

(1)(a)If no criminal proceedings are instituted in connection with any article referred to in section 30(c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.(b)If no person may lawfully possess such article or if the police official concerned does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.
(2)The person who may lawfully possess the article in question shall be notified by registered post at his last-known address that he may take possession of the article and if such person fails to take delivery of the article within thirty days from the date of such notification, the article shall be forfeited to the State.

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

(1)If criminal proceedings are instituted in connection with any article referred to in section 30(c) and the accused admits his guilt in accordance with the provisions of section 57, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it, whereupon the provisions of section 31(2) shall apply with reference to any such person.
(2)If no person may lawfully possess such article or if the police official concerned does not know of any person who may lawfully possess such article, the article shall be forfeited to the State.

33. Article to be transferred to court for purposes of trial

(1)If criminal proceedings are instituted in connection with any article referred to in section 30(c) and such article is required at the trial for the purposes of evidence or for the purposes of an order of court, the police official concerned shall, subject to the provisions of subsection (2) of this section, deliver such article to the clerk of the court where such criminal proceedings are instituted.
(2)If it is by reason of the nature, bulk or value of the article in question impracticable or undesirable that the article should be delivered to the clerk of the court in terms of subsection (1), the clerk of the court may require the police official concerned to retain the article in police custody or in such other custody as may be determined in terms of section 30(c).
(3)(a)The clerk of the court shall place any article received under subsection (1) in safe custody, which may include the deposit of money in an official banking account if such money is not required at the trial for the purposes of evidence.(b)Where the trial in question is to be conducted in a court other than a court of which such clerk is the clerk of the court, such clerk of the court shall -(i)transfer any article received under subsection (1), other than money deposited in a banking account under paragraph (a) of this subsection, to the clerk of the court or, as the case may be, the registrar of the court in which the trial is to be conducted, and such clerk or registrar of the court shall place such article in safe custody;(ii)in the case of any article retained in police custody or in some other custody in accordance with the provisions of subsection (2) or in the case of any money deposited in a banking account under paragraph (a) of this subsection, advise the clerk or registrar of such other court of the fact of such custody or such deposit, as the case may be.

34. Disposal of article after commencement of criminal proceedings

(1)The judge or judicial officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 33 -(a)be returned to the person from whom it was seized, if such person may lawfully possess such article; or(b)if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article; or(c)if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.
(2)The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may deem fit.
(3)If the judge or judicial officer concerned does not, at the conclusion of the relevant proceedings, make an order under subsection (1), such judge or judicial officer or, if he is not available, any other judge or judicial officer of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he may deem fit.
(4)Any order made under subsection (1) or (3) may be suspended pending any appeal or review.
(5)Where the court makes an order under paragraph (a) or (b) of subsection (1), the provisions of section 31(2) shall mutatis mutandis apply with reference to the person in favour of whom such order is made.
(6)If the circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or judicial officer concerned may make any order referred to in paragraph (a), (b) or (c) of subsection (1) at any stage of the proceedings.

35. Forfeiture of article to State

(1)A court which convicts an accused of any offence may, without notice to any person, declare -(a)any weapon, instrument or other article by means whereof the offence in question was committed or which was used in the commission of such offence; or(b)if the conviction is in respect of an offence referred to in Part I of Schedule 2, any vehicle, container or other article which was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property,and which was seized under the provisions of this Act, forfeited to the State: Provided that such forfeiture shall not affect any right referred to in subparagraph (i) or (ii) of subsection (4)(a) if it is proved that the person who claims such right did not know that such weapon, instrument, vehicle, container or other article was being used or would be used for the purpose of or in connection with the commission of the offence in question or, as the case may be, for the conveyance or removal of the stolen property in question, or that he could not prevent such use, and that he may lawfully possess such weapon, instrument, vehicle, container or other article, as the case may be.
(2)A court which convicts an accused or which finds an accused not guilty of any offence, shall declare forfeited to the State any article seized under the provisions of this Act which is forged or counterfeit or which cannot lawfully be possessed by any person.
(3)Any weapon, instrument, vehicle, container or other article declared forfeited under the provisions of subsection (1), shall be kept for a period of thirty days with effect from the date of declaration of forfeiture or, if an application is within that period received from any person for the determination of any right referred to in subparagraph (i) or (ii) of subsection (4) (a), until a final decision in respect of any such application has been given.
(4)(a)The court in question or, if the judge or judicial officer concerned is not available, any judge or judicial officer of the court in question, may at any time within a period of three years with effect from the date of declaration of forfeiture, upon the application of any person, other than the accused, who claims that any right referred to in subparagraph (i) or (ii) of this paragraph is vested in him, inquire into and determine any such right, and if the court finds that the weapon, instrument, vehicle, container or other article in question -(i)is the property of any such person, the court shall set aside the declaration of forfeiture and direct that the weapon, instrument, vehicle, container or other article, as the case may be, be returned to such person, or, if the State has disposed of the weapon, instrument, vehicle, container or other article in question, direct that such person be compensated by the State to the extent to which the State has been enriched by such disposal;(ii)was sold to the accused in pursuance of a contract under which he becomes the owner of such weapon, instrument, vehicle, container or other article, as the case may be, upon the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of such weapon, instrument, vehicle, container or other article upon default of payment of the stipulated price or any part thereof -(aa)the court shall direct that the weapon, instrument, vehicle, container or other article in question be sold by public auction and that the said seller be paid out of the proceeds of the sale an amount equal to the value of his rights under the contract to the weapon, instrument, vehicle, container or other article, but not exceeding the proceeds of the sale; or(bb)if the State has disposed of the weapon, instrument, vehicle, container or other article in question, the court shall direct that the said seller be likewise compensated.(b)If a determination by the court under paragraph (a) is adverse to the applicant, he may appeal therefrom as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made, or against a sentence imposed as a result of such conviction.(c)When determining any rights under this subsection, the record of the criminal proceedings in which the declaration of forfeiture was made, shall form part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it may deem fit.

36. Disposal of article concerned in an offence committed outside Republic

(1)Where an article is seized in connection with which ­(a)an offence was committed or is on reasonable grounds suspected to have been committed in a country outside the Republic;(b)there are reasonable grounds for believing that it will afford evidence as to the commission in a country outside the Republic of any offence or that it was used for the purpose of or in connection with such commission of any offence,the magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that such offence is punishable in such country by death or by imprisonment for a period of twelve months or more or by a fine of five hundred rand or more, order such article to be delivered to a member of a police force established in such country who may thereupon remove it from the Republic.
(2)Whenever the article so removed from the Republic is returned to the magistrate, or whenever the magistrate refuses to order that the article be delivered as aforesaid, the article shall be returned to the person from whose possession it was taken, unless the magistrate is authorized or required by law to dispose of it otherwise.

