Criminal Procedure Act, 1977 (Act 51 of 1977)

South African Government Gazette no. 5532
This is the latest version of this legislation commenced on 30 Jan 2019.
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 has been led in respect of any particular charge, and where several charges are so joined, each charge shall be numbered consecutively.
(2)
(a)The court may, if in its opinion it will be in the interests of justice to do so, direct that an accused be tried separately in respect of any charge joined with any other charge.
(b)An order under paragraph (a) may be made before or during a trial, and the effect thereof shall be that the charge in respect of which an accused is not then tried, shall be proceeded with in all respects as if the accused had in respect thereof been charged separately.

82. Several charges to be disposed of by same court

Where an accused is in the same proceedings charged with more than one offence, and any one charge is for any reason to be disposed of by a regional court or a superior court, all the charges shall be disposed of by the same court in the same proceedings.

83. Charge where it is doubtful what offence committed

If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences.

84. Essentials of charge

(1)Subject to the provisions of this Act and of any other law relating to any particular offence, a charge shall set forth the relevant offence in such manner and with such particulars as to the time and place at which the offence is alleged. to have been committed and the person, if any, against whom and the property, if any, in respect of which the offence is alleged to have been committed, as may be reasonably sufficient to inform the accused of the nature of the charge.
(2)Where any of the particulars referred to in subsection (1) are unknown to the prosecutor it shall be sufficient to state that fact in the charge.
(3)In criminal proceedings the description of any statutory offence in the words of the law creating the offence, or in similar words, shall be sufficient.

85. Objection to charge

(1)An accused may, before pleading to the charge under section 106, object to the charge on the ground -
(a)that the charge does not comply with the provisions of this Act relating to the essentials of a charge;
(b)that the charge does not set out an essential element of the relevant offence;
(c)that the charge does not disclose an offence;
(d)that the charge does not contain sufficient particulars of any matter alleged in the charge; or
(e)that the accused is not correctly named or described in the charge:

Provided that the accused shall give reasonable notice to the prosecution of his intention to object to the charge and shall state the ground upon which he bases his objection: Provided further that the requirement of such notice may be waived by the attorney-general or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.

(2)
(a)If the court decides that an objection under subsection (1) is well-founded, the court shall make such order relating to the amendment of the charge or the delivery of particulars as it may deem fit.
(b)Where the prosecution fails to comply with an order under paragraph (a), the court may quash the charge.

86. Court may order that charge be amended

(1)Where a charge is defective for the want of any essential averment therein, or where there appears to be any variance between any averment in a charge and the evidence adduced in proof of such averment, or where it appears that words or particulars that ought to have been inserted in the charge have been omitted therefrom, or where any words or particulars that ought to have been omitted from the charge have been inserted therein, or where there is any other error in the charge, the court may, at any time before judgment, if it considers that the making of the relevant amendment will not prejudice the accused in his defence, order that the charge, whether it discloses an offence or not, be amended, so far as it is necessary, both in that part thereof where the defect, variance, omission, insertion or error occurs and in any other part thereof which it may become necessary to amend.
(2)The amendment may be made on such terms as to an adjournment of the proceedings as the court may deem fit.
(3)Upon the amendment of the charge in accordance with the order of the court, the trial shall proceed at the appointed time upon the amended charge in the same manner and with the same consequences as if it had been originally in its amended form.
(4)The fact that a charge is not amended as provided in this section, shall not, unless the court refuses to allow the amendment, affect the validity of the proceedings thereunder.

87. Court may order delivery of particulars

(1)An accused may at any stage before any evidence in respect of any particular charge has been led, in writing request the prosecution to furnish particulars or further particulars of any matter alleged in that charge, and the court before which a charge is pending may at any time before any evidence in respect of that charge has been led, direct that particulars or further particulars be delivered to the accused of any matter alleged in the charge, and may, if necessary, adjourn the proceedings in order that such particulars may be delivered.
(2)The particulars shall be delivered to the accused without charge and shall be entered in the record, and the trial shall proceed as if the charge had been amended in conformity with such particulars.
(3)In determining whether a particular is required or whether a defect in the indictment before a superior court is material to the substantial justice of the case, the court may have regard to the summary of the substantial facts under paragraph (a) of section 144(3) or, as the case may be, the record of the preparatory examination.

88. Defect in charge cured by evidence

Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred.

89. Previous conviction not to be alleged in charge

Except where the fact of a previous conviction is an element of any offence with which an accused is charged, it shall not in any charge be alleged that an accused has previously been convicted of any offence, whether in the Republic or elsewhere.

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

In criminal proceedings any exception, exemption, proviso, excuse or qualification, whether it does or does not accompany in the same section the description of the offence in the law creating the offence, may be proved by the accused but need not be specified or negatived in the charge and, if so specified or negatived, need not be proved by the prosecution.

91. Charge need not state manner or means of act

A charge need not set out the manner in which or the means or instrument by which any act was done, unless the manner, means or instrument is an essential element of the relevant offence.

92. Certain omissions or imperfections not to invalidate charge

(1)A charge shall not be held defective -
(a)for want of the averment of any matter which need not be proved;
(b)because any person mentioned in the charge is designated by a name of office or other descriptive appellation instead of by his proper name;
(c)because of an omission, in any case where time is not of the essence of the offence, to state the time at which the offence was committed;
(d)because the offence is stated to have been committed on a day subsequent to the laying of the complaint or the service of the charge or on an impossible day or on a day that never happened;
(e)for want of, or imperfection in, the addition of any accused or any other person;
(f)for want of the statement of the value or price of any matter or thing, or the amount of damage, injury or spoil in any case where the value or price or the amount of damage, injury or spoil is not of the essence of the offence.
(2)If any particular day or period is alleged in any charge to be the day on which or the period during which any act or offence was committed, proof that such act or offence was committed on any other day or during any other period not more than three months before or after the day or period alleged therein shall be taken to support such allegation if time is not of the essence of the offence: Provided that -
(a)proof may be given that the act or offence in question was committed on a day or during a period more than three months before or after the day or period stated in the charge unless it is made to appear to the court before which the proceedings are pending that the accused is likely to be prejudiced thereby in his defence on the merits;
(b)if the court considers that the accused is likely to be prejudiced thereby in his defence on the merits, it shall reject such proof, and the accused shall be deemed not to have pleaded to the charge.

93. Alibi and date of act or offence

If the defence of an accused is an alibi and the court before which the proceedings are pending is of the opinion that the accused may be prejudiced in making such defence if proof is admitted that the act or offence in question was committed on a day or at a time other than the day or time stated in the charge, the court shall reject such proof notwithstanding that the day or time in question is within a period of three months before or after the day or time stated in the charge, whereupon the same consequences shall follow as are mentioned in proviso (b) of section 92(2).

94. Charge may allege commission of offence on divers occasions

Where it is alleged that an accused on divers occasions during any period committed an offence in respect of any particular person, the accused may be charged in one charge with the commission of that offence on divers occasions during a stated period.

95. Rules applicable to particular charges

(1)A charge relating to a testamentary instrument need not allege that the instrument is the property of any person.
(2)A charge relating to anything fixed in a square, street or open place or in a place dedicated to public use or ornament, or relating to anything in a public place or office or taken therefrom, need not allege that the thing in question is the property of any person.
(3)A charge relating to a document which is the evidence of title to land or of an interest in land may describe the document as being the evidence of the title of the person or of one of the persons having an interest in the land to which the document relates, and shall describe the land or any relevant part thereof in a manner sufficient to identify it.
(4)A charge relating to the theft of anything leased to the accused may describe the thing in question as the property of the person who leased it to the accused.
(5)A charge against a person in the public service for an offence committed in connection with anything which came into his possession by virtue of his employment may describe the thing in question as the property of the State.
(6)A charge relating to anything in the possession or under the control of any public officer may describe the thing in question as being in the lawful possession or under the lawful control of such officer without referring to him by name.
(7)A charge relating to movable or immovable property whereof any body corporate has by law the management, control or custody, may describe the property in question as being under the lawful management or control or in the lawful custody of the body corporate in question.
(8)If it is uncertain to which of two or more persons property in connection with which an offence has been committed belonged at the time when the offence was committed, the relevant charge may describe the property as the property of one or other of those persons, naming each of them but without specifying which of them, and it shall be sufficient at the trial to prove that at the time when the offence was committed the property belonged to one or other of those persons without proving which of them.
(9)If property alleged to have been stolen was not in the physical possession of the owner thereof at the time when the theft was committed but in the physical possession of another person who had the custody thereof on behalf of the owner, it shall be sufficient to allege in a charge for the theft of that property that it was in the lawful custody or under the lawful control of that other person.
(10)A charge relating to theft from any grave need not allege that anything in the grave is the property of any person.
(11)In a charge in which any trade mark or forged trade mark is proposed to be mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state that such trade mark or forged trade mark is a trade mark or forged trade mark.
(12)A charge relating to housebreaking or the entering of any house or premises with intent to commit an offence, whether the charge is brought under the common law or any statute, may state either that the accused intended to commit a specified offence or that the accused intended to commit an offence to the prosecutor unknown.

96. Naming of company, firm or partnership in charge

A reference in a charge to a company, firm or partnership shall be sufficient if the reference is to the name of the company, firm or partnership.

97. Naming of joint owners of property in charge

A reference in a charge to joint owners of property shall be sufficient if the reference is to one specific owner and another owner or, as the case may be, other owners.

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

It shall be sufficient in a charge of murder to allege that the accused unlawfully and intentionally killed the deceased, and it shall be sufficient in a charge of culpable homicide to allege that the accused unlawfully killed the deceased.

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

(1)In any charge relating to the forging, uttering, stealing, destroying or concealing of, or to some other unlawful dealing with any document, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile thereof or otherwise describing it or stating its value.
(2)Whenever it is necessary in any case not referred to in subsection (1) to make any allegation in any charge in relation to any document, whether it consists wholly or in part of writing, print or figures, it shall be sufficient to describe the document by any name or designation by which it is usually known or by the purport thereof, without setting out any copy or facsimile of the whole or any part thereof, unless the wording of the document is an element of the offence.

100. Charge alleging theft may allege general deficiency

On a charge alleging the theft of money or property by a person entrusted with the control thereof, the charge may allege a general deficiency in a stated amount, notwithstanding that such general deficiency is made up of specific sums of money or articles or of a sum of money representing the value of specific articles, the theft of which extended over a period.

