Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698748736302.pdf (Namibia)
REPUBLIC OF NAMIBIA NATIONAL ASSEMBLY COMBATING OF DOMESTIC VIOLENCE AMENDMENT BILL (As read a First Time) (Introduced by the Minister of Justice) [B.

1 - 2021] 2 EXPLANA TORY NOTE: Words underlined with a solid line indicate insertions in existing provisions.

Words in bold type in square brackets indicate omissions from existing provisions.
BILL To caretaker"; relating to interim protection orders; amend the Combating of Domestic Violence Act, 2003, so as to insert a definition of "primary to extend the scope of "domestic to the primary caretaker ofa child and clarify that a domestic relationship" relationship between a child and a parent continues even after the child has attained the age of 18 years; intimidation to strengthen safeguards against to clarify the necessity to show urgency in order to obtain of complainants; to amend procedural an interim protection order on an ex parte basis; to apply the provisions for matters vulnerable witnesses contained in the Criminal Procedure Act, 1977 to proceedings relating to protection orders and domestic violence offences; to apply provisions of the Criminal Procedure Act, 1977, in relation to production of medical records in evidence in protection order proceedings; to amend the terms of protection orders so as to add a provision directing the respondent to provide a maximum period pertaining to exclusive occupation of a shared the issuing of emergency residence on communal to custody and access protection orders; for children who may in protection orders; temporary maintenance be affected by domestic violence; in the same way as orders to provide for maintenance notification of any breach of a protection order to provide for the initiation of a procedure for suspending a firearm licence in relation to to clarify that a person involved in the commission of domestic violence; protection orders and criminal charges can be pursued simultaneously; to amend the definition of "domestic violence offences" in the First Schedule; and to provide for incidental matters.
to clarify provisions pertaining to strengthen the safeguards the Maintenance Act, 2003; in a counselling or treatment to provide that to provide for orders under in protection to the court; to take part programme; be treated included orders land; BE IT ENACTED as passed by the Parliament, and assented to by the President, of the Republic of Namibia, as follows: Amendment of section 1of Act No.4 of2003 1.

4 of2003) Section I of the Combating of Domestic Violence Act, 2003 (Act No.
(in this Act referred to as the "principal Act") is amended - (a) by the insertion after the definition of "child" of the following definition: .

"Child Care and Protection Act" means the Child Care and Protection Act, 2015 (Act No.

3 of2015);"; 3 (b) by the insertion after the definition of "child" of the following definition: , "Criminal (Act No.
51 of 1977);"; Procedure Act" means the Criminal Procedure Act, 1977 (c) by the insertion definition: after the definition of "prescribe" of the following caretaker' means - (a) a person, other than the parent or care-giver, as defined in section I of the Child Care and Protection Act, of a child, whether or for the not related to the child, who takes primary responsibility ermission care of the child with the ex ress or im lied dail of a parent or other person with custody or guardianship of the child; or erson who cares for a child as a result of lacement in care under the Child Care and Protection Act or an a alternative other law;"; (d) by the substitution following definition: for the definition of "protection order" of the , "protection protection order granted under this Act;"; order" means an interim, [or] ~ final or an emeraenc (e) by the substitution for the definition of "social worker" of the following definition: and Social Auxiliary Workers' , "social worker" means a social worker as defined in section I of the Professions Act, 1993 (Act [Social No, 22 of 1993)] Social Work and Psychology Act, 2004 (Act No.6 of 2004);"; and (f) by the substitution definition: for the definition of "weapon" of the following includes an arm as defined in section , "weapon" Ammunition Act, 1996 [,](Act No.7 designed or used to inflict or cause physical bodily harm.".
1 of the Arms and of 1996) or any other object Amendment of section 3 of Act No, 4 of 2003 2.
(a) Section 3 of the principal Act is amended- in subsection paragraphs: (I) by the insertion after paragraph (d) of the following "(dA) they are or were a primary caretaker care of that caretaker; and a child in the 4 (dB) they are or were a primary caretaker in the care of that caretaker who requires care because of an illness or a disability;";_and and an adult (b) by the substitution for subsection (2) of the following subsection: Subiect to subsection 3 where a "domestic relationship" is based directly or indirectly on - (a) past marriage or engagement; ast cohabitation' erceived romantic or intimate caretaker such "domestic relationshi cessation or termination.
"; " continues and for one ear after its dissolution (c) by the insertion after subsection (2) of the following subsection: "(2A) ado tive child of an throuohout the child regardless of whether 18 years or more.".