Chapter 3
Ascertainment of bodily features of accused

37. Powers in respect of prints and bodily appearance of accused

(1)Any police official may -(a)take the finger-prints, palm-prints or foot-prints or may cause any such prints to be taken -(i)of any person arrested upon any charge;(ii)of any such person released on bail or on warning under section 72;(iii)of any person arrested in respect of any matter referred to in paragraph (n), (o) or (p) of section 40(1);(iv)of any person upon whom a summons has been served in respect of any offence referred to in Schedule l or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or(v)of any person convicted by a court or deemed under section 57 (6) to have been convicted in respect of any offence which the Minister has by notice in the Gazette declared to be an offence for the purposes of this subparagraph;(b)make a person referred to in paragraph (a)(i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the police official may determine;(c)take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance: Provided that no police official shall take any blood sample of the person concerned nor shall a police official make any examination of the body of the person concerned where that person is a female and the police official concerned is not a female.[The full stop at the end of paragraph (c) should be a semicolon now that it is no longer the last paragraph in subsection (1).](d)take a photograph or may cause a photograph to be taken of a person referred to in paragraph (a)(i) or (ii).[paragraph (d) inserted by Act 31 of 1985]
(2)(a)Any medical officer of any prison or any district surgeon or, if requested thereto by any police official, any registered medical practitioner or registered nurse may take such steps, including the taking of a blood sample, as may be deemed necessary in order to ascertain whether the body of any person referred to in paragraph (a)(i) or (ii) of subsection (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance.(b)If any registered medical practitioner attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to such hospital for medical attention or treatment may be relevant at any later criminal proceedings, such medical practitioner may take a blood sample of such person or cause such sample to be taken.
(3)Any court before which criminal proceedings are pending may -(a)in any case in which a police official is not empowered under subsection (1) to take finger-prints, palm-prints or foot-prints or to take steps in order to ascertain whether the body of any person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that such prints be taken of any accused at such proceedings or that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain whether the body of any accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance;(b)order that the steps, including the taking of a blood sample, be taken which such court may deem necessary in order to ascertain the state of health of any accused at such proceedings.
(4)Any court which has convicted any person of any offence or which has concluded a preparatory examination against any person on any charge, or any magistrate may order that the finger-prints, palm-prints or foot-prints or a photograph of the person concerned be taken.[subsection (4) amended by Act 31 of 1985; not all of the changes are indicated by amendment markings]
(5)Finger-prints, palm-prints or foot-prints, photographs and the record of steps taken under this section, shall be destroyed if the person concerned is found not guilty at his trial or if his conviction is set aside by a superior court or if he is discharged at a preparatory examination or if no criminal proceedings with reference to which such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute such person.[subsection (5) amended by Act 31 of 1985]

Chapter 4
Methods of securing attendance of accused in court

38. Methods of securing attendance of accused in court

The methods of securing the attendance of an accused in court for the purposes of his trial shall be arrest, summons, written notice and indictment in accordance with the relevant provisions of this Act.

Chapter 5
Arrest

39. Manner and effect of arrest

(1)An arrest shall be effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching his body or, if the circumstances so require, by forcibly confining his body.
(2)The person effecting an arrest shall, at the time of effecting the arrest or immediately after effecting the arrest, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, upon demand of the person arrested hand him a copy of the warrant.
(3)The effect of an arrest shall be that the person arrested shall be in lawful custody and that he shall be detained in custody until he is lawfully discharged or released from custody.

40. Arrest by peace officer without warrant

(1)A peace officer may without warrant arrest any person -(a)who commits or attempts to commit any offence in his presence;(b)whom he reasonably suspects of having committed an offence referred to in Schedule I, other than the offence of escaping from lawful custody;(c)who has escaped or who attempts to escape from lawful custody;(d)who has in his possession any implement of housebreaking and who is unable to account for such possession to the satisfaction of the peace officer;(e)who is found in possession of anything which the peace officer reasonably suspects to be stolen property or property dishonestly obtained, and whom the peace officer reasonably suspects of having committed an offence with respect to such thing;(f)who is found at any place by night in circumstances which afford reasonable grounds for believing that such person has committed or is about to commit an offence;(g)who is reasonably suspected of being or having been in unlawful possession of stock or produce as defined in any law relating to the theft of stock or produce;(h)who is reasonably suspected of committing or of having committed an offence under any law governing the making, supply, possession or conveyance of intoxicating liquor or of dependence-producing drugs or the possession or disposal of arms or ammunition;(i)who is found in any gambling house or at any gambling table in contravention of any law relating to the prevention or suppression of gambling or games of chance;(j)who wilfully obstructs him in the execution of his duty;(k)who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic;(l)who is reasonably suspected of being a prohibited immigrant in the Republic in contravention of any law regulating entry into or residence in the Republic;(m)who is reasonably suspected of being a deserter from the South African Defence Force;(n)who is reasonably suspected of having failed to observe any condition imposed in postponing the passing of sentence or in suspending the operation of any sentence under this Act;(o)who is reasonably suspected of having failed to pay any fine or part thereof on the date fixed by order of court under this Act;(p)who fails to surrender himself in order that he may undergo periodical imprisonment when and where he is required to do so under an order of court or any law relating to prisons.
(2)If a person may be arrested under any law without warrant and subject to conditions or the existence of circumstances set out in that law, any peace officer may without warrant arrest such person subject to such conditions or circumstances.

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

(1)A peace officer may call upon any person ­(a)whom he has power to arrest;(b)who is reasonably suspected of having committed or of having attempted to commit an offence;(c)who, in the opinion of the peace officer, may be able to give evidence in regard to the commission or suspected commission of any offence,to furnish such peace officer with his full name and address, and if such person fails to furnish his full name and address, the peace officer may forthwith and without warrant arrest him, or, if such person furnishes to the peace officer a name or address which the peace officer reasonably suspects to be false, the peace officer may arrest him without warrant and detain him for a period not exceeding twelve hours until such name or address has been verified.
(2)Any person who, when called upon under the provisions of subsection (1) to furnish his name and address, fails to do so or furnishes a false or incorrect name and address, shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or to imprisonment for a period not exceeding three months.

42. Arrest by private person without warrant

(1)Any private person may without warrant arrest any person -(a)who commits or attempts to commit in his presence or whom he reasonably suspects of having committed an offence referred to in Schedule I;(b)whom he reasonably believes to have committed any offence and to be escaping from and to be freshly pursued by a person whom such private person reasonably believes to have authority to arrest that person for that offence;(c)whom he is by any law authorized to arrest without warrant in respect of any offence specified in that law;(d)whom he sees engaged in an affray.
(2)Any private person who may without warrant arrest any person under subsection (1)(a) may forthwith pursue that person, and any other private person to whom the purpose of the pursuit has been made known, may join and assist therein.
(3)The owner, lawful occupier or person in charge of property on or in respect of which any person is found committing any offence, and any person authorized thereto by such owner, occupier or person in charge, may without warrant arrest the person so found.[subsection (3) amended by Act 31 of 1985]

43. Warrant of arrest may be issued by magistrate or justice

(1)Any magistrate or justice may issue a warrant for the arrest of any person upon the written application of an attorney-general, a public prosecutor or a commissioned officer of police ­(a)which sets out the offence alleged to have been committed;(b)which alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction; and(c)which states that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.
(2)A warrant of arrest issued under this section shall direct that the person described in the warrant shall be arrested by a peace officer in respect of the offence set out in the warrant and that he be brought before a lower court in accordance with the provisions of section 50.
(3)A warrant of arrest may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.

44. Execution of warrants

A warrant of arrest issued under any provision of this Act may be executed by a peace officer, and the peace officer executing such warrant shall do so in accordance with the terms thereof.

45. Arrest on telegraphic authority

(1)A telegraphic or similar written or printed communication from any magistrate, justice or peace officer stating that a warrant has been issued for the arrest of any person, shall be sufficient authority to any peace officer for the arrest and detention of that person.
(2)The provisions of section 50 shall apply with reference to an arrest effected in accordance with subsection (1).

46. Non-liability for wrongful arrest

(1)Any person who is authorized to arrest another under a warrant of arrest or a communication under section 45 and who in the reasonable belief that he is arresting such person arrests another, shall be exempt from liability in respect of such wrongful arrest.
(2)Any person who is called upon to assist in making an arrest as contemplated in subsection (1) or who is required to detain a person so arrested, and who reasonably believes that the said person is the person whose arrest has been authorized by the warrant of arrest or the communication, shall likewise be exempt from liability in respect of such assistance or detention.

47. Private persons to assist in arrest when called upon

(1)Every male inhabitant of the Republic of an age not below sixteen and not exceeding sixty years shall, when called upon by any police official to do so, assist such police official­(a)in arresting any person;(b)in detaining any person so arrested.
(2)Any person who, without sufficient cause, fails to assist a police official as provided in subsection (1), shall be guilty of an offence and liable on conviction to a fine not exceeding one hundred rand or to imprisonment for a period not exceeding three months.