101. Charge relating to false evidence

(1)A charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving of false evidence or the making of a false statement or the procuring of false evidence or a false statement -
(a)need not set forth the words of the oath or the affirmation or the evidence or the statement, if it sets forth so much of the purport thereof as is material;
(b)need not allege, nor need it be established at the trial, that the false evidence or statement was material to any issue at the relevant proceedings or that it was to the prejudice of any person.
(2)A charge relating to the giving or the procuring or attempted procuring of false evidence need not allege the jurisdiction or state the nature of the authority of the court or tribunal before which or the officer before whom the false evidence was given or was intended or proposed to be given.

102. Charge relating to insolvency

A charge relating to insolvency need not set forth any debt, act of insolvency or adjudication or any other proceeding in any court, or any order made or any warrant or document issued by or under the authority of any court.

103. Charge alleging intent to defraud need not allege or prove such intent in respect of particular person or mention owner of property or set forth details of deceit

In any charge in which it is necessary to allege that the accused performed an act with an intent to defraud, it shall be sufficient to allege and to prove that the accused performed the act with intent to defraud without alleging and proving that it was the intention of the accused to defraud any particular person, and such a charge need not mention the owner of any property involved or set forth the details of any deceit.

104. Reference in charge to objectionable matter not necessary

A charge of printing, publishing, manufacturing, making or producing blasphemous, seditious, obscene or defamatory matter, or of distributing, displaying, exhibiting, selling or offering or keeping for sale any obscene book, pamphlet, newspaper or other printed or written matter, shall not be open to objection or be deemed insufficient on the ground that it does not set out the words thereof: Provided that the court may order that particulars shall be furnished by the prosecution stating what passages in such book, pamphlet, newspaper, printing or writing are relied upon in support of the charge.

Chapter 15
The plea

105. Accused to plead to charge

The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77 and 85, be required by the court forthwith to plead thereto in accordance with section 106.

106. Pleas

(1)When an accused pleads to a charge he may plead -
(a)that he is guilty of the offence charged or of any offence of which he may be convicted on the charge; or
(b)that he is not guilty; or
(c)that he has already been convicted of the offence with which he is charged; or
(d)that he has already been acquitted of the offence with which he is charged; or
(e)that he has received a free pardon under section 327(6) from the State President for the offence charged; or[Section 3(1)(t) of the transfer proclamation (as amended) excluded paragraph (e) 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 paragraph was not transferred from South Africa to South West Africa prior to Namibian independence.]
(f)that the court has no jurisdiction to try the offence; or
(g)that he has been discharged under the provisions of section 204 from prosecution for the offence charged; or
(h)that the prosecutor has no title to prosecute.
(2)Two or more pleas may be pleaded together except that a plea of guilty may not be pleaded with any other plea to the same charge.
(3)An accused shall give reasonable notice to the prosecution of his intention to plead a plea other than the plea of guilty or not guilty, and shall in such notice state the ground on which he bases his plea: Provided that the requirement of such notice may be waived by the attorney-general or the prosecutor, as the case may be, and the court may, on good cause shown, dispense with such notice or adjourn the trial to enable such notice to be given.
(4)An accused who pleads to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused on behalf of whom a plea of not guilty is entered by the court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand that he be acquitted or be convicted.

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

A person charged with the unlawful publication of defamatory matter, who sets up as a defence that the defamatory matter is true and that it was for the public benefit that the matter should be published, shall plead such defence specially, and may plead it with any other plea except the plea of guilty.

108. Issues raised by plea to be tried

If an accused pleads a plea other than a plea of guilty, he shall, subject to the provisions of sections 115, 122 and 141(3), by such plea be deemed to demand that the issues raised by the plea be tried.

109. Accused refusing to plead

Where an accused in criminal proceedings refuses to plead to any charge, the court shall record a plea of not guilty on behalf of the accused, and a plea so recorded shall have the same effect as if it had been actually pleaded.

Chapter 16
Jurisdiction

110. Accused brought before court which has no jurisdiction

(1)Where an accused does not plead that the court has no jurisdiction and it at any stage -
(a)after the accused has pleaded a plea of guilty or of not guilty; or
(b)where the accused has pleaded any other plea and the court has determined such plea against the accused,

appears that the court in question does not have jurisdiction, the court shall for the purposes of this Act be deemed to have jurisdiction in respect of the offence in question.

(2)Where an accused pleads that the court in question has no jurisdiction and the plea is upheld, the court shall adjourn the case to the court having jurisdiction.

111. Minister may remove trial to jurisdiction of another attorney-general

(1)Where the Minister deems it in the interests of the administration of justice that an offence committed within the area of jurisdiction of one attorney-general be tried within the area of jurisdiction of another attorney-general, he may in writing direct that criminal proceedings in respect of such offence be commenced in a court at a place within the area of jurisdiction of such other attorney-general.
(2)
(a)The direction of the Minister shall set out the name of the accused, the relevant offence, the place at which (if known) and the provincial division in which the offence was committed, and the place at which the relevant criminal proceedings shall commence and the provincial division in which such place is situated.
(b)A copy of the direction shall be served on the accused, and the original thereof shall, save as is provided in subsection (4), be handed in at the court in which the proceedings are to commence.
(3)The court in which the proceedings commence shall have jurisdiction to act with regard to the offence in question as if the offence had been committed within the area of jurisdiction of such court.
(4)Where the Minister issues a direction under subsection (1) after an accused has already appeared in a court, the original of such direction shall be handed in at the relevant proceedings and attached to the record of the proceedings, and the court in question shall -
(a)where the accused is not in custody, cause the accused to be brought before it, and when the accused is before it, adjourn the proceedings to a time and a date and to the court in which the accused is to appear in accordance with the said direction, whereupon such time and date and court shall be deemed to be the time and date and place appointed for the trial of the accused or to which the proceedings pending against the accused are adjourned;
(b)forward a copy of the record of the proceedings to the court in which the accused is to appear, and that court shall receive such copy and continue with the proceedings against the accused as if such proceedings had commenced before it.
(5)The direction of the Minister shall be final and not subject to appeal to any court.[Section 3(1)(t) of the transfer proclamation (as amended) excluded section 111 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.]

Chapter 17
Plea of guilty at summary trial

112. Plea of guilty

(1)Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea -
(a)the presiding judge, regional magistrate or magistrate may, if he or she is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$6 000, convict the accused in respect of the offence to which he or she has pleaded guilty on his or her plea of guilty only and -
(i)impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding N$6 000; or
(ii)deal with the accused otherwise in accordance with law;

[paragraph (a) amended by Act 31 of 1985 and substituted by Act 13 of 2010]

(b)the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$6 000, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether the accused admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.[paragraph (b) amended by Act 31 of 1985 and substituted by Act 13 of 2010]
(2)If an accused or his legal adviser hands a written statement by the accused into court, in which the accused sets out the facts which he admits and on which he has pleaded guilty, the court may, in lieu of questioning the accused under subsection (1)(b), convict the accused on the strength of such statement and sentence him as provided in the said subsection if the court is satisfied that the accused is guilty of the offence to which he has pleaded guilty: Provided that the court may in its discretion put any question to the accused in order to clarify any matter raised in the statement.
(3)Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.[The references to whipping in section 112 were cited in Ex Parte Attorney-General, Namibia:
In Re Corporal Punishment by Organs of State 1991 NR 178 (SC), which declared “that the imposition of any sentence by any judicial or quasi-judicial authority, authorising or directing any corporal punishment upon any person is unlawful and in conflict with art 8 of the Namibian Constitution”. However, the references to corporal punishment in this section have all been removed by subsequent amendments.]

113. Correction of plea of guilty

If the court at any stage of the proceedings under section 112 and before sentence is passed is in doubt whether the accused is in law guilty of the offence to which he has pleaded guilty or is satisfied that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge, the court shall record a plea of not guilty and require the prosecutor to proceed with the prosecution: Provided that any allegation, other than an allegation referred to above, admitted by the accused up to the stage at which the court records a plea of not guilty, shall stand as proof in any court of such allegation.

114. Committal by magistrate’s court of accused for sentence by regional court after plea of guilty

(1)If a magistrate’s court, after conviction following on a plea of guilty but before sentence, is of the opinion -
(a)that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court; or
(b)that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a magistrate’s court,

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

(1bis)If the court has stopped the proceedings under subsection (1) and there is no regional court having jurisdiction, the attorney-general shall be deemed to have instructed that the trial be converted into a preparatory examination under section 123(b).[subsection (1)bis inserted by Act 15 of 1981]
(2)Where an accused is committed under subsection (1) for sentence by a regional court, the record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court, and the plea of guilty and any admission by the accused shall stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(3)
(a)Unless the regional court concerned -
(i)is satisfied that a plea of guilty or an admission by the accused which is material to his guilt was incorrectly recorded; or
(ii)is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence,

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

(b)If the court is satisfied that a plea of guilty or any admission by the accused which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence of which he has been convicted and in respect of which he has been committed for sentence or that he has no valid defence to the charge, the court shall enter a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that any admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(4)The provisions of section 112(3) shall apply with reference to the proceedings under this section.

Chapter 18
Plea of not guilty at summary trial

115. Plea of not guilty and procedure with regard to issues

(1)Where an accused at a summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate, as the case may be, may ask him whether he wishes to make a statement indicating the basis of his defence.
(2)
(a)Where the accused does not make a statement under subsection (1) or does so and it is not clear from the statement to what extent he denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute.
(b)The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220.
(3)Where the legal adviser of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused shall be required by the court to declare whether he confirms such reply or not.

115A. Committal of accused for trial by regional court

(1)Where an accused pleads not guilty in a magistrate’s court the court shall, subject to the provisions of section 115, at the request of the prosecutor made before any evidence is tendered, refer the accused for trial to a regional court having jurisdiction.
(2)The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.[section 115A inserted by Act 56 of 1979]

116. Committal of accused for sentence by regional court after trial in magistrate’s court

(1)If a magistrate’s court, after conviction following on a plea of not guilty but before sentence, is of the opinion -
(a)that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court; or
(b)that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a magistrate’s court,

the court shall stop the proceedings and commit the accused for sentence by a regional court having jurisdiction.

