CHAPTER 4
SEARCH WARRANTS, ENTERING OF PREMISES, SEIZURE, FORFEITURE AND DISPOSAL OF PROPERTY
CONNECTED WITH OFFENCES

Saving as to certain powers conferred by other laws

19. This Chapter does not derogate from any power conferred by any other law to enter any premises or to search any person, container or premises or to seize any matter, to declare any matter forfeited or to dispose of any matter.

State may seize certain articles

20. The State may, in accordance with this Chapter, seize anything (in this Chapter referred to as an article) -

(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within Namibia or elsewhere ;
(b) which may afford evidence of the commission or suspected commission of an offence, whether within Namibia or elsewhere ;
(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence ; or
(d) which was used for escape after the commission of an offence.

Article to be seized under search warrant

21. (1) Subject to sections 22(1), 24(1) and 25, an article referred to in section 20 may be seized only by virtue of a search warrant issued -

(a) by a district magistrate or justice of the peace, if it appears to that magistrate or justice of the peace from information on oath that there are reasonable grounds for believing that any such article is in the possession or under the control of or on any person or on or at any premises within his or her area of jurisdiction ; or
(b) by a judge or magistrate presiding at criminal proceedings, if it appears to that judge or magistrate that any such article in the possession or under the control of any person or on or at any premises is required in evidence at such proceedings.

(2) A search warrant issued under subsection (1) must require a member of the police to seize the article in question and must to that end authorize such member to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

(3) (a) A search warrant must be executed by day, unless the person issuing the warrant in writing authorizes the execution thereof by night.
(b) A search warrant may be issued on any day and is of force until it is executed or is cancelled by the person who issued it or, if that person is not available, by a person with like authority.

(4) A member of the police executing a warrant under this section or section 25 must, after such execution, hand to any person whose rights in respect of any search or article seized under the warrant have been affected a copy of the warrant and, if any article is so seized, an inventory of articles seized.

(5) To the extent that subsection (2) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.

Circumstances in which article may be seized without search warrant

22. (1) A member of the police may without a search warrant search any person or container or premises for the purpose of seizing any article referred to in section 20 -

(a) if the person concerned consents to the search for and the seizure of the article in question, or if the person who may consent to the search of the container or premises consents to the search and the seizure of the article in question ; or

(b) if such member on reasonable grounds believes -
(i) that a search warrant will be issued to him or her under paragraph (a)
of section 21(1) if he or she applies for such warrant; and
(ii) that the delay in obtaining a search warrant would defeat the object of the search.

(2) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.

Search of arrested person and seizure of article

23. (1) On the arrest of any person, the person making the arrest may -

(a) if such person is a peace officer, search the person arrested and seize any article referred to in section 20 that is found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a member of the police, that peace officer must immediately deliver any such article to a member of the police ; or
(b) if such person is not a peace officer, seize any article referred to in section 20 that is in the possession of or in the custody or under the control of the person arrested and must immediately deliver any such article to a member of the police.

(2) On the arrest of any person, the person making the arrest may place in safe custody any object found on the person arrested and which is capable of being used to cause bodily harm to himself or herself or to others.

(3) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.

Search of premises

24. (1) Any person who is lawfully in charge or occupation of any premises and who reasonably suspects that stolen stock or produce, as defined in any law relating to the theft of stock or produce, is on or in the premises in question, or that any article has been placed thereon or therein or is in the custody or possession of any person on or in such premises in contravention of any law relating to intoxicating liquor, dependence-producing drugs or substances, arms and ammunition or explosives, may at any time, if a member of the police is not readily available, enter such premises for the purpose of searching that premises and any person thereon or therein, and if any such stock, produce or article is found, that person must take possession thereof and immediately deliver it to a member of the police.

(2) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.

