Criminal Procedure Guide

Important note : If you have not yet done so, please review the sections
“Before you start !” and “Template automation ” in the user guide. This is
particularly important if you do not see the red text help prompts below,
and if you are not familiar with the use of form fields. To remove this text
box, click on the border and press the <Delete> key.
STUDY GUIDE
Click on [DOCUMENT TYPE] and type the

description (e.g. course manual,
selfstudy workbook, user guide) and not
the course title.
Type inCriminal Procedure

all lower case; the text will
automaticallyLLB
appear in UPPER CASE.
Honours
Please refer to the user guide for more
PCP3771
information. Item No:
Centre for External Studies

Materials Development and Instructional Design Department
0
Copyright
Copyright©2014 University of Namibia. All rights reserved. No part of this publication may be
reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise without the prior permission of the publishers.
Edited and Published by Centre for External Studies
University of Namibia, Windhoek
Centre for External Studies

Materials Development and Instructional Design Department
Private Bag 13245
Pioneers Park
Windhoek
Namibia
Tel: +264 61 206 3676
Fax: +264 61 206 3016
E-mail: ces@unam.na
Website: www.unam.na
1
Acknowledgements
The Centre for External Studies Materials Development and Instructional Design Department wishes
to thank those below for their contribution to this study guide:
Ms. Elize Shakalela Author
Mr. Eugene Libebe Content Editor
Instructional Designer
Language Editor
Quality Controller
3
Criminal Procedure
Contents
Click on [DOCUMENT TYPE] and type the description (e.g. course manual, self-study workbook,
user guide) and not the course title. 0
Type in all lower case; the text will automatically appear in UPPER CASE. Please refer to the
user guide for more information. 0
About this study guide 1

How this study guide is structured ................................................................................. 1
Course overview 3
Welcome to Criminal Procedure [Course Code]PCP3771.............................................. 3
Criminal Procedure [Course Code]PCP3771 —is this course for you? .......................... 3
Exit Learning Outcomes ................................................................................................ 4
Time frame ................................................................................................................... 4
Study skills ................................................................................................................... 4
Need help? .................................................................................................................... 6
Assignments.................................................................................................................. 6
Assessments .................................................................................................................. 6
Getting around this study guide 7

Margin icons ................................................................................................................. 7
Unit 1 8
INTRODUCTION TO CRIMINAL PROCEDURE ...................................................... 8
1.1 The meaning of criminal procedure ....................................................................... 10
1.2 The stages of criminal procedure ........................................................................... 10
1.3 Sources of criminal procedure: .............................................................................. 10
1.4 adversarial and inquisitorial legal systems ............................................................. 14
1.5 The importance of Criminal Procedure: ................................................................. 17
1.5 The participants in the criminal procedure: ............................................................ 17
UNIT 2 21
PROSECUTING AUTHORITY.................................................................................. 21
Introduction ....................................................................................................... 21
1. The pretrial procedure is the first stage in criminal procedure, this stage consists
of the following levels: ................................................................................................ 22
i
2.2 Withdrawal and stopping of prosecution ................................................................ 26
2.3 Stopping of prosecution ......................................................................................... 27
UNIT 3 29
Search warrants, entering of premises, seizure, forfeiture and disposal of property
connected with offences ............................................................................................. 29
Introduction ....................................................................................................... 29
Ascertainment of bodily features of an accused ........................................................... 31
3.1 Different types of warrant? .................................................................................... 33
3.2 What should the search warrant contain? ............................................................... 33
3.3 The purpose of a search warrant: ........................................................................... 34
UNIT 4 42
Bail and Other Forms of Release ................................................................................. 42
Introduction ....................................................................................................... 42
4.1 Arrest .................................................................................................................... 43
4.2 ................................................................................. Error! Bookmark not defined.
4.3 resisting arrest ....................................................................................................... 47
4.4 Bail ....................................................................................................................... 49
4.2 Formal bail application .......................................................................................... 51
4.3 Release on warning in terms of s72 ........................................................................ 52
UNIT 5 55
SUMMARY TRIAL ................................................................................................... 55
Introduction ....................................................................................................... 55
5.1 Summary trial........................................................................................................ 56
5.2 Capacity of an accused .......................................................................................... 60
5.3 Disclosure ............................................................................................................. 61
UNIT 6 64
TRIAL ........................................................................................................................ 64
Introduction ......................................................... Error! Bookmark not defined.
Trial ............................................................................... Error! Bookmark not defined.
A. Prosecutor may address court and adduce evidence ................................................. 64
Examination in chief: .................................................................................................. 65
Cross examination ....................................................................................................... 66
Closing of the state case .............................................................................................. 67
Accused may be discharged at the close of case for prosecution .................................. 68
B. Accused may address court and adduce evidence ................................................... 70
The defense’s case: examination in-chief ..................................................................... 71
Cross examination: ...................................................................................................... 71
6.1 Final arguments: .................................................................................................... 72
The Verdict: ................................................................................................................ 72
6.2 Sentencing............................................................................................................. 72
UNIT 7 82
7.1 POST-TRIAL........................................................................................................ 82
7.2 Appeal .................................................................................................................. 87
Criminal Procedure
About this study guide

Criminal Procedure PCP 3771 has been produced by the Centre for
External Studies. All study guides produced by the Centre for External
Studies are structured in the same way, as outlined below.
How this study guide is structured

The course overview
The course overview gives you a general introduction to the course.
Information contained in the course overview will help you determine:
 If the course is suitable for you.
 What you will already need to know.
 What you can expect from the course.
 How much time you will need to invest to complete the course.
The overview also provides guidance on:
 Study skills.
 Where to get help.
 Course assignments and assessments.
 Activity icons.
 Units.
We strongly recommend that you read the overview carefully before

starting your study.
The course content

The course is broken down into units. Each unit comprises:
 An introduction to the unit content.
 Unit outcomes.
1
About this study guide Error! No text of specified style in document.
 New terminology.
 Core content of the unit with a variety of learning activities.
 A unit summary.
 Assignments and/or assessments, as applicable.
 Answers to Assignment and/or assessment, as applicable
Resources
For those interested in learning more on this subject, we provide you with
a list of additional resources at the end of this study guide; these may be
books, articles or web sites.
Your comments
After completing Criminal Procedure we would appreciate it if you
would take a few moments to give us your feedback on any aspect of this
course. Your feedback might include comments on:
 Course content and structure.
 Course reading materials and resources.
 Course assignments.
 Course assessments.
 Course duration.
 Course support (assigned tutors, technical help, etc.)
Your constructive feedback will help us to improve and enhance this

course.
2
Criminal Procedure
Course overview
Welcome to Criminal Procedure

PCP3771
Criminal Procedure is a branch of Private law which refers to the
adjudication process of criminal law, the criminal legal system can
either be inquisitorial and or adversarial in nature. The Burdon of
proof in criminal procedure is proof beyond a reasonable doubt and
the presumption of innocence is a fundamental human right
articulated in Article 12 of the Namibian constitution , in that an
accused person who is charged of an offence is presumed innocent
until proven guilty in a court of law. The procedural process in
criminal prosecutions, begins with the pre-trial phase, this phase
includes: arrest, warrants, rights of the accused, bail,
postponements; Rights of the accused: Right to be informed of the
crime, warned of the right to legal representation, right to remain
silent. The trial: The plea, State case, trial-within-a-trial, evidence,
witnesses, section 174 discharges, defense case. Post-Trial
Procedures: Appeal, Review. The actors of criminal procedures
includes the following persona: The law enforcement agencies, the
Offices of the Prosecutor-General and Attorney-General, the
defense. The Courts: Magistrates Court (District and Regional),
High Court, and Supreme Court.
Criminal Procedure PCP3771 —is

this course for you?
Knowledge of the Criminal Procedure Act 51 of 1977 as Amended.
3
Course overview Error! No text of specified style in document.
Exit Learning Outcomes

The exit learning outcomes for this course are to:
 Discuss and apply all aspects of Criminal Procedure

 List the sources of Criminal procedure
 Differentiate between the inquisitorial system and adversarial
system
Exit Learning Outcomes
 Evaluate the rights of the accused
 Outline the pre-trial, trial and post-trial procedures.
 Prosecute crime and defend accused in uncomplicated cases.
Time frame
This Course must be completed with 14 weeks
Students require 48 hours formal study time
Students require 48 hours self-study time

How long?
Study skills
As an adult learner your approach to learning will be different to that
from your school days: you will choose what you want to study, you will
have professional and/or personal motivation for doing so and you will
most likely be fitting your study activities around other professional or
domestic responsibilities .
Essentially you will be taking control of your learning environment. As a
4
Criminal Procedure
consequence, you will need to consider performance issues related to

time management, goal setting, stress management, etc. Perhaps you will
also need to reacquaint yourself in areas such as essay planning, coping
with exams and using the web as a learning resource.
Your most significant considerations will be time and space i.e. the time
you dedicate to your learning and the environment in which you engage
in that learning.
We recommend that you take time now—before starting your self-

study—to familiarize yourself with these issues. There are a number of
excellent resources on the web. A few suggested links are:
 http://www.how-to-study.com/
The “How to study” web site is dedicated to study skills resources.
You will find links to study preparation (a list of nine essentials for a
good study place), taking notes, strategies for reading text books,
using reference sources, test anxiety.
 http://www.ucc.vt.edu/stdysk/stdyhlp.html
This is the web site of the Virginia Tech, Division of Student Affairs.
You will find links to time scheduling (including a “where does time
go?” link), a study skill checklist, basic concentration techniques,
control of the study environment, note taking, how to read essays for
analysis, memory skills (“remembering”).
 http://www.howtostudy.org/resources.php
Another “How to study” web site with useful links to time
management, efficient reading, questioning/listening/observing skills,
getting the most out of doing (“hands-on” learning), memory building,
tips for staying motivated, developing a learning plan.
The above links are our suggestions to start you on your way. At the time
of writing these web links were active. If you want to look for more go to
www.google.com and type “self-study basics”, “self-study tips”, “self-
study skills” or similar.
5
Course overview Error! No text of specified style in document.
Need help?
Is there a course web site address?
What is the course instructor's name? Where can s/he be located (office
location and hours, telephone/fax number, e-mail address)?
Help
For routine enquiries please contact the Student Support Department at
+264 61 206 3416.
For further assistance you can go to your nearest Regional UNAM

Centre.
Assignments
This has one compulsory assignment and one compulsory test. However
the study guide consist of a myriad of short assignment questions making
it easier for students to comprehend the subject matter.
Please see tutorial letter for instructions on the submission of

Assignments assignments.
Assessments
Course materials may have activities and/or self-assessment exercises to
check your own understanding of the material, but there are also tutor-
marked assignments/tests which you have to submit. Please see tutorial
letter for more details.
Assessments
6
Criminal Procedure
Getting around this study guide
Margin icons
While working through this study guide you will notice the frequent use
of margin icons. These icons serve to “signpost” a particular piece of text,
a new task or change in activity; they have been included to help you to
find your way around this study guide.
A complete icon set is shown below. We suggest that you familiarize

yourself with the icons and their meaning before starting your study.
Activity Additional Answers to Assessment

reading Assessments
Assignment Audio Case study Discussion
Exit Learning Feedback Group Activity Help

Outcomes
Prescribed Recommended
Note it!/Warning Outcomes Reading website
References Reflection Study skills Summary
Terminology Tip Video
7
Unit 1 Error! No text of specified style in document.
Unit 1
INTRODUCTION TO CRIMINAL
PROCEDURE
8
Criminal Procedure
Upon completion of this unit you should be able to:
 explain the term criminal procedure
 List and explain the actors and their functions in Criminal

procedure
Outcomes
 Discuss in detail the sources of Criminal procedure applicable to
Namibia
 Evaluate the Importance of Criminal Procedure
Peet M Bekker et all . Criminal Procedure Hand Book. 2005. 7th edition
by Joubert. Juta and Co.
Prescribed reading Criminal Procedure Act 51 of 1977 as Amended
Clever Mapaure et all. The Law of Pre-trial Criminal Procedure in

Namibia. 2014.UNAM PRESS.