Despite subsection (2), where a child is born to or is the " continues cou Ie, their "domestic relationshi the lifetime of that child and for one ear after the death of the child in question has attained the age Amendment of section 4 of Act No.4 of 2003 3.
Section 4 of the principal Act is amended by the insertion ofa full stop at the end of subsection (3).

Amendment of section 6 of Act No.4 of 2003 4.
Section subsection (6) of the following subsection: 6 of the principal Act IS amended by the insertion after "(6A) of the court but the complainant, lication a for a protection order If an application the a as the case may be, before a decision ears to be abandoned is submitted to the clerk licant or is made on an interim is held in terms of section 12 the clerk of ears to be u on becomino aware that lication a the a the a b rotection order or before an en uir the court abandoned immediatel - (a) must in the prescribed manner contact- (i) (ii) the station commander of the relevant police station; a social worker; or (iii) both the station commander and social 'vvorker; and 5 rescribed manner contact the a licant or the for the purposes of investigating whether safe and establishing whether coerced or undul the complainant ressured to abandon the a the applicant or the complainant is or applicant lication.
is being threatened, (2) The clerk of court (6A) must submit the information that he or she has been obtained from an investigation conducted to the relevant magistrate in terms of that subsection referred to in subsection for directions.".

Amendment of section 8 of Act No.4 of2003 5.
(a) Section 8 of the principal Act is amended by- the substitution paragraph: "(a) must - ill for paragraph (a) of subsection (3) of the following that it is satisfied if contemplated of urgency, grant, an interim protection that proceedings the respondent in section 7(1) and a sufficient there evidence is sufficient as showing in the prescribed form and manner, the fact has not been given notice of the order notwithstanding and an opportunity to be heard, and (ii) direct the complainant the return date;"; and to appear before the court on (b) the substitution for subsection (4) of the following subsection: "(4) An interim protection order must- (a) [call upon] direct the respondent, ifhe or she so wishes to: (i) (ii) the return date, on or before lodge written representations with the clerk of court, giving reasons why the interim protection order should not be confirmed; [show cause] and appear confirmation in court on the return to oppose of the interim protection order; and date the (b) contain any other prescribed information.
"; (c) the substitution for subsection (5) of the following subsection: "(5) The return date is 30 days from the date of the interim protection order but the court may extend this period if it is necessary less than 10 days after the service of an interim to ensure that order as contemplated in section 9(\), and the interim protection order remains in force up to the end of the extended return date.
it is not 6 (d) the substitution for subsection (7) of the following subsection: "(7) If the interim protection order involves rescribed manner impact on a child, situation which may have any negative together with the prescribed the court must send a copy of the order of the form in the as may be Ministry prescribed such action as may be provided for in legislation relating to the care and protection of children.".
and such copies to consider to any other prescribed for child welfare to the Permanent responsible Secretary persons, [children] ~ the clerk of Amendment of section 9 of Act No.4 of 2003 6.
(a) Section 9 of the principal Act is amended by- the substitution for subsection (I) of the following subsection: "(1) An interim protection together with a directive referred to in section 8(4)(a) and any other prescribed information must, within the prescribed period and in the prescribed form and manner, be served on the respondent.

"; order and (b) the substitution phrase "section in subsection 16".

(3) for the phrase "section 17" of the Repeal of sections 10 and 11 of Act No.4 of 2003 7.
Sections 10 and 11 of the principal Act are repealed.