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

25. (1) If it appears to a district magistrate or justice of the peace from information on oath that there are reasonable grounds for believing -

(a) that the security of Namibia or the maintenance of law and order is likely to be endangered by or in consequence of any meeting that is being held or is to be held in or on any premises within his or her area of jurisdiction ; or

(b) that an offence has been or is being or is likely to be committed or that preparations or arrangements for the commission of any offence are being or are likely to be made in or on any premises within his or her area of jurisdiction,
he or she may issue a warrant authorizing a member of the police to enter the premises in question at any reasonable time for the purpose -
(i) of carrying out such investigations and of taking such steps as the member of the police may consider necessary for the preservation of the security of Namibia or for the maintenance of law and order or for the prevention of any offence ;
(ii) of searching the premises or any person in or on the premises for any article referred to in section 20 that the member of the police on reasonable grounds suspects to be in or on or at the premises or on that person ; and
(iii) of seizing any such article.

(2) A warrant under subsection (1) may be issued on any day and is of force until it is executed or is cancelled by the person who issued it or, if that person is not available, by a person with like authority.

(3) A member of the police may without warrant act under paragraphs (i), (ii) and (iii) of subsection (1) if such member on reasonable grounds believes -

(a) that a warrant will be issued to him or her under paragraph (a) or (b) of subsection (1) if he or she applies for such warrant ; and
(b) that the delay in obtaining a search warrant would defeat the object of the search.

(4) To the extent that subsection (1) authorizes the interference with a person’s fundamental right to privacy by conducting a search thereunder, such interference is authorized only on the grounds of the preservation of the security of Namibia, the prevention of crime and disorder and the protection of the rights of others as contemplated in Article 13(1) of the Namibian Constitution.

Entering of premises for purposes of obtaining evidence

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

Resistance against entry or search

27. (1) A member of the police who may lawfully search any person or premises or who may enter any premises under section 26, may, subject to subsection (2), use such force as may be reasonably necessary to overcome any resistance against such search or against such entry of the premises in question, including the breaking of any door or window of that premises.

(2) A member of the police who intends using force under subsection (1) must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter that premises.

(3) Subsection (2) does not apply where the member of the police referred to therein is on reasonable grounds of the opinion that any article that is the subject of the search may be destroyed or disposed of if that subsection is first complied with.

Wrongful search an offence, and award of compensation

28. (1) A member of the police -

(a) who acts contrary to the authority of a search warrant issued under section 21 or a warrant issued under section 25(1) ; or

(b) who, without being authorized thereto under this Chapter -
(i) searches any person or container or premises or seizes or detains any article ; or
(ii) performs any act contemplated in paragraph (i), (ii) or (iii) of section 25(1),
commits an offence and is liable on conviction to a fine not exceeding N$2 000 or to imprisonment for a period not exceeding six months, and is in addition subject to an award under subsection (2).

(2) Where a person falsely gives information on oath under section 21(1) or 25(1) and a search warrant or a warrant is issued and executed on such information, and that person is in consequence of such false information convicted of perjury, the court convicting that person may, on the application of a person who has suffered damage in consequence of the unlawful entry, search or seizure or on the application of the prosecutor acting on the instructions of that person, award compensation in respect of such damage, whereupon section 326 applies with the necessary changes in respect of the award.

Search to be conducted in decent and orderly manner

29. (1) A search of any person or premises must be conducted with strict regard to decency and order, including the protection of a person’s right to respect for human dignity and to privacy, and the person of someone may, subject to subsection (2), be searched by a person of the same sex only.

(2) If a search of any person is to be conducted by the police and no member of the police of the same sex is available, the search may be made by any other person of the same sex designated for that purpose by a member of the police.

Disposal by member of police of article after seizure

30. A member of the police who seizes an article referred to in section 20 or to whom any such article is under this Chapter delivered -

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

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

31. (1) (a) If no criminal proceedings are instituted in connection with any article referred to in section 30(c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article must be returned to the person from whom it was seized, if that person may lawfully possess the article, or, if that person may not lawfully possess the article, to the person who may lawfully possess it.
(b) If no person may lawfully possess the article referred to in paragraph (a) or if the member of the police charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article must be forfeited to the State.

