Joubert v (HC-MD-CRI-APP-CAL-2020-00020) [2020] NAHCMD 396 (4 September 2020) – Appeal against conviction and sentence of two South African Senior counsels
On 28 November 2019, the appellants who are senior counsels, practising as advocates in the Republic of South Africa, arrived in Namibia at Hosea Kutako International Airport, where they sought entry into the country and made certain declarations to immigration officials and thereafter granted visitors’ permits in terms of section 29(1) of the Immigration Control Act, 7 of 1993. It later turned out the appellants sought entry into the country to represent their clients in a bail application.
Subsequently, the appellants were charged with contravention of section 29(5) and section 54(e) of the Act, and they pleaded guilty in the Magistrates Court; they were consequently convicted and sentenced – each to a fine of N$6 00 or one year’s imprisonment on the first charge, and a fine of N$4 000 or six months imprisonment on the second charge. Thereafter, the appellants filed an appeal against their conviction and sentence before the High Court.
The first ground of appeal was based on section 29(6) of the Act, in terms whereof it was argued that in as much as the appellants’ purpose was a single appearance in a bail application, it cannot be said that in doing so they could be said to have carried on a profession – being that of an advocate – and that to carry on, a profession some degree of permanence was required as opposed to a single appearance in a single case.
The court found that by representing their clients in a bail application, they would have rendered a professional service to their clients – and by appearing on their behalf in a bail application, they would have been engaged in practising the profession of an advocate.
The second ground of appeal was based on the argument that a person who has been issued a certificate by the Chief Justice to appear in Namibian courts in terms of section 85(2) of the Legal Practitioners Act 15 of 1995 needs only a visitor’s permit, issued in terms of s 29(1) of the Immigration Control Act 7 of 1993.
The court found that this ground of appeal had no merit and held that the Legal Practitioners Act 15 of 1995 and the Immigration Control Act 7 of 1993 co-exist, and they serve different purposes that are not related.
In the result, the appeal was dismissed.
Joubert and another v S (HC-MD-CRI-APP-CAL-2020-00020) [2021] NAHCMD 245 (21 May 2021) – Leave to appeal – a reasonable possibility that the Supreme Court may find in favour of appellant.
Following an order dismissing an appeal against their conviction and sentences of the applicant by a magistrate in the Windhoek Magistrate’s Court on charges of contravening the provisions of the Immigration Control Act, 7 of 1992, the appellants applied for leave to appeal to the Supreme Court of Namibia against the order of the court.
The High Court considered the appeal and stated that in determining whether or not to grant the required leave, the court was, despite their earlier conclusions in dismissing the appeal, obliged to determine if there remained a reasonable possibility that the Supreme Court may find in favour of the applicants (Minister of Finance and Another v Hollard Insurance Company of Namibia Ltd and Others 2019 (3) NR 605 (SC).
The crisp issue between the parties centred on the correct interpretation of the phrase, ‘carry on any profession’, which appears in section 28 of the Immigration Control Act. Secondary to that was the meaning of the words ‘reside’ and ‘sojourn’, where they appear in the Act.
In dismissing the appeal, the court concluded the applicants, who entered Namibia to represent their clients in a pending bail application in the magistrate’s court, were engaged in or carrying on a profession – and as such had contravened the relevant provisions of the Immigration Control Act for which they were charged and convicted.
In the application, the court held the view that, nonetheless, another court, may find that since the applicants’ presence in Namibia was for purposes of a once-off bail application, they were not practising or carrying on any profession.
In the result, leave to appeal was granted.
Hellens v The Minister of Home Affairs and Others (HC-MD-CIV-MOT-GEN-2020-00071) [2021] NAHCMD 300 (23 June 2021) – Review of the arrest of South African senior counsel arrested for contravening Immigration Control Act
The applicants instituted a review in terms of section 20 of the High Court Act, 16 of 1990. The respondents raised a point in limine that applicants ought to have brought the application under rule 76, instead of rule 65(4) – and on the merits argued the court lacked jurisdiction as a result of a number of factors.
The High Court considered and dismissed the point in limine, and on the merits found that:
Applicants were not prohibited immigrants nor could they have been treated as such in terms of the Immigration Control Act. The applicants’ arrest was, therefore, unlawful, so they could not have committed the offence for which they were arrested, tried, convicted and sentenced. Consequently, the court finding proceedings in the Magistrates Court to be marred by, and tainted with gross irregularity, within the meaning of section 20(c) of the High Court Act 16 of 1990.
In the result, the applicant’s conviction and sentence on 29 November 2019 in the Magistrate’s Court of Windhoek were reviewed, set aside, and declared null and void and of no force.
The Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-MOT-EXP-2016-00275) [2022] NAHCMD 354 (19 July 2022) – Taxation of foreign instructed counsel’s fees
Whereas the Court had ordered the applicant to pay the respondent’s legal costs, such costs to include the costs of three instructed counsel and one instructing counsel. One bill of costs was for a Namibian-based law firm, which acted as correspondent legal practitioners on the instructions of a South African-based law firm. The other bill of costs was for the South African-based law firm.
At the taxation, the applicant’s legal practitioner objected to the taxing of the bills of costs contending that the taxing master did not have the authority to tax a bill of costs of a law firm, whose lawyers have not been admitted to practice law in Namibia. The taxing master ruled that he had the authority to tax the bill of costs. The applicant launched a review application in which it sought an order setting aside the taxing master’s said ruling. The court found that the taxing master did not have the authority in law to tax Bowman Gilfillan’s bill of costs. It accordingly made an order on 24 March 2021, setting aside the taxing master’s ruling.
Thereafter, the respondent amended its bill of costs to include the fees of its three South African instructed counsel – all of whom it had employed to act on its behalf. The South African law firm’s bill of costs was not presented for taxation. The applicant again objected to the fees of the South African instructed counsel as well as to the fees and disbursements of the Namibian law firm related to attendances between the two firms that were previously included in the South African law firm’s bill of costs.
The applicants argued that the respondent was prevented by the principle of res judicata from amending its bill of costs because of the court’s order of 24 March 2021. Furthermore, the applicant objected to the taxation of the South African instructed counsel’s invoices on the basis that those counsels were instructed by the South African-based law firm is not admitted to practice in Namibia. The taxing master upheld the objection and disallowed the fees in respect of the fees of the respondent’s three South African instructed counsels.
The High Court considered the matter and held, inter alia that:
Instructed counsel who has been permitted by the Chief Justice to appear in the High Court in terms of section 85 of the Legal Practitioners Act 15 of 1995 are deemed to be legal practitioners of the court and their clients are entitled to be reimbursed such counsel’s fees – A successful party is therefore entitled, by way of the indemnity principle, to claim costs paid to its foreign instructed counsel for legal services rendered in this jurisdiction.
Watson v Law Society of Namibia (SA 39-2020) [2022] NASC (16 June 2022) – Failure to disclose suspension from the roll of Attorneys in South Africa
The appellant applied to be admitted and enrolled as a legal practitioner of the High Court of Namibia which application was opposed by the Law Society of Namibia on the basis that the appellant omitted to disclose his suspension and the facts surrounding it; that the appellant was not a fit and proper person to be admitted and enrolled as a legal practitioner in Namibia; and disputed that the appellant was on the roll of attorneys in South Africa when he made his application in Namibia.
The High Court declined his application and he appealed against that decision of the court. The appeal Supreme Court dismissed the appeal with costs, and held that:
It is not necessary for the determination of this matter to rule on whether there was a duty on the appellant to inform the Board of his suspension, however, the parties to this appeal interpreted section 5(1)(d) of the Legal Practitioners’ Act 15 of 1995 to mean that the Board had to be satisfied that appellant was on the roll of attorneys in South Africa for the purpose of considering his application for an exemption certificate.
The appellant decided on the self-serving interpretation of the Act to avoid having to inform the Board about his suspension and hence not run the risk of his application not being considered. He thus placed a misleading picture before the Board to avoid any questions being asked with regard to his suspension.
Appellant was at the time, in terms of the order of suspension ‘. . . interdicted and restrained from practising as an attorney and/or holding himself out as an Attorney’ in South Africa. He acted in defiance of this order when he applied for his Certificate of Exemption in Namibia on the basis that he was still so enrolled as an attorney in South Africa. In view of this interdict, any person acting honestly and with integrity would have informed the Board of the suspension to not act contrary to the terms of the interdict.
The court a quo exercised a discretion essentially based on a value judgment by taking facts placed before it into consideration and it is not for the Supreme Court to simply reconsider the matter afresh and come to a decision and substitute the court a quo’s decision with its own if it does not agree with the decision of the court a quo.
The court a quo was correct to be concerned as to the fitness of the appellant to join, what is referred to as an ‘honourable profession’.
It is doubtful that the appellant established that he is duly qualified to be admitted and enrolled as he must for this purpose establish that his name appeared on the roll of attorneys in South Africa when he moved the application a quo. As is evident from the order of the South African court that uplifted his suspension, that same court removed his name from the roll and there is no suggestion that this order was ever changed to place his name on the roll, albeit as a non-practising attorney.
Fedden Mainga Mukwata is an admitted Legal Practitioner writing in his capacity as part of The Promotion of Law and Justice Project. He may be reached at fedden@consultfasz.com.