48. Breaking open premises for purpose of arrest

Any person who may lawfully arrest another in respect of any offence and who knows or reasonably suspects such other person to be on any premises, may, if he first audibly demands entry into such premises and notifies the purpose for which he seeks entry and fails to gain entry, break open, enter and search such premises for the purpose of effecting the arrest.

49. Use of force in effecting arrest

(1)If any person authorized under this Act to arrest or to assist in arresting another, attempts to arrest such person and such person -(a)resists the attempt and cannot be arrested without the use of force; or(b)flees when it is clear that an attempt to arrest him is being made, or resists such attempt and flees,the person so authorized may, in order to effect the arrest, use such force as may in the circumstances be reasonably necessary to overcome the resistance or to prevent the person concerned from fleeing.
(2)Where the person concerned is to be arrested for an offence referred to in Schedule I or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorized under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.

50. Procedure after arrest

(1)A person arrested with or without warrant shall as soon as possible be brought to a police station or, in the case of an arrest by warrant, to any other place which is expressly mentioned in the warrant, and, if not released by reason that no charge is to be brought against him, be detained for a period not exceeding forty-eight hours unless he is brought before a lower court and his further detention, for the purposes of his trial, is ordered by the court upon a charge of any offence or, if such person was not arrested in respect of an offence, for the purpose of adjudication upon the cause for his arrest: Provided that if the period of forty-eight hours expires -(a)on a day which is not a court day or on any court day after four o’clock in the afternoon, the said period shall be deemed to expire at four o’clock in the afternoon of the court day next succeeding;(b)on any court day before four o’clock in the afternoon, the said period shall be deemed to expire at four o’clock in the afternoon of such court day;(c)at a time when the arrested person is outside the area of jurisdiction of the lower court to which he is being brought for the purposes of further detention and he is at such time in transit from a police station or other place of detention to such court. the said period shall be deemed to expire at four o’clock in the afternoon of the court day next succeeding the day on which such arrested person is brought within the area of jurisdiction of such court.[The full stop at the end of paragraph (c) should be a semicolon now that it is no longer the last paragraph in subsection (1).](d)or will expire at, or if the time at which such period is deemed to expire under paragraph (a), (b) or (c) is or will be, a time when the arrested person cannot, because of his physical illness or other physical condition, be brought before a lower court for the purposes of an order for his further detention, the court before which he would, but for the illness or other condition, have been brought for the purposes of such an order, may, upon the application of the prosecutor, which, if not made before the expiration of the period of forty-eight hours, may be made at any time before, or on, the next succeeding court day, and in which the circumstances relating to the illness or other condition are set out, supported by a certificate of a medical practitioner, order that the arrested person be detained at a place specified by the court and for such period as the court may deem necessary so that he may recuperate and be brought before the court for the purpose of an order for his further detention for the purposes of his trial.[paragraph (d) inserted by Act 56 of 1979]
(2)A court day for the purposes of this section means a day on which the court in question normally sits as a court.
(3)Nothing in this section shall be construed as modifying the provisions of this Act or any other law whereby a person under detention may be released on bail or on warning or on a written notice to appear in court.

51. Escaping and aiding escaping before incarceration, and penalties therefor

(1)Any person who escapes or attempts to escape from custody after he has been lawfully arrested and before he has been lodged in any correctional facility, police-cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 91 of the Correctional Service Act, 2012 (Act No. 9 of 2012).[subsection (1) amended by Act 9 of 2012]
(2)Any person who rescues or attempts to rescue from custody any person after he has been lawfully arrested and before he has been lodged in any correctional facility, police-cell or lock-up, or who aids such person to escape or to attempt to escape from such custody, or who harbours or conceals or assists in harbouring or concealing any person who escapes from custody after he has been lawfully arrested and before he has been lodged in any correctional facility, police cell or lock-up, shall be guilty of an offence and liable on conviction to the penalties prescribed in section 83 of the Correctional Service Act, 2012 (Act No. 9 of 2012).[subsection (2) amended by Act 9 of 2012]
(3)Notwithstanding anything to the contrary in any law contained, a lower court shall have jurisdiction to try any offence under this section and to impose any penalty prescribed in respect thereof.[section 51 amended by Act 9 of 2012 to substitute “correctional facility” for “prison”]

52. Saving of other powers of arrest

No provision of this Chapter relating to arrest shall be construed as removing or diminishing any authority expressly conferred by any other law to arrest, detain or put any restraint upon any person.

53. Saving of civil law rights and liability

Subject to the provisions of sections 46 and 331, no provision of this Chapter relating to arrest shall be construed as removing or diminishing any civil right or liability of any person in respect of a wrongful or malicious arrest.

Chapter 6
Summons

54. Summons as method of securing attendance of accused in magistrate’s court

(1)Where the prosecution intends prosecuting an accused in respect of any offence and the accused is not in custody in respect of that offence and no warrant has been or is to be issued for the arrest of the accused for that offence, the prosecutor may secure the attendance of the accused for a summary trial in a lower court having jurisdiction by drawing up the relevant charge and handing such charge, together with information relating to the name and, where known and where applicable, the residential address and occupation or status of the accused, to the clerk of the court who shall -(a)issue a summons containing the charge and the information handed to him by the prosecutor, and specifying the place, date and time for the appearance of the accused in court on such charge; and(b)deliver such summons, together with so many copies thereof as there are accused to be summoned, to a person empowered to serve a summons in criminal proceedings.
(2)(a)Except where otherwise expressly provided by any law, the summons shall be served by a person referred to in subsection (1)(b) by delivering it to the person named therein or, if he cannot be found, by delivering it at his residence or place of employment or business to a person apparently over the age of sixteen years and apparently residing or employed there.(b)A return by the person who served the summons that the service thereof has been effected in terms of paragraph (a), may, upon the failure of the person concerned to attend the relevant proceedings, be handed in at such proceedings and shall be primafacie proof of such service.
(3)A summons under this section shall be served on an accused so that he is in possession thereof at least fourteen days (Sundays and public holidays excluded) before the date appointed for the trial.

55. Failure of accused to appear on summons

(1)An accused who is summoned under section 54 to appear at criminal proceedings and who fails to appear at the place and on the date and at the time specified in the summons or who fails to remain in attendance at such proceedings, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).
(2)The court may, if satisfied from the return of service referred to in paragraph (b) of section 54(2) that the summons was served on the accused in terms of paragraph (a) of that section and that the accused has failed to appear at the place and on the date and at the time specified in the summons, or if satisfied that the accused has failed to remain in attendance at the proceedings in question, issue a warrant for the arrest of the accused and, when the accused is brought before the court, in a summary manner enquire into his or her failure so to appear or so to remain in attendance and, unless the accused satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, convict the accused of the offence referred to in subsection (1) and sentence him or her to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months: Provided that where a warrant is issued for the arrest of an accused who has failed to appear in answer to the summons, the person executing the warrant -(a)may, where it appears to that person that the accused received the summons in question and that the accused will appear in court in accordance with a warning under section 72; or(b)shall, where it appears to that person that the accused did not receive the summons in question or that the accused has paid an admission of guilt fine in terms of section 57 or that there are other grounds on which it appears that the failure of the accused to appear on the summons was not due to any fault on the part of the accused, for which purpose that person may require the accused to furnish an affidavit or affirmation,release the accused on warning under section 72 in respect of the offence of failing to appear in answer to the summons, whereupon the provisions of that section shall mutatismutandis apply with reference to the said offence.[subsection (2) amended by Act 13 of 2010]
(3)(a)If, in any case in which a warrant of arrest is issued, it was permissible for the accused in terms of section 57 to admit his or her guilt in respect of the summons on which he or she failed to appear and to pay a fine in respect thereof without appearing in court, and the accused is arrested under such warrant in the area of jurisdiction of a magistrate’s court other than the magistrate’s court which issued the warrant of arrest, such other magistrate’s court may, notwithstanding any provision of this Act or any other law to the contrary, and if satisfied that the accused has, since the date on which he or she failed to appear on the summons in question, admitted his or her guilt in respect of that summons and has paid a fine in respect thereof without appearing in court, in a summary manner enquire into his or her failure to appear on such summons and, unless the accused satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, convict the accused of the offence referred to in subsection (1) and sentence him or her to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months.[Paragraph (a) is amended by Act 31 of 1985 and by Act 13 of 2010. Not all of the changes made by these two amending Acts are indicated by amendment markings.](b)In proceedings under paragraph (a) before such other magistrate’s court, it shall be presumed, upon production in such court of the relevant warrant of arrest, that the accused failed to appear on the summons in question, unless the contrary is proved.