(2) The person who may lawfully possess the article referred to in subsection (1)(a) must be notified by registered post at such person’s last-known address that he or she may take possession of the article, and if that person fails to take delivery of the article within 30 days from the date of such notification, the article must be forfeited to the State.

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

32. (1) If criminal proceedings are instituted in connection with any article referred to in section 30(c) and the accused admits his or her guilt in accordance with section 59, the article must be returned to the person from whom it was seized, if that person may lawfully possess the article, or, if that person may not lawfully possess the article, to the person who may lawfully possess it, whereupon section 31(2) applies to any such person.

(2) If no person may lawfully possess the article referred to in subsection (1) or if the member of the police charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article must be forfeited to the State.

Article to be transferred to court for purposes of trial

33. (1) If criminal proceedings are instituted in connection with any article referred to in section 30(c) and such article is required at the trial for purposes of evidence or for purposes of an order of court, the member of the police charged with the investigation must, subject to subsection (2), deliver the article to the clerk of the court where the criminal proceedings are instituted or, if such proceedings are instituted in the High Court, to the registrar.

(2) If it is by reason of the nature, bulk or value of the article in question impracticable or undesirable that the article should be delivered to the clerk of the court or the registrar in terms of subsection (1), the clerk of the court or the registrar may require the member of the police charged with the investigation to retain the article in police custody or in such other custody as may be determined in terms of section 30(c).

(3) (a) The clerk of the court or the registrar must place any article received under subsection (1) in safe custody, which may include the deposit of money in an official banking account if the money is not required at the trial in question for the purposes of evidence.

(b) Where the trial in question is to be conducted in a court other than a court of
which that clerk is the clerk of the court, the clerk of the court must -
(i) transfer any article received under subsection (1), other than money deposited in a banking account under paragraph (a), to the clerk of the court in which the trial is to be conducted or, if the trial is to be conducted in the High Court, to the registrar, and the clerk of the court or the registrar must place the article so received in safe custody ;
(ii) in the case of an article retained in police custody or in some other custody in accordance with subsection (2) or in the case of money deposited in a banking account under paragraph (a), advise the clerk of such other court or the registrar of the fact of such custody or such deposit.

Disposal of article after commencement of criminal proceedings

34. (1) The judge or magistrate presiding at criminal proceedings must, at the conclusion of such proceedings but subject to this Act or any other law under which any matter must or may be forfeited, make an order that any article referred to in section 33 -

(a) be returned to the person from whom it was seized, if that person may lawfully possess the article ; or
(b) if the person from whom it was seized is not entitled to the article or may not lawfully possess the article, be returned to any other person entitled thereto, if that person may lawfully possess the article ; or
(c) if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

(2) The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may consider fit.

(3) If the judge or magistrate presiding at criminal proceedings does not, at the conclusion of such proceedings, make an order under subsection (1), that judge or magistrate or, if he or she is not available, any other judge or magistrate of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he or she may consider fit.

(4) Any order made under subsection (1) or (3) may be suspended pending any appeal or review.

(5) Where the court makes an order under subsection (1)(a) or (b), section 31(2) applies with the necessary changes to the person in whose favour such order is made.

(6) If the circumstances so require or if the criminal proceedings in question cannot for any reason be concluded, the presiding judge or magistrate may make any order referred to in subsection (1)(a), (b) or (c) at any stage of the proceedings.

Forfeiture of article to State

35. (1) Subject to subsection (2), a court that convicts an accused of an offence may, without notice to any person, declare -

(a) any weapon, instrument or other article by means whereof the offence in question was committed or that was used in the commission of the offence ; or
(b) if the conviction is in respect of an offence referred to in Schedule 2, any vehicle, container or other article that was used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property in question,
and that was seized under this Act, forfeited to the State.

(2) A forfeiture under subsection (1) does not affect any right referred to in subsection (5)(a)(i) or (ii), if it is proved that the person who claims such right did not know that the weapon, instrument, vehicle, container or other article in question was being used or would be used for the purpose of or in connection with the commission of the offence in question or for the conveyance or removal of the stolen property in question, or that he or she could not prevent such use, and that he or she may lawfully possess such weapon, instrument, vehicle, container or other article.