(1bis)If the court has stopped the proceedings under subsection (1) and there is no regional court having jurisdiction, the attorney-general shall be deemed to have instructed that the trial be converted into a preparatory examination under section 123(b).[subsection (1)bis inserted by Act 15 of 1981]
(2)The record of the proceedings in the magistrate’s court shall upon proof thereof in the regional court be received by the regional court and form part of the record of that court.
(3)
(a)The regional court shall, after considering the record of the proceedings in the magistrate’s court, sentence the accused, and the judgment of the magistrate’s court shall stand for this purpose and be sufficient for the regional court to pass any competent sentence: Provided that if the regional magistrate is of the opinion that the proceedings are not in accordance with justice or that doubt exists whether the proceedings are in accordance with justice, he shall, without sentencing the accused, record the reasons for his opinion and transmit such reasons, together with the record of the proceedings in the magistrate’s court, to the registrar of the provincial division having jurisdiction, and such registrar shall, as soon as possible, lay the same in chambers before a judge who shall have the same powers in respect of such proceedings as if the record thereof had been laid before him under section 303.
(b)If a regional magistrate acts under the proviso to paragraph (a), he shall inform the accused accordingly and postpone the case to some future date pending the outcome of the review proceedings, and, if the accused is in custody, the regional magistrate may make such order with regard to the detention or release of the accused as he may deem fit.

117. Committal to superior court in special case

Where an accused in a lower court pleads not guilty to the offence charged against him and a ground of his defence is the alleged invalidity of a provincial ordinance or an ordinance of the Legislative Assembly of the territory or a proclamation of the State President or of the Administrator of the territory on which the charge against him is founded and upon the validity of which a magistrate’s court is in terms of section 110 of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), not competent to pronounce, the accused shall be committed for a summary trial before a superior court having jurisdiction.[Section 3(2)(b) of the transfer proclamation stipulated that the reference to the State President in section 117 should be construed as including a reference to the Administrator-General (prior to Namibian independence).]

118. Non-availability of judicial officer after plea of not guilty

If the judge, regional magistrate or magistrate before whom an accused at a summary trial has pleaded not guilty is for any reason not available to continue with the trial and no evidence has been adduced yet, the trial may be continued before any other judge, regional magistrate or magistrate of the same court.

Chapter 19
Plea in magistrate’s court on charge justiciable in superior court

119. Accused to plead in magistrate’s court on instructions of attorney-general

When an accused appears in a magistrate’s court and the alleged offence may be tried by a superior court only or is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court, the prosecutor may, notwithstanding the provisions of section 75, on the instructions of the attorney-general, whether in general or in any particular case, put the charge, as well as any other charge which shall, in terms of section 82, be disposed of in a superior court, to the accused in the magistrate’s court, and the accused shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead thereto forthwith.[section 119 amended by Act 56 of 1979 and by Act 31 of 1985]

120. Charge-sheet and proof of record

The proceedings shall be commenced by the lodging of a charge-sheet with the clerk of the court in question and the provisions of subsections (2) and (3) of section 76 shall mutatis mutandis apply with reference to the charge-sheet and the record of the proceedings.

121. Plea of guilty

(1)Where an accused under section 119 pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b) of section 112(1).
(2)
(a)If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall stop the proceedings.
(b)If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122(1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.
(3)If the magistrate is satisfied as provided in subsection (2)(a), he shall adjourn the proceedings pending the decision of the attorney-general who may -
(a)arraign the accused for sentence before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection (2)(a);
(b)decline to arraign the accused for sentence before any court but arraign him for trial on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were stopped under subsection (2)(a);
(c)institute a preparatory examination against the accused.[subsection 3 amended by Act 56 of 1979]
(4)The magistrate or any other magistrate of the magistrate’s court concerned shall advise the accused of the decision of the attorney-general and, if the decision is that the accused be arraigned for sentence -
(a)in the magistrate’s court concerned, dispose of the case on the charge on which the accused is arraigned; or
(b)in a regional court or superior court, adjourn the case for sentence by the regional court or superior court concerned.
(5)
(a)The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the magistrate’s court in which the proceedings were stopped under subsection (2)(a), the record of such proceedings shall stand as the record of that court, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(aA)The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded.[paragraph (aA) inserted by Act 31 of 1985]
(b)Unless the accused satisfies the court that a plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence: Provided that the sentence of death shall not be imposed unless the guilt of the accused has been proved as if he had pleaded not guilty.
(6)If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(7)Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

122. Plea of not guilty

(1)Where an accused under section 119 pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall stop the proceedings and adjourn the case pending the decision of the attorney-general.
(2)Where the proceedings have been adjourned under subsection (1), the attorney-general may -
(i)arraign the accused on any charge at a summary trial before a superior court or any other court having jurisdiction, including the magistrate’s court in which the proceedings were adjourned under subsection (1); or
(ii)institute a preparatory examination against the accused,

and the attorney-general shall advise the magistrate’s court concerned of his decision.[The paragraphs in subsection (2) are labelled with Roman numerals instead of letters; Roman numerals are used only for subparagraphs elsewhere in the Act.]

(3)The magistrate, who need not be the magistrate before whom the proceedings under section 119 or 122(1) were conducted, shall advise the accused of the decision of the attorney-general, and if the decision is that the accused be arraigned -
(a)in the magistrate’s court concerned, proceed with the trial from the stage at which the proceedings were adjourned under subsection (1) or, if the accused is arraigned on a charge which is different from the charge to which he has pleaded, require the accused to plead to that charge, and, if the plea to that charge is one of guilty or the plea in respect of an offence of which the accused may on such charge be convicted is one of guilty and the prosecutor accepts such plea, deal with the matter in accordance with the provisions of section 112, in which event the provisions of section 114(1) shall not apply, or, if the plea is one of not guilty, deal with the matter in accordance with the provisions of section 115 and proceed with the trial;
(b)in a regional court or a superior court, commit the accused for a summary trial before the court concerned.
(4)The record of the proceedings in the magistrate’s court shall, upon proof thereof in the court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission.

Chapter 19A
Plea in magistrate’s court on charge to be adjudicated in regional court

[Chapter 19A, comprising sections 122A-122D, is inserted by Act 56 of 1979.]

122A. Accused to plead in magistrate’s court on charge to be tried in regional court

When an accused is brought before a magistrate’s court under section 50(1), including an accused released on bail under section 59 or on warning by a police official under section 72, and the alleged offence may be tried by a regional court but not by a magistrate’s court or the prosecutor informs the court that he is of the opinion that the alleged offence is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a magistrate’s court but not of the jurisdiction of a regional court, the prosecutor may, notwithstanding the provisions of section 75, put the relevant charge to the accused, who shall, subject to the provisions of sections 77 and 85, be required by the magistrate to plead to the charge forthwith.[section 122A inserted by Act 56 of 1979]

122B. Charge-sheet and proof of record

The provisions of section 120 shall mutatis mutandis apply with reference to the proceedings under section 122A and the record of the proceedings.[section 122B inserted by Act 56 of 1979]

122C. Plea of guilty

(1)Where an accused under section 122A pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of paragraph (b)of section 112(1).
(2)
(a)If the magistrate is satisfied that the accused admits the allegations stated in the charge, he shall adjourn the case for sentence by the regional court concerned.
(b)If the magistrate is not satisfied as provided in paragraph (a), he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122D(1): Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.
(3)
(a)The record of the proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(b)Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty, and impose any competent sentence.
(4)If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(5)Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purpose of determining an appropriate sentence.[section 122C inserted by Act 56 of 1979]

122D. Plea of not guilty

(1)Where an accused under section 122A pleads not guilty to the offence charged, the court shall act in terms of section 115 and when that section has been complied with, the magistrate shall commit the accused for a summary trial in the regional court concerned on the charge to which he has pleaded not guilty or on the charge in respect of which a plea of not guilty has been entered under section 122C(2)(b).
(2)The regional court may try the accused on the charge in respect of which he has been committed for a summary trial under subsection (1) or on any other or further charge which the prosecutor may prefer against the accused and which the court is competent to try.
(3)The record of proceedings in the magistrate’s court shall, upon proof thereof in the regional court in which the accused is arraigned for a summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such an admission.[section 122D inserted by Act 56 of 1979]

Chapter 20
Preparatory examination

123. Attorney-general may instruct that preparatory examination he held

If an attorney-general is of the opinion that it is necessary for the more effective administration of justice -

(a)that a trial in a superior court be preceded by a preparatory examination in a magistrate’s court into the allegations against the accused, he may, where he does not follow the procedure under section 119, or, where he does follow it and the proceedings are adjourned under section 121(3) or 122(1) pending the decision of the attorney-general, instruct that a preparatory examination be instituted against the accused;[paragraph (a) amended by Act 56 of 1979]
(b)that a trial in a magistrate’s court or a regional court be converted into a preparatory examination, he may at any stage of the proceedings, but before sentence is passed, instruct that the trial be converted into a preparatory examination.

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

Where an attorney-general acts under paragraph (a) or (b) of section 123 -

(a)the record of any proceedings under section 121(1) or 122(1), or of any proceedings in the magistrate’s court or regional court before the trial was converted into a preparatory examination, shall form part of the preparatory examination record;[paragraph (a) amended by Act 56 of 1979]
(b)and the accused has pleaded to a charge, the preparatory examination shall continue on the charge to which the accused has pleaded: Provided that where evidence is led at such preparatory examination which relates to an offence, other than the offence contained in the charge to which the accused has pleaded, allegedly committed by the accused, such evidence shall not be excluded on the ground only that the evidence does not relate to the offence to which the accused has pleaded.

125. Attorney-general may direct that preparatory examination be conducted at a specified place

(1)Where an attorney-general instructs that a preparatory examination be instituted or that a trial be converted into a preparatory examination, he may, if it appears to him expedient on account of the number of accused involved or of excessive inconvenience or of possible disturbance of the public order, that the preparatory examination be held within his area of jurisdiction in a court other than the court in which the relevant proceedings were commenced, direct that the preparatory examination be instituted in such other court or, where a trial has been converted into a preparatory examination, be continued in such other court.
(2)The magistrate or regional magistrate shall, after advice of the decision of the attorney-general, advise the accused of the decision of the attorney-general and adjourn the proceedings to such other court, and thereafter forward a copy of the record of the proceedings, certified as correct by the clerk of the court to the court to which the proceedings have been adjourned.
(3)The court to which the proceedings are adjourned under subsection (2), shall receive the copy of the record referred to in that subsection, which shall then form part of the proceedings of that court, and shall proceed to conduct the preparatory examination as if it were a preparatory examination instituted in that court.

126. Procedure to be followed by magistrate at preparatory examination

Where an attorney-general instructs that a preparatory examination be held against an accused, the magistrate or regional magistrate shall, after advice of the decision of the attorney-general, advise the accused of the decision of the attorney-general and proceed in the manner hereinafter described to enquire into the charge against the accused.