Additional reading
9
1.1 The meaning of criminal procedure

Criminal procedure is the adjudication process of criminal law. It is
also known as the procedure that prescribes how a suspected
criminal is brought before court for trial. The Process starts with a
criminal charge with the person on trial either being free on bail or
incarcerated and results in to a conviction (a verdict of guilt) or
acquittal (free from a charge of an offence) of an accused.
On another hand a criminal charge is the formal accusation made

by a governmental authority asserting that somebody has
committed a crime. Criminal procedure can either be in a form of
inquisitorial or adversarial procedure.
1.2 The stages of criminal procedure

The three stages of criminal procedure are merely listed below and
are explained more in detail in the study guide in the proceeding
chapters.
I. Pre-trial Procedure
II. Trial Procedure
III. Post-Trial Procedure
1.3 Sources of criminal procedure:

1. The Namibian Constitution Act 1 of 1990
Article 1 (6) affirms that that the Constitution shall be the supreme
law of the republic, in the same vain Article 88 of the Namibian
constitution establishes that there shall be a prosecutor general
appointed by the president on recommendation by the Judicial
Service Commission. The Article also stipulate the requirements
10
Criminal Procedure
deeming such a person eligible for appointment as the Prosecutor

General (PG).
Chapter 3 of the Namibian constitution consist of the Bill of Rights

from Article 6 to Article 26. Article 6 is the cornerstone of the Bill
of rights under which all human rights emanates from, the Article
expressly stipulates that all person shall have the right to life, this
means that if an accused is found guilty of a criminal offence, they
can never be subjected to the punishment of death penalty.
Important as well is Article 12 stressing on the right to a fair trial,

abating that the determination of their civil rights and obligations or
any criminal charges against them, all persons shall be entitled to a
fair and public hearing by an independent, impartial and competent
Court or Tribunal established by law: provided that such Court or
Tribunal may exclude the press and/or the public from all or any
part of the trial for reasons of morals, the public order or national
security, as is necessary in a democratic societythis Article is
discussed more in detain in the proceeding chapters.
2. The Criminal Procedure Act 51 of 1977 as Amended herein

referred to as the CPA
the Criminal Procedure Act, is an Act of parliament that set out the
procedure of how a criminal case is to proceed, from the period a
crime is committed until the period of conviction and or an
acquittal of an accused, this Act also sets outs the procedure for
conditioning a search and seizing of articles, the procedure for
drafting a valid charge, how arrest is to be effected and the bail
procedure etc. The Criminal Procedure Act is important
particularly because it establishes the office of the prosecutor
general who in terms of section 1 is expected to prosecute all
criminal proceedings in the name of the State. The Act further
gives the PG to appoint prosecutors and to delegate such powers to
11
prosecutors as may be necessary. Students should acquaint

themselves with the Act in order to comprehend this course.
3. Case law
There are numerous case law that builds precedent of the

application of the CPA, students are asked to familiarise
themselves with the Namibian Law Reports, SAFLII etc to access
Namibian cases e.g S v Lazarus Natangwe Shaduka case No:
CC11/2009
4. Developed Principles of Common Law
Despite the fact that our law of Criminal Procedure is, to a large
extent, regulated by statute are still certain areas of Criminal
Procedure and evidence law which are still regulated by common
law. There are a number of common law offences applicable in
Namibia’s criminal justice system, this include but not limited to:
(a) Abduction consists in unlawfully taking a minor out of the

control of his or her custodian with the intention of enabling
someone to marry or have sexual intercourse with that
minor.
(b) Arson is the unlawful and intentional setting fire to an
immovable property belonging to another.
(c) Assault consists of unlawfully and intentionally
 applying force to the person of another;
 inspiring a belief in another person that force is

immediately to be applied to him or her;
Assault with intent to cause grievous bodily harm. This is another

form of assault, however, committed with the intention to cause
serious bodily injury.
12
Criminal Procedure
(d) Contempt of court consists in unlawfully and intentionally -
 violating the dignity, repute or authority of a judicial body

or a judicial officer in his/her judicial capacity; or
 publishing information or comment concerning a pending

judicial proceeding which has the tendency to influence the
outcome of the proceeding or to interfere with the
administration of justice in that proceeding.
(e) Crimen injuria consist of unlawfully and intentionally

impairing the dignity or privacy of another person.
(f) Culpable homicide is the unlawful negligent killing of
another human being.
(g) Defamation consists of the unlawful and intentional
publication of matter that impairs another person’s
reputation.
(h) The crime of defeating or obstructing the course of justice
consists of unlawfully and intentionally engaging in
conduct which defeats or obstructs the course or
administration of justice.
4. Scholarly authorities i.e the text book on the Law of pre-trial

(Criminal Procedure) in Namibia by C. Mapaure et
all.2014.UNAM Press.
Although, scholarly writings and books can never serve as an

original source of law, they probably represent the starting point of
any research which you may need to do any legal problem.
Scholarly writings and books also explicates the application of
what is rather termed by many as difficult to comprehend
principles of criminal procedure.
13
1.4 adversarial and inquisitorial legal systems

The ultimate difference between adversarial and inquisitorial
system lies in the functions of the parties in vowed in the criminal
proceedings, namely the prosecution, the presiding officer/judge
and the investigation officer.
In inquisitorial system, the presiding judge is dominus litis, the

presiding officer is actively in control and actively conducts and
controls the search for truth by dominating the questioning of
witness and accused. After arrest, the accused is questioned
primarily by the presiding officer / judge and at trial the presiding
officer/judge primarily does the questioning and not the counsel for
prosecution and neither the defence.
The adversarial system is structured in a way that the prosecution is

dominus litis in the the two-sided structure under which criminal
trial courts operate that pits the prosecution against the defense.
Justice is done when the most effective adversary is able to
convince the court beyond a reasonable doubt that an accused who
is presumed innocent before proven guilty is either guilty or
innocent. Namibia operate under an adversarial legal system where
the prosecution does the questioning , although the presiding
officer may question the accused in matters of uncertainty and the
presiding officer may also direct the court.
The table is extracted from page 88-89, of the law of Pre-trial

Criminal procedure in Namibia.
SYSTEM MERITS DEMERITS
ADVERSARIAL
14
Criminal Procedure
It insists upon strict observance of The accused does not help the
procedural law. Due process of police. The police must work
law is regarded as the most on his own strength against the
appropriated method to attain accused.
justice. Violation of procedure
leads to exclusion of evidence in
the court.
The position of the court is Too much insistence upon

regarded as that of an umpire. procedure some time may lead
Both parties contest in the court. to acquittal of the accused and
The court is to see whether the impunity on the offence.
game being played before it is fair
and conducive to justice or not.
The accused has right to silence. Contest on technical error in

He need not give evidence from the court is possible. The court
his side. Prosecution must prove is helpless to correct it.
the guilt beyond reasonable doubt.
The accused may claim benefit of
doubt.
The representation of lawyer from The judge in the court as an

both sides is indispensable. umpire is a misleading
conception. It is desirable to
expect that the judge is there
to do justice and that justice is
done by whatever means it is
possible
15
Individual's right to privacy is The police sometime may not

best preserved under it. be able to find sufficient
evidence against the accused.
He cannot expect any help
from the accused. This leads
to dropping-out of the case.
INQUISITORIAL
The court plays substantive role in Participation of the court in

the trial to secure justice the inquisition of the case may
lead it to biased attitude.
Minor error in the procedure is Right to privacy of the

ignored, if the purpose of justice accused is denied and that the
is solved. Procedure is not held accused is exposed to express
vital, ultimate justice is regarded everything which he need not
as the goal. express keeping in view of the
merit of the case.
All the component of criminal The prosecutor or the police

justice system, i.e. the police, the having separate law to deal
prosecutor, the defense lawyer, with their conduct may misuse
the court and the accused must their power and is likely to
help to secure justice. So, the exceed their authority, which
accused has no right to silence. they are not entitled to.
16
Criminal Procedure
Any distortion of evidence, Supremacy of law and equal

dubious practice followed by the treatment of the law for all
accused or by the lawyers can be segments of the society is not
easily detected with the effort of entertained.
the court.
1.5 The importance of Criminal Procedure:

 It determines the prerequisite of substantive criminal
liability (unlawfulness, fault)
 and prescribe the elements of various specific crimes
(poaching, theft, house breaking)
 It provides a dispute resolution mechanism: in that it
resolves state-citizen disputes in a manner that commands
community respect for fairness of its processes and devising
reliable outcomes.
 It validates the states exercise of coercive power
1.5 The participants in the criminal procedure:

The Accused : a person or group of people who are charged with or
on trial for a crime.
Suspect: is a person who is believed to be the one who committed a

crime being investigated.
The complaint: is a person who lodges a complaint, a person who

alleges that another committed a criminal act against him/her.
Victim: a person who is affected by a criminal act.
17
Police official: means any member of the force as defined in

section of the Police Act 19 of 1990 (to maintain law and order,
crime prevention and investigation; See also s334 of the Criminal
Procedure Act (traffic officers and park wardens).
Investigators:
The Prosecutor general and Prosecutor
Witnesses: There are 4 types of witnesses, namely: Eyewitness. An

eyewitness brings observational testimony to the proceedings after
having seen the alleged crime or a facet of it.
Expert witness.
Character witness.
Reliability of witness accounts.
The court: consists of the lower courts, high court and supreme
court as articulated under Article 78 of the Namibian Constitution.
Presiding officer: Magistrate and or Judge
Assessors:
Translators: whenever a witness or an accused is unable to speak

the official language (English), an interpreter must be available and
must interpret the language best understood by the witness an or
accused.
Correctional facilities: means a correctional facility established

under section 15 of the Correctional Service Act 9 of 2012 , and
includes a temporary correctional facility declared as such under
18
Criminal Procedure
section 16 and, for the purpose of sections 65 and 86 of this Act,

includes every place used as a police cell or lock-up;
Activity
Distinguish between adversarial and inquisitorial systems and

indicate the system that is applicable in the Namibian legal system.
Feedback: Students should read pg. 77-89 of the text book on the
Law of pre-trial (Criminal Procedure) in Namibia by C. Mapaure et
all.2014.UNAM Press.
In this unit you learned that criminal procedure is the adjudication

of criminal law. You have also learned about the actors in the
Summary
criminal procedure process and about the adversarial and
inquisitorial system.
References
Criminal Procedure Act 51 of 1977 as Amended

19
20
Criminal Procedure
UNIT 2
PROSECUTING AUTHORITY
Introduction
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, vests in the State. This then also
means that all criminal proceedings must be conducted in the name
of the State. The only exception where the case name will not bear
the ‘state’s name is in cases where a nolle Prosequi has been
obtained to initiate private prosecution. The authority to prosecute
is vested in the state by section 2 of the Criminal Procedure Act.
Furthermore, section 3 vests the authority to prosecute to the
Prosecutor General in the name of the state.
It is important to note that s 4 grants the Prosecutor General
delegation powers which ought to be in writing to - (a) delegate to
any person, subject to the control and directions of the prosecutor-
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 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.
21
UNIT 2 Error! No text of specified style in document.
At the end of this unit, students must be able to:
 Discuss the functions and Powers of the Prosecutor

General
Outcomes
 Evaluate the pre-trail stage in detail
 Outline the procedure for withdrawal and stopping of
prosecution
 Advise on the application procedure for private
prosecution
Activity:
Discuss in detail the relationship between the Prosecutor General

and the Attorney General.
 Feedback: Students should refer to the role and appointment

of the prosecutor general in terms of Article 88 of the
Namibian constitution. Students should also acquaint
themselves with the Ex Parte Attorney General In Re: the
Constitutional Relationship between the Attorney-General
and the Prosecutor General,1998 NR 282 (SC)
1. The pretrial procedure is the first stage in criminal

procedure, this stage consists of the following levels:
1. Reporting of the crime: a crime needs to be reported to an

officer of law, sometimes the officer of law may also by themselves
observe persons committing an offence or reasonably suspect that
the person has committed an offence and or is about to commit an
offence, statements are taken and a docket is registered with a case
number allocated at the police station.
2. Investigations: an investigation officer is appointed for the case

registered; the investigation officer gathers information, takes
22
Criminal Procedure
warning statement and informs the accused person that he/she is

under investigations. It is also at this stage that the investigation
officer conducts search, seizure of articles.
3. Decision to prosecute: after investigations, have been

conducted, the investigation officer will hand over the file to the
prosecutor who will then announce the decision of the prosecutor to
prosecute or not to prosecute. If the Prosecutor General’s decision
is to prosecute, then the prosecutor will draft the charge against the
accused and secure the attendance of the accused person in court.
4. Secure the attendance of the accused person: Section 38 of the