Amendment of section 12 of Act No.4 of 2003 8.

(a) Section 12 of the principal Act is amended by- by the substitution for subsection (1) of the following subsection: "(\) [set out On the return date referred to in section 8(5) section 11], the court must enquire into the matter of confirmation under of the interim protection order.
"; (b) the insertion after subsection (6) of the following subsections: (a) 7 rOV1SIons of section 166 3 Procedure Act relating I the a the Criminal examination required by the context; of witnesses with such chan es as rna 6 to of to the cross- be c (c) the substitution for subsection (13) of the following subsection: "( 13) If, on the date and at the ti me fixed for the enq u iry, the respondent fails to appear in person at the court and ::.
@2 b is satisfied the court correctly served on the respondent section 9( I), the court may - that notice of the enquiry was in as contemplated [(a)lill proceed to hear and determine the absence of the respondent, account the res ondent under section 8 4 a re resentations the matter in but taking into if an made b ii; or an [(b)l@where the court is satisfied having regard to to it is appropriate the matter and, the material before it, that do so, postpone that order to in court on the date on which the matter appear has been postponed to[.
]~ or the respondent be summoned if necessary, the court effected on the res ondent is not satisfied that the court - ro er service has been (i) ii (iii) must set a new return date and cause the parties to be informed of such date; the unless order extend I before that the interim rotection order is no interim rotection there is evidence must accordin the court longer warranted; and may issue any directions on the res ondent as rna circumstances.
"; regarding service be re uired in the for paragraph (a) of subsection (14) of the following (d) the substitution subsection: "(a) if it is- 8 (ii) otherwise no longer wishes application; or"; satisfied that the applicant or complainant the the matter, dismiss to pursue (e) the substitution for subsection (15) of the following subsection: "( 15) Unless an application has in subsection (14)(a), contemplated in person or, if applicable, subsection (7), the court must: if the applicant through the representative been as dismissed fails to appear, either in contemplated of the police the station commander direct station named in the application to enquire into the reasons for to ensure that no intimidation of such non-appearance, the applicant has taken place, to provide appropriate police protection in the event of any intimidation, and to ascertain whether proceed with the application; the applicant still wishes to @2 c d (f) the insertion after subsection (15) of the following subsection: "(ISA) decision on a the court - [fthe court has insufficient rotection order at an en uir information to make a final both sides after hearin b c must extend an interim rotection order which is in lace until the next en ui date unless there is evidence before the court that the interim rotection order is no lonaer warranted· and must cause the arties to be informed of the next en ui date:'.
9 Amendment of section 13 of Act No.4 of 2003 9. subsection Amendment No.30f2015 Section 13 of the principal Act is amended by the substitution in (3) for the word "comander" of the word "commander".