127. Recalling of witnesses after conversion of trial into preparatory examination

Where an attorney-general instructs that a trial be converted into a preparatory examination, it shall not be necessary for the magistrate or regional magistrate to recall any witness who has already given evidence at the trial, but the record of the evidence thus given, certified as correct by the magistrate or regional magistrate, as the case may be, or, if such evidence was recorded in shorthand or by mechanical means, any document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed it, shall have the same legal force and effect and shall be admissible in evidence in the same circumstances as the evidence given in the course of a preparatory examination: Provided that if it appears to the magistrate or regional magistrate concerned that it may be in the interests of justice to have a witness already examined recalled for further examination, then such witness shall be recalled and further examined and the evidence given by him shall be recorded in the same manner as other evidence given at a preparatory examination.

128. Examination of prosecution witnesses at preparatory examination

The prosecutor may, at a preparatory examination, call any witness in support of the charge to which the accused has pleaded or to testify in relation to any other offence allegedly committed by the accused.

129. Recording of evidence at preparatory examination and proof of record

(1)The evidence given at a preparatory examination shall be recorded, and if such evidence is recorded in shorthand or by mechanical means, a document purporting to be a transcription of the original record of such evidence and purporting to be certified as correct under the hand of the person who transcribed such evidence, shall have the same legal force and effect as such original record.
(2)The record of a preparatory examination may be proved in a court by the mere production thereof or of a copy thereof in terms of section 235.

130. Charge to be put at conclusion of evidence for prosecution

The prosecutor shall, at the conclusion of the evidence in support of the charge, put to the accused such charge or charges as may arise from the evidence and which the prosecutor may prefer against the accused.

131. Accused to plead to charge

The magistrate or regional magistrate, as the case may be, shall, subject to the provisions of sections 77 and 85, require an accused to whom a charge is put under section 130 forthwith to plead to the charge.

132. Procedure after plea

(1)
(a)Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads guilty to the offence charged, the presiding judicial officer shall question him in accordance with the provisions of paragraph (b) of section 112(1).
(b)If the presiding judicial officer is not satisfied that the accused admits all the allegations in the charge, he shall record in what respect he is not so satisfied and enter a plea of not guilty: Provided that an allegation with reference to which the said judicial officer is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation.
(2)Where an accused who has been required under section 131 to plead to a charge to which he has not pleaded before, pleads not guilty to the offence charged, the presiding judicial officer shall act in accordance with the provisions of section 115.

133. Accused may testify at preparatory examination

An accused may, after the provisions of section 132 have been complied with but subject to the provisions of section 151(1)(b) which shall mutatismutandis apply, give evidence or make an unsworn statement in relation to a charge put to him under section 130, and the record of such evidence or statement shall be received in evidence before any court in criminal proceedings against the accused upon its mere production without further proof.

134. Accused may call witnesses at preparatory examination

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

135. Discharge of accused at conclusion of preparatory examination

As soon as a preparatory examination is concluded and the magistrate or regional magistrate, as the case may be, is upon the whole of the evidence of the opinion that no sufficient case has been made out to put the accused on trial upon any charge put to the accused under section 130 or upon any charge in respect of an offence of which the accused may on such charge be convicted, he may discharge the accused in respect of such charge.

136. Procedure with regard to exhibits at preparatory examination

The magistrate or regional magistrate, as the case may be, shall cause every document and every article produced or identified as an exhibit by any witness at a preparatory examination to be inventoried and labelled or otherwise marked, and shall cause such documents and articles to be kept in safe custody pending any trial following upon such preparatory examination.

137. Magistrate to transmit record of preparatory examination to attorney-general

The magistrate or regional magistrate, as the case may be; shall, at the conclusion of a preparatory examination and whether or not the accused is under section 135 discharged in respect of any charge, send a copy of the record of the preparatory examination to the attorney-general and, where the accused is not discharged in respect of all the charges put to him under section 130, adjourn the proceedings pending the decision of the attorney-general.

138. Preparatory examination may be continued before different judicial officer

A preparatory examination may at any stage be continued by a judicial officer other than the judicial officer before whom the proceedings were commenced, and, if necessary, again be continued by the judicial officer before whom the proceedings were commenced.

139. Attorney-general may arraign accused for sentence or trial

After considering the record of a preparatory examination transmitted to him under section 137, the attorney-general may -

(a)in respect of any charge to which the accused has under section 131 pleaded guilty, arraign the accused for sentence before any court having jurisdiction;
(b)arraign the accused for trial before any court having jurisdiction, whether the accused has under section 131 pleaded guilty or not guilty to any charge and whether or not he has been discharged under section 135;
(c)decline to prosecute the accused,

and the attorney-general shall advise the lower court concerned of his decision.

140. Procedure where accused arraigned for sentence

(1)Where an accused is under section 139(a) arraigned for sentence, any magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the attorney-general and, if the decision is that the accused be arraigned -
(a)in the court concerned, dispose of the case on the charge on which the accused is arraigned; or
(b)in a court other than the court concerned, adjourn the case for sentence by such other court.
(2)
(a)The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court against the accused or, if the accused is arraigned in the court in which the preparatory examination was held, the record of the preparatory examination shall stand as the record of that court, and the plea of guilty and any admission by the accused shall stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.
(b)Unless the accused satisfies the court that the plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his plea of guilty of the offence to which he has pleaded guilty and impose any competent sentence: Provided that the sentence of death shall not be imposed unless the guilt of the accused has been proved as if he had pleaded not guilty.
(3)If the accused satisfies the court that the plea of guilty or an admission which is material to his guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he has pleaded guilty or that the accused has no valid defence to the charge, the court shall record a plea of not guilty and proceed with the trial as a summary trial in that court: Provided that an admission by the accused the recording of which is not disputed by the accused, shall stand as proof of the fact thus admitted.
(4)Nothing in this section shall prevent the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

141. Procedure where accused arraigned for trial

(1)Where an accused is under section 139(b) arraigned for trial, a magistrate or regional magistrate of the court in which the preparatory examination was held shall advise the accused of the decision of the attorney-general and, if the accused is to be arraigned in a court other than the court concerned, commit the accused for trial by such other court.
(2)Where an accused is arraigned for trial after a preparatory examination, the case shall be dealt with in all respects as with a summary trial.
(3)The record of the preparatory examination shall, upon proof thereof in the court in which the accused is arraigned for trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such admission: Provided that the evidence adduced at such preparatory examination shall not form part of the record of the trial of the accused unless -
(a)the accused pleads guilty at his trial to the offence charged, or to an offence of which he may be convicted on the charge and the prosecutor accepts that plea; or
(b)the parties to the proceedings agree that any part of such evidence be admitted at the proceedings.
(4)
(a)Where an accused who has been discharged under section 135 is arraigned for trial under section 139(b), the clerk of the court where the preparatory examination was held shall issue to him a written notice to that effect and stating the place, date and time for the appearance of the accused in that court for committal for trial, or, if he is to be arraigned in that court, to plead to the charge on which he is to be arraigned.
(b)The notice referred to in paragraph (a) shall be served on the accused in the manner provided for in sections 54(2) and (3) for the service of a summons in a lower court and the provisions of sections 55(1) and (2) shall mutatis mutandis apply with reference to such a notice.
(c)If the accused is committed for trial by another court, the court committing the accused may direct that he be detained in custody, whereupon the provisions of Chapter 9 shall apply with reference to the release of the accused on bail.

142. Procedure where attorney-general declines to prosecute

Where an attorney-general under section 139(c) declines to prosecute an accused, he shall advise the magistrate of the district in which the preparatory examination was held of his decision, and such magistrate shall forthwith have the accused released from custody or, if the accused is not in custody, advise the accused in writing of the decision of the attorney-general, whereupon no criminal proceedings shall again be instituted against the accused in respect of the charge in question.

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

(1)An accused who is arraigned for sentence or for trial under section 139 may, without payment, inspect the record of the preparatory examination at the time of his arraignment before the court.
(2)
(a)An accused who is arraigned for sentence or for trial under section 139 shall be entitled to a copy of the record of the preparatory examination upon payment, except where a legal practitioner under the Legal Aid Act, 1969 (Act 22 of 1969), or pro Deo counsel is appointed to defend the accused or where the accused is not legally represented, of a reasonable amount not exceeding twenty-five cents for each folio of seventy-two words or part thereof.
(b)The clerk of the court shall as soon as possible provide the accused or his legal adviser with a copy of the preparatory examination record in accordance with the provisions of paragraph (a).

[The Legal Aid Act 22 of 1969 has been replaced by the Legal Aid Act 29 of 1990.]

Chapter 21
Trial before superior court

144. Charge in superior court to be laid in an indictment

(1)Where an attorney-general arraigns an accused for sentence or trial by a superior court, the charge shall be contained in a document called an indictment, which shall be framed in the name of the attorney-general.[subsection (1) amended by Act 56 of 1979]
(2)The indictment shall, in addition to the charge against the accused, include the name and, where known and where applicable, the address and a description of the accused with regard to sex, race, nationality and age.
(3)
(a)Where an attorney-general under section 75, 121(3)(b) or 122(2)(i) arraigns an accused for a summary trial in a superior court, the indictment shall be accompanied by a summary of the substantial facts of the case that, in the opinion of the attorney-general, are necessary to inform the accused of the allegations against him and that will not be prejudicial to the administration of justice or the security of the State, as well as a list of the names and addresses of the witnesses the attorney-general intends calling at the summary trial on behalf of the State: Provided that -[paragraph (a) amended by Act 56 of 1979]
(i)this provision shall not be so construed that the State shall be bound by the contents of the summary;
(ii)the attorney-general may withhold the name and address of a witness if he is of the opinion that such witness may be tampered with or be intimidated or that it would be in the interest of the security of the State that the name and address of such witness be withheld;
(iii)the omission of the name or address of a witness from such list shall in no way affect the validity of the trial.
(b)Where the evidence for the State at the trial of the accused differs in a material respect from the summary referred to in paragraph (a), the trial court may, at the request of the accused and if it appears to the court that the accused might be prejudiced in his defence by reason of such difference, adjourn the trial for such period as to the court may seem adequate.
(4)
(a)An indictment, together with a notice of trial referred to in the rules of court, shall, unless an accused agrees to a shorter period, be served on an accused at least ten days (Sundays and public holidays excluded) before the date appointed for the trial -
(i)in accordance with the procedure and manner laid down by the rules of court, by handing it to him personally, or, if he cannot be found, by delivering it at his place of residence or place of employment or business to a person apparently over the age of sixteen years and apparently residing or employed there, or, if he has been released on bail, by leaving it at the place determined under section 62 for the service of any document on him; or
(ii)by the magistrate or regional magistrate committing him to the superior court, by handing it to him.
(b)A return of the mode of service by the person who served the indictment and the notice of trial, or, if the said documents were served in court on the accused by a magistrate or regional magistrate, an endorsement to that effect on the record of proceedings, may, upon the failure of the accused to attend the proceedings in the superior court, be handed in at the proceedings and shall be primafacie proof of the service.
(c)The provisions of section 55(1) and (2) shall mutatis mutandis apply with reference to a notice of trial served on an accused in terms of this subsection.