Criminal Procedure Act sets out 4 ways under which an accused’s
attendance is secured to court, namely by arrest, issuance of
summons, indictment and by written notice.
Summons: Summon is one of the four methods to secure

attendance of an accused in lower courts at summary trial.
Therefore, an accused who is not in custody or arrested could be
secured to appear in court by summon.
A summon will normally be effected if an accused person will not

hinder with police investigation, will not abscond and or attempt to
hamper police investigations. Then the accused’s attendance in
court is effected by way of summon
Summon procedure: is outlined in section 54 of the CPA, which

includes the following stages:
• The prosecutor draws up a charge (indicating his name,

address, occupation) hands it to court
• Court clerk issue a summon containing the charge and

information handed court clerk by prosecutor, summon will
include time, date and place to appear
• A return of service: to accused himself or a person older
23
than 16 years’ present
• Must be served at least 14 to an accused before trial
Any accused person who fails to appear in court/or fails to appear

in attendance on summons in terms of s54 will be:
• GUILTY of an offence and liable to a punishment
• Court may if satisfied with the return of service, that

summon was served on the accused issue a warrant of
arrest,
• Accused will be brought to court in a summary manner to

enquire his failure to secure attended/ failure to remain in
attendance.
• MUST prove that it was not due to his fault ($2000 or 6

months)
Appearance by written notice:
In terms of s56 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
24
Criminal Procedure
written notice to the accused and that he or she has explained to the
accused the import thereof.
Indictment: is a process that happens in higher courts, 10 days

before trial, must include the summary of the case facts. See S v
Jonas (CC 14/2017) (2019) NAHCMD (31 JULY 2019) where the
accused stood trial on an indictment containing numerous counts.
Also, see s144 of the CPA for the indictment procedure.
Arrest: is the apprehension, restraint of a person, deprivation of a

person’s liberty and taking into custody of another person under
authority empowered by law, to be held or to be detained to answer
a criminal charge or to prevent the commission of a criminal
offence
The effect of arrest is outlined in s39 (3), that is to detain the

person in lawful custody until lawfully discharged or released from
custody.
Section 39 stipulates that an arrest can be with or without a

warrant. Arrest with a warrant is issued by a magistrate or justice of
peace officer will issue this warrant on application by the
Prosecutor General, prosecutor, and or police officer. The
application must contain: offence allegedly committed, reasonable
suspicion exists based on the information obtained under oath that
the person in respect of whom the warrant is requested has
committed the allege offence. Warrant of arrest is valid though out
the Namibia. The warrant of arrest must be executed by either a
peace officers, magistrates, justice of the peace, police officials,
anyone mentioned in s334 notice and members of the correctional
service.
The steps to effecting lawful arrest is outlined in section 39 of the

CPA that is by touching the accused person or, if the circumstances
so require, by forcibly confining his body. The officer effecting
25
arrest must 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.
Arrest without warrant is dealt with under section 40 of the

Criminal Procedure Act.
See section 40 for non-liability for wrongful arrest.
Persons that can effect arrest are police officers, peace officers or
private persons in terms of s 47.
5. Accused person may apply for bail, accused may apply for
police bail before court appearance and or may apply for bail
during court appearance.
2.2 Withdrawal and stopping of prosecution

After investigation, the prosecution can decide whether to
withdraw and or stop prosecution.
The procedure for withdrawal of prosecution is articulated under s

6 (a) of the CPA.
The prosecutor general or any person conducting the prosecution at

the instance of the state or anybody or person conducting a
prosecution under section 8, may, in terms of s8 before an accused
pleads to a charge, withdraw that charge, in which event the
accused shall not be entitled to a verdict of acquittal.
The decision to withdraw a charge is vested in the prosecution.
Withdrawal of charges is usually done formally I court, although in

exceptional circumstances, the court may, as a matter of
26
Criminal Procedure
expediency, allow withdrawal of a charge (s) in the absence of the

accused. The withdrawal must always be recorded on the charge
sheet and in the criminal record book.
 The consequences of withdrawal

 The accused will no longer be prosecuted on the withdrawn
charge
 The accused is not entitled to and may not demand a verdict
of acquittal
 If the accused is in custody then the accused must be
released, provided that the accused has no other pending
charges against the accused.
 The prosecution may, either immediately or at a later stage
institute proceedings against the accused afresh.
It is important to inform the accused of the consequences of the
withdrawn charges especially the fact that the withdrawal does
not amount to an acquittal and that the accused may at any
stage again be prosecuted on the same or related charge.
2.3 Stopping of prosecution

In terms of s6 (b) of the Criminal Procedure Act, the Prosecutor
General or any person conducting a prosecution at the instance of
the State or anybody or person conducting a prosecution under
section 8, may -
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,
27
whether in general or in any particular case, has consented thereto.
The Consequences of stopping of prosecution
If the court is satisfied that the prosecution has been stopped, the
accused must then be acquitted on the charge (s) on which the
prosecution has been stopped. It is important to note that when the
accused is acquitted as a result of stopping prosecution, it means
that the accused has been acquitted on the merits of the case.
Therefore, should the accused subsequently be charged on the basis
of the same facts, a plea of previous acquittal in terms of section
106 (1) d must succeed.
Activity:
Who can stop prosecution?
 Feedback: Students must state that; prosecution can be

stopped by the Prosecutor General that is if the Prosecutor
General is the one initiating Prosecution. By a body or
person conducting a private prosecution in terms of Section
8 of the Criminal Procedure Act.
 If the Prosecution is conducted by a prosecutor other than
the Prosecutor General or private prosecutor in terms of
section 8 of the Criminal Procedure Act, only if the
Prosecutor General or person authorized thereto by the
Prosecutor General has consented to such stopping.
28
Criminal Procedure
In this unit you learned about the functions and Powers of the
Prosecutor General, you have also studied the practical application
of the pre-trail stage more in detail. This unit also gives a detail
outline on the procedure for withdrawal and stopping of
Summary prosecution and last but not least the procedure to apply for private
prosecution.
References

UNIT 3
Search warrants, entering of

premises, seizure, forfeiture
and disposal of property
connected with offences
Introduction
Article 8 of the Namibian Constitution vests all persons, including
accused person with the inviolable right of human dignity, it states
that No person shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment. Article 13 on the other hand
grants all persons the right to privacy, it states as follows: “ (1) No
29
persons shall be subject to interference with the privacy of their

homes, correspondence or communications save as in accordance
with law and as is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the
country, for the protection of health or morals, for the prevention
of disorder or crime or for the protection of the rights or freedoms
of others. (2) Searches of the person or the homes of individuals
shall only be justified: (a) where these are authorised by a
competent judicial officer;(b) in cases where delay in obtaining
such judicial authority carries with it the danger of prejudicing the
objects of the search or the public interest, and such procedures as
are prescribed by Act of Parliament to preclude abuse are properly
satisfied”. Joubert (writer of the Criminal Procedure hand book,
states that, it appears at the first glance that the searching of
persons and premises, seizure and related matters seem to go
against the spirit and content of the constitution. Therefore, a
search must take place in a dignified manner and in line with the
limitations imposed by Article 22 of the Namibian Constitution,
that whenever or wherever in terms of this Constitution the
limitation of any fundamental rights or freedoms contemplated by
this Chapter is authorised, any law providing for such limitation
shall: (a) be of general application, shall not negate the essential
content thereof, and shall not be aimed at a particular individual;
(b) specify the ascertainable extent of such limitation and identify
the Article or Articles hereof on which authority to enact such
limitation is claimed to rest. The CPA seems to pass this limitation
test as the CPA is a law of general application and is not merely
directed to certain class of persons.
At the end of this unit, students must be able to:
 define a search warrant
 list and explain types of search warrants
30
Criminal Procedure
Outcomes
 Identify and advise on the procedures to conduct a lawful
search
 Discuss the rules of identification parades
Ascertainment of bodily features of an accused

Section 37 of the CPA regulates the obtaining of data through
finger prints, palm and foot-printing, conducting identification
parades, ascertaining of bodily features, taking of blood samples
and taking of photographs.
S v Tanatu (ECJ 2004/036) [2004] ZAECHC 35 (15 October

2004), On the afternoon of 21 February 1999, the mother of the
complainant sent him and his friend on an errand. When they were
returning, a man joined them, walked with them for a while and
then suggested that they go to a shop for a cold drink. Soon
thereafter, the man chased the complainant’s friend away, and
proceeded to force the complainant to accompany him. The
complainant’s friend went to the complainant’s home where he
reported what had happened to the complainant’s mother. She
testified, strangely, that, rather than dropping everything and
proceeding to search for her son, she decided to finish doing her
ironing, even though she appears to have believed the report of the
abduction of her son. In the meantime, the complainant’s assailant
had taken him into some bushes, had forced him to lie on his
stomach and had proceeded to sodomise him. Then the assailant
had forced the complainant to suck his penis before ordering him to
leave. The complainant made his way to a road where he was
assisted by a motorist who gave him a lift home. When he arrived
home, his mother was, she testified, about to go and look for him,
having finished her ironing. A while after arriving home in a
shocked state, he told his aunt what had happened to him. Both the
31
complainant and his friend gave descriptions of the assailant. The

noteworthy features that both described were that he had a
defective eye and scars or marks on his face. (The complainant also
stated that he had a scar on his stomach. This was shown to be
erroneous. It would appear that it was only two days later – on 23
February 1999 – which the complainant’s mother took him to a
doctor to be examined. She had, however, reported the matter to
members of the street committee in the area in which the assaults
on her son had taken place. The street committee undertook the
identification parade consisting of males with similar features as
per description given by the complainant. The identification parade
took place and found the accused guilty on the charge of indecent
assault. The accused appealed his conviction on a charge of
indecent assault, the Conviction was based on an informal
identification parade conducted by the members of a street
committee. The Appeal court held that the irregularities in the
informal identification parade such that no weight could be
attached to the evidence of identification implicating the appellant,
hence his conviction was set aside.
NB*This case devised 18 important rules regarding evidence of

identification parades, students must read the case for this rules.
WHAT IS A WARRANT?
Defined as a document issued by a person in authority under power

conferred, the search warrant authorizes the doing of an act which
would otherwise be illegal. A search warrant is a document issued
by a court and that court’s and authorizes law enforcement officials
to search a person or their property for evidence that can help a
32
Criminal Procedure
criminal case and it allows law enforcement officials to seize those

items needed for the case1.
3.1 Different types of warrant?

 Search warrant,
 Warrant of arrest,
 Warrant of detention,
 Warrant of removal,
 Warrant of liberation
Lawful Search v Unlawful search
Search warrant is a method in our criminal procedure to defend the

individual against the power of the State, ensuring that the police
does not invade private homes and businesses upon a whim, or to
terrorize?
The warrant guarantees that the State must justify and support
intrusions upon individuals' privacy under oath before a neutral
officer of the court prior to the intrusion. It furthermore governs the
time, place and scope of the search, limiting the privacy intrusion,
guiding the State in the conduct of the inspection and informing the
subject of the legality and limits of the search.
3.2 What should the search warrant contain?

States the statutory provision in terms of which it is issued;
Identifies the searcher;
1
Peet M Bekker et all . Criminal Procedure Hand Book. 2005. 7th
edition by Joubert. Juta and Co.
33
Clearly mentions the authority it confers upon the searcher;
Identifies the person, container or premises to be searched;
 Describes the article to be searched for and seized, with

sufficient particularity; and
Specifies the offence which triggered the criminal investigation and

names of the suspected offender.
3.3 The purpose of a search warrant:

the purpose of a search warrant is outlined by s20 CPA, which
is to:
 Seize articles concerned with commission of an offence.

