REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case No.: HC-MD-CRI-APP-CAL-2019/00111
In the matter between:
ROBERTO IIPINGE APPELLANT
THE STATE RESPONDENT
Neutral citation: Iipinge v S (HC-MD-CRI-APP-CAL-2019/00111)  NAHCMD 156 (8 May 2020)
Coram: LIEBENBERG J
Heard: 30 April 2020
Delivered: 08 May 2020
Flynote: Criminal Procedure – Appeal – Against refusal to admit appellant to bail in an application on new facts – Issues regarding not receiving medication and missing medical appointments while in custody should be addressed when they occur – Diagnosed with a condition that was treatable whilst in detention – Medical condition not constituting new facts – Pending investigations against appellant not constituting new facts – Error in interpretation of s 61 of CPA does not change appellant’s position with regards to bail – Court a quo not wrong in dismissing the application
Summary: The appellant was charged with offences under Ordinance 4 of 1975 and the Controlled Wildlife Products and Trade Act 9 of 2008. He lodged two bail applications which were both refused on separate grounds. Dissatisfied with the findings, he now appeals against the refusal of his subsequent bail application on new facts.
Held, that the findings of the court a quo in the initial bail application that appellant and his co-accused operated as a syndicate and that it would not be in the interest of the administration of justice to grant bail, were unchallenged and remain applicable.
Held further, any decision against which the appeal is brought, shall not be set aside unless the court of appeal or judge is satisfied that the decision was wrong.
Held further, regarding the appellant’s medical condition of ‘major depression’ worsening if he continues to be in custody, such evidence was not led by Dr Raath who diagnosed appellant with the said medical condition.
Held further, the appellant’s medical condition was not an external factor that suddenly overwhelmed him, but a mental condition he had been living with in the past, presumably not significantly impacting on his day-to-day living that required treatment. This only changed some time after his detention.
Held further, the appellant should have taken up his issues about the lack of dispensing medication on time and missed appointments (with the psychologist) with the officer in charge when it occurred, as opposed to only raising them during the bail application for the first time.
Held further, Dr Bulaya’s opinion that, the appellant would need a new environment to recover was without merit, for reason that he had already taken this view before the appellant consulted the psychologist and thus lacks sincerity.
Held further, the diagnosis of ‘major depression’ did not constitute a new fact, for the reason that appellant was already diagnosed with such condition in 2017. Furthermore, he will continue taking medication for his condition which is expected to raise his spirit and change his mind set. The appellant continues to have access to a private physician who could indirectly monitor the administering of medication to him and arrange consultations with the psychologist.
Held further, failure to arrest the appellant on a charge of hunting of specially protected game committed in another district and the pending investigations against him is inconsequential to his subsequent bail application and takes the matter no further. During the bail application he was already facing a similar charge.
Held further, the wrong interpretation of s 61 of the CPA has not brought about any meaningful change in the appellant’s position with regards to bail. The alleged new facts relied upon during the subsequent application do not carry sufficient weight to have the court a quo’s decision set aside. The appeal is accordingly dismissed.
(Appeal against the refusal of bail)
 The appellant and three co-accused appeared before the magistrate’s court for the district of Otjiwarongo on the following charges: Count 1 – Hunting of specially protected game in contravention of s 26(1) of Ordinance 4 of 1975; Count 2 – Main count: Dealing in controlled wildlife products, contravening s 4(1)(b) of the Controlled Wildlife Products and Trade Act 9 of 2008; Alternative count: Possession of controlled wildlife products, a contravention of s 4(1)(a) of the said Act.
 On the 5th September 2019 the appellant and accused no 3 sought their release from custody by way of a formal bail application during which both gave evidence in support of their application (hereinafter ‘the initial application’). The application was however dismissed on the 11th September 2019. On the 01st November the applicants launched a fresh application based on new facts (‘the subsequent application’). The court a quo equally dismissed the application and ordered the continued incarceration of the applicants for reason that the investigation was incomplete as laboratory results were still outstanding. Disgruntled by the outcome of the bail application, the applicants appealed to this court against the refusal of bail, based on new facts. Accused no 3 (second appellant in the initial proceedings before this court) subsequently withdrew his appeal.
