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.