of section 14 of Act No.4 of 2003, as amended by section 257 of Act 10.
Section 14 of the principal Act is amended by- (a) (b) in paragraph (b) of subsection the substitution contact provisions which -" of the phrase "~no-contact which -" (2) for the phrase "no- provision[s] the substitution paragraph: for paragraph (c) of subsection (2) of the following "(c) and dependants the complainant occupation the residence ifan act of physical violence has been committed, granting exclusive whether or solely by either one of them [, which may also include appropriate of residence, is owned or leased jointly by the parties if a provision of the complainant regardless a joint of - (i) (ii) (iii) a provision residence in the residence possession; (or directing that the contents certain for specified the use of of the joint remain given contents) the person a provision respondent directing from the residence; a police officer to remove the authorising a provision personal police supervision,] belongings the respondent from the residence to collect under but, the court must take the following factors into consideration in respect of any order under this paragraph - [(aa)](i} the length of time that the residence has been and the respondent, shared by the complainant on the but without prejudicing the complainant that he or she has at any stage [fled] grounds left the common residence ensure his or her safety or the safety of any child or other person in the care of the complainant; to [assure] [(bb)](ill occupants the accommodation needs of the complainant residence, the of in Iight of the need to secure the and any other considered health, safety and wellbeing of the complainant or any child or other person in the care of the complainant; and 10 [(cc»)ill.i2 any undue hardship that may be caused to or to any other person as a the respondent result of such order; [(dd)lft:'2 in the case of communal law or practice which governs land, the respective the of that to or occupation customary rights of ownership communal land;"; (d) the insertion paragraphs: after paragraph (c) of subsection (2) of the
 following the contents that residence rovrsion directin of a joint a contents, moved to another res ondent or the com lainant with due re ard to the res ective financial contributions s ecified or be residence occu ied or to be occu ied b the arties' to such contents· remain in that or certain residence, (cB) a provision directing a police officer from a residence com lainant· owned, occupied to remove the respondent or to be occupied by the rovision authorisin a to collect personal belongings su ervision;"; the com lainant or from a residence the res ondent under police (e) the insertion paragraph: after paragraph (g) of subsection (2) of the following directin a res ondent not rovision a com lainant's Ie al custod s ecified child or with the com lainant's of primary caretaker over a specified child;"; exercise of to interfere with the or control a exercise of the role over (t) the substitution paragraph: for paragraph (i) of subsection (2) of the following "(i) a provision granting temporary sole custody [- (i) (ii) of a child of the complainant custodian other than the respondent; or to any appropriate of any child of the complainant care another of a complainant appropriate to the custodian;) or any child in the to complainant or ado ted b is satisfied that to the com lainant or to another of a child born to or· ointl and the res ondent if the court to the child there is serious and imminent danger in which case the court must refer the matter to a designated in question, social worker, as defined in section 1 of the Child Care and Protection Act, to be completed [2015 (Act No.3 by the court, upon which the court may, within the period specified the com lainant suitable custodian, of 2015)1 for an investigation 11 the absence of a party to the proceedings, make a final notwithstanding order regarding sole custody;" (g) the substitution paragraph: for paragraph 0) of subsection (2) of the following "0) a provision temporarily - (i) (ii) (iii) all contact between
 the respondent forbidding child born to or jointly adopted by [of] the complainant and the respondent; and any that contact between the respondent specifying child born to or jointly adopted by [of] the complainant and the presence or a family member designated purpose; or take respondent, must and under the supervision in the of a social worker for this by the court place only and a allowing such contact only under specified conditions the complainant, designed the safety to ensure family any child who may be affected, members, of and any other if the court safety of the chi ld in question;"; is satisfied that this is reasonably necessary for the (h) the insertion paragraph: after paragraph (j) of subsection (2) of the following "CjA) a provision directing the respondent or treatment for health and social gender equality and child welfare, programme if - to take part in a counselling approved by the ministry responsible services or the ministry responsible for (i) (ij) the complainant an order, has no reasonable objections to such but the court - Caa) Cbb) may not require a complainant her will to participate together with the respondent; and against his or in any such programme may include a provision under this paragraph only after an enquiry at which the respondent has been heard.
"; and (i) the addition after subsection (2) of the following subsections: "(3) For purposes of - 12 a b (4) subsection component a child or children; 2 i of parental and "custod" refers to custod rights and responsibilities as a over refers 2 .

is a com onent of subsection child which res onsibilities from the ordinary meaning of the tenn "contact" is used in that subsection.
arental over a child or children to a ri hts and as distinct as it to access No provision contemplated in subsection (2)(i) or (j) if a divorce action between the may be included in a protection and the respondent complainant order is pending.

5 A court rna .

2 i or treat a re uest for a rovlslOn contem lated rotection order as an to be included in a in of subsection a Act, as the case may be, and proceed as if an application to custody sections."

