Two South African advocates, who admitted guilt and were consequently convicted of transgressing Namibian immigration laws in November 2019 while representing the Fishrot accused, are arguing that the Namibian authorities misinterpreted their own laws.
Legal big wigs Michael Hellens and Dawie Joubert, in their review application before Judge Collins Parker, said despite them not having work permits, they were issued with certificates in terms of the Legal Practitioners Act by Chief Justice Peter Shivute, which authorises them to lawfully appear in court in Namibia – and with such certificates, they could sojourn (temporary stay) in Namibia.
Furthermore, they did not have to be in possession of work visas, as such documents are only issued to those who intend on residing in the country, according to the immigration laws.
Through their lawyer, Raymond Heathcote, Hellens and Joubert are claiming that the Namibian authorities failed to make a distinction between ‘sojourning’ and ‘residing’ when applying the immigration laws.
“The effect of this defective interpretation, by and in itself, led to a gross irregularity in the proceedings. The effect of the interpretation is that a person who is permitted by the Chief Justice to appear in a bail application will automatically be subject to arrest once he arrives here in Namibia,” argued Heathcote.
On 29 November 2019, Hellens and Joubert were convicted on charges of working in Namibia without having the required work permits and furnishing an immigration officer with false or misleading information.
They pleaded guilty on both charges and were each sentenced to fines totalling N$10 000 or a prison term of 18 months.
At the time of their arrest, the lawyers were in Windhoek to represent former fisheries minister Bernhard Esau, ex-justice minister Sacky Shanghala, former Investec Asset Management Namibia managing director James Hatuikulipi, former senior Investec Namibia employee Ricardo Gustavo, Esau’s son-in-law Tamson Hatuikulipi and Pius Mwatelulo – all accused in the ongoing fisheries bribery case currently before the High Court.
They subsequently appealed against their convictions, but the High Court upheld the lower court’s decision. They are now seeking a review of the lower court’s conviction and sentence.
In their defence, home affairs ministry prosecutor general Magistrate Alweendo Venatius, and state prosecutors Cliff Lutibezi and Rowan van Wyk, through their lawyer Slysken Makando, argued that there were no irregularities perpetrated by any of the respondents – be it at the time of the arrest, prosecution and trial.
Makando said it is for such reason their appeal application was dismissed. In addition, the court does not have jurisdiction to review the matter.
“It is abundantly clear that the applicants seek to review the magistrate’s decision, which was later confirmed by the High Court. What the applicants fail to appreciate is that once the appeal was determined by the appeals court, appeal judgment becomes the judgement of the High Court,” explained Makando.