CHAPTER 28
CONDUCT OF PROCEEDINGS

Witness to testify orally

(1) A witness at criminal proceedings must, except where this Act or any other law expressly provides otherwise, give his or her evidence orally.

(2) In this section the expression “orally” is, in the case of a deaf and dumb witness, deemed to include sign language and, in the case of a witness under the age of 18 years, deemed to include demonstrations, gestures or any other form of non-verbal expression.

Witness to be examined under oath or affirmation

184. (1) Subject to section 185, no person may be examined as a witness in criminal proceedings unless that person is under oath or affirmation, which must be administered by the presiding magistrate or, in the case of the High Court, by the presiding judge or the registrar, and which must -
(a) in the case of an oath, be in the following form :
“I swear that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth, so help me God.”;
(b) in the case of an affirmation, be in the following form :
“I solemnly affirm that the evidence that I shall give, shall be the truth, the whole truth and nothing but the truth.”.

(2) An affirmation has the same legal force and effect as if the person making it had taken the oath.

When unsworn or unaffirmed evidence admissible

185. (1) A person -

(a) who is under the age of 14 years may give evidence in criminal proceedings without taking the oath or making the affirmation ;
(b) other than a person referred to in paragraph (a), who, from ignorance arising from lack of education or other cause, is found not to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in criminal proceedings without taking the oath or making the affirmation,
but that person must, instead of the oath or affirmation, be admonished by the presiding judge or magistrate to speak the truth, the whole truth and nothing but the truth.

(2) Notwithstanding anything to the contrary in this Act or any other law contained, the evidence of a witness required to be admonished in terms of subsection (1) must be received unless it appears to the presiding judge or magistrate that that witness is incapable of giving intelligible testimony.

(3) If a person referred to in subsection (1) willfully and falsely states anything which, if sworn, would have amounted to the offence of perjury or any statutory offence punishable as perjury, that person commits an offence and is liable on conviction to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year.

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

186. Where the person concerned is to give his or her evidence through an interpreter or an intermediary appointed under section 193(1), the oath, affirmation or admonition under section 184 or 185 must be administered by the presiding magistrate or, in the case of the High Court, by the presiding judge or the registrar through the interpreter or intermediary or by the interpreter in the presence or under the eyes of the presiding magistrate or, in the case of the High Court, the presiding judge .

Cross-examination and re-examination of witnesses

187. (1) An accused may cross-examine any witness called on behalf of the prosecution at criminal proceedings or any co-accused who testifies at criminal proceedings or any witness called on behalf of that co-accused at criminal proceedings, and the prosecutor may cross-examine any witness, including an accused, called on behalf of the defence at criminal proceedings, and a witness called at such proceedings on behalf of the prosecution may be re-examined by the prosecutor on any matter raised during the cross-examination of that witness, and a witness called on behalf of the defence at such proceedings may likewise be re-examined by the accused.

(2) The prosecutor and the accused may, with the leave of the court, examine or cross-examine any witness called by the court at criminal proceedings.

(3) (a) If it appears to the court that any cross-examination contemplated in this section is being protracted unreasonably and thereby causing the proceedings to be delayed unreasonably, the court may request the cross-examiner to disclose the relevancy of any particular line of examination and may impose reasonable limits on that cross-examination regarding the length thereof or regarding any particular line of examination.

(b) The court may order that any submission regarding the relevancy of the cross-examination be heard in the absence of the witness.

(4) Notwithstanding subsections (1) and (2) or anything to the contrary in any other law contained but subject to section 193, the presiding judge or magistrate may, during the cross-examination of a witness under the age of 14 years, either restate the questions put to that witness or, in his or her discretion, simplify or rephrase those questions.

Court may examine witness or person in attendance

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

Special arrangements for vulnerable witnesses

189. (1) In this section “vulnerable witness” means a person other than an accused -

(a) who is under the age of 18 years ; or
(b) against whom an offence of a sexual or indecent nature or a domestic violence offence has been committed ; or
(c) who as a result of some mental or physical disability, the possibility of intimidation by the accused or any other person, or for any other reason will suffer undue stress while giving evidence, or who as a result of such disability, possibility or other reason will be unable to give complete and undistorted evidence.

(2) A court before which a vulnerable witness gives evidence in criminal proceedings may, of its own motion or on the application of the prosecutor, the accused or that witness, order that special arrangements be made for the giving of the evidence of that witness.

(3) Special arrangements under subsection (2) may consist of one or more of the following steps :

(a) The issuing, subject to section 175 and notwithstanding section 180(2), of a direction that the vulnerable witness gives his or her evidence -

(i) at any place, whether within or outside the courtroom -
(aa) which is informally arranged to set that witness at ease ;
(bb) which is so situated that any person whose presence may upset that witness, is outside the sight of that witness ; and
(cc) which enables the court and any person whose presence is necessary at the proceedings in question to see and hear, either directly or through the medium of closed circuit television or similar electronic media or a one-way mirror or otherwise, that witness during his or her testimony and, if the witness is accompanied by a support person, to also see and hear the support person in like manner ; or
(ii) behind a screen in the courtroom in the same manner and subject to the same requirements prescribed in item (cc) of subparagraph (i) ;

(b) the rearrangement of the furniture in the courtroom, or the removal from or addition to the courtroom of certain furniture or objects, to set the vulnerable witness at ease, or the issuing of a direction that any person whose presence may upset that witness sits or stands at a certain location in the courtroom ;

(c) notwithstanding section 175, the granting of permission to a person (in this section referred to as a support person) who is a fit person for that purpose to accompany the vulnerable witness while he or she is giving evidence ;

(d) the adjournment under section 191 of the proceedings in question to any place other than the one where the court is sitting to hear the evidence of the vulnerable witness ;

(e) the taking of any other steps that in the opinion of the court are expedient and desirable to facilitate the giving of evidence by the vulnerable witness.

