Related documents
Criminal Procedure Act, 1977
Act 51 of 1977
- Published in South African Government Gazette 5532 on 6 May 1977
- Assented to on 21 April 1977
- Commenced on 22 July 1977 by Commencement of the Criminal Procedure Act, 1977
- [This is the version of this document from 15 May 2024 and includes any amendments published up to 11 October 2024.]
- [Amended by Criminal Procedure Matters Amendment Act, 1978 (Act 79 of 1978) on 2 June 1978]
- [Amended by Native Laws Amendment Proclamation, 1979 (Proclamation AG3 of 1979) on 1 August 1978]
- [Amended by Criminal Procedure Amendment Act, 1979 (Act 56 of 1979) on 1 June 1979]
- [Amended by Criminal Procedure Amendment Act, 1981 (Act 15 of 1981) on 1 January 1982]
- [Amended by Criminal Procedure Matters Amendment Act, 1985 (Act 31 of 1985) on 18 December 1985]
- [Amended by Appeals Amendment Act, 1985 (Act 29 of 1985) on 1 April 1986]
- [Amended by Criminal Procedure Amendment Act, 1991 (Act 5 of 1991) on 30 May 1991]
- [Amended by Criminal Procedure Amendment Act, 1993 (Act 26 of 1993) on 9 December 1993]
- [Amended by Combating of Rape Act, 2000 (Act 8 of 2000) on 15 June 2000]
- [Amended by Appeal Laws Amendment Act, 2001 (Act 10 of 2001) on 25 July 2001]
- [Amended by International Co-operation in Criminal Matters Act, 2000 (Act 9 of 2000) on 15 September 2001]
- [Amended by Combating of Domestic Violence Act, 2003 (Act 4 of 2003) on 17 November 2003]
- [Amended by Maintenance Act, 2003 (Act 9 of 2003) on 17 November 2003]
- [Amended by Criminal Procedure Amendment Act, 2003 (Act 24 of 2003) on 30 December 2003]
- [Amended by Criminal Procedure Amendment Act, 2010 (Act 13 of 2010) on 30 August 2010]
- [Amended by Correctional Service Act, 2012 (Act 9 of 2012) on 1 January 2014]
- [Amended by Child Care and Protection Act, 2015 (Act 3 of 2015) on 30 January 2019]
- [Amended by Criminal Procedure Amendment Act, 2023 (Act 7 of 2023) on 25 July 2023]
- [Amended by Combating of Rape Amendment Act, 2022 (Act 4 of 2022) on 15 May 2024]
- [Amended by Combating of Domestic Violence Amendment Act, 2022 (Act 6 of 2022) on 15 May 2024]
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
Chapter 1
PROSECUTING AUTHORITY
2. Authority to prosecute vested in State
3. Attorney-general the prosecuting authority on behalf of State
“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.”]
4. Delegation, and local public prosecutor
An attorney-general may in writing-5. Presiding judicial officer may in certain circumstances appoint prosecutor
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 -7. Private prosecution on certificate nolle prosequi
8. Private prosecution under statutory right
9. Security by private prosecutor
10. Private prosecution in name of private prosecutor
11. Failure of private prosecutor to appear
12. Mode of conducting private prosecution
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
16. Costs of accused in private prosecution
17. Taxation of costs
18. Prescription of right to institute prosecution
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)-21. Article to be seized under search 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 -23. Search of arrested person and seizure of article
On the arrest of any person, the person making the arrest may -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
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.26A. Powers to obtain information during investigations
26B. Power to request for information from financial or banking institution and other juristic person
The Inspector-General or a police official of or above the rank of chief inspector may, in writing, request a person in charge or an authorised person -27. Resistance against entry or search
27A. Failure to comply with request or grant access
A person who, without reasonable cause-28. Wrongful search an offence, and award of damages
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 delivered31. Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings
32. Disposal of article where criminal proceedings are instituted and admission of guilt fine is paid
33. Article to be transferred to court for purposes of trial
34. Disposal of article after commencement of criminal proceedings
35. Forfeiture of article to State
36. Disposal of article concerned in an offence committed outside Republic
Chapter 3
ASCERTAINMENT OF BODILY FEATURES OF ACCUSED
37. Powers in respect of prints and bodily appearance of accused
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
40. Arrest by peace officer without warrant
41. Name and address of certain persons and power of arrest by peace officer without warrant
42. Arrest by private person without warrant
43. Warrant of arrest may be issued by magistrate or justice
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
46. Non-liability for wrongful arrest
47. Private persons to assist in arrest when called upon
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
50. Procedure after arrest
51. Escaping and aiding escaping before incarceration, and penalties therefor
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
55. Failure of accused to appear on summons
Chapter 7
WRITTEN NOTICE TO APPEAR IN COURT
56. Written notice as method of securing attendance of accused in magistrate’s court
Chapter 8
ADMISSION OF GUILT FINE
57. Admission of guilt and payment of fine without appearance in court
57A. Admission of guilt and payment of fine after appearing in court
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
60. Bail after first appearance of accused in lower court
60A. Rights of complainant in bail application where accused is charged with rape
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
63. Amendment of conditions of bail
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
66. Failure by accused to observe condition of bail
67. Failure of accused on bail to appear
68. Cancellation of bail where accused about to abscond
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
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
Chapter 11
ASSISTANCE TO ACCUSED
73. Accused entitled to assistance after arrest and at criminal proceedings
74. Parent or guardian of accused under eighteen years to attend proceedings
Chapter 12
SUMMARY TRIAL
75. Summary trial and court of trial
76. Charge-sheet and proof of record of criminal case
Chapter 13
ACCUSED: CAPACITY TO UNDERSTAND PROCEEDINGS: MENTAL ILLNESS AND CRIMINAL RESPONSIBILITY
77. Capacity of accused to understand proceedings
78. Mental illness or mental defect and criminal responsibility
79. Panel for purposes of enquiry and report under sections 77 and 78
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
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
85. Objection to charge
86. Court may order that charge be amended
87. Court may order delivery of particulars
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
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
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
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
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
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
111. Minister may remove trial to jurisdiction of another attorney-general
Chapter 17
PLEA OF GUILTY AT SUMMARY TRIAL
112. Plea of guilty
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.]