 Seize articles which may afford evidence of commission of
an offence.
 Seize articles intended to be used during the commission of
an offence
Investigating Directorate: Serious Economic Offence v Hyundai

Motor Distributors (Pty) Ltd 2000 (10) BCLR 1079 (CC)
The search warrant may only be issued where the judicial officer
has concluded that there is a reasonable suspicion that an offence
has been committed, that there are reasonable grounds to believe
that objects connected with an investigation into that suspected
offence may be found on the relevant premises, and in the exercise
of his or her discretion, the judicial officer considers it appropriate
to issue a search warrant. These are considerable safeguards
protecting the right to privacy of individuals.
Search warrant must be executed during the day unless execution at

night is authorized in writing.
The search warrant remains in force unless executed or cancelled
34
Criminal Procedure
A search warrant id issued by a Magistrate, judge or judicial officer

presiding at criminal proceedings, (see s21 of the CPA). A
magistrate, judge or presiding officer should consider evidence
under oath (oral or in writing) prior to issuing the warrant
A copy of a warrant to be handed to the accused.
In terms of section 21 (2) of the CPA only a police official whose

name appears on the search warrant is authorised 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 that
premises. On the other hand, the anti-corruption Act 8 of 2003-
on the other hand provides that an authorised officer may search
and seize under a search warrant.
An authorised officer is defined in section 1 in the anti-corruption

Act to include, the director-general, (the deputy director-general,
(an investigating officer appointed under section 13; or (a special
investigator appointed under section 14;
In the case of s v Lameck (cc 11/2010) [2018] NAHCMD 214 (16

JULY 2018) the state seek leave to have six search warrants issued
by a magistrate in terms of s 22(4) of the anti- corruption act, 2003
admitted into evidence. The defence filed a notice of objection in
relation to any evidence that the state wishes to tender that may
have been obtained through searches conducted at different
premises on the strength of the said warrants.
Reason for objection
One of the reasons was that the search warrants fell short of
satisfying the requirements set out in the CPA in that it failed to
specifically mention the name of the authorised officer in the
warrant to conduct the entry and search of the premises. Instead the
35
search warrant stated “all authorised officers” to search the

premises. the court stated that section 22(5)(b) of the anti-corruption act
is peremptory ( must be complied with) and failure to comply thereby
renders the search warrants null and void.
In the case of Van Rensburg v S (CC 24/2012) [2017] NAHCMD

44 (22 February 2017), this case sets out the requirements for a
valid search warrant in terms of sections 21(1)(a), (2) and
25(1)(b)(i)(ii); of the CPA.
Which are;
1. the search warrant must be issued by the magistrate or

justice;
2. the search must be conducted by the police officer/

authorised officer in terms of the anti-corruption act;
3. the police officer’s name who will conduct the search must
be mentioned in the search warrant;
4. the search warrant must be executed by day unless

otherwise authorised;
5. the police official must only search and seize iartilces in

terms of section 20.
In this case the court also declared the search warrant null and void
because it failed to mention the police officer’s name in the search
warrant. The search warrant was addressed “to all policemen”
instead of citing the full names of a particular police officer who
conducted the search, it failed to meet the basic requirement.
further the Bank of Namibia and Namfisa’s employees seized the
articles and not the Police. Bank of Namibia and Namfisa acted
ultra vires;
36
Criminal Procedure
The court stated that this was a violation of accused rights in terms
of article 12 and 13 and dismissed the case.
Seizure of articles is not defined in the CPA, however the

Cambridge English dictionary defines it as:
The action of taking something by force or with legal authority.
There are three grounds on which articles may be seized by the

state:
• the state may seize anything which is concerned in the

commission or suspected commission of an offence,
whether within the republic or elsewhere
• which may afford evidence of the commission or suspected

commission of an offence, whether within the republic or
elsewhere
• Which is intended to be used or is on reasonable grounds

believed to be intended to be used in the commission of an
offence.
Circumstances allowing police officials to search and seize articles

without a search warrant:
In terms of section 22, articles may be seized without a search

warrant, this is for the effective prevention of crime in certain
circumstances.
Section 22 authorises the police official to act without a warrant in

two situations
1. if a person concerned consents to the search of the container

or premises, consents to such a search and seizure of the
article in question or
37
2. if the police official on reasonable grounds believes that a

search warrant in accordance with section 21(1) will be
issued to him if he applies for such a warrant and the delay
in obtaining such a warrant would defeat the object of the
search , boshoff 1981(1) sa 393 (t).
Articles to be transferred to court for the purposes of trial, section

33 of the CPA:
 if criminal proceedings are instituted in connection with the

article seized, such article must be delivered to the criminal
court clerk (in the magistrate court) and to the registrar (in
the high court) before trial commence, if the article is to be
used as evidence during trial or for purpose of an order of
court.
 the prosecutor will then book it out from the criminal court
clerk or registrar to use it as evidence or to bring an
application for the forfeiture of the article.
Forfeiture of articles to the state
After the accused person has been convicted, the prosecutor may
bring an application during submissions for the article seized to be
forfeited to the state. The prosecutor must clearly set out that the
weapon, instrument, article was used to commit the offence with
which the accused is convicted or that it was used in the
commission of the offense and that it should be forfeited to the
state. Section 35(2) provides that if an article was forged or
counterfeited, it will be declared forfeited to the state, whether the
accused person is convicted or not.
Banco Exterior De Espana S.A. v. Govt. of the Republic of

Namibia and another 1996 nr 1(hc)
38
Criminal Procedure
in this case a foreign fishing vessels was forfeited to Namibian

state after masters convicted of contravening sea fisheries act 58 of
1973.
• the masters of certain spanish fishing vessels were

convicted by the high court of namibia for contraventions of
section 22a (4) of the sea fisheries act 58 of 1973, as
amended by the territorial sea and exclusive economic zone
of namibia act 3 of 1990. the vessels concerned had been
declared forfeited to the state of namibia pursuant to section
17(1) of the act.
• the applicant’s banks alleged that they held mortgage bonds

over the vessels and sought in effect declaratory,
recognizing their bonds and, should the vessels be sold, that
the applicants be paid their capital and interest.
Legal issue
Whether rights of foreign bondholders protected?
Activity:
When can a police, official conduct a search on a premise without a

warrant?
Feedback: See section 22
1. Consent
- Party to be informed of the allegations and offence

committed
- Party to be informed of the purpose of the search and

articles to be seized
2. That a search warrant will be issued under section 21(1)(a) if
39
applied for; and
3. That the delay in obtaining such warrant would defeat the object
of the search
– Section 29 alludes that any Search should be carried out in a

dignified manner.
– Females to be searched by a female officer, if no female

officer- a woman designated for that purpose.
– Limit the number of officers conducting the search
– Respect the privacy rights of the party concerned.
NB: it is important for students to acquaint themselves with section

19-section- 36 of the CPA in order to understand the entire search
procedures. Further case law will be provided in class.
In this unit you have learned that a search can either be conducted with
or without a warrant of search, you have also learned that in order for a
search warrant to be valid it the search warrant must be issued by the
Summary magistrate or justice; the search must be conducted by the police
officer/ authorised officer in terms of a particular Act; the police
officer’s name who will conduct the search must be mentioned in
the search warrant; the search warrant must be executed during the
day unless otherwise authorised; and the police official must only
search and seize articles in terms of section 20. You have also
learned the procedure relating to seizure and forfeiture.
Insert Reference here
40
Criminal Procedure
The Namibian Constitution Act 1 of 1990,

Criminal Procedure Act 51 of 1977 as Amended.
References

Namibia.2014.UNAM PRESS.
41
UNIT 4
Arrest, Bail and Other Forms of

Release
Introduction
Students should recall the provisions of S38 which outlines four
methods to secure the attendance of an accused in court, one of
those methods is arrest, an arrested person should be brought in
court within 48 hours for their first appearance where the accused
can be remanded in custody, or released on bail or released on a
warning (s72).
By the end of this unit, students must be able to:
• Set out the procedure for conducting a lawful arrest

• Discuss the instances under which a peace officer may
Outcomes
inflict arrest without a warrant of arrest.
• Evaluate the” use of force” of the Criminal Procedure
• define bail.
• Advise on who has the authority to grants bail in Namibia.
• Discuss the procedure for formal bail application in

Namibia
• Advise complainants and or victims of domestic violence
and rape on their rights on bail proceedings.
42
Criminal Procedure
• Outline the procedure for release on warning.
4.1 Arrest
Arrest is considered as one of the method for securing the

attendance of an accused to court in terms of section 38 of the
CPA. Arrest means the apprehension or restraint of a person, or the
deprivation of a person’s liberty. In Namibia a warrant of arrest is
also called a J50 warrant. A warrant of arrest is issued by a
magistrate or a justice on of the jurisdiction where the offence is
alleged to have been committed on application by the Prosecutor
General, the prosecutor or police officer. The application for a
warrant of arrest must outline the offence allegedly committed and
that reasonable suspicion does exist based on the information
obtained under oath stating that the person in respect of whom the
warrant is requested has committed the alleged offence. It is
important to note that a warrant of arrest is valid throughout
Namibia, this means that a warrant of arrest must be issued by a
magistrate in whose jurisdictional area of where the offence is
alleged to taken place but if the accused is found in another
jurisdictional area, such person can be arrested even though the
accused is not found in that jurisdictional area where the warrant
was issued.
Section 39 of the criminal procedure Act states that an arrest can be

effected with or without a warrant of arrest provided that such a
person submits to custody, by actually touching his body or, if the
circumstances so require, by forcibly confining his body. The
43
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. 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.
HOW TO DETERMINE REASONABLE SUSPICION
Ndjebo v Government of the Republic of Namibia (l3828/2015)

(2017 NAHCMD 140 (15 May 2017). The Plaintiff was arrested
during the early morning of 6 July 2015 by members of the
Namibian Police Force without a warrant of arrest. The sergeant
arrested the plaintiff on a reasonable suspicion on a armed robbery
that took place during the morning of 5 July 2015, the robbery was
recorded by the CCTV indicating that five accused entered the
premises and committed a schedule 1 offence namely robbery. The
sergeant was able to arrest the four accused as they were clearly
identifiable by the CCTV and most of the stolen items were
recovered from the four-other accused’s. However, the CCTV was
unable to identify the fifth accused as the fifth accused wore a
facial mask and a hoodie, it was then during the morning of 6th that
the Sargent was directed to the plaintiff as one of the accused had
phoned the accused. When the sergeant approached the plaintiff,
the plaintiff was unable to point out his place of residence, in fact it
was pointed out by the plaintiff’s girlfriend. Although the sergeant
found nothing at the plaintiff’s place and was unable to prove that
the plaintiff wore the hoodie, the sergeant then arrested the plaintiff
based on his reasonable suspicion because the plaintiff lied about
his place of residence and his reliance on the information supplied
by a confidential informant had proved to be correct and plaintiff’s
44
Criminal Procedure
failure to take the police officers to his (plaintiff’s) place of

residence strengthened the suspicion.
Section 40(1)(b) of the Criminal Procedure Act, Act 51 of 1977

(the Act) provides that a peace officer may arrest any person
without a warrant of arrest whom he reasonably suspects of having
committed an offence referred to in schedule 1, other than the
offence of escaping from lawful custody. Robbery is such an
offence. Reasonable suspicion “will have to be supported by
circumstances sufficiently strong in themselves to induce in a
cautious person the belief that the arrested person has committed a
First Schedule offence”. The court held that A reasonable suspicion
does not equate to what the peace officer subjectively believed
when he made the arrest. A reasonable suspicion must be an
objective reasonable suspicion. The court also held that the said
police officer did not make the arrest on an objective reasonable
suspicion. Therefore, the plaintiff succeeds with his claim for
unlawful arrest and his lost cell phone. It is erred that:
 Defendant shall pay N$ 20 000.00 for the unlawful arrest
and detention of plaintiff.
 Defendant shall return the plaintiff’s cellular phone,

alternatively pay N$ 800.00 in damages.
 Interest at a rate of 20% per annum on the abovementioned
composite amount of N$ 20 800.00 from 15 May 2017 to
date of final payment thereof.
 Costs of suit.
Section 40 outlines 16 instances that a peace officer may rely on in

order to arrest any person without a warrant if such a person:
a) commits an offence in his presence;
b) whom the officer reasonably suspects of having committed

any offence articulated in schedule 1 of the CPA;
c) has escaped from lawful custody or attempts to escape from
45
lawful custody;
d) is found in possession of any implement of house breaking

and is unable to provide evidence that such implements
lawfully belongs to them;
e) (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
46
Criminal Procedure
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
4.3 resisting arrest

Section 49 (2) In light of Namibia’s constitutional dispensation,
Article 6 grants all persons the right to life and the protection of life
thereof. On the other hand, Section 49 (2) of the Criminal
Procedure Act, authorizes the killing, where the person concerned
is to be arrested on the ground that he reasonably suspects 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 justifiable.
47
The Legal Assistance Centre(LAC) strongly believe that “ the police can
only shoot someone if that person poses an imminent danger to the
police officer or someone else in which case that will be in defence
of life. The random and senseless shootings of fleeing suspects by
the law enforcement agencies also creates a culture of impunity
and breeds even more violence’’. The case of Ndamwoongela v S
(ca 43/2017) [2017] NAHCMD 282 (6 October 2017). In this case
it was held that s49 (2) should not be relied upon in instances
where the victim is an innocent party.
Activity:
 What powers does an official of law have when the accused

is resisting an arrest?
 Feedback: students should refer to s49 persons authorized to
effect arrest or those persons appointed to assist in arrest,
highlight the meaning of use of reasonable force if the
person being arrested resist the attempt, flees an arrest.
 Also, students must highlight section 49 (2) for the
requirements of justifiable killing during arrest
Students must also read the following cases before undertaking the
activity. Namely:
 S v coetzee 1993 NR 313 (HC)

• Matlou v Makhubedu 1978 (1) SA 946 (A)
• S v Wiiliam 1992 268
• Iyambo v Minister of Safety and Security (I 3121/2010)