Chapter 7
Written notice to appear in court

56. Written notice as method of securing attendance of accused in magistrate’s court

(1)If an accused is alleged to have committed an offence and a peace officer on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a sentence of imprisonment only or of a fine exceeding N$6 000, such peace officer may, whether or not the accused is in custody, hand to the accused a written notice which shall -(a)specify the name, the residential address and the occupation or status of the accused;(b)call upon the accused to appear at a place and on a date and at a time specified in the written notice to answer a charge of having committed the offence in question;(c)contain an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that the accused may pay a stipulated fine in respect thereof without appearing in court; and(d)contain a certificate under the hand of the peace officer that he or she has handed the original of such written notice to the accused and that he or she has explained to the accused the import thereof.[subsection (1) amended by Act 31 of 1985 and by Act 13 of 2010]
(2)If the accused is in custody, the effect of a written notice handed to him under subsection (1) shall be that he be released forthwith from custody.
(3)The peace officer shall forthwith forward a duplicate original of the written notice to the clerk of the court which has jurisdiction.
(4)The mere production to the court of the duplicate original referred to in subsection (3) shall be primafacie proof of the issue of the original thereof to the accused and that such original was handed to the accused.
(5)The provisions of section 55 shall mutatismutandis apply with reference to a written notice handed to an accused under subsection (1).

Chapter 8
Admission of guilt fine

57. Admission of guilt and payment of fine without appearance in court

(1)Where -(a)a summons is issued against an accused under section 54 (in this section referred to as the summons) and the public prosecutor concerned on reasonable grounds believes that a magistrate’s court, on convicting the accused of the offence in question, will not impose a sentence of imprisonment only or of a fine exceeding N$6 000, and such public prosecutor endorses the summons to the effect that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a fine stipulated on the summons in respect of such offence without appearing in court; or[paragraph (a) amended by Act 31 of 1985 and by Act 13 of 2010](b)a written notice under section 56 (in this section referred to as the written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,the accused may, without appearing in court, admit his guilt in respect of the offence in question by paying the fine stipulated (in this section referred to as the admission of guilt fine) either to the clerk of the magistrate’s court which has jurisdiction or at any police station within the area of jurisdiction of that court or, if the summons or written notice in question is endorsed to the effect that the fine may be paid at a specified local authority, at such local authority.
(2)(a)The summons or the written notice may stipulate that the admission of guilt fine shall be paid before a date specified in the summons or written notice, as the case may be.(b)An admission of guilt fine may be accepted by the clerk of the court concerned notwithstanding that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.
(3)An admission of guilt fine shall not be accepted under subsection (1) unless the accused surrenders the summons or the written notice, as the case may be, at the time of payment of the fine.
(4)No provision of this section shall be construed as preventing a public prosecutor attached to the court concerned from reducing an admission of guilt fine on good cause shown.
(5)(a)An admission of guilt fine stipulated in respect of a summons or a written notice shall be in accordance with a determination which the magistrate of the district or area in question may from time to time make in respect of any offence or, if the magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of such magistrate or a police official of or above the rank of non-commissioned officer attached to a police station within the magisterial district or area in question or, in the absence of such a police official at any such police station, by the senior police official then in charge at such police station.(b)An admission of guilt fine determined under paragraph (a) shall not exceed the maximum of the fine prescribed in respect of the offence in question or the amount of N$6 000, whichever is the lesser.[paragraph (b) amended by Act 31 of 1985 and by Act 13 of 2010; the amendment markings in Act 31 of 1985 are incomplete]
(6)An admission of guilt fine paid at a police station or a local authority in terms of subsection (1) and the summons or, as the case may be, the written notice surrendered under subsection (3), shall, as soon as is expedient, be forwarded to the clerk of the magistrate’s court which has jurisdiction, and such clerk of the court shall thereafter, as soon as is expedient, enter the essential particulars of such summons or, as the case may be, such written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned shall, subject to the provisions of subsection (7), be deemed to have been convicted and sentenced by the court in respect of the offence in question.
(7)The judicial officer presiding at the court in question shall examine the documents and if it appears to him that a conviction or sentence under subsection (6) is not in accordance with justice or that any such sentence, except as provided in subsection (4), is not in accordance with a determination made by the magistrate under subsection (5) or, where the determination under that subsection has not been made by the magistrate, that the sentence is not adequate, such judicial officer may set aside the conviction and sentence and direct that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may deem fit to prefer: Provided that where the admission of guilt fine which has been paid exceeds the amount determined by the magistrate under subsection (5), the said judicial officer may, in lieu of setting aside the conviction and sentence in question, direct that the amount by which the said admission of guilt fine exceeds the said determination be refunded to the accused concerned.

57A. Admission of guilt and payment of fine after appearing in court

(1)If an accused who is alleged to have committed an offence has appeared in court and is -(a)in custody awaiting trial on that charge and not on another more serious charge;(b)released on bail under section 59 or 60; or(c)released on warning under section 72,the public prosecutor may, before the accused has entered a plea and if he or she on reasonable grounds believes that a magistrate’s court, on convicting such accused of that offence, will not impose a sentence of imprisonment only or of a fine exceeding N$6 000, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 57 that the accused may admit his or her guilt in respect of the offence in question and that he or she may pay a stipulated fine in respect thereof without appearing in court again: Provided that the provisions of this subsection shall not apply to an accused who is in custody as contemplated in paragraph (a) and in respect of whom an application for bail has been refused or bail proceedings are pending.
(2)A written notice referred to in subsection (1) shall contain -(a)the case number;(b)a certificate under the hand of the prosecutor or peace officer affirming that he or she handed or delivered the original of such notice to the accused and that he or she explained to the accused the import thereof, and(c)the particulars and instructions contemplated in paragraphs (a) and (b) of section 56(1).
(3)The public prosecutor shall endorse the charge sheet to the effect that written notice under this section has been issued, and that prosecutor or, if the written notice was delivered to the accused concerned by a peace officer, that peace officer shall immediately forward a duplicate original of the written notice to the clerk of the court that has jurisdiction.
(4)The provisions of sections 55, 56(2) and (4) and 57(2) to (7), inclusive, shall apply mutatis mutandis to the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 57, such notice were the written notice contemplated in that section and as if the fine stipulated in such written notice were also the admission of guilt fine contemplated in that section.[section 57A inserted by Act 13 of 2010]

Chapter 9
Bail

58. Effect of bail

The effect of bail granted in terms of the succeeding provisions is that an accused who is in custody shall be released from custody upon payment of, or the furnishing of a guarantee to pay, the sum of money determined for his bail, and that he shall appear at the place and on the date and at the time appointed for his trial or to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned, and that the release shall, unless sooner terminated under the said provisions, endure until a verdict is given by a court in respect of the charge to which the offence in question relates, or, where sentence is not imposed forthwith after verdict and the court in question extends bail, until sentence is imposed.