145. Trial in superior court by judge sitting with or without assessors

(1)
(a)Except as provided in section 148, an accused arraigned before a superior court shall be tried by a judge of that court sitting with or without assessors in accordance with the provisions set out hereunder.
(b)An assessor for the purposes of this section means a person who, in the opinion of the judge who presides at a trial, has experience in the administration of justice or skill in any matter which may be considered at the trial.
(2)Where an attorney-general arraigns an accused before a superior court -
(a)for trial and the accused pleads not guilty; or
(b)for sentence, or for trial and the accused pleads guilty, and a plea of not guilty is entered at the direction of the presiding judge,

the presiding judge may summon not more than two assessors to assist him at the trial: Provided that where the offence in respect of which the accused is on trial is an offence for which the sentence of death is a competent sentence, the presiding judge shall, if he is of the opinion that, in the event of a conviction and having regard to the circumstances of the case, the sentence of death may be imposed or may have to be imposed, summon two assessors to his assistance.

(3)No assessor shall hear any evidence unless he first takes an oath or, as the case may be, makes an affirmation, administered by the presiding judge, that he will, on the evidence placed before him, give a true verdict upon the issues to be tried.
(4)An assessor who takes an oath or makes an affirmation under subsection (3) shall be a member of the court: Provided that -
(a)subject to the provisions of paragraphs (b) and (c) of this proviso and of section 217(3)(b), the decision or finding of the majority of the members of the court upon any question of fact or upon the question referred to in the said paragraph (b) shall be the decision or finding of the court, except when the presiding judge sits with only one assessor, in which case the decision or finding of the judge shall, in the case of a difference of opinion, be the decision or finding of the court;
(b)if the presiding judge is of the opinion that it would be in the interest of the administration of justice that the assessor or the assessors assisting him do not take part in any decision upon the question whether evidence of any confession or other statement made by an accused is admissible as evidence against him the judge alone shall decide upon such question, and he may for this purpose sit alone;
(c)the presiding judge alone shall decide upon any other question of law or upon any question whether any matter constitutes a question of law or a question of fact, and he may for this purpose sit alone.[subsection (4) substituted by Act 31 of 1985]
(5)If an assessor is not in the full-time employment of the State, he shall be entitled to such compensation as the Minister, in consultation with the Minister of Finance, may determine in respect of expenses incurred by him in connection with his attendance at the trial, and in respect of his services as assessor.

146. Reasons for decision by superior court in criminal trial

A judge presiding at a criminal trial in a superior court, shall -

(a)where he decides any question of law, including any question under paragraph (c) of the proviso to section 145(4) whether any matter constitutes a question of law or a question of fact, give the reasons for his decision;
(b)whether he sits with or without assessors, give the reasons for the decision or finding of the court upon any question of fact;
(c)where he sits with assessors give the reasons for the decision or finding of the court upon the question referred to in paragraph (b) of the proviso to section 145(4);
(d)where he sits with assessors and there is a difference of opinion on any question of fact or upon the question referred to in paragraph (b) of the proviso to section 145(4), give the reasons for the decision or finding of the member of the court who is in the minority or, where the presiding judge sits with only one assessor, of such an assessor.

[section 146 amended by Act 31 of 1985; not all of the changes are indicated by amendment markings ]

147. Death or incapacity of assessor

(1)If an assessor dies or, in the opinion of the presiding judge, becomes unable to act as assessor at any time during a trial, the presiding judge may direct -
(a)that the trial proceed before the remaining member or members of the court; or
(b)that the trial start de novo, and for that purpose summon an assessor in the place of the assessor who has died or has become unable to act as assessor.
(2)Where the presiding judge acts under subsection (1)(b), the plea already recorded shall stand.

148. State President may constitute special superior court

(1)Where an attorney-general decides to arraign an accused before a superior court upon a charge which relates to the security of the State or to the maintenance of the public order, and the Minister is of the opinion that the circumstances relating to such charge are such that the interests of justice or of the public order will be better served if the accused is tried by a superior court which is specially constituted for the trial, the State President may constitute a special superior court to conduct the trial relating to such charge.
(2)
(a)A special superior court may sit at any place within the area of jurisdiction of the provincial division in respect of which the attorney-general referred to in subsection (1) has been appointed, and such place and the date on which and the time at which such court shall commence its sitting, shall be determined by such attorney-general.
(b)A special superior court shall have jurisdiction to try the charge referred to in subsection (1) and to sentence the accused to any punishment which by law may be imposed in respect thereof.
(3)
(a)A special superior court shall consist of three judges, who may be appointed from any provincial division.
(b)The decision or finding of the majority of the members of the court shall be the decision or finding of the court.
(c)The Minister shall designate an officer in the public service or a judge’s clerk to act as registrar of a special superior court.
(4)The Minister shall cause the constitution of a special superior court, together with the names of the members thereof, the name and official address of the registrar thereof, and the date on which and the time at which and the place at which such court will commence its sitting, to be notified in the Gazette.
(5)Save as otherwise in this section provided, the provisions of this Act relating to a trial by a superior court shall mutatis mutandis apply with reference to the trial of an accused by a special superior court.
(6)If at any time during the trial a member of a special superior court dies or becomes unable to continue as a member of the court, the trial shall proceed before the remaining members of the court.
(7)At the conclusion of any sitting of a special superior court, the registrar of that court shall transmit the record of the proceedings of that sitting to the registrar of the provincial division in question, and such record shall thereupon become a record of that provincial division.

149. Change of venue in superior court after indictment has been lodged

(1)A superior court may, at any time after an indictment has been lodged with the registrar of that court and before the date of trial, upon application by the prosecution and after notice to the accused, or upon application by the accused after notice to the prosecution, order that the trial be held at a place within the area of jurisdiction of such court, other than the place determined for the trial, and that it be held on a date and at a time, other than the date and time determined for the trial.
(2)If the accused is not present or represented at such an application by the prosecution or if the prosecution is not represented at such an application by the accused, the court shall direct that a copy of the order be served on the accused or, as the case may be, on the prosecution, and upon service thereof, the venue and date and time as changed shall be deemed to be the venue and date and time respectively that were originally appointed for the trial.

Chapter 22
Conduct of proceedings

150. Prosecutor may address court and adduce evidence

(1)The prosecutor may at any trial, before any evidence is adduced, address the court for the purpose of explaining the charge and indicating, without comment, to the court what evidence he intends adducing in support of the charge.
(2)
(a)The prosecutor may then examine the witnesses for the prosecution and adduce such evidence as may be admissible to prove that the accused committed the offence referred to in the charge or that he committed an offence of which he may be convicted on the charge.
(b)Where any document may be received in evidence before any court upon its mere production, the prosecutor shall read out such document in court unless the accused is in possession of a copy of such document or dispenses with the reading out thereof.

151. Accused may address court and adduce evidence

(1)
(a)If an accused is not under section 174 discharged at the close of the case for the prosecution, the court shall ask him whether he intends adducing any evidence on behalf of the defence, and if he answers in the affirmative, he may address the court for the purpose of indicating to the court, without comment, what evidence be intends adducing on behalf of the defence.
(b)The court shall also ask the accused whether he himself intends giving evidence on behalf of the defence, and -
(i)if the accused answers in the affirmative, he shall, except where the court on good cause shown allows otherwise, be called as a witness before any other witness for the defence; or
(ii)if the accused answers in the negative but decides, after other evidence has been given on behalf of the defence, to give evidence himself, the court may draw such inference from the accused’s conduct as may be reasonable in the circumstances.
(2)
(a)The accused may then examine any other witness for the defence and adduce such other evidence on behalf of the defence as may be admissible.
(b)Where any document may be received in evidence before any court upon its mere production and the accused wishes to place such evidence before the court, he shall read out the relevant document in court unless the prosecutor is in possession of a copy of such document or dispenses with the reading out thereof.

152. Criminal proceedings to be conducted in open court

Except where otherwise expressly provided by this Act or any other law, criminal proceedings in any court shall take place in open court, and may take place on any day.

153. Circumstances in which criminal proceedings shall not take place in open court

(1)If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.
(2)If it appears to any court at criminal proceedings that there is a likelihood that harm might result to any person, other than an accused, if he testifies at such proceedings, the court may direct -
(a)that such person shall testify behind closed doors and that no person shall be present when such evidence is given unless his presence is necessary in connection with such proceedings or is authorized by the court;
(b)that the identity of such person shall not be revealed or that it shall not be revealed for a period specified by the court.
(3)In criminal proceedings relating to a charge that the accused committed or attempted to commit -
(a)[paragraph (a) deleted by Act 8 of 2000]
(b)[paragraph (b) deleted by Act 8 of 2000]
(c)extortion or any statutory offence of demanding from any other person some advantage which was not due and, by inspiring fear in the mind of such other person, compelling him to render such advantage,

the court before which such proceedings are pending may, at the request of such other person or, if he is a minor, at the request of his parent or guardian, direct that any person whose presence is not necessary at the proceedings or any person or class of persons mentioned in the request, shall not be present at the proceedings: Provided that judgment shall be delivered and sentence shall be passed in open court if the court is of the opinion that the identity of the other person concerned would not be revealed thereby.