(3) A court that convicts an accused or that finds an accused not guilty of an offence, must declare forfeited to the State any article seized under this Act that is forged or counterfeited or that cannot lawfully be possessed by any person.

(4) Any weapon, instrument, vehicle, container or other article declared forfeited under subsection (1) must be kept for a period of 30 days with effect from the date of declaration of forfeiture or, if an application is within that period received from any person for the determination of any right referred to in subsection (5)(a)(i) or (ii), until a final decision in respect of the application has been given.

(5) (a) The court in question or, if the judge or magistrate concerned is not available, any judge or magistrate of the court in question, may at any time within a period of three years with effect from the date of declaration of forfeiture, on the application of any person, other than the accused, who claims that any right referred to in subparagraph (i) or (ii) is vested in him or her, inquire into and determine any such right, and if the court finds that the weapon, instrument, vehicle, container or other article in question -

(i) is the property of that person, the court must set aside the declaration of forfeiture and direct that the weapon, instrument, vehicle, container or other article in question be returned to that person, or, if the State has disposed of such weapon, instrument, vehicle, container or other article, direct that that person be compensated by the State to the extent to which the State has been enriched by the disposal ;

(ii) was sold to the accused in pursuance of a contract under which the accused becomes the owner of the weapon, instrument, vehicle, container or other article in question on the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of such weapon, instrument, vehicle, container or other article on default of payment of the stipulated price or any part thereof -
(aa) the court must direct that such weapon, instrument, vehicle, container or other article be sold by public auction and that the seller be paid out of the proceeds of the sale an amount equal to the value of his or her rights under the contract to that weapon, instrument, vehicle, container or other article, but not exceeding the proceeds of the sale ; or
(bb) if the State has disposed of such weapon, instrument, vehicle, container or other article, the court must direct that the seller be likewise compensated by the State.

(b) If a determination by the court under paragraph (a) is adverse to the applicant, the applicant may appeal therefrom as if it were a conviction by the court making the determination, and that appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made, or against a sentence imposed as a result of the conviction.

(c) When determining any rights under this subsection, the record of the criminal proceedings in which the declaration of forfeiture was made forms part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it may consider fit.

Disposal of article concerned in an offence committed outside Namibia

36. (1) Where an article is seized in connection with which -

(a) an offence was committed or is on reasonable grounds suspected to have been committed in a country other than Namibia ;
(b) there are reasonable grounds for believing that it will afford evidence as to the commission in a country other than Namibia of any offence or that it was used for the purpose of or in connection with such commission of any offence,
the district magistrate within whose area of jurisdiction the article was seized may, on application and if satisfied that the offence in question is punishable in that other country by a fine of N$1 000 or more or by imprisonment for a period of 12 months or more, order the article so seized to be delivered to a member of a police force established in that country or to any other authorized representative of that country, who may thereupon remove the article from Namibia in accordance with any applicable law or any international agreement or arrangement to which Namibia is a party.

(2) When an article removed from Namibia under subsection (1) is returned to the district magistrate, or when that magistrate refuses to order that the article be delivered under that subsection, the article must be returned to the person from whose possession it was taken, unless that magistrate is authorized or required by law to dispose of it otherwise.

CHAPTER 5
QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME, ASCERTAINMENT OF BODILY FEATURES OF ACCUSED AND VICTIM IMPACT STATEMENT

Power and duty of police to question certain persons in connection with crime, and warning explanations to be given in respect thereof

37. (1) Without derogating from Article 12(1)(f) of the Namibian Constitution, a member of the police investigating an offence or alleged offence has the power and the duty to question -

(a) subject to section 26, any person who is likely to give material or relevant information as to any such offence, whether or not it is known by whom the offence was committed or allegedly committed ;
(b) subject to subsections (2) and (3), any person, whether or not arrested or detained in custody or charged, who is reasonably suspected of having committed or having attempted to commit the offence or alleged offence under investigation.

