Windhoek High Court Judges Kobus Miller and Dinnah Usiku on Friday dismissed an appeal by two senior South African lawyers who were found guilty and fined 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 and declare it null and void.
They claimed they were unlawfully arrested and detained. 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, and that 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 appellant’s 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 and 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.
“Even if we are to assume that such certificates were issued, it does not advance the argument. It is correct that the Immigration Control Act and the Legal Practitioners Act co-exist. The point is that they serve different purposes which are not related. The Legal Practitioners Act grants the holder the right of audience of a legal practitioner such as an admitted advocate of a foreign jurisdiction in Namibian Courts. This is confined to that aspect and does not concern itself with the laws relating to the entry into Namibia once the holder has a certificate issued by the Chief Justice. Equally, the Immigration Control Act relates to the right to enter the Republic of Namibia and not the right of appearance in the Namibian Courts, if you happen to be in the legal profession,” the judges reasoned.
They went on to say that the appellants sought entry into Namibia for the sole purpose to represent their clients in a bail application – but for the intervening events, they would have rendered a professional service to their clients.
They concluded by saying in appearing on behalf of their clients, they would have been engaged in practising the profession of an advocate and the fact that their intended appearance was limited to a single case.