Two South African advocates who were convicted of working in Namibia without authorisation, lost another appeal against their convictions on Friday.

Mike Hellens and Dawie Joubert, who were in Namibia to appear on behalf of some of the Fishrot accused in the original bail application, were apprehended by customs officials while busy preparing for that bail application. They were charged with working in Namibia without a work permit, and convicted and sentenced to pay a fine of N$10 000 or 18 months in jail. They paid the fine, and afterwards instituted an appeal against both the conviction and sentence in the High Court. 

Windhoek High Court judges Kobus Miller and Dinnah Usiku, however, dismissed their appeal, whereafter they approached the Supreme Court. In their appeal, the advocates claimed that they were granted permission by the Chief Justice to appear in a Namibian court in terms of a section 85(2) certificate. They, however, did not disclose this fact to the magistrate who convicted and sentenced them. They now claim that if they had disclosed that fact and pleaded not guilty to a charge of working in Namibia without a permit, they faced the risk of spending the weekend in custody awaiting trial. 

The High Court found in its ruling that the magistrate did not err when he convicted the duo on their own admission and without the pre-knowledge that they had a section 85 permission from the Chief Justice.

The Supreme Court agreed with these sentiments. After losing their first appeal in the Windhoek High Court and the subsequent appeal to the Supreme Court, they lodged a review application to the High Court on the basis that the proceedings in the magistrate’s court were irregular. The High Court agreed with them, and set aside the convictions and sentences. Not satisfied with this, the State lodged an appeal against that ruling in the Supreme Court. In their grounds, the State argued that the High Court held that their arrests were unlawful without declaring it unlawful, which is a misdirection. Secondl,y they stated that the High Court had no jurisdiction to entertain the review application, as the advocates already lodged an appeal which was not successful, and that they cannot bring a review application after losing an appeal. Furthermore, the State argued that the arrest was lawful and anyway, an unlawful arrest does not constitute a ground for reviewing a conviction and sentence.

Appeal judges Petrus Damaseb, Hosea Angula and Shafimana Ueitele found that while both an appeal and review are available in the same matter, care should be taken in the sequence in which those proceedings are heard and disposed of. This, they said, is because a wrong sequence might have the effect of closing the door to one of them irreversibly, particularly to a review if the appeal was heard first. They thus found that the High Court should not have entertained the review application after the appeal was dismissed. The Supreme Court judges further held that an arrest has never been an element of any crime or an offence in the law. “In our law, a crime or offence consists of three elements, which the prosecution must prove beyond a reasonable doubt to secure a conviction. Those are conduct, intention and unlawfulness,” the judges stated. They continued: “It is not a requirement of our law that in order for the State to secure a conviction, that it must prove beyond a reasonable doubt that the arrest of the accused person was unlawful. In this matter, the advocates were not aware that their arrests were unlawful at the time they appeared in the magistrate’s court, and it was therefore not the unlawful arrests that induced them to plead guilty, even though the arrests took place outside the court. As a result, the alleged unlawful arrest of the advocates did not constitute an irregularity in the proceedings”. The judges further held that the advocates failed to prove that they were coerced to plead guilty, and that such coercion constituted an irregularity in the proceedings. According to the appeal judges, there is nothing on record that suggests their pleas were not made voluntarily, and their plea explanations demonstrate that the pleas had been made freely and voluntarily, with full appreciation of their consequences. As a result, the appeal judges set aside the ruling of the High Court with costs of one instructing and two instructed counsel in respect of the appeal, and one instructed and one instructing counsel in the review matter.

Hellens and Joubert were represented by advocate Raymond Heathcote, assisted by Yvette Campbell and instructed by Koep and Partners. The State was represented by advocate Norman Arendse SC, assisted by advocates Slysken Makando and Cliff Lutibezi, on instructions of the government attorney.   - rrouth@nepc.com.na