CHAPTER 10
ADMISSION OF GUILT

Admission of guilt and payment of fine without appearance in court

59. (1) Where -

(a) a summons is issued against an accused under section 56 (in this section referred to as a summons) and the public prosecutor concerned on reasonable grounds believes that a district court, on convicting the accused of the offence in question, will not impose a sentence of imprisonment only or of a fine exceeding N$3 000, and that public prosecutor endorses the summons to the effect that the accused may admit his or her guilt in respect of the offence in question and that the accused may pay a fine stipulated in the summons in respect of that offence without appearing in court ; or
(b) a written notice under section 58 (in this section referred to as a written notice) is handed to the accused and the endorsement in terms of paragraph (c) of subsection (1) of that section purports to have been made by a peace officer,
the accused may, without appearing in court, admit his or her guilt in respect of the offence in question by paying the fine so stipulated (in this section referred to as an admission of guilt fine) either to the clerk of the district court having jurisdiction or at any police station within the area of jurisdiction of that court.

(2) (a) A summons or written notice may stipulate that the admission of guilt must be paid before a date specified in the summons or written notice.

(b) An admission of guilt fine may be accepted by the clerk of the court concerned, notwithstanding the fact that the date referred to in paragraph (a) or the date on which the accused should have appeared in court has expired.

(3) An admission of guilt fine may not be accepted under subsection (1) or (2)(b), unless the accused surrenders the relevant summons or written notice at the time of the payment of the fine.

(4) (a) An admission of guilt fine stipulated in respect of a summons or written notice must be in accordance with a determination that the magistrate of the magisterial district in question may from time to time make in respect of any offence or, if that magistrate has not made such a determination, in accordance with an amount determined in respect of any particular summons or any particular written notice by either a public prosecutor attached to the court of that magistrate or a member of the police of the rank of commissioned officer attached to a police station within the magisterial district in question or, in the absence of such a member of the police at any such police station, by the member of the police in charge of that police station.

(b) An admission of guilt fine determined under paragraph (a) may not exceed the maximum of the fine prescribed in respect of the offence in question or the amount of N$3 000, whichever is the lesser.

(5) An admission of guilt fine paid at a police station in terms of subsection (1) and the relevant summons or written notice surrendered under subsection (3), must, as soon as is expedient, be forwarded to the clerk of the district court having jurisdiction, and that clerk of the court must thereafter, as soon as is expedient, enter the essential particulars of that summons or written notice and of any summons or written notice surrendered to the clerk of the court under subsection (3), in the criminal record book for admissions of guilt, whereupon the accused concerned is, subject to subsection (6), deemed to have been convicted and sentenced by the court in respect of the offence in question.

(6) The magistrate presiding at the court in question must examine the documents and if it appears to that magistrate that a conviction or sentence under subsection (5) is not in accordance with justice or that any such sentence is not in accordance with a determination made by the magistrate of the magisterial district under subsection (4)(a) or, where the determination under that subsection has not been made by that magistrate, that the sentence is not adequate, the magistrate so presiding may set aside the conviction and sentence and direct that the amount of the admission of guilt fine paid by the accused be refunded to the accused and that the accused be prosecuted in the ordinary course, whereupon the accused may be summoned to answer such charge as the public prosecutor may consider fit to prefer, but where the admission of guilt fine that has been paid exceeds the amount determined by the magistrate of the magisterial district under subsection (4)(a), the magistrate so presiding may, instead of setting aside the conviction and sentence in question, direct that the amount by which the admission of guilt fine exceeds the determination so made be refunded to the accused concerned.

Admission of guilt and payment of fine after appearing in court

60. (1) Subject to subsection (2), if an accused who is alleged to have committed an offence has appeared in court and is -

(a) in custody awaiting trial on that charge and not on another more serious charge ;
(b) released on bail under section 62 or 63 ; or
(c) released on warning under section 78,
the public prosecutor concerned may, before the accused has entered a plea and if that prosecutor on reasonable grounds believes that a district court, on convicting the accused of that offence, will not impose a sentence of imprisonment only or of a fine exceeding N$3 000, hand to the accused a written notice, or cause such notice to be delivered to the accused by a peace officer, containing an endorsement in terms of section 59 that the accused may admit his or her guilt in respect of the offence in question and that the accused may pay a fine stipulated in the written notice in respect of that offence without appearing in court again.

(2) Subsection (1) does not apply to an accused who is in custody as contemplated in paragraph (a) of that subsection and in respect of whom an application for bail has been refused or bail proceedings are pending.

(3) A written notice referred to in subsection (1) must contain -

(a) the case number ;
(b) a certificate under the hand of a public prosecutor or peace officer that he or she has handed or delivered the original of such notice to the accused and that he or she has explained to the accused the import thereof ; and
(c) the particulars and instructions contemplated in paragraphs (a) and (b) of section 58(1).

(4) The public prosecutor must endorse the charge sheet to the effect that a written notice under this section has been issued, and that prosecutor or, if the written notice was delivered to the accused concerned by a peace officer, that peace officer must immediately forward a duplicate original of the written notice to the clerk of the court having jurisdiction in the matter.