(2) A member of the police conducting an investigation under subsection (1) must, before questioning a person reasonably suspected of having committed an offence, give a warning explanation substantially in the following form to that person :

(a) That the member of the police is investigating an offence or alleged offence, and the nature thereof ;
(b) that the purpose of the investigation is to attempt to establish the truth and to establish whether an offence has in fact been committed and, if so, by whom and under what circumstances ;
(c) that the member of the police would welcome any assistance that that person can give to establish the truth and to bring the investigation to a speedy conclusion ;
(d) that the person to be questioned is a suspect in respect of the offence under investigation and, where applicable, that the member of the police is in possession of evidence under oath indicating that that person has committed the offence ;
(e) that the person to be questioned not only has the right to remain silent but also has the right to answer questions put to him or her or to give an explanation of his or her conduct or of his or her defence, if any ;
(f) that the person to be questioned has the right to consult a legal practitioner of his or her own choice before deciding whether or not to remain silent or to answer questions or give an explanation of his or her conduct or defence and that the legal practitioner is entitled to be present during the questioning ;
(g) that the warning explanation and any statement made in response thereto will be recorded in writing or mechanically and a certified copy of such recording be made available to that person in the circumstances contemplated in section 359 ; and
(h) that the warning explanation and any statement made in response thereto may be used in evidence in any criminal proceedings instituted against that person in respect of the offence in question, whether it be against or in favour of that person.

(3) The provisions of subsection (2) apply, to the extent that they can with the necessary changes be applied, to a person charged with an offence, but before questioning the person so charged the member of the police conducting the investigation must warn that person that he or she is charged with the offence in respect of which he or she is to be questioned.

(4) A warning explanation given under subsection (2) or (3) and any statement made in response thereto must -

(a) be in writing or be reduced to writing ; or

(b) where, by reason of the urgency of the matter or any other just cause, paragraph (a) cannot at the relevant time be complied with, be recorded in writing by the member of the police as soon as practicable after the questioning of the person suspected or accused of having committed the offence under investigation, and such member must then -
(i) give the person concerned an opportunity to comment thereon ; and
(ii) record in writing any comments made under subparagraph (i) ; or

(c) where mechanical means are available, be mechanically recorded and as soon as practicable thereafter be transcribed.

Powers in respect of prints and bodily appearance of accused

38. (1) Subject to subsection (2), a member of the police may -

(a) take the fingerprints, palm-prints or footprints or cause any such prints to be taken -
(i) of any person arrested on any charge ;
(ii) of any such person released on bail under Chapter 11 or on warning under section 78 ;
(iii) of any person arrested in respect of any matter referred to in paragraph (m), (n) or (o) of section 42(1) ;
(iv) of any person on whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or
(v) of any person convicted by a court ;

(b) make a person referred to in paragraph (a)(i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the member of the police may determine ;

(c) take such steps or cause such steps to be taken (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) as the member of the police may consider necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance, but no member of the police may personally -
(i) take any blood or other bodily fluid sample of such person ; or
(ii) make any examination of the body of such person where that person is not of the same sex as the member of the police intending to make such examination ;

(d) take a photograph or cause a photograph to be taken of a person referred to in paragraph (a)(i) or (ii).

(2) The fingerprints and palm-prints of a person arrested on a charge of having committed any offence referred to in Schedule 1 must be taken or caused to be taken by the member of the police charged with the investigation as soon as practicable after the arrest or detention of that person and the fingerprints and palm-prints so taken must be processed without delay to ascertain whether that person has any previous convictions or is sought elsewhere for any other offence.

(3) (a) A medical officer of any prison or a district surgeon must, and any other registered medical practitioner or registered nurse may, if requested thereto by a member of the police acting in the execution of his or her duties, take such steps (including the taking of a blood or other bodily fluid sample, or a hair or skin sample, or nail clippings or scrapings) as may be considered necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) of subsection (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance, and may in taking any such steps be assisted where necessary by a member of the police of the same sex as that person.

