REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK RULING ON BAIL APPLICATION Case No.: CC 9/2021 ERNST LICHTENSTRASSER APPLICANT Versus THE STATE RESPONDENT Neutral citation: Lichtenstrasser v S (CC 9/2021) [2022] NAHCMD 28 (2 February 2022) Coram: CLAASEN, J Heard: 18-20 January 2021 Delivered: 2 February 2022 Flynote: Criminal Law and Procedure – Bail – New facts – Court’s approach in considering whether there are new facts – Those new facts be considered against the background of the old facts – Notwithstanding new facts – Application for bail on new facts dismissed. 2 Summary: Applicant brought a bail application based on new facts. These were that, COVID-19 lockdowns delayed his trial and negatively affected consultation with his legal representative and that he suffers from certain mental health conditions. Held – Applicant has not proven existence of the specific mental health conditions of critical proportions as he alluded, nor can it be called a new facts as it emanated from his arrest and was in existence at the time of the bail applications in the district court. Held, that some of the grounds related to lockdown measures are indeed new facts, but that they do not displace the basis on which bail was refused by the district court, which conclusions had not been challenged on appeal. ORDER The application for bail on new facts is dismissed. RULING Background [1] The applicant is currently on trial in the High Court to defend himself against two counts of murder, two counts of possession of a fire-arm without a license, unlawful possession of ammunition, unauthorized supply of a fire-arm and ammunition, defeating or attempting to defeat the course of justice, as well as theft of a fire-arm barrel. [2] The applicant was arrested in Karibib one day after the shooting incidents of the two deceased persons in this matter. He subsequently appeared in the district court of Swakopmund on 9 May 2019. A formal bail application ensued during the course of 3 June 2019, wherein oral evidence was presented by the applicant and the investigating officer. The judgment for that was handed down on 24 July 2019, and the application was refused. Eight months thereafter on 23 March 2020, the applicant applied for bail on the basis of new facts, by way of an affidavit. That too was refused by the district court magistrate on 20 April 2020. He now approached this court, again under the auspices of new facts and testified in support of his application. The application was opposed by the respondent. New facts, evidence and submissions in this application [3] The new facts postulated by the applicant were: 3.1 COVID-19 lockdowns at the detention facility caused delays in trial; 3.2 Inability to properly prepare and or consult with his legal representative, also on account COVID-19 lockdown measures and or other restrictive conditions attached to telephonic use at the detention facility; and 3.3 Severe mental health effects such as depression and severe anxiety triggered by his arrest and worsened by the continued detention. [4] The applicant testified that his trial commenced early in 2021 and although 14 state witnesses have testified there were 104 more witnesses yet to testify. He lamented the position that due to a COVID-19 lockdown at the Namibia Correctional Services (NCS), he lost the progress of 12 trial days during the course of 2021. Given the large number of witnesses and the unpredictability of COVID-19, he does not anticipate that the matter will be concluded this year. He regards the trial dates given for this year as preliminary or provisional. He calculated the period of his incarceration to be 2 years, 9 months and 3 days. [5] As far as his second ground was concerned he testified that no physical consultation with his legal representative was possible during times when the NCS in Windhoek was under lockdown. He described that consultation now takes place in adjacent separate glass booths and that documents are passed between the parties 4 by a correctional services officer. The telephone system cuts off after 15 minute intervals, it is expensive and requires pre-payment on the part of the user. Furthermore, he testified that the official cellphone that is availed to inmates once a week is shared between 16 persons and each one only gets to use it for a few minutes. He testified that it would be proper consultation had there been unrestricted visits and consult