[2013] NAHCMD 38(12 February2013)
• Tjipepa v Minister of Safety and Security (I271-2013)

[2014] NAHCMD 193 (7 August 2015):
48
Criminal Procedure
4.4 Bail
Bail is covered under chapter 9 of the CPA through s58-72. Bail is
described as a contract in terms of which an accused who is being
held in custody is set at liberty upon payment of, or furnishing of a
guarantee to pay, a fixed sum of money and, further, upon express
or implied undertaking to comply with the general conditions as set
out in Section 61, while more specific conditions are set out in
Section 62, other bail conditions may also be added in terms of
Section 63 to supplement Section 62 conditions upon application
by the prosecutor.
The effect of Bail granted is that an accused person who is in

custody shall be released upon furnishing of payment and or
guarantee to pay the sum of money determined for their bail and
that the accused will stand trial at the prescribed time, place and
date2.
Who can grant bail?
1. Police in terms of s59 (applicable to certain offences), this form

of bail granted to accused before first appearance in court. It is not
applicable to any offences under part 2, 3 or 4 of schedule 2. This
form of bail must also be confirmed in court.
2. Section 60 of the Criminal Procedure Act (CPA) grants all

accused person the right TO APPLY for bail, this basically means
2
Definition obtained from:
http://wwwisis.unam.na/theses/witbooi2006.pdf
49
that an accused person has a right to lodge a bail application to the

relevant court for its (court’s) consideration. An accused’s
application for bail depends on the type of offence/charge the
accused person is held in custody and their ability to stand trial see
s60.
It is important to note that s60A was inserted in the CPA for

complainants of rape and or domestic violence victims, see the
Domestic Violence and Combating of Rape Act. This means that
the complainant of domestic violence and or rape have the right to
attend bail hearing and give a bail statement whether he/she objects
to bail or not. And if the accused lodges a formal bail application
the complainant must be made aware of such application regarding
the date, time and place where the bail is to take place.
If bail is granted to such an accused person then the complainant

must be asked, whether to he/she should supplement any bail
conditions in terms of s62 or amend any bail conditions in terms of
s63. The complainant also has the right to request the prosecutor to
present relevant information to the proceedings. In terms of s60A
(2), if an accused person is in custody, the complainant has the
right to be informed of the accused first appearance, his/her rights
and that the accused person intends to apply for bail. If the
complainant of rape or domestic violence is not present at bail
hearing:
The prosecutor must satisfy the court by furnishing the affidavit

that the complainant was aware of the hearing and that the
complainant chose not to attend. The court may continue with bail
or otherwise postpone until the complainant is in attendance
The section further stipulates that the prosecutor has the duty to
inform the complainant of the outcome of the first appearance
whether bail was granted or postponed and the date thereof.
50
Criminal Procedure
4.2 Formal bail application

Although the State/ prosecutor may oppose the accused’s bail
application, the State in opposing the accused’s bail application
must have regard to the rule of law and more so to the principles
developed in the S v Acheson case stating that “an accused person
cannot be kept in detention pending his trial as a form of
anticipatory punishment. The presumption of the law is that an
accused is innocent until his guilt has been established in court”.
Therefore, the prosecutor must present evidence that comply with
the principles established in the Acheson case.
See S v Acheson and another 1976 BLR 13 (HC).
Formal bail application occurs when the state refuses bail of an

accused namely on the grounds as set forth but not limited to:
 Seriousness of the offence

 Possibility of abonnement
 Fear/ possibility of interference with investigations and or
witness
 Not in the interest of the administration of justice
Also refer to S v Pineiro 1999 NR 18 and S v Bennert 1976 (3) SA

652 (C)
Once the State has objects to bail, the accused must then lodge a
bail application and the applicant must show on a balance of
probabilities why the court must grant bail to the accused.
See S v Branco 2002 (1) SACR 531 (WLD) following the principle
of S v Smith and Another 1969 (4) SA 175 N at 177 E-F it was
stated that in bail application court should lean in favour of and not
against the liberty of the accused as long as the interest of justice is
not prejudice.
51
Further reading: S v Jonas 1998 (2) SARC 677 (SE)
Circumstances that would render bail provisionally cancelled:
In terms of Section 67, the court may provisionally cancel an

accused’s bail and provisionally enter a forfeiture of bail money of
an accused who fail to appear for his trial while out on bail. A
Prosecutor may apply to have the accused’s bail cancelled,
however the prosecutor must lead evidence proving that an accused
person has failed to comply with such conditions of bail imposed
upon them in terms of Section 62 and Section 63 , the court shall
and where the accused is in presence and denies that he (s) failed to
comply with such condition or that his/her failure to comply with
such condition was due to fault on his/her part, proceed to hear
such evidence as the prosecutor and the accused may place before
it. If the accused is not present, then the prosecutor may apply to
the court for the court to issue a warrant of arrest of an accused
who has failed to comply with such bail conditions. Bearing in
mind, the accused’s right to appeal to a superior court in
circumstances when bail is denied by a lower court, the prosecution
must at all times lead accurate and traceable evidence in the
accused’s file.
Activity: What remedy is available for an accused who’s bail

application is denied?
Fed back: Students should refer to s65and must stake that an

accused may appeal and that the appeal can be heard by a single
judge if the court is not sitting
4.3 Release on warning in terms of s72

An accused is likely to be released on warning, if there are no
reasons that accused person will abscond or evade justice. No
accused may be released on warning for contravening offences
52
Criminal Procedure
stipulated under part 2, 3, 4 of schedule 2 offences .it is important

to note that the accessed is released and then warned to appear at a
specified date and time and that failure to appear will amount to an
offence and accused re-arrest in terms of s 72 (4)
Activity
When is, bail considered to be urgent?
Feedback: students should read: page 274-276, Mapaure,C et all.

The Law of Pre-trail Criminal Procedure in Namibia.2014. UNAM
PRESS. Students should also refer to case law such as Garces v
Fouche and Others 1997 NR 278 (HC) and the 2019 case of
Dimbulukweni Nauyoma AR Activist (citation will be provided
during class period)
Insert Summary here
In this unit you learned the procedure for effecting a lawful

arrest. You may recall the instances under which a peace
officer may effect without a warrant of arrest. You have
also learned the application of the use of force by peace
Summary officers. This unit has also unpacked the procedure for
bail application, who grants bail and the rights of
complainants of domestic violence and victims of rape in
bail proceedings.
References
The Namibian Constitution Act 1 of 1990
53

54
Criminal Procedure
UNIT 5
SUMMARY TRIAL
Introduction
Once investigations have been completed and steps are taken to
ensure the attendance of an accused at trial and the charges against
the accused person are formulated then trial will commence 3.
NB*Self-study, students must asquint themselves with s s80-104 of

the CPA on the elements, amendment, objection to and drafting of
charges, the author has also included an example of a charge
without annexures at the end of this chapter.
• At the end of this unit, students must be able to:
• differentiate between summary trial and Preparatory examination.
Outcomes • Discuss the 48hour rule.
• Set out the procedure for division of offence.
• Evaluate the accused’s capacity to understand the proceedings

and the accused’s capacity to appreciate the wrongfulness of his
or her act.
• Outline the procedure for disclosure and the consequences

for denning disclosure.
3
55
5.1 Summary trial

Once the prosecution has drafted the charge (s), the accused must
plead to the charge in terms of s106. Simply put, a plea is an
answer to the charge put against the accused. An accused can
answer any of the following to the charge:
 that he/(s) is guilty of an offence;

 that he/(s)is not guilty of the offence;
 that he/(s) has already been acquitted of the offence;
 that he/(s) has already been convicted of the offence;
 that he/(s)has received a presidential pardon from the
accused;
 that the court has no jurisdiction to trial the offence.
Section 105 of the CPA authorizes an accused to plead any two

pleas’ together except that a plea of guilty may not be plead with
another plea to/on the same charge; another important factor to note
is, if the accused wish to plea anything that is not a plea of guilty or
not guilty then the accused must give the prosecution reasonable
notice to the prosecution of his intention to plead otherwise, and
must also state the basis for his/her plea. Also, an accused person
who plead that the court has no jurisdiction or an accused-on behalf
of whom a plea of not guilty is entered, is entitle to demand that he
be acquitted or convicted.
Activities: What happens to an accused who refuses to plea?
• Answer: See s109
Activity: what happens if an accused person is brought before a

court that has no jurisdiction? And accused person does not plead
that the court has no jurisdiction?
Answer: see s110
56
Criminal Procedure
Activity
Discuss the 48-hour rule
Students are expected to refer to s50 of the CPA and read P. Bekker
et all. Criminal Procedure handbook. 7ed by Joubert. Juta and Co.
at page. 102-104. Students are also expected to discuss S v
Mbahapa 1991 NR 274 (HC) the locus classicus on this topic.
The court of first instance is normally the Magistrate court, this

means that this is the court in which the accused person is to appear
for the first time. The court (magistrate’s court) will explain the
charges against the accused. During the first appearance, the
accused may also inform the prosecution of its intention to apply
for bail and the date for bail hearing will be set down.
If it appears that the court of first instance has jurisdiction then the
accused can be tried summarily (see s75 of the CPA read with
s119, s122A and s123, this basically means that if an accused is to
be tried in a court in respect to an offence, he /(s) shall subject to
the provisions of s119, 122A and s123 be tried at a summary trial
in a court (a) with jurisdiction and in which the accused made their
first appearance (b) in a court with jurisdiction and to which he
was referred to and (c) in any court which has jurisdiction and
which has been designated by the prosecutor General for the
purpose of such summary trial.
Therefore, a summary trial is a trial that is not preceded by a

preparatory examination, If the court has no jurisdiction then the
accused must be referred to the court with jurisdiction. This form of
57
a trial is subject to s119, when the accused person is asked to plead

by the prosecution4.
Students may also read s 122A, which applies to when an accused

is asked to plead in a magistrate court on a charge to be tried in a
regional court. NB* if an accused pleads guilty in a summary trial,
he/she may be convicted on a charge and sentenced immediately.
The general principle around the guilty plea is that there is no
dispute between the accused and the state. When an accused pleads
guilty in a court of law, the court is tasked to evaluate whether the
accused plea to a serious offence or a minor/less serious offence. If
it appears that the accused pleads guilty for a less serious/minor
offence, then the case can be finalized on the plea of the accused
without presenting any evidence. In terms of s 112 (1) (a) the court
can convict an accused on his plea of guilty alone without any
evidence having been placed before the court, if the prosecutor
accepts that the plea and the evidence and the presiding officer is of
the opinion that the offence does not merit punishment or
imprisonment or any other form of detention without the option of
a fine exceeding the amount determined by the Minister from time
to time by notice in the Gazzette. Horn5, states that it is important
to note that –the court should only convict the accused if the court
has satisfied itself that, in the opinion of the court, the offence
concerned is not punishable with:
i. Imprisonment or other form of detention without the option

of fine or;
ii. A fine not exceeding the amount of N$ 6000.00.
4
ibid.
5
Updated by Prof N Horn. Justice Training Centre professional
Legal training (PLT) Criminal Procedure. 2011. Law Society of
South Africa and its educational arm,LEEAD as ePLT 2009.
58
Criminal Procedure
However, practice has shown that an accused, especially where he

is unrepresented often pleads guilty due to ignorance or does not
admit all the elements of an offence in a more serious offence, then
the court will apply s 112 (1) (b) and s 112 (2) where the court is of
the opinion that if the offence merits imprisonment or another form
of detention without the option of a fine or a fine in excess of N$
6000.00, court must question the accused in order to establish
whether the accused does indeed admit all the elements of the
offence to which he pleads guilty. If it appears that the accused
does not admit all the elements in a charge to the offence, then the
presiding officer may record a plea of not guilty in terms of a
correction of plea as stipulated under s113. See the case of S v
Aebeb (cr 53/2013) (2013) NAHCMD 243 (15 August 2013) and
also S v Hausiko 1992 NR 225 HC accused was facing a charge of
attempted murder or alternatively assault GBH. The accused
pleaded not guilty to murder and guilty to alternative charge. The
prosecutor accepted the plea and the magistrate used s113.
Before a summary trial commences in a superior court, the PG may

order that a Preparatory examination be held or that an accused be
required to plead in magistrate court to a charge against him
although that court has no jurisdiction to try the offence or to
impose what the PG considers to be appropriate sentence.
Preparatory examination is not a trial because the final decision in
the proceedings lies with the prosecution and not with the court. It
is an examination before the magistrate court to determine whether
the evidence presented before it justifies a trial before a superior
court or any other court which has jurisdiction. Preparatory
examination determines whether the prosecution has a case and
59
whether it is a case that should be prosecuted in a superior court or

another court. See s123 of the CPA.
A typical example of a case currently on Preparatory Examination

is the Namibian fishrot case,6 this is a case involving the case of
former Cabinet Ministers Benard Essau and Sacky Shanghala and
five others as their accused for fraud and other separated offences
for some accused on such charges of corruptly giving gratification
as an inducement, a contravention of the Anti-Corruption Act, or
alternatively improperly influencing an authorized officer and
defeating or obstructing the course of justice. In this case although
the offence is of a magnitude that requires a trial in the high court,
the accused persons continue to make appearance in the magistrate
court with involvement of high court advocates, this process is
called a preparatory examination.
5.2 Capacity of an accused