(b) If a registered medical practitioner or registered nurse attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to the hospital for medical attention or treatment may be relevant at any later criminal proceedings, the medical practitioner or registered nurse may take a blood sample of that person or cause such sample to be taken.

(c) Nothing in paragraph (a) contained is to be construed as preventing a medical officer of any prison or a district surgeon from taking any steps contemplated in that paragraph without having been requested thereto by a member of the police.

(4) A court before which criminal proceedings are pending may -

(a) in any case in which a member of the police is not empowered under subsection (1) to take fingerprints, palm-prints or footprints or to take steps to ascertain whether the body of a person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that any such prints be taken of an accused at such proceedings or that the steps (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) be taken which the court may consider necessary to ascertain whether the body of an accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance ;
(b) order that the steps, including the taking of a blood or other bodily fluid sample, be taken which the court may consider necessary to ascertain the state of health of an accused at such proceedings.

(5) A court that has convicted a person of any offence or that has concluded a preparatory examination against a person on any charge, or a district magistrate, may order that the fingerprints, palm-prints or footprints or a photograph of that person be taken.

(6) Fingerprints, palm-prints or footprints, photographs and the record of steps taken under this section must be destroyed if the person concerned is found not guilty at his or her trial or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to which any such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute that person.

(7) A person who, without sufficient cause, refuses or fails to comply with -

(a) a request made under subsection (1) by a member of the police to submit to -
(i) the taking of fingerprints, palm-prints or footprints or a photograph ;
(ii) an identification parade ; or
(iii) any other steps to be lawfully taken under paragraph (c) of that subsection ;

(b) a request made under subsection (3)(a) by any person referred to therein to submit to any steps to be lawfully taken under that subsection ; or

(c) an order made under subsection (4)(a) or (b) or (5),
commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

Victim impact statement

39. (1) The member of the police charged with an investigation, or any other member of the police charged with such duty, must obtain a victim impact statement in respect of every victim of an offence against the person or against property and file the statement so obtained with the prosecuting authority in such manner and within such period, but not later than the date of commencement of the trial of the accused, as the Prosecutor-General may determine.

(2) If for whatever reason a victim is incapable of preparing a victim impact statement -

(a) the victim’s legal practitioner or the spouse or any dependant or other relative of the victim or, where the victim is a minor, his or her parent or guardian, may prepare the victim impact statement on behalf of the victim ; and

(b) where no person referred to in paragraph (a) is available to prepare the victim impact statement, any member of the police referred to in subsection (1) must, with the assistance of -
(i) the victim ; and
(ii) where necessary, the Prosecutor-General or any public prosecutor designated by the Prosecutor-General for that purpose or the public prosecutor conducting the prosecution of the accused concerned or any other prosecutor attached to the same court,
prepare the victim impact statement on behalf of the victim.

(3) A victim impact statement must -

(a) be prepared in writing substantially in the form prescribed by Schedule 8 ;
(b) contain full particulars of any injury, damage or loss suffered by the victim concerned, including the amount of compensation to be applied for in respect thereof ; and
(c) be sworn to or affirmed before a commissioner of oaths that the contents thereof are true.

(4) (a) A victim impact statement is, subject to paragraph (b), on its mere production at criminal proceedings admissible in evidence to the same extent as oral evidence to the same effect by the victim concerned, but only for the purposes of -
(i) informing the court, without derogating from section 305, as to the proper sentence to be passed ;
(ii) applying for the award of compensation to a victim in terms of section 326.

(b) A victim impact statement -
(i) complying with the requirements of subsection (3) ; and
(ii) of which a copy, together with a notification that such statement will be tendered in evidence at the trial of the accused but that the accused may dispute the correctness of any fact contained therein before it being so tendered, was handed or delivered to the accused or his or her legal practitioner a reasonable time before the statement is to be tendered in evidence,
may, on the mere production thereof at criminal proceedings, be admitted in evidence to the extent that the facts contained therein are not disputed by the accused, and the court may then consider any fact or facts not so placed in issue to have been sufficiently proved at such proceedings.

