Windhoek High Court judges Kobus Miller and Dinnah Usiku on Friday granted two senior South African lawyers leave to appeal their immigration conviction in the Supreme Court.
The lawyers were found guilty and fined in November 2019, after admitting they did not have work permits allowing them to represent the six men charged in the Fishrot corruption scandal.
Senior counsel Mike Hellens and Dawie Joubert wanted the Windhoek High Court to set aside their convictions and sentences of N$10 000 or 18 months in jail in the Windhoek Magistrate’s Court and declare it null and void.
Judges Miller and Usiku denied the application. The lawyers claimed they were unlawfully arrested and detained in 2019. They are also alleging they were forced to admit guilt to the charges they were facing to avoid having to spend an extended period jailed in Namibia in an affidavit filed with their notice of appeal.
The two advocates 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 when they were arrested by an immigration official at the Windhoek Magistrate’s Court.
In their appeal, they relied on two grounds, namely: that the purpose of their visit was a single appearance in a bail application, which did not constitute the carrying on of a profession with a work permit in Namibia.
They said they were issued a permit to appear in a Namibian court by the chief justice; hence, they did not need a work permit.
“The argument made was 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 in order to carry on a profession, some degree of permanence was required, as distinct from a single appearance in a single case,” the judges stated.
Judges added they do not agree with the argument, as the purpose for entering Namibia was to represent their clients in a bail hearing.
The second ground, the judges said, concerns the Legal Practitioners’ Act in terms of which the chief justice can grant a person not permitted to practice law in Namibia a certificate to appear in a Namibian court.
The gist of the argument appears to be that once such a certificate is granted, the recipient only needs a visitor’s permit to practice law in Namibia. This argument has no merit, the judges said.
According to the judges, in deciding whether or not to grant the required leave, they are obliged to determine if, despite the conclusions set out in their judgment, there remains a reasonable possibility that the Supreme Court may rule in favour of the applicants.
They further said it is apparent that the “crisp issue” between the parties centres on the correct interpretation of the phrase “carry on any profession” where it appears in the Immigration Control Act.
They further said, as a secondary consideration, the meaning of the words “reside” and “sojourn” where they appear in the Immigration Control Act are relevant.
“We concluded that the applicants, who entered Namibia in order 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,” the judges stated.
They concluded that they are of the view, nonetheless, that 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.