An accused’s capacity to understand the proceedings is a principle
of criminal law and procedure, which precedes that only persons
who are capable of understanding the trial proceedings and capable
of conducting a proper defense should be trialed. 7
Therefore, the mental capacity of an accused person is questioned

at trial on two different accounts:
1. the accused ability to understand the proceeding and to

make a proper defense
 See to s77=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 out a proper defense, the court
6
https://neweralive.na/posts/fishrot-court-case-postponed-to-april
last accessed 6 January 2020.
7
60
Criminal Procedure
shall direct that the matter be enquired in to and be reported

on in accordance with the provision of s 79. if the findings
of the report are unanimous under s 79 enquired into under
the mental condition of the accused and the finding is not
disputed by the prosecutor or the or the accused the court
may determine the matter without hearing further evidence.
 If the report is not unanimous or is unanimous and is
disputed by the prosecutor or accused, the court shall
determine the matter after hearing the evidence.
2. The accused ability to appreciate the wrongfulness of the
act or omission and acting in accordance with the
appreciation of that wrongfulness.
 S78 = accused at the time of the commission of the offence
(pathological or non-pathological)
• See S v Shivute 1991 NR 123 HC= the accused must prove
on a balance of probabilities of their condition.
• In S v Hansen 1994 NR 5 (HC) the court must not just have

regard to one medical observation but rather 3 of which one
the accused person must choose.
5.3 Disclosure
This is a process that happens prior to trail and it forms part of the
legal proceedings whereby the parties to the legal suit disclose to
other parties the extend the existence of any relevant document that
are or have been in their control8.
8
Clever Mapaure et all. The Law of Pre-trial Criminal Procedure
in Namibia. 2014.UNAM PRESS.
61
• Not in the criminal Procedure Act, it is articulated in Article

12 1 (e) of the Namibian Constitution.
• All accused’s have the right to disclosure.
S v Nassar accused was brought before court on an indictment on a

charge of contravention of the 1939 Proclamation ACT for
purchasing more than one thousand diamonds. Accused’s
counsel/defense applied for disclosure, the state to disclose to the
defense copies of all witness statements in its possession relating to
the charges contained in the indictment, as well as to grant the
opportunity to view and listen certain audio and video in the State’s
possession.
The state objected to disclosure of such information on the basis

that it would prejudice the police in the exercise of their duty to
investigate cases of this nature, investigation methods, names of
witness and afford an opportunity to the defense to alter its
deffence and possibly abscond. Defense alluded that this was
necessary for Article 12 in order for the defense to prepare its case.
Court held that the state must disclose, but that did not mean that
they could not object disclosure on the basis of classical or true
privileges
• That the state bears the onus on a balance of probabilities.
• Read S v Angula and others 1996 NR HC 326: The state

must disclose all materials in its possessions unless it is
privilege information, irrelevant
Activity: What are the exceptions to disclosure?
Students must state the following as the exception to the right to

disclosure, when disclosure has the potential to:
 disclose the identity of the informer which is necessary to

protect
62
Criminal Procedure
• disclose police techniques which is necessary to protect
• jeopardize the safety of witness
• when disclosure is against the interest of the public and or

the state
students must also study the consequences of failure to disclose,

which is sometimes interpreted as denial of a fair trial read S v
Kandozazu 1998 NR 1 SC .
In this unit, you learned the difference between summary trial and
preparatory examination, you have also learned about the
interpretation of 48-hour rule, that is to say that an arrested person
must be brought to court within 48 hours of their arrest. You have
Summary
also learned that in terms of Namibia’s criminal procedure, an
accused person must have the capacity to understand and follow
their criminal proceedings as well as the necessary capacity to
appreciate the wrongfulness of his/her act during the commission of
the offence. In this Unit, you were also able to learn about the
procedure for disclosure as well as the consequences for failure of
the state to disclose to the accused.
The Namibian Constitution Act 1 of 1990
References Peet M Bekker et all . Criminal Procedure Hand Book. 2005. 7th edition


63
UNIT 6
TRIAL
Introduction
The criminal trial begins once the accused has pleaded in the trial
court. There are two stages to the criminal trial, namely (a) the
prosecutor may address the court and adduce evidence and (b)
Accused may address court and adduce evidence. This chapter will
shed more light on these two-trial procedures.
• Define trial procedure.
• Differentiate between examination in chief and cross

examination.
Outcomes
• Discuss the trial stages.
• Apply the procedure for sentencing in a real-life case.
A. Prosecutor may address the court and adduce evidence

The prosecution is the first to address the court and adduce
evidence in a criminal trial. 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
64
Criminal Procedure
what evidence the prosecution intends adducing in support of the

charge9.
Examination in chief:
Student’s should note that the author is merely using the
prosecution to explain examination in chief using seeing that the
prosecution starts its case first, but should note that the same rules
and principles apply for the defence/accused case. Examination in
chief takes place for example when the prosecutor introduces a
witness by asking them open ended questions relating to the
charge. During examination in chief you want a free flow of events,
therefore the prosecutor being the first to call his/her witness would
not want to interrupt the witness. On a charge of murder, i.e. the
prosecutor would ask the witness to narrate the events of a
particular date as it relates to the charge, this allows witness to tell
the court everything, who/what they saw on that date, time and
place. It important during examination in chief for the prosecution
to cover all the elements of the offence in the charge. Again, using
the case of murder as an example, the prosecution may ask the
witness to inform the court what object the witness saw used by the
accused in the commission of the offence. If the witness stipulates
that the witness saw the accused using a knife, ask them how big
was the knife and how the knife was used and how many times the
accused stabbed the deceased etc. to establish the act and intention.
The prosecution would also know if the accused has indicated a
defence, then an example of examination in chief would be i.e. the
prosecution may ask the witness what they would say if the
accused said they were acting in self-defence. It is not advisable to
ask specific questions during examination in chief, you must
9
See s150 (1) of the Criminal Procedure Act 51 of 1977 as
Amended.
65
remember that you are in control and must direct the witness to the
point you want them to concentrate the events that brought about
this case. Also see s150 (2), it states as follows: (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.
Cross examination
It is important to note that the prosecution will not cross examine
its witness and vise versa, this is because cross is a step used to
discredit the witnesses’ evidence. i.e. the prosecution may cross
examine the defence’s/accused’s witnesses and vise versa for the
defence/accused’s case. When conducting cross examination, one
must ask leading questions, you don’t want to give the witness the
opportunity to correct what they said in examination in chief. You
want the witness to leave the gap/create doubt in the courts mind in
order to discredit her/his or her version. for example, using the
same scenario above on the offence of murder, the defence may ask
the witness what distance would you say were you far apart from
the accused and the deceased? This question would be to discredit
the witness evidence that he/(s) probably not see properly of the
events if the witness was for example 500 meters away from the
scene.
During cross examination, you want to indicate the point which

you want to put to the witness, during cross examination you must
66
Criminal Procedure
use leading questions and not open ended questions. Leading

questions provide for effective cross-examination because the facts
are supplied by the lawyer (both defence and prosecution) instead
of the witness It is important to note that during cross-examination
you do not want a witness to tell their story; you want them to
verify the particular matters that you put to them.
NB*the defence has the right to cross examine all witnesses called
by the prosecution. See Article 12 (1) (d) of the Namibian
constitution. Section 166 of the CPA grants the accused the ability
to cross examine any witness called by the prosecution at criminal
proceedings or by the co-accused, the prosecution has the same
right to cross-examine any witness including the accused at
criminal proceedings.
Re-examination of prosecution witness
This is done to clarify events of the prosecution’s own witness and

vise versa. The prosecution must use re-examination to clarify their
own witness’s version. It is also important for students to note that
the prosecution must ask facts emanating from cross examination,
and not necessarily new questions.
 See S v Shikudule (CR 17/2015) 2015 NAHCMD 126 (5

June 2015)
 Also, see S v Thomas (CA 98/2009) 2011 NAHC 301
(7October 2011) a case relating to cross examination
regarding to a document.
Closing of the state case
The prosecution being dominus litis in the criminal proceeding,

after leading all its evidence, the prosecution may close its case.
67
Accused may be discharged at the close of the state’s case
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. The purpose of s174 is to acquit the accused where there
is no evidence on which a reasonable court can convict
The court’s interpretation of no evidence as articulated by s174:
"no evidence" in terms of the s174 means no evidence upon which

a reasonable court, acting carefully, may convict (see eg S v Nakale
2006 (2) NR 455 (HC) at 457 and the authorities there cited).
 Somewhat more controversial is the question whether

credibility of the State witnesses has any role to play when
a discharge is sought under the section. But the generally
accepted view, both in Namibia and in South Africa,
appears to be that, although credibility is a factor that can be
considered at this stage, it plays a very limited role. If there
is evidence supporting a charge, an application for
discharge can only be sustained if that evidence is of such
poor quality that it cannot, in the opinion of the trial court,
be accepted by any reasonable court (see eg S v Mpetha
1983 (4) SA 262 (C) at 265; S v Nakale supra at 458). Put
differently, the question remains: is there, having regard to
the credibility of the witnesses, evidence upon which a
reasonable court may convict?
 Summary of S v Teek (SA 12/2017) [2018] NASC 412 (03

December 2018); the judge stated that it cannot avoid the
inference that in the circumstances the Court a quo's
opinion to the contrary was so unreasonable that it could not
have properly applied its mind to the matter. As to the
68
Criminal Procedure
charge of abduction, there is no direct evidence that the

respondent intended to have sexual intercourse with the two
girls, which is an essential element of the crime. In fact, as
pointed out by the respondent's counsel in argument, there
are indications that he may not have intended to do so. On
the other hand, as I see it, a discharge of the respondent
solely on the charge of abduction alone will have very little,
if any, effect on the further proceedings. Sitting as a court
of first instance, I would therefore, in the exercise of my
discretion, have refused a discharge on the charge of
abduction as well. Since the Court a quo had failed to
exercise its discretion on this aspect, we must do so in its
stead on all the charges, including abduction.
 The court held that in terms of s174, if, at close of case

for prosecution, court considers there is no evidence that
accused committed the offence/any other offence of which
he may be convicted - court may return verdict of not
guilty, ‘the interpretation of no evidence’ interpreted as ‘no
evidence on which a reasonable man could properly
convict’ and that Evidence referred to includes only
evidence which is led by state - does not include
Admissions by Accused under section 115(2)(a)
Activity
Identify the test developed by courts when dealing with a s174
application.
Feedback: students must discuss the following cases:
 S v Kapika 1997 NR at 291 no evidence does not mean no

evidence at all, but merely that there is no evidence upon
which a reasonable court acting carefully can convict. See
also S v Teek 2009 (1) NR 127 (SC)
69
 S v Schupping and Others 1983 (2) SA 119 (B)