 Mr Alexander appeared for the appellant and Mr Lisulo for the state.
Findings by court a quo
 The court when delivering its ruling in the initial bail application made the following findings, based on the evidence adduced:
That the fundamental rights of an accused person are not absolute and in a bail application must be considered in relation to the fundamental rights of all citizens which provide for the maintenance of law and order, equally enshrined under the constitution. With regards to the objections raised to the granting of bail, the court found that it has not been established that the applicants would interfere with the investigation; neither that they would abscond, nor commit further crime. Turning to what the court considered the most important issue namely, public interest and the interest of the administration of justice, it was said that the evidence presented was an important factor in the determination of bail to be granted or otherwise. Once a prima facie case has been established against an accused, the court should be entitled to refuse bail even if there is only a remote possibility of absconding or interference. To this end the court took into account that the appellant and accused no 3 contradicted one another during their testimony as to the appellant’s knowledge of the rhino horn found in the boot of his vehicle. Relying on the evidence of the investigating officer as to the involvement of the co-accused and the interaction between them pertaining to a rifle having been left in the custody of accused no 3 in Windhoek by accused no 2; their travelling to Otjiwarongo where they met up with the appellant and stayed over at his house; and that a rhino horn was shown to the appellant and accused no 3 at the house of the former by accused no 2, the court concluded that this was an organised event which required the involvement of a number of people working as a syndicate and in which each had a role to play. The court was further alive to DNA and ballistic results being outstanding as part of the investigation. Despite the appellant’s medical condition, the court was satisfied that the granting of bail, at that stage, was not in the interest of justice and dismissed the application. Although the court was of the view that the provisions of s 61 should find application, it has not specifically been stated to what extent the section was relied upon.
 In light of the appellant not having appealed against the court a quo’s refusal to grant bail in the initial application, that court’s findings remained valid and essentially formed the basis from which any new facts presented during the subsequent application, were to be considered. Section 65(4) makes plain that any decision against which the appeal is brought shall not be set aside unless the court of appeal or judge is satisfied that the decision was wrong. The main findings not having been challenged, namely, that the appellant and his co-accused operated as a syndicate and that it would not be in the interest of the administration of justice to grant bail, thus remained established. It was submitted on the appellant’s behalf that he does not necessarily agree with the finding that he was part of a syndicate. In such instance, he should then have launched an appeal against the court a quo’s findings before bringing a subsequent bail application based on new facts. This he chose not to do.
 Next I turn to the court’s findings during the subsequent application for bail and will mainly focus on what relates to the appellant. The court with regards to the appellant dealt with two issues raised, namely, his medical condition and the loss of employment consequential to his continued incarceration. In addition, in respect of count 2 the relevance of s 61, read with Part IV of Schedule 2 of the Criminal Procedure Act, was considered and, in light of the evidence of the investigating officer in both applications, also the charges preferred against the appellant.
 On the applicability of s 61, it was found that the provisions of the section remain applicable despite the repealing of Proclamation AG 42 of 1980 (The Controlled Game Products Proclamation) by the current Act, the Controlled Wildlife Products and Trade Act 9 of 2008. Furthermore, the court found that this argument could not be considered to be a new fact as the appellant had already been charged under the same legislation (the Act) during the initial application when it could have been argued that the offence was not listed under the schedule.
 With regards to the medical condition suffered by the appellant and his loss of employment, these were also ruled not to be new facts. As to the charge in count 1, the court found that, on strength of the investigating officer’s evidence, there was no incriminating evidence supporting the charge of hunting of specially protected game, only in respect of the charge of dealing or possession of controlled wildlife products, set out in count 2.