.
.

lication under section 100 or 102 of the Child Care and Protection pertaining under one or both of those or access had been brought Amendment of section 15 of Act No.4 of2003 11.
Section paragraph (a) of the following paragraph: 15 of the principal Act is amended by the substitution for "(a) a provision residence owned by, or situated on communal complainant granting the exclusive occupation of a land allocated to - (i) (ii) (iii) [by] the complainant, court; remains in force for any period set by the [by] the respondent, court up to a maximum of six months; remains in force for any period set by the [jointly by] the complainant jointly, remains in force for any period set by the court up to a maximum of one year;".
and the respondent Insertion of section 15A in Act No.4 of 2003 12.

The principal Act is amended by the insertion after section 15 of the following section: "Emergency protection orders 13 1 (2) the station commander must On receipt of the affidavit contemplated in subsection b electronic mail or by fax, a magistrate who has jurisdiction in the area where the person requiring protection resides for purposes of obtaining an emergency protection order.
tele honicall contact either the provisions The maaistrate contem lated in subsection 2 havin 3 considered the facts on which the seekin protection rotection of section 7, may, on being made aware of rotection is based and if satisfied that issue an emergency fax and the nature from domestic order the ste s to be taken b the station commander of violence tele honicall electronic mail or b is warranted, either b indicatin of the protection granted.
In the event that the emer enc rotection order is ranted tele honicall the station commander must record the wordin of such order electronic mail, in writing, a copy of which must be remitted, by fax or issuing the order.

to the magistrate (5) An emergency protection order as contemplated in force until such time as application section remains order temporary seven da s from the date on which it was issued.
protection in terms of section 8 but no longer in this is made for a than 6 The station commander must cause the emeraenc protection order to be served on the person cited in such order without delay and the police officer who serves the order must explain to such erson in a Ian uaae which he or she understands - (a) (b) the purpose, and terms, duration and effect of such order; consequences the person concerned fails to comply with the terms of the order, including the provisions of section 16( 1).
follow if that may the Amendment of section 16 of Act No.4 of 2003 13.
Section 16 of the principal Act is amended by the addition after subsection (7) of the following subsection: "(8) Where a criminal been laid, court which issued the order has the police officer who opens the docket must notify the clerk of the and on the in the rescribed form and the clerk of the court must enter a notation to this effect on charge of breach of a protection rescribed manner rotection order the relevant file and place a copy of the notification form therein.".
Insertion of section 16A in Act No.4 of 2003 14.

The principal Act is amended by the insertion after section 16 of the following section: 14 "Provisions on temporary maintenance in protection orders Amendment of section 22 of Act No.4 of2003 15.
Section 22 of the principal Act is amended by the addition after subsection (4) of the following subsection: Insertion of section 29A in Act No.4 of 2003 16. following section: The principal Act is amended by the insertion after section 29 of the "Initiation of rocedure to declare erson unfit to ossess arms Amendment of section 32 of Act No.4 of2003 17.

Section 32 of the principal Act is amended by the substitution In paragraph (d) of subsection (I) for the word "ensuing" of the word "ensuring".
Amendment of First Schedule to Act No.4 of 2003 18.

(a) The First Schedule to the principal Act is amended by - the substitution "complainant"; in paragraph 5 for the word "victim" of the word and 15 (b) the insertion in paragraph 9 after culpable homicide".

the word "murder" of the words "or Amendment of Act No.

51 of 1977 19.
51 of 1977 19.

The Criminal Procedure Act is amended - (a) in subesction of the following paragraph: (3A) of section 153 by the substitution for paragraph (c) "(c) any domestic violence offence as defined in the Combating Domestic Violence Act, 2003 (Act No.4 of 2003);"; and of (b) in subesction (3A) of section 158A by the substitution of the following paragraph: for paragraph (c) (c) violence as defined in the against whom a domestic of Domestic Violence Act, 2003 (Act No.
4 of Combating 2003) has been committed violence has been committed by a close family member or a spouse or a partner in any permanent relationship]," [any offence involving offence Short title and commencement 20.

This Act (1) Amendment Act, 2021 and comes Minister by notice in the Gazette.

is called into operation the Combating on a date to be determined of Domestic Violence by the (2) different provisions of the Act.

Different dates may be determined in terms of subsection (I) for