 See the guidelines for considering s174 discharge as
outlined in S v Nakale 2006 (2) NR 145. Therefore, the
student must provide the grounds on which the discharge
will be set aside. Students must discuss the constitutionality
of placing the accused on his defence.
The consequences of the refusal of a court to discharge accused

person upon conclusion of state's case, it should be noted that this
is not in itself a ground for appeal/Review - except where such
refusal amounts to irregularity (discretion improperly exercised). It
should be noted that where there is only mention of one accused in
a charge, there is no possibility of prejudice as all the defence has
to do is close their case. If accused's application for discharge is
successful – the Prosecution may lodge an appeal in terms of
s310 the appeal must crafted be based on the question of law and
not necessarily on findings as to the facts. If the appeal is upheld,
the case is likely to be remitted to court a quo and trial is proceeded
with trial.
Court may discharge the accused mero motu, the Court may
discharge the accused especially if the accused is undefended
accused, failure of the court dismissing the accused may be
considered as an irregular proceeding.
B. Accused may address court and adduce evidence
151. (1) (a) If an accused is not discharged in terms of s174 at the

close of the case for the prosecution, the court shall ask him
whether he intends on 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 he intends to adduce on behalf of the defence.
70
Criminal Procedure
Section 150 (b) The court shall also ask the accused whether he
himself intends on giving evidence on behalf of the defence, (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) such other evidence on
behalf of the defence as may be admissible, 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.
The defense’s case: examination in-chief
An accused who chooses to testify, must either testify from the

witness box or from the dock after the court has so informed the
accused. If the accused chooses to testify, then the accused will
narrate his/her story by examination in chief and so will the
accused’s witness if accused chooses to call witnesses.
Cross examination:
The same principle applies for cross examining the defence

witness, it is important to note that the prosecution may also cross
examine the any witness including an accused called on behalf of
defence at criminal proceedings.
Re-examination by the defence/accused’s case:
71
The defence must re-examine its own witness to clarify facts that
transpired during cross examination. It is important to note that no
new facts may be introduced at this stage.
6.1 Final arguments:
After all the evidence, has been adduced, the prosecutor may
address the court, and thereafter the accused may address the court.
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 10.
The Verdict:
A may verdict results in either a conviction or an acquittal of an

accused. It is also important to state that an accused may be found
guilty on a competent offence. See chapter 26 of the Criminal
Procedure Act. Students should also refer to chapter 27 for
previous convictions.
6.2 Sentencing
Sentencing is the event following the verdict, if an accused person
is convicted in a criminal prosecution the accused will then be
sentenced. Sentencing basically refers to the imposition of a
penalty/punishment to a convicted accused and is ordered by the
court. The Author, consider sentencing as one of the most difficult
tasks of the court. After conviction: the prosecution will indicate
whether the accused has any previous convictions before
sentencing. Although courts have wide discretion when it comes to
sentencing, courts are limited by the legislature and expected to
10
S175 (1) and (2) of the Criminal Procedure Act as Amended.
72
Criminal Procedure
heed and apply Article 8 (2) of the Namibian Constitution when

imposing sentencing to an accused.
The general principle regarding sentencing can be seen in the case

of Rabie 1975 (4) SA 855 (A), where the court held that punishment
should fit the criminal as well as the crime, be fair to society and be
blended with a measure of mercy according to the circumstances.
Courts are also expected to take into account the main purpose of
sentencing which is mainly retribution, deterrence, prevention and
rehabilitation.
Chapter 28 in the CPA deal with sentencing, in particular s274

states that a court may, before passing sentence, receive such
evidence as it thinks fit in order to inform itself as to the proper
sentence to be passed. And the accused may address the court on
any evidence received under subsection (1), as well as on the
matter of the sentence, and thereafter the prosecution may likewise
address the court.
The procedure during sentencing:
(a) Accused to present mitigating factors

(b) Prosecution to present Aggravation factors and previous
conviction will be considered in terms of s271 to s273.
Mitigating factors may either be done by the accused or
representative from the bar
Nature of punishment is outlined in s276 of the CPA, which

include but is not limited to punishment of:
• Life imprisonment Fine

• Imprisonment or periodical imprisonment
• Committal to any institution
• Habitual criminal
• Form of punishment to the offender
73
S v Zinn 1969 (SA) 537 (A) is most probably the most cited case on
sentencing because its provision of a basic triad of sentencing
considerations: the crime, the criminal and the interests of society.
The sentencing triad was also applied in the case of S v Uri-Khob
(CC 11/2012) [2013] 137 NAHCMD (21 MAY 2013): The accused
was convicted of murdering his wife by stepping her 8 times with
dolus directus, and common assault at the age of 52. The accused is
a first offender and expressed remorse. The Deceased was stabbed
8 times and it is aggravating that accused and deceased were
involved in a domestic relationship. The accused was sentenced to
30 years’ imprisonment on murder and 1 year on common assault.
Sentence of 1 year to run concurrently with the sentence of 30
years on murder. The court held that in terms of our law there are
three factors that play a role when it comes to sentencing namely:
(a) the personal circumstances of the accused

of S v Tjiho 1991 NR 365 where it was held that: The personal
circumstances of the accused must be weighed in relation to the
interests of society. It is in the interest of society that the accused
receive an appropriate sentence. Furthermore, law and order must
prevail in society. Society expects the court’s protection against
lawlessness. The accused must be prevented from repeating his
crime and if possible reformed and others must be deterred from
doing what the accused did. It is in the interest of society that
criminals who have served their sentence be accepted back into the
society. Should society feel that punishment imposed on a criminal
is inadequate, society may well hesitate to accept such person back.
Furthermore, the criminal himself must feel that having paid his
debt to society he will be accepted back.
(b) the interest of society

• There must be a clear distinction between public opinion
and public interest.
74
Criminal Procedure
See Magdalena Stoffels case 11 , this was a case where over

3000 people marched to Deputy Prosecutor General (Johny
truder at the time), described as this case at the most prominent
Gender-Based Violence case of all times.
(c) The nature of the crime (seriousness of the offence)

It’s an aggravating factor in nature when it comes to imposing
sentencing, for example the introduction of the Combating of
Domestic Violence Act 2003 demonstrates that the crime of
domestic violence is serious in nature, that is because the
government went on further to introduce a legislation to combat
domestic violence. In terms of the Criminal Procedure Act, any
offences under schedule 2 part 3 and 4 are considered as very
serious offences. There is no doubt from the courts that murder is
also a serious offence which calls for severe punishment. The
sentence imposed for such crime must fit the true nature and
seriousness of the crime. Every person is granted a constitutional
right to life, however one cannot overlook sentencing, it must also
be blended with a certain measure of mercy.
Activity: what is the purpose of suspension sentencing?
Feedback: in their answers students, must include to curb

committal of similar offence or related offences by accused. Must
also state that suspended sentence must not exceed 5 years.
Students must read and refer to s297 of the CPA. Suspended
sentence basically means when the sentence is not put into effect
unless the accused bridges the conditions imposed in the period of
suspension. For example, if an accused is charged with theft and
given 4 years’ imprisonment, of which 12 months’ imprisonment is
11
The government of the Republic of Namibia v Fillipus (SA
50/2016) [2018] NASC 12 (06 April 2018);
75
suspended for a period of 3 years on the condition that during that

period he/she will not be convicted of theft again. A sentence may
either be wholly suspended or partly suspended. If the accused
convicted commits the same offence, then the suspended sentence
takes effect. The imposition of a partially or wholly suspended
prison sentence comprises two distinct stages. Firstly, the court
must decide upon a suitable period of imprisonment and secondly,
upon the suspension of part or all of it. See S v Olyn en Ander 1990
(2) SA 73 (NC). While in S v Nangolo1994 NR 209 (HC) at 211.
The accused must understand what he or she has to do or, where a
prohibited act is embodied as a condition of suspension, what the
accused must avoid doing in order to ensure that the suspended
portion of the sentence is not put into operation. In S v
Skrywer1990 NR 343 (HC). It was held that the sentence must be
(a) related to the offence or crime in question, i.e. it must not be so
wide that it has no nexus with the offence concerned. (b) It must be
clear and the accused should know exactly what conduct may lead
to him having to serve the sentence. (c) It should not be breached
by a petty contravention and (c) its duration should be clear and
cannot exceed five years.
Stages in the trial procedure
a) Accused will appear in court and takes position in the dock,

all criminal proceedings in any court shall take place in the
presence of the accused. See s158 of the CPA.
b) Prosecutor places particulars of the case and appearance of
the day on record and informs the court that the state is
ready to put the charge to the accused.
c) Presiding officer indicates to the prosecutor to proceed.
d) Prosecutor will read out the charge to the accused, 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
76
Criminal Procedure
evidence the prosecution intends adducing in support of the

charge in terms of s150.
e) The presiding officer will then then enquire from the
accused if he/she understands the charge put to him/her and
how he/she pleads.
f) 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, which stipulates that an
accused may plead any of the following plea’s as articulated
in s106,namely: (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 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.
AT THIS STAGE, TWO THINGS CAN HAPPEN: (accused can

either plead guilty or not guilty) (a) If accused plead NOT guilty
then the provisions of s115 (1) will be applied 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. In line with s162 and 163 of the CPA, the
prosecution will call its first witness, the witness will take the
witness box and the witness will be sworn in. the prosecution will
77
then lead evidence in chief and cross examination in terms of s166

will kick in and the prosecution will have the opportunity to re-
examine the witness I terms of s166.
 Witness is excused by the presiding officer

 The prosecutor calls second witness and the process of
witness taking the witness dock and swearing in of witness
repeats until all the evidence of the prosecution is led.
 Prosecutor closes the case for the state
 Defence may apply for s174 discharge, the prosecution will
be given an opportunity to address the court I order to
respond to the application. If the accused’s application is
successful, then the accused is acquitted.
 If the application for s174 discharge is unsuccessful then,
then the defence (accused) has the opportunity to present its
case or to close its case without leading any evidence. It is
important to note that the accused has similar rights to those
conferred by s150 of the CPA to address the court before
presenting his/her case in terms of s151 which stipulates
that 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.
 Accused’s must elect whether he/she will testify from the
witness box or from the dock see s196 and also s162-s163.
 Prosecutor will also have an opportunity to cross examine
the accused in line with s166 of the CPA.
 At this point it is important to note that the presiding officer
may ask questions to an accused to clarify certain matters.
78
Criminal Procedure
 Depending on whether accused is represented or not, if the

accused is represented then then the legal representative
will re-examine the accused.
 The defence will call its witness and the same procedure of
witness taking the witness box and sworn in then
examination in chief and cross examination takes place, it is
important to note that the prosecution will also be given the
opportunity to cross examine the defence case. The court
continues to have the discretion to ask questions to both the
accused and the accused’s witnesses.
 The defence will close its case after re-examination.
 Prosecutor addresses the court in terms of s175 which states
that 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.
 The defence will address the court on the merits of s175
CPA
 Prosecution has the opportunity to reply to address of the
defence case
 Presiding officer delivers judgment
 If accused is convicted then the prosecution will put
previous conviction to the accused, this is in line with s271
of the CPA, the court will also ask whether the accuse
denies the previous convictions alleged by the prosecution.
 The defence has the opportunity to address the court in
mitigation of sentence, to call the accused to testify under
oath and or call witness in mitigation of sentence. If
evidence is presented under oath, then the prosecution has
the right to cross examine these witnesses and the court may
79
also ask questions. The defence have the right to re-examine

see s274 (2) of the CPA.
 Sentencing
(b) if the accused plea’s GUILTY, then the accused will hand a
written statement to the court in terms of s112 (2), 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. The court may at its discretion put any questions
to the accused in order to clarify any matter raised in the statement.
The accused must state all elements they are admitting which will
not be proven and recorded in terms of s220.
 The defence has the opportunity to address the court in

mitigation of sentence, which is to call witnesses in
mitigation of sentence. If evidence under oath is presented
the prosecutor has the right to cross examine these
witnesses and the court might also ask questions. Legal
representative has the right to re-examine in terms of s274
(2) of the CPA.
 It is important to note that the court may also call witnesses
as it thinks fit in order to inform itself as to the proper
sentence to be passed.
 Prosecutor and defence have the right to cross-examine
these witnesses in terms of s274 (1) of the CPA.
 Sentencing: if accused person is acquitted and was out on
bail, refund of bail money and a warrant of liberation is
issued.
80
Criminal Procedure
In this unit, you learned the description of trial procedure as well as

the stages in the trial procedure. You have also learned about the
difference between examination in chief and cross examination.
You have also learned the purpose and the application of
Summary sentencing procedure taking in to consideration the sentencing triad
developed in the most quoted case S v Zinn.
Peet M Bekker et all . Criminal Procedure Hand Book. 2005. 7th

edition by Joubert. Juta and Co.
References

81
UNIT 7
7.1 POST-TRIAL
by the end of this Unit, students must be able to:
• Define post trial procedure,
• Discuss the differentiate between review and appeal

procedure.
Outcomes
• Apply the procedure for review and appeal in a real-
life case.
Introduction
Review and appeal are post trial remedies that are available to both
the defence and the prosecution to use. This procedures are well in
line with Article 12 (1) of the Namibian constitution which
stipulates that, in the determination of their civil rights and
obligations or any criminal charges against them, all persons shall
be entitled to a fair and public hearing by an independent, impartial
and competent Court or Tribunal established by law: provided that
such Court or Tribunal may exclude the press and/or the public
from all or any part of the trial for reasons of morals, the public
order or national security, as is necessary in a democratic society.
Therefore, an accused who is dissatisfied with the outcome of

his/her criminal trial in a lower court (ie, a district or regional
court) may bring the matter before the high court, having
jurisdiction by way of either appeal or by way of a review. The
general principle is that an accused who is seeking redress from a
decision or an order made by a court of first instance should appeal
against such conviction and or sentence. However, where an
irregularity in the criminal proceedings against the accused person
82
Criminal Procedure
is involved then such should seek relief by way of review. In Ellis

v Morgan; Ellis v Dessai 1909 TS 576 at 581 the court held that an
irregularity in the proceedings does not mean an incorrect
judgement; it refers not to the results, but to the methods of trial,
such as for example, some high handed or mistaken action which
has prevented the aggrieved party from having his case fully and
fairly determined.
1. Procedure on review:
The criminal Procedure Act provides for various ways in which the
high courts may review criminal proceedings in lower courts, and
by whom such review procedure may be instituted, namely:
a) Automatic review in terms of s302
The case of S v Brandt (CR 53/2017; CR 53/2017) [2017]