(4) The support person is entitled to -

(a) sit or stand near the vulnerable witness and to give such physical comfort to that witness as may be desirable ;
(b) interrupt the proceedings to alert the presiding judge or magistrate to the fact that the vulnerable witness is experiencing undue distress,
but, subject to subsection (5), the support person is not entitled to assist that witness with the answering of a question or to instruct that witness in the giving of evidence.

(5) The court may give directions to the support person prohibiting the support person from communicating with the vulnerable witness or from taking certain actions, or may direct the support person to take such actions as the court may consider desirable.

(6) When considering whether an order under subsection (2) should be made, the court must take into account the following matters :

(a) The interests of the State in adducing the complete and undistorted evidence of the vulnerable witness concerned ;
(b) the interests and well-being of the vulnerable witness concerned ;
(c) the availability of necessary equipment and facilities ;
(d) the interests of justice in general.

CHAPTER 29
WITNESSES

Process for securing attendance of witness

202. (1) In this section “prescribed officer of the court” means the registrar, clerk of the court or any other officer prescribed by the rules of court.

(2) (a) The prosecutor or an accused may compel the attendance of a person to give evidence or to produce any book, paper or document in criminal proceedings by issuing or taking out process for that purpose in accordance with procedures prescribed by the rules of court.

(b) If a member of the police has reasonable grounds for believing that the attendance of a person is or will be necessary to give evidence or to produce any book, paper or document in criminal proceedings in a magistrate’s court, and hands to that person a written notice calling upon him or her to attend such proceedings on the date and at the time and place specified in the notice, to give evidence or to produce any book, paper or document, likewise specified, that person is for the purposes of this Act deemed to have been duly subpoenaed so to attend such proceedings.

(3) Where an accused desires to have a witness subpoenaed, a sum of money sufficient to cover the costs of serving the subpoena must be deposited with the prescribed officer of the court, and that officer must then subpoena the witness.

(4) (a) Where an accused desires to have a witness subpoenaed and the accused satisfies the prescribed officer of the court -

(i) that he or she is unable to pay the necessary costs and fees ; and
(ii) that the evidence of the witness is reasonably necessary and material for his or her defence,
that officer must subpoena the witness at the expense of the State.

(b) In any case where the prescribed officer of the court is not so satisfied, that officer must, at the request of the accused, refer the relevant application to the judge or magistrate presiding over the court, who may grant or refuse the application or defer his or her decision until he or she has heard other evidence in the case.

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

Witness to attend proceedings and to remain in attendance

210. (1) A witness who is subpoenaed to attend criminal proceedings must attend such proceedings and remain in attendance at the proceedings, and a person who is in attendance at criminal proceedings, though not subpoenaed as a witness, and who is warned by the court to remain in attendance at the proceedings, must remain in attendance at the proceedings unless that witness or that person is excused by the court.

(2) Notwithstanding subsection (1), the court may, at any time during the criminal proceedings in question, order that any person, other than the accused, who is to be called as a witness, must leave the court and remain absent from the proceedings until that person is called, and that that person must remain in court after he or she has given evidence.

Failure by witness to attend or to remain in attendance

211. (1) A person who is subpoenaed to attend criminal proceedings and who fails to attend or to remain in attendance at such proceedings, and a person who is warned by the court to remain in attendance at criminal proceedings and who fails to remain in attendance at such proceedings, and a person so subpoenaed or so warned who fails to appear at the place and on the date and at the time to which the proceedings in question may be adjourned or who fails to remain in attendance at such proceedings as so adjourned, commits an offence and is liable on conviction to the punishment contemplated in subsection (2).

(2) Section 192(2) applies with the necessary changes to a person referred to in subsection (1).

Powers of court with regard to recalcitrant witness

212. (1) If a person present at criminal proceedings is required to give evidence at such proceedings and refuses to be sworn or to make an affirmation as a witness, or, having been sworn or having made an affirmation as a witness, refuses to answer any question put to him or her or refuses or fails to produce any book, paper or document required to be produced by him or her, the court may in a summary manner enquire into such refusal or failure and, unless the person so refusing or failing has a just excuse for his or her refusal or failure, sentence that person to imprisonment for a period not exceeding five years.

(2) After the expiration of any sentence imposed under subsection (1), the person concerned may from time to time again be dealt with under that subsection with regard to any further refusal or failure.

(3) A court may at any time on good cause shown remit any punishment or part thereof imposed by it under subsection (1).

(4) Any sentence imposed by a court under subsection (1) must be executed and be subject to appeal in the same manner as a sentence imposed in any criminal case by that court, and must be served before any other sentence of imprisonment imposed on the person concerned.

(5) The court may, notwithstanding any action taken under this section, at any time conclude the criminal proceedings referred to in subsection (1).

(6) No person is bound to produce any book, paper or document not specified in a subpoena served on him or her, unless that person has that book, paper or document in court.

Impeachment or support of credibility of witness

213. (1) Any party may in criminal proceedings impeach or support the credibility of a witness called against or on behalf of that party in any manner in which and by any evidence by which the credibility of that witness might in terms of the law in force immediately before 21 March 1990 have been impeached or supported by that party.

(2) Any party who has called a witness who has given evidence in criminal proceedings (whether that witness is or is not, in the opinion of the court, adverse to the party calling him or her) may, after that party or the court has asked the witness whether he or she did or did not previously make a statement with which his or her evidence in the proceedings in question is inconsistent, and after sufficient particulars of the alleged previous statement to designate the occasion when it was made have been given to the witness, prove that the witness previously made a statement with which such evidence is inconsistent.