(3A)Notwithstanding the provisions of subsections (1), (2), (5) and (6) but subject to the provisions of subsection (3B), in criminal proceedings relating to a charge that the accused committed or attempted to commit -
(a)any sexual or indecent act towards or in connection with any complainant;
(b)any act for the purpose of procuring or furthering the commission of a sexual or indecent act towards or in connection with any complainant; or
(c)any domestic violence offence as defined in the Domestic Violence Act, 2003;

the court before which such proceedings are pending shall, to the extent authorised thereto by the provisos to Article 12(1)(a) and (c) of the Namibian Constitution, direct that any person whose presence is not necessary at such proceedings, shall not be present at such proceedings, unless the complainant in such proceedings, or, if he or she is a minor, his or her parent or guardian or a person in loco parentis, otherwise requests.[subsection (3A) inserted by Act 8 of 2000 and amended by Act 4 of 2003; not all of the changes are indicated by amendment markings]

(3B)Any person whose presence is not necessary at criminal proceedings referred to in paragraphs (a), (b) and (c) of subsection (3A), shall not be present at such proceedings while the complainant in such proceedings is giving evidence, unless such complainant, or, if he or she is a minor, his or her parent or guardian or a person in loco parentis, otherwise requests.[subsection (3B) inserted by Act 8 of 2000 and amended by Act 4 of 2003]
(4)Where an accused at criminal proceedings before any court is under the age of eighteen years, no person, other than such accused, his legal representative and parent or guardian or a person in loco parentis, shall be present at such proceedings, unless such person’s presence is necessary in connection with such proceedings or is authorized by the court.
(5)Where a witness at criminal proceedings before any court is under the age of eighteen years, the court may direct that no person, other than such witness and his parent or guardian or a person in loco parentis, shall be present at such proceedings, unless such person’s presence is necessary in connection with such proceedings or is authorized by the court.
(6)The court may direct that no person under the age of eighteen years shall be present at criminal proceedings before the court, unless he is a witness referred to in subsection (5) and is actually giving evidence at such proceedings or his presence is authorized by the court.
(7)To the extent that the provisions of this section provide for a limitation of the fundamental right to a public hearing and to the giving of judgment in criminal proceedings in public contemplated in paragraphs (a) and (c), respectively, of Sub-Article (1) of Article 12 of the Namibian Constitution, in that they authorize the exclusion of the public from criminal proceedings or any part thereof, such limitation is enacted on authority of the said paragraphs (a) and (c).[subsection (7) inserted by Act 8 of 2000]

154. Prohibition of publication of certain information relating to criminal proceedings

(1)Where a court under section 153(1) on any of the grounds referred to in that subsection directs that the public or any class thereof shall not be present at any proceedings or part thereof, the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever: Provided that a direction by the court shall not prevent the publication of information relating to the name and personal particulars of the accused, the charge against him, the plea, the verdict and the sentence, unless the court is of the opinion that the publication of any part of such information might defeat the object of its direction under section 153(1), in which event the court may direct that such part shall not be published.
(2)
(a)Where a court under section 153(3) directs that any person or class of persons shall not be present at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorize the publication of such information if he or she is of the opinion that such publication would be just and equitable: Provided further that such information may be published with regard to any complainant in the proceedings if that complainant is eighteen years of age or older and has authorized the publication of such information.
(b)Where a court in terms of section 153(3A) directs that any person shall not be present at criminal proceedings or where any person is in terms of section 153(3B) not permitted to be present at criminal proceedings, no person shall publish in any manner whatever any information which might reveal the identity of any complainant in the proceedings: Provided that the presiding judge or judicial officer may authorize the publication of such information if he or she is of the opinion that such publication would be just and equitable: Provided further that such information may be published with regard to any complainant in the proceedings if that complainant is eighteen years of age or older and has authorized the publication of such information.
(c)No person shall at any stage from the time of the commission of the relevant offence to the appearance of an accused in a court upon any charge referred to in section 153(3) or 153(3A) or at any stage after such appearance but before the accused has pleaded to the charge, publish in any manner whatever any information which might reveal the identity of the complainant towards or in connection with whom such offence is alleged to have been committed.[subsection (2) substituted by Act 8 of 2000]
(3)No person shall publish in any manner whatever any information which reveals or may reveal the identity of an accused under the age of eighteen years or of a witness at criminal proceedings who is under the age of eighteen years: Provided that the presiding judge or judicial officer may authorize the publication of so much of such information as he may deem fit if the publication thereof would in his opinion be just and equitable and in the interest of any particular person.
(4)No prohibition or direction under this section shall apply with reference to the publication in the form of a bonafide law report of -
(a)information for the purpose of reporting any question of law relating to the proceedings in question; or
(b)any decision or ruling given by any court on such question,

if such report does not mention the name of the person charged or of the person against whom or in connection with whom the offence in question was alleged to have been committed or of any witness at such proceedings, and does not mention the place where the offence in question was alleged to have been committed.

(5)Any person who publishes any information in contravention of this section or contrary to any direction or authority under this section or who in any manner whatever reveals the identity of a witness in contravention of a direction under section 153(2), shall be guilty of an offence and liable on conviction to a fine not exceeding N$10 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.[subsection (5) amended by Act 8 of 2000]
(6)To the extent that the provisions of this section provide for a limitation of the fundamental rights contemplated in paragraph (a) of Sub-Article (1) of Article 21 of the Namibian Constitution, in that they authorize interference with a person’s freedom to publish information relating to criminal proceedings, such limitation is enacted on authority of Sub-Article (2) of the said Article.[subsection (6) inserted by Act 8 of 2000]

155. Persons implicated in same offence may be tried together

(1)Any number of participants in the same offence may be tried together and any number of accessories after the same fact may be tried together or any number of participants in the same offence and any number of accessories after that fact may be tried together, and each such participant and each such accessory may be charged at such trial with the relevant substantive offence alleged against him.
(2)A receiver of property obtained by means of an offence shall for purposes of this section be deemed to be a participant in the offence in question.

156. Persons committing separate offences at same time and place may be tried together

Any number of persons charged in respect of separate offences committed at the same place and at the same time or at about the same time, may be charged and tried together in respect of such offences if the prosecutor informs the court that evidence admissible at the trial of one of such persons will, in his opinion, also be admissible as evidence at the trial of any other such person or such persons.

157. Joinder of accused and separation of trials

(1)An accused may be joined with any other accused in the same criminal proceedings at any time before any evidence has been led in respect of the charge in question.
(2)Where two or more persons are charged jointly, whether with the same offence or with different offences, the court may at any time during the trial, upon the application of the prosecutor or of any of the accused, direct that the trial of any one or more of the accused shall be held separately from the trial of the other accused, and the court may abstain from giving judgment in respect of any of such accused.

158. Criminal proceedings to take place in presence of accused

Except as otherwise expressly provided by this Act or any other law, all criminal proceedings in any court shall take place in the presence of the accused.

158A. Special arrangements for vulnerable witnesses

(1)A court before whom a vulnerable witness gives evidence in criminal proceedings, may on the application of any party to such proceedings or the witness concerned, or on its own motion make an order that special arrangements be made for the giving of the evidence of that witness.
(2)“Special arrangements” means one or more of the following steps:
(a)The relocation of the trial to another location while the evidence of the vulnerable witness is being heard;[The word “The” at the beginning of paragraph (a) should not be capitalised.]
(b)the rearrangement of the furniture in a court room, or the removal from or addition of certain furniture or objects to or from the court room, or a direction that certain persons sit or stand at certain locations in the court room;
(c)notwithstanding the provisions of section 153 the granting of permission to any person (hereinafter referred to as a “support person”) who is a fit person for that purpose to accompany the witness while he or she is giving evidence;
(d)the granting of permission to the witness to give evidence behind a screen or in another room which is connected to the court room by means of closed circuit television or a one way mirror or by any other device or method that complies with subsection (6);
(e)the taking of any other steps that in the opinion of the court are expedient and desirable in order to facilitate the giving of evidence by the vulnerable witness concerned.
(3)For the purposes of this section a vulnerable witness is a person -
(a)who is under the age of eighteen;
(b)against whom an offence of a sexual or indecent nature has been committed;
(c)against whom any offence involving violence has been committed by a close family member or a spouse or a partner in any permanent relationship;
(d)who as a result of some mental or physical disability, the possibility of intimidation by the accused or any other person, or for any other reason will suffer undue stress while giving evidence, or who as a result of such disability, background, possibility or other reason will be unable to give full and proper evidence.
(4)The support person is entitled to -
(a)stand or sit near the witness and to give such physical comfort to the witness as may be desirable;
(b)interrupt the proceedings to alert the presiding officer to the fact that the witness is experiencing undue distress:

Provided that subject to subsection (5), the support person shall not be entitled to assist the witness with the answering of a question or instruct the witness in the giving of evidence.

(5)The court may give instructions to a support person prohibiting him or her from communicating with the witness or from taking certain actions, or may instruct the support person to take such actions as the court may consider necessary.
(6)When a witness gives evidence behind a screen or in another room, the accused, his or her legal representative, the prosecutor in the case and the presiding officer shall be able to hear the witness and shall also be able to observe the witness while such witness gives evidence.
(7)When a court is considering whether an order under this section should be made, it shall also consider the following matters -
(a)the interest of the state in adducing the complete and undistorted evidence of a vulnerable witness concerned;
(b)the interests and well-being of the witness concerned;
(c)the availability of necessary equipment and locations;
(d)the interests of justice in general.

[section 158A inserted by Act 24 of 2003]

159. Circumstances in which criminal proceedings may take place in absence of accused

(1)If an accused at criminal proceedings conducts himself in a manner which makes the continuance of the proceedings in his presence impracticable, the court may direct that he be removed and that the proceedings continue in his absence.
(2)If two or more accused appear jointly at criminal proceedings and -
(a)the court is at any time after the commencement of the proceedings satisfied, upon application made to it by any accused in person or by his representative -
(i)that the physical condition of that accused is such that he is unable to attend the proceedings or that it is undesirable that he should attend the proceedings; or
(ii)that circumstances relating to the illness or death of a member of the family of that accused make his absence from the proceedings necessary; or
(b)any of the accused is absent from the proceedings, whether under the provisions of subsection (1) or without leave of the court,

the court, if it is of the opinion that the proceedings cannot be postponed without undue prejudice, embarrassment or inconvenience to the prosecution or any co-accused or any witness in attendance or subpoenaed to attend, may -

(aa)in the case of paragraph (a), authorize the absence of the accused concerned from the proceedings for a period determined by the court and on the conditions which the court may deem fit to impose; and
(bb)direct that the proceedings be proceeded with in the absence of the accused concerned.

(3)Where an accused becomes absent from the proceedings in the circumstances referred to in subsection (2), the court may, in lieu of directing that the proceedings be proceeded with in the absence of the accused concerned, upon the application of the prosecution direct that the proceedings in respect of the absent accused be separated from the proceedings in respect of the accused who are present, and thereafter, when such accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.