59. Bail before first appearance of accused in lower court

(1)(a)An accused who is in custody in respect of any offence, other than an offence referred to in Part II, Part III or Part IV of Schedule 2 may, before his or her first appearance in a lower court, be released on bail in respect of such offence by any police official of or above the rank of non-commissioned officer, if the accused deposits at a police station the sum of money determined by such police official.[paragraph (a) amended by Act 5 of 1991](b)The police official referred to in paragraph (a) shall, at the time of releasing the accused on bail, complete and hand to the accused a recognizance on which a receipt shall be given for the sum of money deposited as bail and on which the offence in respect of which the bail is granted and the place, date and time of the trial of the accused are entered.(c)The said police official shall forthwith forward a duplicate original of such recognizance to the clerk of the court which has jurisdiction.
(2)Bail granted under this section shall, if it is of force at the time of the first appearance of the accused in a lower court, but subject to the provisions of section 62, remain in force after such appearance in the same manner as bail granted by the court under section 60 at the time of such first appearance.

60. Bail after first appearance of accused in lower court

(1)Any accused who is in custody in respect of any offence may at his or her first appearance in a lower court or at any stage after such appearance, apply to such court or, if the proceedings against the accused are pending in the High Court, to that court, to be released on bail in respect of such offence, and any such court may release the accused on bail in respect of such offence on condition that the accused deposits with the clerk of the court or the registrar of the court, as the case may be, or with the officer in charge of the correctional facility where the accused is in custody or with any police official at the place where the accused is in custody, the sum of money determined by the court in question.[subsection (1) amended by Act 31 of 1985, by Act 5 of 1991 and by Act 9 of 2012; not all of the changes made by Act 31 of 1985 are indicated by amendment markings ]
(2)The court may, on good cause shown, permit an accused to furnish a guarantee, with or without sureties, that he will pay and forfeit to the State the sum of money determined under subsection (1), or increased or reduced under section 63(1), in circumstances under which such sum, if it had been deposited, would be forfeited to the State.[subsection (2) amended by Act 56 of 1979]

60A. Rights of complainant in bail application where accused is charged with rape

(1)A complainant of rape or a domestic violence offence shall have the right -(a)to attend any proceedings where the question is considered whether an accused who is in custody on a charge of rape or a domestic violence offence should be released on bail or, if bail has been granted to the accused, whether any further conditions of bail should be imposed under section 62 or whether any such conditions of bail should be amended or supplemented under section 63; and(b)to request the prosecutor in proceedings referred to in paragraph (a) to present any information or evidence to the court that might be relevant to any question under consideration by the court in such proceedings.
(2)If an accused is in custody on a charge of rape or a domestic violence offence, the person in charge of the police station or any other place where the accused is detained in terms of section 50(1), or any other person designated by such first-mentioned person, shall as soon as possible inform the complainant concerned of -(a)the place, date and time of the first appearance of the accused in court; and(b)the rights of the complainant under subsection (1).
(3)If an accused who is in custody on a charge of rape or a domestic violence offence intends to apply to the court for bail on a date or at a time of which the complainant has not been otherwise informed in terms of this section, the accused or his or her legal representative shall request the person referred to in subsection (2) to inform the complainant accordingly, whereupon such person shall so inform the complainant.
(4)The person who informs, or who is required to inform, the complainant in terms of subsection (2) or (3), as the case may be, shall prepare an affidavit stating -(a)whether the provisions of subsection (2) or (3), as the case may be, have been duly complied with and, if they have not been so complied with, the reasons for not complying with any such provision;(b)the manner in which the complainant has been so informed; and(c)the date and time when the complainant has been so informed.
(5)An affidavit prepared in terms of subsection (4) shall be handed to the judge or judicial officer presiding at the proceedings at which bail is considered, and such affidavit shall form part of the record of such proceedings.
(6)If a complainant is present at proceedings at which bail is considered in respect of an accused who is in custody on a charge of rape or a domestic violence offence, and such proceedings are postponed, the court shall inform the complainant of the date and time to which such proceedings have been postponed and of the complainant’s rights under subsection (1).
(7)If a complainant is not present at proceedings referred to in subsection (6), the court shall enquire into the question whether the complainant has had knowledge of such proceedings, and -(a)shall, if it is satisfied that it is likely that the complainant has had knowledge of such proceedings, direct that the matter be dealt with in the absence of the complainant; or(b)shall, if it is not so satisfied, postpone such proceedings in order to obtain the presence of the complainant: Provided that, if it is in the interests of justice (with due regard to the interests of the complainant) that the matter be dealt with forthwith, the matter may be dealt with in the absence of the complainant.
(8)If a complainant is not present, as contemplated in subsection (7), the prosecutor in such proceedings shall inform the complainant -(a)where bail has been granted to the accused, of the granting of bail and the conditions of bail imposed;(b)where such proceedings have been postponed, of the date and time to which such proceedings have been postponed and of the complainant’s rights under subsection (1).
(9)The provisions of subsections (4) and (5) shall, with the necessary changes, apply in respect of a notification given in terms of subsection (8)(b).[section 60A inserted by Act 8 of 2000 and amended by Act 4 of 2003]

61. Bail in respect of certain offences

If an accused who is in custody in respect of any offence referred to in Part IV of Schedule 2 applies under section 60 to be released on bail in respect of such offence, the court may, notwithstanding that it is satisfied that it is unlikely that the accused, if released on bail, will abscond or interfere with any witness for the prosecution or with the police investigation, refuse the application for bail if in the opinion of the court, after such inquiry as it deems necessary, it is in the interest of the public or the administration of justice that the accused be retained in custody pending his or her trial.[section 61 substituted by Act 5 of 1991]

62. Court may add further conditions of bail

(1)Any court before which a charge is pending in respect of which bail has been granted, may at any stage, whether the bail was granted by that court or any other court, on application by the prosecutor, add any further condition of bail -(a)with regard to the reporting in person by the accused at any specified time and place to any specified person or authority;(b)with regard to any place to which the accused is forbidden to go;(c)with regard to the prohibition of or control over communication by the accused with witnesses for the prosecution;(d)with regard to the place at which any document may be served on him under this Act;(e)which, in the opinion of the court, will ensure that the proper administration of justice is not placed in jeopardy by the release of the accused.
(2)If an accused who is in custody on a charge of rape is released on bail, the court shall, notwithstanding the provisions of subsection (1), add such further conditions of bail as will, in the opinion of the court, ensure that the accused does not make contact with the complainant concerned.[subsection (2) inserted by Act 8 of 2000]
(3)If an accused who is in custody on a charge of a domestic violence offence is released on bail, the court shall, notwithstanding the provisions of subsection (1), impose the following further conditions of bail, unless it finds special circumstances which would make any or all of these conditions inappropriate, which reasons must be entered in the record of the proceedings -(a)an order prohibiting any direct or indirect contact with the victim during the pendency of the proceedings;(b)an order prohibiting the possession of any firearm or other specified weapon; and(c)where the accused is legally liable to maintain the complainant or any child or other dependant of the complainant, an order requiring that the accused support the complainant and child or other dependant at the same or greater level as prior to the arrest.[subsection (3) inserted by Act 4 of 2003]

63. Amendment of conditions of bail

(1)Any court before which a charge is pending in respect of which bail has been granted may, upon the application of the prosecutor or the accused, increase or reduce the amount of bail determined under section 59 or 60 or amend or supplement any condition imposed under section 62, whether imposed by that court or any other court, and may, where the application is made by the prosecutor and the accused is not present when the application is made, issue a warrant for the arrest of the accused and, when the accused is present in court, determine the application.
(2)If the court referred to in subsection (1) is a superior court, an application under that subsection may be made to any judge of that court if the court is not sitting at the time of the application.

