MINISTRY OF JUSTICE

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Query: Members of the public are unhappy when prosecutors refuse to withdraw their cases…

Response: There is a difference between civil and criminal cases. In civil cases, the matter is between individuals, the one who has done wrong and the one to whom a wrong was done.

In criminal cases, the case is between the State, represented by a lawyer called a public prosecutor and the person who is suspected to have committed a crime. A criminal case is never and will never be between a complainant, which is a person who reported a case to the police, and the one who committed a crime. The complainant has no power to withdraw a criminal case.

That power lies with the State represented by the public prosecutor. A complainant can make his views known regarding the case by the public prosecutor, but the prosecutor is not bound by the views of the complainant as to the withdrawal of the case he reported previously to the police.

In civil cases police are not involved, as it is not a case in which the State has an interest.

There are procedures and principles prosecutors should follow whether a matter should be withdrawn or not. One of the determining principles in deciding whether a case should be withdrawn or not is whether it will be in the public interest to continue with the case, or whether the public interest would be served better if the case is withdrawn.
Turning to the situation experienced at Outapi magisterial district in the Omusati Region: the majority of criminal cases, including domestic violence-related cases – which are high in that region – are being withdrawn on the request of complainants in exchange for compensation at the traditional courts, or due to settlement reached between the complainant or his or her relatives and the accused or his or her relatives. This is normally done after the police used scarce State resources to investigate the case.

A complainant is just a witness in the case. He or she cannot influence the prosecutor to withdraw a case. If they do so they are committing a criminal offense of obstructing the course of justice. Therefore witnesses, including complainants, should be encouraged to come and give their testimonies, instead of urging to withdraw cases.

Those with complaints should approach the offices of prosecutors in order to be informed as to why a case should not be withdrawn. It should be noted that prosecutors have duties to perform. That is to ensure that crimes in the country are prosecuted efficiently and effectively without fear, or favour or prejudice, as well as to ensure that the Namibian nation and those who find themselves in this country are protected against crime.

Query: What will happen if I die without a valid will, and what are the requirements for a valid will?

Response: A will or testament is a legal document that contains your wishes as to how and to whom your property must be given after your death. You can also appoint a guardian for your minor children in your will to make sure that they are looked after by someone you trust.

If you don’t leave a valid will your estate will be distributed in terms of the rules of intestate succession, which means that someone may benefit from your estate that you didn’t want to. If you didn’t appoint a guardian for your minor children, they might suffer, because there is no one to care for them.

You may make a will if you are 16 years or older and are able to understand the nature and effect of your actions. A will may be drafted in your own handwriting and in any language you prefer.

A will must comply with the following requirements to be valid: (1) It must be in writing. Oral wills are not acceptable. (2) You must sign the will in the presence of at least two competent witnesses or confirm your signature in the presence of at least two competent witnesses. (3) Each page of the will must be signed by you and the witnesses with full signatures. A will that is only initialed by the testator and/or any of the witnesses will not be valid.

If you sign the will by making a mark (e.g. a cross or a thumbprint) a notary, peace officer, magistrate or commissioner of oaths must then certify it by signing the will on each page and attach his/her certificate on the last page of the will. (5) A witness must sign with his/her full signature and may not witness a will by only making a mark. The testator and witnesses must sign each page. The last page must be signed directly underneath the last sentence on the page. There may not be a large space between the signatures and the last sentence.

You may change your will at any time before your death. A will is a living document and must be reviewed regularly to provide for your changing circumstances, e.g. when you get married or divorced. It is also important to revoke your previous will by inserting a revocation clause in your new will.

Simon Tangeni Idipo, Public Relations Officer, Ministry of Justice, E-mail Address: idiposimon@moj.gov.na

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