160. Procedure at criminal proceedings where accused is absent

(1)If an accused referred to in section 159(1) or (2) again attends the proceedings in question, he may, unless he was legally represented during his absence, examine any witness who testified during his absence, and inspect the record of the proceedings or require the court to have such record read over to him.
(2)If the examination of a witness under subsection (1) takes place after the evidence on behalf of the prosecution or any co-accused has been concluded, the prosecution or such co-accused may in respect of any issue raised by the examination, lead evidence in rebuttal of evidence relating to the issue so raised
(3)
(a)When the evidence on behalf of all the accused, other than an accused who is absent from the proceedings, is concluded, the court shall, subject to the provisions of paragraph (b), postpone the proceedings until such absent accused is in attendance and, if necessary, further postpone the proceedings until the evidence, if any, on behalf of that accused has been led.
(b)If it appears to the court that the presence of an absent accused cannot reasonably be obtained, the court may direct that the proceedings in respect of the accused who are present be concluded as if such proceedings had been separated from the proceedings at the stage at which the accused concerned became absent from the proceedings, and when such absent accused is again in attendance, the proceedings against him shall continue from the stage at which he became absent, and the court shall not be required to be differently constituted merely by reason of such separation.
(c)When, in the case of a trial, the evidence on behalf of all the accused has been concluded and any accused is absent when the verdict is to be delivered, the verdict may be delivered in respect of all the accused or be withheld until all the accused are present or be delivered in respect of any accused present and withheld in respect of the absent accused until he is again in attendance.

161. Witness to testify viva voce

(1)A witness at criminal proceedings shall, except where this Act or any other law expressly provides otherwise, give his evidence viva voce.
(2)In this section the expression “viva voce” shall, in the case of a deaf and dumb witness, be deemed to include gesture-language.

162. Witness to be examined under oath

(1)Subject to the provisions of sections 163 and 164, no person shall be examined as a witness in criminal proceedings unless he is under oath, which shall be administered by the presiding judicial officer or, in the case of a superior court, by the presiding judge or the registrar of the court, and which shall be in the following form: -“I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.”.
(2)If any person to whom the oath is administered wishes to take the oath with uplifted hand, he shall be permitted to do so.

163. Affirmation in lieu of oath

(1)Any person who is or may be required to take the oath and -
(a)who objects to taking the oath;
(b)who objects to taking the oath in the prescribed form;
(c)who does not consider the oath in the prescribed form to be binding on his conscience; or
(d)who informs the presiding judge or, as the case may be, the presiding judicial officer, that he has no religious belief or that the taking of the oath is contrary to his religious belief,

shall make an affirmation in the following words in lieu of the oath and at the direction of the presiding judicial officer or, in the case of a superior court, the presiding judge or the registrar of the court: -“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.”.

(2)Such affirmation shall have the same legal force and effect as if the person making it had taken the oath.
(3)The validity of an oath duly taken by a witness shall not be affected if such witness does not on any of the grounds referred to in subsection (1) decline to take the oath.

164. When unsworn or unaffirmed evidence admissible

(1)Any person -
(a)who, from ignorance arising from defective education or other cause, is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation; and
(b)who is younger than 14 years shall be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation:

Provided that such person shall in lieu of the oath or affirmation be admonished by the presiding judge or judicial officer to speak the truth, the whole truth and nothing but the truth.[subsection (1) amended by Act 24 of 2003]

(2)If such person wilfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, he shall be deemed to have committed that offence, and shall, upon conviction, be liable to such punishment as is by law provided as a punishment for that offence.
(3)Notwithstanding anything to the contrary in this Act or any other law contained, the evidence of any witness required to be admonished in terms of the proviso to subsection (1) shall be received unless it appears to the presiding judge or judicial officer that such witness is incapable of giving intelligible testimony.[subsection (3) inserted by Act 24 of 2003]
(4)A court shall not regard the evidence of a child as inherently unreliable and shall therefore not treat such evidence with special caution only because that witness is a child.[subsection (4) inserted by Act 24 of 2003]

165. Oath, affirmation or admonition may be administered by or through an interpreter

Where the person concerned is to give his evidence through an interpreter, the oath, affirmation or admonition under section 162, 163 or 164 shall be administered by the presiding judge or judicial officer or the registrar of the court, as the case may be, through the interpreter or by the interpreter in the presence of the presiding judge or judicial officer, as the case may be.

166. Cross-examination and re-examination of witnesses

(1)An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings or any witness called on behalf of such co-accused at criminal proceedings, and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence at criminal proceedings, and a witness called at such proceedings on behalf of the prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence at such proceedings may likewise be re-examined by the accused.
(2)The prosecutor and the accused may, with leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.
(3)
(a)If it appears to the court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevance of any line of examination and may impose reasonable limits on that cross-examination regarding the length thereof or regarding any particular line of examination.
(b)The court may order that any submission regarding the relevancy of the cross-examination be heard in the absence of the witness.

[subsection (3) inserted by Act 24 of 2003]

(4)Notwithstanding the provisions of subsections (1) and (2) or anything to the contrary in any other law contained but subject to subsection (5), the cross-examination of any witness under the age of thirteen years shall take place only through the presiding judge or judicial officer, who shall either restate the questions put to such witness or, in his or her discretion, simplify or rephrase such questions.[subsection (4) inserted by Act 24 of 2003]
(5)The court may allow the cross-examination of a witness referred to in subsection (3) to occur through a person other than the presiding officer if -
(a)that person has the qualifications determined by the Minister by notice in the Gazette; and
(b)that person is immediately available when the witness concerned gives evidence.

[subsection (5) inserted by Act 24 of 2003]

(6)If the person referred to in subsection (5) is not in the full time employ of the state, the relevant provision of section 191 shall apply to that person as if he or she is giving evidence for the party for which the witness concerned gives evidence.[subsection (6) inserted by Act 24 of 2003]

167. Court may examine witness or person in attendance

The court may at any stage of criminal proceedings examine any person, other than an accused, who has been subpoenaed to attend such proceedings or who is in attendance at such proceedings, and may recall and re-examine any person, including an accused, already examined at the proceedings, and the court shall examine, or recall and re-examine, the person concerned if his evidence appears to the court essential to the just decision of the case.

168. Court may adjourn proceedings to any date

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with any provision of this Act.

169. Court may adjourn proceedings to any place

A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient that the proceedings be continued at any place within its area of jurisdiction other than the one where the court is sitting, adjourn the proceedings to such other place, or, if the court with reference to any circumstance relevant to the proceedings deems it necessary or expedient that the proceedings be adjourned to a place other than the place at which the court is sitting, adjourn the proceedings, on the terms which to the court may seem proper, to any such place, whether within or outside the area of jurisdiction of such court, for the purpose of performing at such place any function of the court relevant to such circumstance.[section 169 amended by Act 31 of 1985]

170. Failure by accused to appear after adjournment or to remain in attendance

(1)An accused at criminal proceedings who is not in custody and who has not been released on bail, and who fails to appear at the place and on the date and at the time to which such proceedings may be adjourned, or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment prescribed under subsection (2).[subsection (1) amended by Act 56 of 1979 and by Act 31 of 1985]
(2)The court may, if satisfied that an accused referred to in subsection (1) has failed to appear at the place and on the date and at the time to which the proceedings in question were adjourned or has failed to remain in attendance at such proceedings as so adjourned, issue a warrant for the arrest of that accused and, when he or she is brought before the court, in a summary manner enquire into his or her failure so to appear or so to remain in attendance and, unless 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$4 000 or to imprisonment for a period not exceeding 12 months.[subsection (2) 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]

171. Evidence on commission

(1)
(a)Whenever criminal proceedings are pending before any court and it appears to such court on application made to it that the examination of any witness who is resident in Namibia is necessary in the interests of justice and that the attendance of such witness cannot be obtained without undue delay, expense or inconvenience, the court may dispense with such attendance and issue a commission to any magistrate.[paragraph (a) substituted by Act 9 of 2000]
(b)The specific matter with regard to which the evidence of the witness is required, shall be set out in the relevant application, and the court may confine the examination of the witness to such matter.
(c)Where the application is made by the State, the court may, as a condition of the commission, direct that the costs of legal representation for the accused at the examination be paid by the State.
(2)
(a)The magistrate to whom the commission is issued, shall proceed to the place where the witness is or shall summon the witness before him or her, and take down the evidence in the manner set out in paragraph (b).[paragraph (a) substituted by Act 9 of 2000]
(b)The witness shall give his or her evidence upon oath or affirmation, and such evidence shall be recorded and read over to the witness, and, if he or she adheres thereto, be subscribed by him or her and the magistrate concerned.[paragraph (b) substituted by Act 9 of 2000]
(c)[paragraph (c) deleted by Act 9 of 2000]

172. Parties may examine witness

Any party to proceedings in which a commission is issued under section 171, may -

(a)transmit interrogatories in writing which the court issuing the commission may think relevant to the issue, and the magistrate to whom the commission is issued, shall examine the witness upon such interrogatories; or
(b)appear before such magistrate, either by a legal representative or, in the case of an accused who is not in custody or in the case of a private prosecutor, in person, and examine the witness.

[section 172 substituted by Act 9 of 2000]

173. Evidence on commission part of court record

The Magistrate shall return the evidence in question to the court which issued the commission, and such evidence shall be open to the inspection of the parties to the proceedings and shall, in so far as it is admissible as evidence in such proceedings, form part of the record of such court.[section 173 substituted by Act 9 of 2000]

174. Accused may be discharged al close of case for prosecution

If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.

175. Prosecution and defence may address court at conclusion of evidence

(1)After all the evidence has been adduced, the prosecutor may address the court, and thereafter the accused may address the court.
(2)The prosecutor may reply on any matter of law raised by the accused in his address, and may, with leave of the court, reply on any matter of fact raised by the accused in his address.

176. Judgment may be corrected

When by mistake a wrong judgment is delivered, the court may, before or immediately after it is recorded, amend the judgment.

177. Court may defer final decision

The court may at criminal proceedings defer its reasons for any decision on any question raised at such proceedings, and the reasons so deferred shall, when given, be deemed to have been given at the time of the proceedings.

178. Arrest of person committing offence in court and removal from court of person disturbing proceedings

(1)Where an offence is committed in the presence of the court, the presiding judge or judicial officer may order the arrest of the offender.
(2)If any person, other than an accused, who is present at criminal proceedings, disturbs the peace or order of the court, the court may order that such person be removed from the court and that he be detained in custody until the rising of the court.