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

The court which considers an application for bail under section 60 or which imposes any further condition under section 62 or which, under section 63, amends the amount of bail or amends or supplements any condition, shall record the relevant proceedings in full, including the conditions imposed and any amendment or supplementation thereof, or shall cause such proceedings to be recorded in full, and where such court is a magistrate’s court or a regional court, any document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct by the clerk of the court, and which sets out the conditions of bail and any amendment or supplementation thereof, shall, on its mere production in any court in which the relevant charge is pending, be primafacie proof of such conditions or any amendment or supplementation thereof.

65. Appeal to superior court with regard to bail

(1)(a)An accused who considers himself aggrieved by the refusal by a lower court to admit him to bail or by the imposition by such court of a condition of bail, including a condition relating to the amount of bail money and including an amendment or supplementation of a condition of bail, may appeal against such refusal or the imposition of such condition to the superior court having jurisdiction or to any judge of that court if the court is not then sitting.(b)The appeal may be heard by a single judge.(c)A local division of the Supreme Court shall have jurisdiction to hear an appeal under paragraph (a) if the area of jurisdiction of the lower court in question or any part thereof falls within the area of jurisdiction of such local division.
(2)An appeal shall not lie in respect of new facts which arise or are discovered after the decision against which the appeal is brought, unless such new facts are first placed before the magistrate or regional magistrate against whose decision the appeal is brought and such magistrate or regional magistrate gives a decision against the accused on such new facts.
(3)The accused shall serve a copy of the notice of appeal on the attorney-general and on the magistrate or, as the case may be, the regional magistrate, and the magistrate or regional magistrate shall forthwith furnish the reasons for his decision to the court or judge, as the case may be.
(4)The court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.

66. Failure by accused to observe condition of bail

(1)If an accused is released on bail subject to any condition imposed under section 62, including any amendment or supplementation under section 63 of a condition of bail, and the prosecutor applies to the court before which the charge with regard to which the accused has been released on bail is pending, to lead evidence to prove that the accused has failed to comply with such condition, the court shall, if the accused is present and denies that he failed to comply with such condition or that his failure to comply with such condition was due to fault on his part, proceed to hear such evidence as the prosecutor and the accused may place before it.
(2)If the accused is not present when the prosecutor applies to the court under subsection (1), the court may issue a warrant for the arrest of the accused, and shall, when the accused appears before the court and denies that he failed to comply with the condition in question or that his failure to comply with such condition was due to fault on his part, proceed to hear such evidence as the prosecutor and the accused may place before it.
(3)If the accused admits that he failed to comply with the condition in question or if the court finds that he failed to comply with such condition, the court may, if it finds that the failure by the accused was due to fault on his part, cancel the bail and declare the bail money forfeited to the State.
(4)The proceedings and the evidence under this section shall be recorded.

67. Failure of accused on bail to appear

(1)If an accused who is released on bail -(a)fails to appear at the place and on the date and at the time -(i)appointed for his trial; or(ii)to which the proceedings relating to the offence in respect of which the accused is released on bail are adjourned; or(b)fails to remain in attendance at such trial or at such proceedings,the court before which the matter is pending shall declare the bail provisionally cancelled and the bail money provisionally forfeited to the State, and issue a warrant for the arrest of the accused.
(2)(a)If the accused appears before court within fourteen days of the issue under subsection (1) of the warrant of arrest, the court shall confirm the provisional cancellation of the bail and the provisional forfeiture of the bail money, unless the accused satisfies the court that his failure under subsection (1) to appear or to remain in attendance was not due to fault on his part.(b)If the accused satisfies the court that his failure was not due to fault on his part, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall lapse.(c)If the accused does not appear before court within fourteen days of the issue under subsection (1) of the warrant of arrest or within such extended period as the court may on good cause determine, the provisional cancellation of the bail and the provisional forfeiture of the bail money shall become final.
(3)The court may receive such evidence as it may consider necessary to satisfy itself that the accused has under subsection (1) failed to appear or failed to remain in attendance, and such evidence shall be recorded.

68. Cancellation of bail where accused about to abscond

(1)Any court before which a charge is pending in respect of which the accused has been released on bail may, upon information on oath that the accused is about to evade justice or is about to abscond in order to evade justice, issue a warrant for the arrest of the accused and make such order as to it may seem proper, including an order that the bail be cancelled and that the accused be committed to correctional facility until the conclusion of the relevant criminal proceedings.
(2)Any magistrate may, in circumstances in which it is not practicable to obtain a warrant of arrest under subsection (1), upon the application of any peace officer and upon a written statement on oath by such officer that he has reason to believe that an accused who has been released on bail is about to evade justice or is about to abscond in order to evade justice, issue a warrant for the arrest of the accused, and may, if satisfied that the ends of justice may be defeated if the accused is not placed in custody, cancel the bail and commit the accused to correctional facility, which committal shall remain of force until the conclusion of the relevant criminal proceedings unless the court before which the proceedings are pending sooner reinstates the bail.
(3)The provisions of this section shall not be construed as preventing any court or magistrate, as the case may be, to cancel the bail and commit an accused to correctional facility where the accused was released on bail in respect of any offence contemplated in section 61, if, notwithstanding that such accused is not about to evade justice or to abscond, it is in the opinion of such court or such magistrate, as the case may be, in the interest of the public or the administration of justice that the accused be placed in custody.[subsection (3) inserted by Act 5 of 1991][Section 68 is amended by Act 9 of 2012 to substitute “correctional facility” for “prison”. The substituted phrase, as it is as used in this section, should be preceded by the article “a” to be grammatically correct.]

68A. Cancellation of bail at request of accused

Any court before which a charge is pending in respect of which the accused has been released on bail may, upon application by the accused, cancel the bail and refund the bail money if the accused is in custody on any other charge or is serving a sentence.[section 68A inserted by Act 31 of 1985]

69. Payment of bail money by third person

(1)No provision of section 59 or 60 shall prevent the payment by any person, other than the accused, of bail money for the benefit of the accused.
(2)Bail money, whether deposited by an accused or any other person for the benefit of the accused, shall, notwithstanding that such bail money or any part thereof may have been ceded to any person, be refunded only to the accused or the depositor, as the case may be.
(3)No person shall be allowed to deposit for the benefit of an accused any bail money in terms of this section if the official concerned has reason to believe that such person, at any time before or after depositing such bail money, has been indemnified or will be indemnified by any person in any manner against loss of such bail money or that he has received or will receive any financial benefit in connection with the deposit of such bail money.

70. Remission of bail money

The Minister or any officer acting under his authority may, in his discretion, remit the whole or any part of any bail money forfeited under section 66 or 67.

71. Juvenile may be placed in place of safety in lieu of release on bail or detention in custody

If an accused under the age of eighteen years is in custody in respect of any offence, and a police official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be, such police official or court may, instead of releasing the accused on bail or detaining him in custody, place the accused in a place of safety as defined in section 1 of the Children’s Act, 1960 (Act 33 of 1960), pending his appearance or further appearance before a court in respect of the offence in question or until he is otherwise dealt with in accordance with law.