NAHCMD 230 (17 August 2017), The two accused, Paul
Brandt and Stephanus Christiaans pleaded guilty to charges of
possession of mandrax tablets containing methaqualone. They
were questioned by the magistrate in terms of s 112(1) (b) of
the Criminal Procedure Act 51 of 1997 as amended, thereafter
they were convicted and sentenced to a period of 12 months’
imprisonment each. On review, the court set aside the
conviction and sentence of both accused imposed due to failure
by the magistrate to ask whether the tablets that the accused
possessed contained methaqualone or not. As a result, the cases
were remitted to the court in order to question the accused
properly and prove the methaqualone substance by means of a
scientific certificate.
Students may also read the following cases on review:
 S v Rooi (CR 3/2018) [2018] NAHCMD 12 (01 February

2018)
83
 S v Koopman (CR 24/2018) [2018] NAHCMD 79 (05 April

2018)
b) Extraordinary review in terms of s304 (4)
In the case of Muruko v Mieze (CR 37/2013) [2013] NAHCMD

228 (31 July 2013). This matter was sent on special review in terms
of the provisions of s 304(4) of Act 51 of 1977 by magistrate Mr.
Endjala in Windhoek. The magistrate drew the judge’s attention
that magistrate attended a maintenance order and that the
magistrate court unlike the high court has jurisdiction to do so, that
such order is irregular and illegal and asks for the ratification of
such order.
The order given by the presiding magistrate on 26 February 2013

reads as follows:
‘1. The defendant is ordered to pay monthly an amount of N$2000

towards maintenance of the beneficiary.
2. Payments must be made to the complainant by depositing into

her bank account, on or before the 3rd day of each month with
effect from 03 July 2012.
3. This order substitutes all previous maintenance agreements and

orders.’
It is apparent from the record of the maintenance enquiry in the

magistrate’s court, that the reason the special review also called the
extraordinary review was ordered, appears from the reasons for
judgment by the magistrate, which reads as follows:
‘Ms Kagnetta applied that the maintenance order be backdated to

03 July 2012. Her reason was that the defendant is the one who
delayed the case for so long because he wanted a legal
representative. This application was not opposed. Also the court is
of the view that the defendant didn’t contribute much during the
past year, and that the complainant is entitled to a backdated order.’
84
Criminal Procedure
Section 25(1) of the Maintenance Act 9 of 2003 provides as

follows: ‘Save as otherwise provided in this Act, any order or
direction made by a maintenance court under this Act has the effect
of an order or direction of the said court made in a civil action.’and
s 13(4) reads as follows: ‘Subject to subsec (5), the Civil
Proceedings Evidence Act 25 of 1965 in so far as it relates to the
admissibility and sufficiency of evidence, the competency,
compellability and privileges of witnesses, subject to necessary
changes, applies to an enquiry conducted under this Act and any
matter related to the conduct of proceedings at an enquiry which is
not provided for in that Act or this Act must be dealt with in
accordance with the practice and procedure followed in civil
proceedings in a magistrate’s court.’ The question is whether the
magistrate could have, with due regard to sections 13(4) and 25(1),
sent this matter on special review in terms of the provisions of s
304(4) of the Criminal Procedure Act 51 of 1977 ? In my view it
does not seem so since s 304(4) of Act 51 of 1977 deals with
criminal cases where sentences had been imposed whereas s 25(1)
in particular provides that an order made by the maintenance court
has the effect of an order made in a civil action.
A party therefore who is not satisfied with the order made by a

magistrate in a maintenance enquiry may seek the necessary relief
either by way of civil appeal or by way of review in terms of the
provisions of s 20 of the High Court Act 16 of 1990. (See Maguma
v Ntengento 1979 (4) SA 155 (CPA) at 157). The maintenance
order of the magistrate is not reviewable in terms of the provisions
of s 304(4) of Act 51 of 1977 and the record of the proceedings is
accordingly returned to the clerk of the court.
c) Review of proceedings before sentencing in terms of s

304
85
In S v Bam & Another (WVB-CRM-1380/2016) (CR 39/2017)

[2017] NAHCMD 170 (22 June 2017), this was a case dealing with
two (2) two accused persons who were charged with assault with
intent to do grievous bodily harm, accused no. 2 asked the court to
postpone matter in order to allow him to engage a private lawyer.
The magistrate refused to postpone the matter – On review – Court
held that refusal to postpone matter not gross irregularity as
provided for in s 20 of the High Court Act, 19 of 1990 –
Held further that s 304(4) of the Criminal Procedure Act, 51 of
1977 does not apply. Consequently, record of proceedings returned
and magistrate instructed to continue with the trial. The court held
further, that by refusing to postpone, the magistrate did not commit
an irregularity, therefore, the record of proceedings was sent back
and instructed the magistrate to continue with trial. In the case of S
v Makita CR 59/2014) [2014] NAHCMD 301 (10 October 2014)
, Ueitele, J who wrote the judgment for the court held the view that
s 20 of the High Court Act is applicable to reviews of unterminated
criminal proceedings emanating from magistrate’s courts. Section
20 provides as follows: Grounds of review of proceedings of
lower court: (1) The grounds upon which the proceedings of any
lower court may be brought under review before the High Court are
–
(a) Absence of jurisdiction on the part of the court;

(b) Interest in the cause, bias, malice or corruption on
the part of the presiding judicial officer;
(c) Gross irregularity in the proceedings;
(d) The admission of inadmissible or incompetent
evidence or the rejection of admissible or competent
evidence.
d) Set down of arguments in terms of s306
In terms of s306 (1) A magistrate’s court imposing a sentence which

under section 302 is subject to review, shall forthwith inform the person
convicted that the record of the proceedings will be transmitted within
one week, and such person may then inspect and make a copy of such
record before transmission or whilst in the possession of the provincial
division, and may set down the case for argument before the provincial
division having jurisdiction in like manner as if the record had been
returned or transmitted to such provincial division in compliance with
86
Criminal Procedure
any order made by it for the purpose of bringing in review the

proceedings of a magistrate’s court.
(2) Whenever a case is so set down, whether the offence in question was
prosecuted at the instance of the State or at the instance of a private
prosecutor, a written notice shall be served, by or on behalf of the person
convicted, upon the attorney-general at his office not less than seven days
before the day appointed for the argument, setting forth the name and
number of the case, the court before which it was tried, the date for which
the case has been set down for argument and the grounds or reasons upon
which the judgment is sought to be reversed or altered.
(3) Whether such judgment is confirmed or reversed or altered, no costs
shall in respect of the proceedings on review be payable by the
prosecution to the person convicted or by the person convicted to the
prosecution.
7.2 Appeal
An appeal is concerned with the substantive correctness of the
decision based on the facts or merits of the case on the record and
the law relevant to such facts.
In Beyer v S (CA 134/2017) [2017] NAHCMD 267 (15 September
2017). The appellant in the matter has appealed against his
conviction of attempted murder and the sentence on various
grounds including a ground that the learned magistrate erred in the
law and or on the facts to find that the State has proved beyond
reasonable doubt that he was guilty of the crime of attempted
murder. Except for the evidence that a shot was fired in the ground
15-20 metres from the bakkie driven by the appellant, no other
evidence was tendered by the State to prove the charge against the
appellant. That being so, the court came to the conclusion that the
State failed to prove beyond reasonable doubt that the appellant
was guilty of the crime of attempted murder – and upheld the
appeal as a result.
Likoro v S (CA 19/2016) [2017] NAHCMD 355 (08 December

2017)
Appellant attacked the conviction on two different fronts, firstly it
was directed against the manner in which proceedings were
conducted (procedurally); and secondly, on the merits he attacked
the court’s evaluation and findings on the facts. The appellant,
however, was uncertain as to whether he should bring the Regional
Court proceedings before this court by way of review and
87
Annexures: is documents prepared by the author on Charge sheet,
notices and pleas. These documents are annexed separately because
the author could not get the right format of this guide. Error! No text of specified style in document.
simultaneously lodge an appeal. Review applications are heard

separately by judges from the civil stream whereas criminal appeals
fall under judges of the criminal stream. It was up to counsel to
decide the way forward.
With regards to the procedural aspect the appellant stated that he
was not afforded effective legal representation during the trial due
to the lack of experience of his erstwhile legal representative and
the second procedural attack was on the failure of the presiding
magistrate in the court a quo to recall State witnesses in order for
the appellant to put his version to State’s witnesses. Held, that, any
of the alleged irregularities committed by either the legal
representative of the appellant, or the presiding magistrate, must be
decided on what is apparent from the record. Held, further that, the
general rule had always been that where an accused entrusts his
defence to his legal representative, he is bound by the actions of his
representative. Held, further that, before a case can be re-opened on
the ground of error of judgment on the part of a legal
representative, a very strong case must be made out and in the
premises, there was in law no basis for the court to order the
recalling of State witnesses to be questioned.
Summary:
In this unit, students were able to define post-trial as the procedure
that include review and appeal. There are four ways upon which a
criminal trial may be brought by review, that is by automatic
review, extra-ordinary review, review of proceedings and lastly by
set down of arguments. Whilst appeal is an appeal is concerned
with the substantive correctness of the decision based on the facts
or merits of the case on the record and the law relevant to such
facts.
Annexures: is documents prepared by the author on Charge sheet,

notices and pleas. These documents are annexed separately because
the author could not get the right format of this guide.
88

Criminal Procedure Guide

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Procedure Guide

Uploaded by

Copyright:

Available Formats

Important note : If you have not yet done so, please review the sections

Click on [DOCUMENT TYPE] and type the

Type inCriminal Procedure

information. Item No:

Centre for External Studies

Edited and Published by Centre for External Studies

University of Namibia, Windhoek

Centre for External Studies

Ms. Elize Shakalela Author

Mr. Eugene Libebe Content Editor

About this study guide 1

Getting around this study guide 7

About this study guide

How this study guide is structured

 If the course is suitable for you.

 What you will already need to know.

 What you can expect from the course.

The overview also provides guidance on:

 Where to get help.

 Course assignments and assessments.

We strongly recommend that you read the overview carefully before

The course content

 An introduction to the unit content.

 Core content of the unit with a variety of learning activities.

 Assignments and/or assessments, as applicable.

 Answers to Assignment and/or assessment, as applicable

 Course content and structure.

 Course reading materials and resources.

 Course support (assigned tutors, technical help, etc.)

Your constructive feedback will help us to improve and enhance this

Welcome to Criminal Procedure

Criminal Procedure PCP3771 —is

Exit Learning Outcomes

 Discuss and apply all aspects of Criminal Procedure

Students require 48 hours formal study time

Students require 48 hours self-study time

Essentially you will be taking control of your learning environment. As a

consequence, you will need to consider performance issues related to

We recommend that you take time now—before starting your self-

For further assistance you can go to your nearest Regional UNAM

Please see tutorial letter for instructions on the submission of

Getting around this study guide

A complete icon set is shown below. We suggest that you familiarize

Activity Additional Answers to Assessment

Assignment Audio Case study Discussion

Exit Learning Feedback Group Activity Help

References Reflection Study skills Summary

Terminology Tip Video

Upon completion of this unit you should be able to:

 explain the term criminal procedure

 List and explain the actors and their functions in Criminal

 Evaluate the Importance of Criminal Procedure

Prescribed reading Criminal Procedure Act 51 of 1977 as Amended

Clever Mapaure et all. The Law of Pre-trial Criminal Procedure in

Clever Mapaure et all. The Law of Pre-trial Criminal Procedure in

1.1 The meaning of criminal procedure

On another hand a criminal charge is the formal accusation made

1.2 The stages of criminal procedure

II. Trial Procedure

III. Post-Trial Procedure

1.3 Sources of criminal procedure:

deeming such a person eligible for appointment as the Prosecutor

Chapter 3 of the Namibian constitution consist of the Bill of Rights

Important as well is Article 12 stressing on the right to a fair trial,