Chapter 23
Witnesses

179. Process for securing attendance of witness

(1)
(a)The prosecutor or an accused may compel the attendance of any person to give evidence or to produce any book, paper or document in criminal proceedings by taking out of the office prescribed by the rules of court the process of court for that purpose.
(b)If any police official has reasonable grounds for believing that the attendance of any person is or will be necessary to give evidence or to produce any book, paper or document in criminal proceedings in a lower court, and hands to such person a written notice calling upon him to attend such criminal proceedings on the date and at the time and place specified in the notice, to give evidence or to produce any book, paper or document, likewise specified, such person shall, for the purposes of this Act, be deemed to have been duly subpoenaed so to attend such criminal proceedings.
(2)Where an accused desires to have any witness subpoenaed, a sum of money sufficient to cover the costs of serving the subpoena shall be deposited with the prescribed officer of the court.
(3)
(a)Where an accused desires to have any witness subpoenaed and he satisfies the prescribed officer of the court -
(i)that he is unable to pay the necessary costs and fees; and
(ii)that such witness is necessary and material for his defence,

such officer shall subpoena such witness.

(b)In any case where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the relevant application to the judge or judicial officer presiding over the court, who may grant or refuse the application or defer his decision until he has heard other evidence in the case.
(4)For the purposes of this section “prescribed officer of the court” means the registrar, assistant registrar, clerk of the court or any officer prescribed by the rules of court.

180. Service of subpoena

(1)A subpoena in criminal proceedings shall be served in the manner provided by the rules of court by a person empowered to serve a subpoena in criminal proceedings.
(2)A return by the person empowered to serve a subpoena in criminal proceedings, that the service thereof has been duly effected, may, upon the failure of a witness to attend the relevant proceedings, be handed in at such proceedings and shall be prima facie proof of such service.

181. Pre-payment of witness expenses

Where a subpoena is served on a witness at a place outside the magisterial district from which the subpoena is issued, or, in the case of a superior court, at a place outside the magisterial district in which the proceedings at which the witness is to appear are to take place, and the witness is required to travel from such place to the court in question, the necessary expenses to travel to and from such court and of sojourn at the court in question, shall on demand be paid to such witness at the time of service of the subpoena.

182. Witness from correctional facility

A inmate who is in a correctional facility shall be subpoenaed as a witness on behalf of the defence or a private prosecutor only if the court before which the prisoner is to appear as a witness authorizes that the prisoner be subpoenaed as a witness, and the court shall give such authority only if it is satisfied that the evidence in question is necessary and material for the defence or the private prosecutor, as the case may be, and that the public safety or order will not be endangered by the calling of the witness.[Section 182 is amended by Act 9 of 2012 to substitute “correctional facility” for “prison” and to substitute “inmate” for “prisoner”. The word “inmate” should be preceded by the article “an” instead of the article “a” to be grammatically correct.]

183. Witness to keep police informed of whereabouts

(1)Any person who is advised in writing by any police official that he will be required as a witness in criminal proceedings, shall, until such criminal proceedings have been finally disposed of or until he is officially advised that he will no longer be required as a witness, keep such police official informed at all times of his full residential address or any other address where he may conveniently be found.
(2)Any person who fails to comply with the provisions of 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.

184. Witness about to abscond and witness evading service of summons

(1)Whenever any person is likely to give material evidence in criminal proceedings with reference to any offence, other than an offence referred to in Part III of Schedule 2 or in the Schedule to the Internal Security Act, 1950 (Act 44 of 1950), any magistrate, regional magistrate or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is about to abscond, issue a warrant for his arrest.[The Internal Security Act 44 of 1950 was applicable to South West Africa. The administration of this Act (with the exception of section 8) was transferred to South West Africa by the Executive Powers (Justice) Transfer Proclamation, AG 33 of 1979, dated 12 November 1979. After the date of transfer, all of Act 44 of 1950 (except for section 17bis, which provided civil and criminal immunity for describing certain persons as communists) was repealed in South Africa by the Internal Security Act 74 of 1982 (RSA GG 8232) – which did not apply to South West Africa because it was not made expressly so applicable. Act 44 of 1950 was repealed in South West Africa in its entirety by the First Law Amendment (Abortion of Discriminatory or Restrictive Laws for purposes of Free and Fair Election) Proclamation, AG 14 of 1989 (OG 5726).]
(2)If a person referred to in subsection (1) is arrested, the magistrate, regional magistrate or judge, as the case may be, may warn him to appear at the proceedings in question at a stated place and at a stated time and on a stated date and release him on any condition referred to in paragraph (a), (b) or (e) of section 62, in which event the provisions of subsections (1), (3) and (4) of section 66 shall mutatis mutandis apply with reference to any such condition.
(3)
(a)A person who fails to comply with a warning under subsection (2) shall be guilty of an offence and liable to the punishment contemplated in paragraph (b) of this subsection.
(b)The provisions of section 170(2) shall mutatis mutandis apply with reference to any person who is guilty of an offence under paragraph (a) of this subsection.
(4)Whenever any person is likely to give material evidence in criminal proceedings, any magistrate, regional magistrate or judge of the court before which the relevant proceedings are pending may, upon information in writing and on oath that such person is evading service of the relevant subpoena, issue a warrant for his arrest, whereupon the provisions of subsections (2) and (3) shall mutatis mutandis apply with reference to such person.

185. Protection of witness

(1)
(a)When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person -
(i)is of the opinion that the personal safety of the person who is likely to give such evidence is in danger or thathe or she may be prevented from giving evidence or that he or she may be intimidated; or
(ii)considers it to be in the interests of the person who is likely to give such evidence or of the administration of justice that that person be placed under protection,

the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.

(b)The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction shall not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.
(c)The Prosecutor-General shall, as soon as he or she applies to a judge under paragraph (b) for an order for the placement under protection of the person concerned, in writing inform the person in charge of the place where the person concerned is being protected, that he or she has so applied for an order, and shall, where the judge under subsection (2)(a) refuses to issue an order for the placement under protection of the person concerned, immediately inform the person so in charge of the refusal, whereupon the person so in charge shall without delay discontinue the protection of the person concerned.
(2)
(a)The judge hearing an application under subsection (1) may, if it appears to the judge from the information placed before him or her by the Prosecutor-General -
(i)that there is a danger that the personal safety of the person concerned may be threatened or that he or she may be prevented from giving evidence or that he or she may be intimidated; or
(ii)that it would be in the interests of the person concerned or of the administration of justice that that person be placed under protection,

issue an order for the placement under protection of that person.

(b)Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.
(3)A person in respect of whom an order is issued under subsection (2)(a), shall be taken to the place mentioned in the order and, in accordance with regulations which the Minister is hereby authorized to make, be protected there or at any other place determined by a judge from time to time, or, where the person concerned is placed under protection in terms of a direction by the Prosecutor-General under subsection (1)(b), that person shall, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Prosecutor-General and protected there in accordance with those regulations.
(4)A person placed under protection in terms of an order under subsection (2)(a) shall be protected for the period terminating on the day on which the criminal proceedings in question are concluded, unless -
(a)the Prosecutor-General directs that the protection of that person be discontinued earlier; or
(b)such proceedings have not commenced within six months of the date of the placement under protection of that person, in which event the protection of that person shall be discontinued after the expiration of that period.
(5)No person, other than a person employed in the Public Service acting in the performance of his or her official duties and the legal practitioner of a person placed under protection in terms of an order under subsection (2)(a), shall have access to the person so placed under protection, except with the consent of and subject to the conditions determined by the Prosecutor-General or a person employed in the Public Service delegated by the Prosecutor-General.
(6)For the purposes of section 191, a person placed under protection in terms of an order under subsection (2)(a) shall be deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his or her placement under protection.
(7)No information relating to the proceedings under subsection (1) or (2) shall be published or be made public in any manner whatever.
(8)To the extent that this section authorizes the deprivation of the personal liberty of a person who is likely to give evidence at criminal proceedings such deprivation is authorized only on the grounds of the procedures established under this section pursuant to Article 7 of the Namibian Constitution.[section 185 amended by Act 79 of 1978 and substituted by Act 13 of 2010]

186. Court may subpoena witness

The court may at any stage of criminal proceedings subpoena or cause to be subpoenaed any person as a witness at such proceedings, and the court shall so subpoena a witness or so cause a witness to be subpoenaed if the evidence of such witness appears to the court essential to the just decision of the case.

187. Witness to attend proceedings and to remain in attendance

A witness who is subpoenaed to attend criminal proceedings, shall attend the proceedings and remain in attendance at the proceedings, and a person who is in attendance at criminal proceedings, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, shall remain in attendance at the proceedings, unless such witness or such person is excused by the court: Provided that the court may, at any time during the proceedings in question, order that any person, other than the accused, who is to be called as a witness, shall leave the court and remain absent from the proceedings until he is called, and that he shall remain in court after he has given evidence.

188. Failure by witness to attend or to remain in attendance

(1)Any person who is subpoenaed to attend criminal proceedings and who fails to attend or to remain in attendance at such proceedings, and any person who is warned by the court to remain in attendance at criminal proceedings and who fails to remain in attendance at such proceedings, and any person so subpoenaed or so warned who fails to appear at the place and on the date and at the time to which the proceedings in question may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, shall be guilty of an offence and liable to the punishment contemplated in subsection (2).[subsection (1) amended by Act 31 of 1985]
(2)The provisions of section 170(2) shall mutatismutandis apply with reference to any person referred to in subsection (1).

189. Powers of court with regard to recalcitrant witness

(1)If any person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or refuses or fails to produce any book, paper or document required to be produced by him, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuse for his refusal or failure, sentence him to imprisonment for a period not exceeding two years or, where the criminal proceedings in question relate to an offence referred to in Part III of Schedule 2 or in the Schedule to the Internal Security Act, 1950 (Act 44 of 1950), to imprisonment for a period not exceeding five years.[The Internal Security Act 44 of 1950 was applicable to South West Africa. The administration of this Act (with the exception of section 8) was transferred to South West Africa by the Executive Powers (Justice) Transfer Proclamation, AG 33 of 1979, dated 12 November 1979. After the date of transfer, all of Act 44 of 1950 (except for section 17bis, which provided civil and criminal immunity for describing certain persons as communists) was repealed in South Africa by the Internal Security Act