Notice of appeal
 The notice of appeal was filed on behalf of the appellant and his former co-appellant and whereas the latter has withdrawn his appeal in the meantime, those grounds relating to the second appellant are superfluous and will not be considered for purposes of the appeal. The grounds enumerated in the notice are voluminous and besides some grounds not satisfying the requisites of being clear and specific but rather amounting to general criticism levelled against the court a quo’s ruling, there are also duplications and overlapping issues identified. I do not intend dealing with each of these in any detail and will mainly focus on those grounds identified by appellant’s counsel during oral submissions. These concern the testimonies of the appellant and Dr Bulaya during the subsequent application and the court’s actual findings. During oral argument counsel informed the court that the appellant abandons the ground of appeal which relates to the appellant’s envisaged loss of employment as it was a mere consequence of the issue already raised and decided during the initial application. Issue was also taken with the arrest of a suspect known by the name of ‘General’, constituting a new fact. It was further submitted that the appellant’s alleged involvement in the killing of a rhino in the Omitara district significantly changed when the police conceded that there was no evidence to arrest the appellant on that charge. The court a quo however did not consider this to constitute a new fact.
Grounds of appeal
 The thrust of the first attack mainly lies against the court a quo’s failure to find that the alleged deterioration of the appellant’s health constituted a new fact and the extent thereof being such that he required treatment outside a detention facility. It was said that, for this reason alone, the court ought to have admitted the appellant to bail.
 Guided by authoritative case law, the court a quo was mindful of the approach to be followed when dealing with the question of new facts in a bail application. The court observed that, where an accused person’s detention is lawfully ordered as being in the interest of the administration of justice, such person cannot simply resort to a further bail application mainly because he is being detained under inhumane and degrading circumstances, including the right of access to medical treatment. In such instance, the court reasoned, the issue should first be raised with the head of the facility and if the situation remains unchanged, to then challenge the detention in a court of law on grounds that the detention is unconstitutional, alternatively, to seek a mandamus against the detaining authority to force them to comply with the law. To this end the court observed that there has been no indication that the appellant consulted the station commander, indicating that he has been refused medication or medical treatment due to the remissness of officers who were supposed to attend to him and supervise the process. This observation is borne out by the appellant’s evidence that, on two occasions, he could not be taken to Dr Raath, the specialist psychologist, for follow-up consultations.
 In order to counter the allegations made by the appellant about the officers’ remissness in dispensing his medication and having been the cause of him missing two appointments, the state led the evidence of the police officer attached to cell management at Otjiwarongo police station, Cornelia Hindjou, who worked closely with the appellant during the relevant period. She explained how she dispensed the medication provided by Dr Bulaya to the appellant in accordance with his instructions. When she went off duty, these instructions were conveyed to the officers on duty who would then hand out medication to the inmates. She had regular contact by phone with Dr Bulaya, being a private doctor, and would call him if the appellant had any complaints, or when his next appointment was due. When this was not possible due to a shortage of transport, she would let the doctor know in advance. Except for one instance where she told the appellant about a doctor’s appointment and he refused to go, she was unaware of any other time when he was not taken to the doctor. She was also unaware of any complaint lodged by the appellant about him not receiving his medication on time. As to the lack of resources (transport) the officer admitted that this was a countrywide phenomenon and not only experienced at Otjiwarongo police station. When the appellant apparently missed one appointment, she was on leave.
 It is common cause that shortly after his arrest and detention at the police cells, the appellant contracted chickenpox which necessitated a visit by his private doctor, Dr Bulaya. During one such visit the doctor found the appellant in a state of mind which concerned him, as the appellant has a history of depression for which he referred him to a psychologist already in 2017. It is common cause that the appellant, back then, did not meet the appointment and continued as usual. The condition only resurfaced during his current detention. This prompted a referral to the specialist psychologist, Dr Raath who had a consultation with the appellant and prescribed medication which had to be taken over a period of three months. The prescription further indicates that the appellant suffers from ‘major depression’. Dr Bulaya took it upon himself to give directives to the police officers as to how the medication should be administered. He was not aware of the appellant’s complaints about the medication not having been handed out at the right time or that he received it from fellow inmates.