Chapter 10
Release on warning

72. Accused may be released on warning in lieu of bail

(1)If an accused is in custody in respect of any offence and a police official or a court may in respect of such offence release the accused on bail under section 59 or 60, as the case may be, such police official or such court, as the case may be, may, in lieu of bail and if the offence is not, in the case of such police official, an offence referred to in Part II, Part III or Part IV of Schedule 2 -[introductory phrase of subsection (1) amended by Act 5 of 1991](a)release the accused from custody and warn the accused to appear before a specified court at a specified time on a specified date in connection with such offence or, as the case may be, to remain in attendance at the proceedings relating to the offence in question and if so released by a court that court may at the time of the release or at any time thereafter impose any condition referred to in section 62 in connection with the release;[paragraph (a) amended by Act 13 of 2010; not all of the changes are indicated by amendment markings](b)in the case of an accused under the age of eighteen years who is released under paragraph (a), place the accused in the care of the person in whose custody he or she is, and warn such person to bring the accused or cause the accused to be brought before a specified court at a specified time on a specified date and to have the accused remain in attendance at the proceedings relating to the offence in question and, if a condition has been imposed in terms of paragraph (a) to ensure that the accused complies with that condition.[paragraph (b) amended by Act 13 of 2010; not all of the changes are indicated by amendment markings]
(2)(a)An accused who is released under subsection (1)(a) and who fails to appear or, as the case may be, to remain in attendance at the proceedings in accordance with a warning under that subsection, or who fails to comply with a condition imposed under subsection (1)(a), shall be guilty of an offence and liable to the punishment prescribed under subsection (4).[paragraph (a) amended by Act 13 of 2010](b)Any person in whose custody an accused is placed under subsection (1)(b) and who fails in terms of a warning under that subsection to bring the accused or cause the accused to be brought before court or to have the accused remain in attendance at the proceeding, or who fails to ensure that the accused complies with a condition imposed under subsection (1)(a), shall be guilty of an offence and liable to the punishment prescribed under subsection (4).[paragraph (b) amended by Act 13 of 2010]
(3)(a)A police official who releases an accused under subsection (1)(a) shall, at the time of releasing the accused, complete and hand to the accused and, in the case of subsection (1)(b), to the person in whose custody the accused is, a written notice on which shall be entered the offence in respect of which the accused is being released and the court before which and the time at which and the date on which the accused shall appear.(b)A court which releases an accused under subsection (1) shall, at the time of releasing the accused, record or cause the relevant proceedings to be recorded in full, and where such court is a magistrate’s court or a regional court, any document purporting to be an extract from the record of proceedings of that court and purporting to be certified as correct by the clerk of the court and which sets out the warning relating to the court before which, the time at which and the date on which the accused is to appear or the conditions on which the accused was released, shall, on its mere production in any court in which the relevant charge is pending be prima facie proof of such warning.[paragraph (b) amended by Act 13 of 2010]
(4)The court may, if satisfied that an accused referred to in subsection (2)(a) or a person referred to in subsection (2)(b) was duly warned in terms of paragraph (a) or, as the case may be, paragraph (b) of subsection (1), and that such accused or such person has failed to comply with such warning or to comply with a condition imposed, issue a warrant for the arrest of such accused or such person, and may, when he or she is brought before the court, in a summary manner enquire into his or her failure to comply with the warning or condition and, unless such accused or such person satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, sentence him or her to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding 12 months.[subsection (4) amended by Act 13 of 2010]

Chapter 11
Assistance to accused

73. Accused entitled to assistance after arrest and at criminal proceedings

(1)An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of correctional facilities, be entitled to the assistance of his legal adviser as from the time of his arrest.
(2)An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question.
(3)An accused who is under the age of eighteen years may be assisted by his parent or guardian at criminal proceedings, and any accused who, in the opinion of the court, requires the assistance of another person at criminal proceedings, may, with the permission of the court, be so assisted at such proceedings.[section 73 amended by Act 9 of 2012 to substitute “correctional facilities” for “prisons”]

74. Parent or guardian of accused under eighteen years to attend proceedings

(1)Where an accused is under the age of eighteen years, a parent or, as the case may be, the guardian of the accused shall be warned, in accordance with the provisions of subsection (2), to attend the relevant criminal proceedings.
(2)The parent or the guardian of the accused, if such parent or guardian is known to be within the magisterial district in question and can be traced without undue delay, shall, for the purposes of subsection (1), be warned to attend the proceedings in question -(a)in any case in which the accused is arrested, by the peace officer effecting the arrest or, where the arrest is effected by a person other that a peace officer, the police official to whom the accused is handed over, and such peace officer or police official, as the case may be, shall inform the parent or guardian, as the case may be, of the place and date and time at which the accused is to appear; or[The word “that” in the phrase “other that a peace officer” should be “than”.](b)in the case of a summons under section 54 or a written notice under section 56, by the person serving the summons on or handing the written notice to the accused, and such person shall serve a copy of such summons or written notice on the parent or guardian, as well as a notice warning the parent or guardian to attend the proceedings in question at the place and on the date and at the time specified in the summons or written notice.
(3)A parent or guardian who has been warned in terms of subsection (2), may apply to any magistrate of the court in which the accused is to appear for exemption from the obligation to attend the proceedings in question, and if such magistrate exempts such parent or guardian, he shall do so in writing.
(4)A parent or guardian who has been warned in terms of subsection (2) and who has not under subsection (3) been exempted from the obligation to attend the relevant proceedings, or a parent or guardian who is present at criminal proceedings and who is warned by the court to remain in attendance thereat, shall remain in attendance at the relevant criminal proceedings, whether in that court or any other court, unless excused by the court before which such proceedings are pending.
(5)If a parent or guardian has not been warned under subsection (2), the court before which the relevant proceedings are pending may at any time during the proceedings direct any person to warn the parent or guardian of the accused to attend such proceedings.
(6)A parent or guardian who has been warned under subsection (2), (4) or (5) and who fails to attend the proceedings in question or, as the case may be, who fails to remain in attendance at such proceedings in accordance with the provisions of subsection (4), shall be guilty of an offence and liable to the punishment prescribed under subsection (7).
(7)The court, if satisfied from evidence placed before it that a parent or guardian has been warned to attend the proceedings in question and that such parent or guardian has failed to attend such proceedings, or that a parent or guardian has failed to remain in attendance at such proceedings, may issue a warrant for the arrest of such parent or guardian and, when he or she is brought before the court, in a summary manner enquire into his or her failure to attend or to remain in attendance, and, unless such parent or guardian satisfies the court that there is a reasonable possibility that his or her failure was not due to fault on his or her part, sentence him or her to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding 12 months.[subsection (7) amended by Act 13 of 2010]

Chapter 12
Summary trial

75. Summary trial and court of trial

(1)When an accused is to be tried in a court in respect of an offence, he shall, subject to the provisions of sections 119, 122A and 123, be tried at a summary trial in -(a)a court which has jurisdiction, and which he appeared for the first time in respect of such offence in accordance with any method referred to in section 38;(b)a court which has jurisdiction and to which he was referred to under subsection (2); or(c)any other court which has jurisdiction and which has been designated by the attorney-general for the purposes of such summary trial.
(2)If an accused appears in a court which does not have jurisdiction to try the case, the accused shall at the request of the prosecutor be referred to a court having jurisdiction.[section 75 amended by Act 56 of 1979; not all of the changes are indicated by amendment markings]

76. Charge-sheet and proof of record of criminal case

(1)Unless an accused has been summoned to appear before the court, the proceedings at a summary trial in a lower court shall be commenced by lodging a charge-sheet with the clerk of the court, and, in the case of a superior court, by serving an indictment referred to in section 144 on the accused and the lodging thereof with the registrar of the court concerned.
(2)The charge-sheet shall in addition to the charge against the accused include the name and, where known and where applicable, the address and description of the accused with regard to sex, race, nationality and age.
(3)(a)The court shall keep a record of the proceedings, whether in writing or mechanical, or shall cause such record to be kept, and the charge-sheet, summons or indictment shall form part thereof.(b)Such record may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235.(c)Where the correctness of any such record is challenged, the court in which the record is challenged may, in order to satisfy itself whether any matter was correctly recorded or not, either orally or on affidavit hear such evidence as it may deem necessary.