(5) Sections 57, 58(2) and (4) and 59(2) to (6), inclusive, apply with the necessary changes in respect of the relevant written notice handed or delivered to an accused under subsection (1) as if, in respect of section 59, such notice were a written notice contemplated in that section and the fine stipulated in such written notice were also an admission of guilt fine contemplated in that section.

CHAPTER 19
THE PLEA

Pleas

120. (1) When an accused pleads to a charge, the accused may plead -

(a)that he or she is guilty of the offence charged or of any offence of which he or she may be convicted on the charge ;

CHAPTER 21
PLEA OF GUILTY AT SUMMARY TRIAL

Plea of guilty

125. (1) Where an accused at a summary trial in any court pleads guilty to the offence charged, or to an offence of which the accused may be convicted on the charge and the prosecutor accepts that plea -

(a) the presiding judge or magistrate may, if he or she is of the opinion that the offence does not merit punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$3 000, convict the accused of the offence to which he or she has pleaded guilty on his or her plea of guilty only and -
(i) impose any competent sentence, other than imprisonment or any other form of detention without the option of a fine or a fine exceeding N$3 000 ; or
(ii) deal with the accused otherwise in accordance with law ;

(b) the presiding judge or magistrate must, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding N$3 000, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether the accused admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.

(2) If an accused or his or her legal practitioner hands a written statement by the accused into court, in which the accused sets out the facts which he or she admits and on which he or she has pleaded guilty, the court may, instead of questioning the accused under subsection (1)(b), convict the accused on the strength of that statement and sentence the accused as provided in that subsection if the court is satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, but the court may put any question to the accused to clarify any matter raised in the statement.

(3) Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

Change of plea of guilty

126. (1) If at any stage of the proceedings under section 125(1)(a) or (b) or 125(2) and before sentence is passed -

(a) the court is in doubt whether the accused is guilty of the offence to which he or she has pleaded guilty ;
(b) it is alleged or appears to the court that the accused does not admit an allegation in the charge or that the accused has incorrectly admitted any such allegation or that the accused has a valid defence to the charge ; or
(c) the court is of the opinion for any other reason that the accused’s plea of guilty should not stand,
the court must record a plea of not guilty and require the prosecutor to proceed with the prosecution, but any allegation, other that an allegation referred to in paragraph (b), admitted by the accused up to the stage at which the court records a plea of not guilty, stands as proof in any court of such allegation.

(2) If the court records a plea of not guilty in terms of subsection (1) before any evidence has been led, the prosecution must proceed on the original charge laid against the accused, unless the prosecutor explicitly indicates otherwise.

Committal by district court of accused for sentence by divisional court after plea of guilty

127. (1) If a district court, after conviction following on a plea of guilty but before sentence, is of the opinion -

(a) that the offence in respect of which the accused has been convicted is of such a nature or magnitude that it merits punishment in excess of the jurisdiction of a district court ; or
(b) that the previous convictions of the accused are such that the offence in respect of which the accused has been convicted merits punishment in excess of the jurisdiction of a district court,
the court must stop the proceedings and commit the accused for sentence by a divisional court having jurisdiction.

(2) Where an accused is committed in terms of subsection (1) for sentence by a divisional court, the record of the proceedings in the district court must, upon proof thereof in the divisional court, be received by the divisional court and forms part of the record of that court, and the plea of guilty and any admission by the accused stand unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(3) (a) Unless the divisional court -

(i) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded ; or
(ii) is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence,
that court must make a formal finding of guilty and sentence the accused.

(b) If the divisional court -
(i) is satisfied that a plea of guilty or an admission by the accused which is material to his or her guilt was incorrectly recorded ; or
(ii) is not satisfied that the accused is guilty of the offence of which he or she has been convicted and in respect of which he or she has been committed for sentence or that he or she has no valid defence to the charge,
the court must enter a plea of not guilty and proceed with the trial as a summary trial in that court, but any admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.

(4) Section 125(3) applies in respect of the proceedings under this section.

CHAPTER 24
PLEA IN DISTRICT COURT ON CHARGE JUSTICIABLE IN HIGH COURT

Plea of guilty

136. (1) Where an accused under section 134 pleads guilty to the offence charged, the magistrate must question the accused in terms of paragraph (b) of section 125(1).

(2) (a) If the magistrate is satisfied that the accused admits the allegations stated in the charge, the magistrate must stop the proceedings and adjourn the case pending the decision of the Prosecutor-General.

(b) If the magistrate is not satisfied as provided in paragraph (a), the magistrate must record in what respect he or she is not satisfied and enter a plea of not guilty and deal with the matter in terms of section 137(1), but an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, stands at the trial of the accused as proof of that allegation.

(3) Where the proceedings have been adjourned in terms of subsection (2)(a), the Prosecutor-General may -

(a) arraign the accused for sentence before the High Court or any other court having jurisdiction, including the district court in which the proceedings were adjourned in terms of subsection (2)(a) ;
(b) decline to arraign the accused for sentence before any court, but arraign the accused for trial on any charge at a summary trial before the High Court or any other court having jurisdiction, including the district court in which the proceedings were adjourned in terms of subsection (2)(a) ;
(c) institute a preparatory examination against the accused.