 It was submitted on behalf of the appellant that the diagnosis of the condition of ‘major depression’ was made after the initial bail application and therefore constitutes a new fact. The view taken by the court a quo, however, is that the appellant had already been diagnosed with depression during 2017, a fact the court already considered during the initial application. In its view, the evidence presented on the medical condition was nothing more than the cumulative effect of what he had already been diagnosed with and did not per se constitute a new fact.
 Though the condition referred to as ‘major depression’ was diagnosed by Dr Raath after the initial bail application, it is common cause that the appellant has been suffering from depression for some time. According to the evidence of Dr Bulaya, he was alerted during one of his visits when he heard the appellant mentioning about ‘things getting too much for him in detention and that he wants it all to end’. This was interpreted to mean that the appellant entertained suicidal thoughts. What is evident from the note issued by Dr Raath is that the appellant were only to take medication whilst in custody for an initial period of three months, with follow-up visits in between. The prescription was issued against the background where it was a known fact that the appellant was in custody and awaiting trial.
 Although Dr Bulaya during his testimony created the impression that the appellant’s condition would not improve whilst he finds himself in the same circumstances ie in police detention, this view has not been shared by Dr Raath as far as the prescription note goes. If that were to be the case, one would have expected something to that effect to have been stated in no uncertain terms, or the evidence of Dr Raath being led to this end. Nothing was said about the appellant who should be released from his current environment or anything of that sort as a prerequisite for the treatment. From a reading of the protracted testimony of Dr Bulaya, one gets the distinct impression that it exceeds his medical expertise (in the field of psychology) and objectivity and that he surreptitiously tried to secure the release of the appellant. This is borne out by his opinion that the appellant’s condition will not improve whilst he is kept in custody. When questioned about hospitalising the appellant if his condition was all that serious, he retorted that he did not have the authority to give such order. Though true, being the appellant’s private physician one would have expected some action taken on his part to set in motion the process of safeguarding his patient’s health, if that were to require him being hospitalised. This was never deemed necessary at any stage during the appellant’s incarceration.
 When looking at the medical condition of the appellant, prior to his arrest and thereafter, the evidence shows that in 2017 he had been suffering from chronic ailments which Dr Bulaya considered to have a psychological basis. When the appellant refused to act on the recommendation to see a psychologist, nothing more came from it until the appellant’s arrest and subsequent detention. Understandably, having ones liberty taken away and being kept in police custody would inevitably be more stressful and likely to impact on the psyche of such person; moreover when charged with serious crimes. It should be borne in mind that the appellant himself is the source of the information that was subsequently relied upon when diagnosed with ‘major depression’. It was not an external factor that suddenly overwhelmed him, but a mental condition he had been living with in the past, presumably not significantly impacting on his day-to-day living that required treatment. This only changed some time after his detention.
 I align myself with the court a quo’s reasoning that the appellant should have taken up his issues about the handing out of medication and appointments missed, with the officer in charge when it occurred and not to have waited for the bail application to raise it for the first time. The alleged remissness on the part of the police has the making of an overkill – aimed at exaggerating the conditions under which the appellant was detained – to the extent that it allegedly jeopardised his health. This was not borne out by the evidence presented by the appellant and Dr Bulaya. The court a quo consequently concluded that the doctor’s opinion that the appellant would need a new environment to recover, was without merit for reason that the doctor was already of this view even before the appellant consulted the psychologist; it thus lacks sincerity and was rather aimed at securing the appellant’s release from custody. I agree. I am therefore not persuaded that the court a quo misdirected itself in coming to the finding as it did.
 As for the question whether the diagnosis of major depression in itself constituted a new fact, it would for reasons to be stated shortly, make no difference to the appellant’s position as to the granting of bail or otherwise. He is required to take medication for the next three months which is expected to raise his spirit and change his mind set. This treatment was prescribed by the psychologist and, other than that, nothing was said about the compelling need to have the appellant released for medical reasons, despite the views expressed by Dr Bulaya. The appellant continues to have access to a private physician who could indirectly monitor the administering of medication to the appellant and arrange consultations with the psychologist. Nothing in this regard has changed. In any event, if the appellant has entertained ideas of ending his life, then he is a danger to himself and should be under constant supervision. For his own safety, detention may be the safer option.