Chapter 13
Accused: capacity to understand proceedings: mental illness and criminal responsibility

77. Capacity of accused to understand proceedings

(1)If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.
(2)If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the mental condition of the accused and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.
(3)If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.
(4)Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 has enquired into the mental condition of the accused.
(5)If the court finds that the accused is capable of understanding the proceedings so as to make a proper defence, the proceedings shall be continued in the ordinary way.
(6)If the court finds that the accused is not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the accused be detained in a mental hospital or a prison pending the signification of the decision of the State President, and if the court so directs after the accused has pleaded to the charge, the accused shall not be entitled under section 106(4) to be acquitted or to be convicted in respect of the charge in question.
(7)Where a direction is issued under subsection (6) or (9) that the accused be detained in a mental hospital or a prison pending the signification of the decision of the State President, the accused may at any time thereafter, when he is capable of understanding the proceedings so as to make a proper defence, be prosecuted and tried for the offence in question.
(8)(a)An accused against whom a finding is made -(i)under subsection (5) and who is convicted;(ii)under subsection (6) and against whom the finding is not made in consequence of an allegation by the accused under subsection (1),may appeal against such finding.(b)Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence.
(9)Where an appeal against a finding under subsection (5) is allowed, the court of appeal shall set aside the conviction and sentence and direct that the person concerned be detained in a mental hospital or a prison pending the signification of the decision of the State President.
(10)Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the direction issued under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary way.[Section 3(1)(t) of the transfer proclamation (as amended) excluded section 77 from the operation of section 3(1) of the Executive Powers Transfer (General Provisions) Proclamation, AG 7 of 1977, meaning that the administration of this section was not transferred from South Africa to South West Africa prior to Namibian independence.]

78. Mental illness or mental defect and criminal responsibility

(1)A person who commits an act which constitutes an offence and who at the time of such commission suffers from a mental illness or mental defect which makes him incapable -(a)of appreciating the wrongfulness of his act; or(b)of acting in accordance with an appreciation of the wrongfulness of his act,shall not be criminally responsible for such act.
(2)If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.
(3)If the finding contained in the relevant report is the unanimous finding of the persons who under section 79 enquired into the relevant mental condition of the accused, and the finding is not disputed by the prosecutor or the accused, the court may determine the matter on such report without hearing further evidence.
(4)If the said finding is not unanimous or, if unanimous, is disputed by the prosecutor or the accused, the court shall determine the matter after hearing evidence, and the prosecutor and the accused may to that end present evidence to the court, including the evidence of any person who under section 79 enquired into the mental condition of the accused.
(5)Where the said finding is disputed, the party disputing the finding may subpoena and cross-examine any person who under section 79 enquired into the mental condition of the accused.
(6)If the court finds that the accused committed the act in question and that he at the time of such commission was by reason of mental illness or mental defect not criminally responsible for such act, the court shall find the accused not guilty by reason of mental illness or mental defect, as the case may be, and direct that the accused be detained in a mental hospital or a correctional facility pending the signification of the decision of the State President.
(7)If the court finds that the accused at the time of the commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.
(8)(a)An accused against whom a finding is made under subsection (6) may appeal against such finding if the finding is not made in consequence of an allegation by the accused under subsection (2).(b)Such an appeal shall be made in the same manner and subject to the same conditions as an appeal against a conviction by the court for an offence.
(9)Where an appeal against a finding under subsection (6) is allowed, the court of appeal shall set aside the finding and the direction under that subsection and remit the case to the court which made the finding, whereupon the relevant proceedings shall be continued in the ordinary course.[section 78 amended by Act 9 of 2012 to substitute “correctional facility” for “prison”][Section 3(1)(t) of the transfer proclamation (as amended) excluded section 78 from the operation of section 3(1) of the Executive Powers Transfer (General Provisions) Proclamation, AG 7 of 1977, meaning that the administration of this section was not transferred from South Africa to South West Africa prior to Namibian independence.]

79. Panel for purposes of enquiry and report under sections 77 and 78

(1)Where a court issues a direction under section 77(1) or 78(2), the relevant enquiry shall be conducted and be reported on -(a)where the accused is charged with an offence for which the sentence of death may not be imposed, by the medical superintendent of a mental hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court; or(b)where the accused is charged with an offence for which the sentence of death may be imposed or where the court in any particular case so directs -(i)by the medical superintendent of a mental hospital designated by the court, or by a psychiatrist appointed by such medical superintendent at the request of the court;(ii)by a psychiatrist appointed by the court and who is not in the full-time service of the State; and(iii)by a psychiatrist appointed by the accused if he so wishes.
(2)The court may for the purposes of the relevant enquiry commit the accused to a mental hospital or to any other place designated by the court, for such periods, not exceeding thirty days at a time, as the court may from time to time determine, and where an accused is in custody when he is so committed, he shall, while he is so committed, be deemed to be in the lawful custody of the person or the authority in whose custody he was at the time of such committal.
(3)The relevant report shall be in writing and shall be submitted in triplicate to the registrar or, as the case may be, the clerk of the court in question, who shall make a copy thereof available to the prosecutor and the accused.
(4)The report shall -(a)include a description of the nature of the enquiry; and(b)include a diagnosis of the mental condition of the accused; and(c)if the enquiry is under section 77(1), include a finding as to whether the accused is capable of understanding the proceedings in question so as to make a proper defence; or(d)if the enquiry is under section 78(2), include a finding as to the extent to which the capacity of the accused to appreciate the wrongfulness of the act in question or to act in accordance with an appreciation of the wrongfulness of that act was, at the time of the commission thereof, affected by mental illness or mental defect.
(5)If the persons conducting the relevant enquiry are not unanimous in their finding under paragraph (c) or (d) of subsection (4), such fact shall be mentioned in the report and each of such persons shall give his finding on the matter in question.
(6)Subject to the provisions of subsection (7), the contents of the report shall be admissible in evidence at criminal proceedings.
(7)A statement made by an accused at the relevant enquiry shall not be admissible in evidence against the accused at criminal proceedings, except to the extent to which it may be relevant to the determination of the mental condition of the accused, in which event such statement shall be admissible notwithstanding that it may otherwise be inadmissible.
(8)A psychiatrist appointed under subsection (1), other than a psychiatrist appointed by an accused, shall, subject to the provisions of subsection (10), be appointed from the list of psychiatrists referred to in subsection (9).
(9)The Secretary for Health shall compile and keep a list of psychiatrists who are prepared to conduct any enquiry under this section, and shall provide the registrars of the several divisions of the supreme court and all clerks of magistrates’ courts with a copy thereof.
(10)Where the list compiled and kept under subsection (9) does not include a sufficient number of psychiatrists who may conveniently be appointed for any enquiry under this section, a psychiatrist may be appointed for the purposes of such enquiry notwithstanding that his name does not appear on such list.
(11)(a)A psychiatrist designated or appointed under subsection (1) by or at the request of the court to enquire into the mental condition of an accused and who is not in the full-time service of the State, shall be compensated for his services in connection with the enquiry from public funds in accordance with a tariff determined by the Minister in consultation with the Minister of Finance.(b)A psychiatrist appointed under subsection (1)(b) by an accused to enquire into the mental condition of the accused and who is not in the full-time service of the State, shall be compensated for his services from public funds in the circumstances and in accordance with a tariff determined by the Minister in consultation with the Minister of Finance.
(12)For the purposes of this section a psychiatrist means a person registered as a psychiatrist under the Medical, Dental and Supplementary Health Service Professions Act, 1974 (Act 56 of 1974).[Psychiatrists are now registered under the Medical and Dental Act 10 of 2004.][Section 3(1)(t) of the transfer proclamation (as amended) excluded section 79 – with the exception of subsection (11) – from the operation of section 3(1) of the Executive Powers Transfer (General Provisions) Proclamation, AG 7 of 1977, meaning that the administration of the remaining subsections in this section was not transferred from South Africa to South West Africa prior to Namibian independence.]

Chapter 14
The charge

80. Accused may examine charge

An accused may examine the charge at any stage of the relevant criminal proceedings.

81. Joinder of charges

(1)Any number of charges may be joined in the same proceedings against an accused at any time before any evidence