(c) If a victim impact statement is admitted in evidence only to the extent that the facts contained therein are not disputed by the accused, oral evidence may be adduced to prove the fact or facts placed in issue.

(d) Notwithstanding that a victim impact statement may be admitted or partly admitted in evidence under this subsection, the court may of its own motion, and must on the application of any party to the criminal proceedings in question, cause the victim concerned or other person by whom such statement was prepared to be subpoenaed to give oral evidence before the court regarding any fact, whether or not disputed, contained in the statement.

CHAPTER 29
WITNESSES

Witness from prison

205. A prisoner who is in a prison may be subpoenaed as a witness only if the court before which the prisoner is to appear as a witness authorizes that the prisoner be subpoenaed as a witness, and the court may give such authority only if it is satisfied that the evidence in question is reasonably necessary and material and that the public safety or order will not be endangered by the calling of the witness.

CHAPTER 29
WITNESSES

Protection of witness

208. (1) (a) When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person -

(i) is of the opinion that the personal safety of the person who is likely to give such evidence is in danger or that he or she may be prevented from giving evidence or that he or she may be intimidated ; or
(ii) considers it to be in the interests of the person who is likely to give such evidence or of the administration of justice that that person be placed under protection,
the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.

(b) The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction does not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.

(c) The Prosecutor-General must, as soon as he or she applies to a judge under paragraph (b) for an order for the placement under protection of the person concerned, in writing inform the person in charge of the place where the person concerned is being protected, that he or she has so applied for an order, and must, where the judge under subsection (2)(a) refuses to issue an order for the placement under protection of the person concerned, immediately inform the person so in charge of the refusal, whereupon the person so in charge must without delay discontinue the protection of the person concerned.

(2) (a) The judge hearing an application under subsection (1) may, if it appears to the judge from the information placed before him or her by the Prosecutor-General -

(i) that there is a danger that the personal safety of the person concerned may be threatened or that he or she may be prevented from giving evidence or that he or she may be intimidated; or
(ii) that it would be in the interests of the person concerned or of the administration of justice that that person be placed under protection,
issue an order for the placement under protection of that person.

(b) Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.

(3) A person in respect of whom an order is issued under subsection (2)(a), must be taken to the place mentioned in the order and, in accordance with regulations which the Minister is hereby authorized to make, be protected there or at any other place determined by a judge from time to time, or, where the person concerned is placed under protection in terms of a direction by the Prosecutor-General under subsection (1)(b), that person must, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Prosecutor-General and protected there in accordance with those regulations.

(4) A person placed under protection in terms of an order under subsection (2)(a) must be protected for the period terminating on the day on which the criminal proceedings in question are concluded, unless -

(a) the Prosecutor-General directs that the protection of that person be discontinued earlier ; or
(b) such proceedings have not commenced within six months of the date of the placement under protection of that person, in which event the protection of that person must be discontinued after the expiration of that period.

(5) No person, other than a person employed in the Public Service acting in the performance of his or her official duties and the legal practitioner of a person placed under protection in terms of an order under subsection (2)(a), has access to the person so placed under protection, except with the consent of and subject to the conditions determined by the Prosecutor-General or a person employed in the Public Service delegated by the Prosecutor-General.

(6) For the purposes of section 214, a person placed under protection in terms of an order under subsection (2)(a) is deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his or her placement under protection.

(7) No information relating to the proceedings under subsection (1) or (2) may be published or be made public in any manner whatever.

(8) To the extent that this section authorizes the deprivation of the personal liberty of a person who is likely to give evidence at criminal proceedings, such deprivation is authorized only on the grounds of the procedures established under this section pursuant to Article 7 of the Namibian Constitution.

CHAPTER 38
GENERAL PROVISIONS

Removal of accused from one prison to another for purposes of attending criminal proceedings

365. When an accused is in custody and it becomes necessary that the accused be removed from one prison to another prison for the purpose of attending his or her trial, the magistrate of the district in which the accused is in custody must issue a warrant for the removal of the accused to such other prison.