 For the afore-stated reasons, I am not persuaded that the court a quo erred in its findings. The appellant’s medical condition has not deteriorated to the level where it can be said that it was life-threatening; he was diagnosed with a condition that was treatable whilst in detention. If this were to be considered a new fact, then it has little significance when considered in light of all the relevant facts pertaining to bail.
 With regards to the arrest of the suspect referred to as ‘General’ constituting a new fact, I find it difficult to see how that could possibly favour the position of the appellant during the subsequent application if the court, already during the initial application, ruled out the risk of the then applicants interfering with the police investigation. As testified by the investigating officer, the suspect by then already knew that the police were looking for him and his arrest was consequential thereto. Though the arrest itself might be considered a new fact per se, it was inconsequential to the appellant’s subsequent bail application and takes the matter no further.
 Next I turn to consider the evidence of the investigating officer with regards to the hunting of one rhino in the area of Omitara. In the second ruling the court a quo considered the evidence of the investigating officer given during the initial application in relation to the Omitara incident. Also what he subsequently testified with regards to rhinos killed in the Otjiwarongo district, both still being under investigation and the appellant’s possible involvement. The court concluded that in respect of both investigations there was nothing more than the hope of linking the appellant to either, and that the allegations remained unsupported. Thus, it was found that for purposes of bail, it was not considered to be a new fact.
 From the appellant’s perspective, the fact that he has not yet been arrested on the Omitara matter means that there is no evidence that links him to the hunting of that rhino. This would equally apply to the ongoing investigations in the Otjiwarongo district. From the court’s ruling it is clear that this is not a fact that was taken into account when refusing the appellant bail during the initial application. As the investigation still did not link the appellant with any of the crime scenes, his position thus remained unchanged in the absence of new evidence. It remained nothing more than a hope and fell short of being evidence adverse to the appellant’s application.
 Sight should however not be lost of the fact that both bail applications were heard at the time when the investigation was still ongoing and when the results of DNA testing conducted on rhinos killed at Omitara and Otjiwarongo, and the fresh rhino horn found in possession of the appellant, were still pending. The same goes for ballistic tests conducted on a projectile removed from the carcass at Omitara which is to be tested against the rifle found in possession of the former second appellant (accused no 3). There can be little doubt that the outstanding forensic evidence is vital to the charges the appellant is facing and that it would be essential in bail proceedings, especially when deciding the strength of the state’s case.
 The charges against the appellant relate to the hunting of rhino and the dealing or possession of rhino horn which were never challenged and thus formed the basis on which the state opposed bail in both applications. The fact that the appellant had not officially been arrested on the Omitara matter, in my view, loses significance once the court found that the four accused are involved in organised crime and each had a role to play, either in hunting, transportation, dealing or possession of protected game and controlled wildlife products. The court a quo was satisfied that there was prima facie evidence that linked the appellant’s co-accused to the rhino horn found in his possession and, under those circumstances, it would not have been in the interest of the administration of justice to grant bail. In bail proceedings the state is not required to prove the alleged offence to have been committed, only that it has an answerable case against the applicant. To this end the court was satisfied that the state has succeeded in showing just that.
 I find myself unable to disagree or fault the court a quo’s findings on this score. Hence, the argument advanced on behalf of the appellant has no merit.
 The last question for consideration is whether the court below erred when invoking the provisions of s 61 of the CPA with regards to the charges set out in count 2, pertaining to dealing in or possession of controlled wildlife products. Whilst acknowledging that Proclamation AG 42 of 1980 has been repealed by Act 9 of 2008, the court reasoned that it could never have been the Legislature’s intention to create a vacuum under Part IV of the CPA and that the substituting legislation is a mere ‘continuation’ or ‘advancement’ of the Proclamation. Hence, the court found the argument put forward to be unmeritorious. It was submitted on behalf of the appellant that the court clearly misdirected itself and that this court on appeal should reassess the facts and decide the question of bail afresh.