(4) The magistrate, who need not be the magistrate before whom the proceedings under section 134 or subsection (1) of this section were conducted, must inform the accused of the decision of the Prosecutor-General and, if the decision is that the accused be arraigned for sentence -

(a) in the district court in question, dispose of the case on the charge on which the accused is arraigned ; or
(b) in a divisional court or the High Court, adjourn the case for sentence by the divisional court or the High Court.

(5) (a) The record of the proceedings in the district court must, upon proof thereof in the court in which the accused is arraigned for sentence, be received as part of the record of that court or, if the accused is arraigned in the district court in which the proceedings were adjourned in terms of subsection (2)(a), the record of such proceedings stands as the record of that court, and the plea of guilty and any admission by the accused stand and form part of the record of that court unless the accused satisfies the court that such plea or such admission was incorrectly recorded.

(b) The record of the proceedings in the district court must, upon proof thereof in the court in which the accused is arraigned for summary trial, be received as part of the record of that court, and any admission by the accused stands and forms part of the record of that court unless the accused satisfies the court that such admission was incorrectly recorded.

(c) Unless the accused satisfies the court that a plea of guilty or an admission was incorrectly recorded or unless the court is not satisfied that the accused is guilty of the offence to which he or she has pleaded guilty or that the accused has no valid defence to the charge, the court may convict the accused on his or her plea of guilty of the offence to which he or she has pleaded guilty and impose any competent sentence.

(6) If the accused satisfies the court that the plea of guilty or an admission that is material to his or her guilt was incorrectly recorded, or if the court is not satisfied that the accused is guilty of the offence to which he or she has pleaded guilty or that the accused has no valid defence to the charge, the court must record a plea of not guilty and proceed with the trial as a summary trial in that court, but an admission by the accused, the recording of which is not disputed by the accused, stands as proof of the fact so admitted.

(7) Nothing in this section contained is to be construed as preventing the prosecutor from presenting evidence on any aspect of the charge, or the court from hearing evidence, including evidence or a statement by or on behalf of the accused, with regard to sentence, or from questioning the accused on any aspect of the case for the purposes of determining an appropriate sentence.

CHAPTER 30
EVIDENCE

Admissibility of confession by accused

246. (1) Evidence of a confession made by a person in relation to the commission of an offence is, if the confession is proved to have been freely and voluntarily made by that person in his or her sound and sober senses and without having been unduly influenced thereto, admissible in evidence against that person at criminal proceedings relating to that offence, but -

(a) a confession made to a peace officer, other than a magistrate or a justice of the peace who is not a member of the police involved in the investigation of the offence to which the confession relates, or, in the case of a peace officer referred to in section 358, a confession made to such peace officer that relates to an offence with reference to which such peace officer is authorized to exercise any power conferred on him or her under that section, is not admissible in evidence unless -
(i) confirmed and reduced to writing in the presence of a magistrate or justice of the peace, or confirmed and recorded on tape in the presence of a magistrate and a transcription is made of the confession so recorded ; and
(ii) where the confession is confirmed and reduced to writing in the presence of a member of the police who by virtue of his or her rank is a justice of the peace -
(aa) that member of the police was not involved in the investigation of the offence to which the confession relates ; and
(bb) a magistrate was not readily available ;

(b) where the confession -
(i) is made to a magistrate and reduced to writing by that magistrate, or is made to a magistrate and recorded on tape by that magistrate and a transcription is made of the confession so recorded ; or
(ii) is confirmed and reduced to writing in the presence of a magistrate, or is confirmed and recorded on tape in the presence of a magistrate and a transcription is made of the confession so recorded,
the confession is, on the mere production at the proceedings in question of the document in which the confession is contained or, where the confession was recorded on tape, of a document that purports to be a transcription of the original record of the confession -
(aa) admissible in evidence against that person if it appears from such document or transcription that the confession was made by a person whose name corresponds to that of that person and -
(A) in the case of a confession recorded on tape, if the transcription thereof purports to be certified as correct under the hand of the person who transcribed the confession ; and
(B) in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document or transcription to the effect that he or she interpreted truly and correctly and to the best of his or her ability with regard to the contents of the confession and any question put to that person by the magistrate ; and
(bb) presumed, in the absence of evidence to the contrary, to have been freely and voluntarily made by that person in his or her sound and sober senses and without having been unduly influenced thereto, if it appears from the document or transcription in which the confession is contained that the confession was made freely and voluntarily by that person in his or her sound and sober senses and without having been unduly influenced thereto.

(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under subsection (1)(b)(bb).

(3) A confession that is under subsection (1) inadmissible in evidence against the person who made it, becomes admissible against that person -

(a) if that person adduces in the proceedings in question any evidence, either directly or in cross-examining a witness, of any oral or written statement made by him or her either as part of or in connection with the confession ; and
(b) if such evidence is, in the opinion of the judge or magistrate presiding at such proceedings, favourable to that person.