 The court in coming to the conclusion, as it did, relied on s 12 of the Interpretation Act 33 of 1957 which reads:
‘12 Effect of repeal of a law
(1) Where a law repeals and re-enacts with or without modifications, any provision of a former law, references in any other law to the provision so repealed shall, unless the contrary intention appears, be construed as references to the provision so re-enacted.’ (Emphasis provided)
 For present purposes it does not concern any provision which has been repealed, but the entire Proclamation repealed by s 13 of Act 9 of 2008. The Act itself is silent on references made to the Proclamation in any other law. This means that there is no legislation that provides for the substitution of Proclamation AG 42 by Act 9 of 2008 under Part IV of Schedule 2 of the CPA. Contrary to the court’s reasoning, the repeal of the Proclamation did leave a vacuum which could only be rectified once the relevant schedule to the CPA has accordingly been amended. It is event that the court wrongly relied on the Proclamation when invoking the provisions of s 61 during the initial application. This then begs the question what impact would this have on the outcome of the bail application?
 It would appear that until now sight has been lost of the fact that in count 1 the appellant is still facing a charge of hunting specially protected game in contravention of s 26(1) of Ordinance 4 of 1975, an offence listed in Part IV of Schedule 2 and for which s 61 may be invoked during bail proceedings. Despite the court below having reasoned that there was no evidence of showing that the appellant was directly involved in any hunting of rhino, it did make a finding that the evidence showed that the four accused persons before court (appellant being accused no 1) had acted in concert and with common purpose. This conclusion was inter alia supported by evidence that accused no 2 handed over a hunting rifle to accused no 3 for safekeeping in Windhoek; that accused no 3 transported accused no 2 and 4 to Otjiwarongo where they met up with the appellant and spent the night at his place (except for accused no 4); there accused no 2 produced a fresh rhino horn which was brought along from Windhoek; that the appellant was found in possession of a rhino horn the next day in circumstances where all the accused were together and to receive money from the appellant. Lastly, that accused no 4 subsequently pointed out a scene at Omitara where the carcass of a rhino was discovered. Add thereto that the state was in possession of evidence to the effect that the appellant offered a rhino horn for sale to a colleague at work in Otjiwarongo on the same day he was found in possession of the horn.
 It would from the foregoing appear to me that there was incriminating evidence before the court that established a link between the four accused with regards to the poaching of rhino and the dealing in or possession of controlled wildlife products. As for the former, the provisions of s 61 of the CPA find application.
 Based on these facts, the court a quo would have been entitled to summarily refuse bail on grounds that it would not have been in the public’s interest or that of the administration of justice to allow any of the accused to bail. Moreover, where the evidence before court is that there is an ongoing investigation with regards to the pending DNA and ballistics results. It was furthermore not complained of that the investigation was taking unreasonably long. Where the collection of evidence includes the process of forensic analysis, it is not uncommon to find that this process requires more time and the courts have always shown some indulgence in this regard, provided it remains within a reasonable time limit. It would not appear to me that the investigation in the instant matter has unnecessarily been protracted, thus warranting intervention by the court. This view is however open to change – much depending on how long it takes to have the forensic results available and finalising the investigation.
 In the final analysis, despite the court a quo having erred on the interpretation of the applicability of s 61 as far as it concerns the offences charged in count 2, I am not persuaded that this has brought about any meaningful change in the appellant’s position with regards to bail. Neither has it been shown that the self-styled new facts relied upon during the subsequent application carry sufficient weight to have the court a quo’s decision set aside.
 In the result, the appeal is dismissed.
APPELLANT V Alexander
Of Ellis Shilengudwa Inc.,
RESPONDENT E Moyo
Of the Office of the Prosecutor-General,
 S v du Plessis and Another 1992 NR 74 (HC).
 S v Mpofana 1998 (1) SACR 40 (TkHC).