Legal blow for ex-Zuma lawyers: Namibian court upholds convictions in immigration case

Two South African advocates who got themselves into trouble with Namibian authorities in 2019 after entering the country to represent high profile clients in court with visitor’s permits, instead of the required worker’s permits, could be struck with criminal records after the Namibia’s Supreme Court of Appeal on Friday reinstated their 2019 convictions and sentences for violating the country’s Immigration Act.

Both the convictions and sentences against Mike Hellens SC and David Johannes Joubert SC were initially set aside by the country’s High Court on 23 June 2021.

Response from Namibian government

At the time, the Namibian Home Affairs Minister reacted quickly and took the matter to the Supreme Court of Appeals and on Friday, Hellens and Joubert, who represented former president Jacob Zuma before, lost the fight to have the High Court judgment stayed.

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The two lawyers had argued in their High Court application that the magistrate’s court misinterpreted the Immigration Controls Act arguing that they never needed a work permit because they attended a once off bail application when they entered Windhoek on 28 June 2019 and that they had no intentions to reside in Namibia.

Lawyers ‘misled’ immigration officers

They further argued that for a foreigner to require a work permit, there must be a degree of permanence in their visit.

The State charged that the two had told an immigration officer mid-air from Johannesburg to Windhoek they were travelling to the country for a meeting or a visit when in fact they went to render legal services in court.

Hellens and Joubert further told the court that they were forced to plead guilty to the charges levelled against them at the time because they were under duress. 

The pair was in the country to defend former Cabinet ministers Bernhard Esau and Sacky Shanghala as well as four co-accused in a case in which they were accused of being involved in a fishing quota kickback scheme.

The bail hearing could not start that Friday, 29 June 2019, after immigration officers arrested and charged the pair in court for contravening the provisions of the Immigration Control Act 7 of 1993 (ICA).

The first charge alleged that they were rendering services as legal practitioners without an employment permit.

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The second charge alleged that they had furnished false or misleading information to the immigration officers on the basis of which their visitors’ permits were issued to them.

Lawyers say they pleaded guilty as they were under duress

In their submissions, which led to their convictions and sentences being set aside, Hellen and Joubert had explained to the High Court that their lawyer visited them in the Windhoek Magistrate’s Court holding cells, after a meeting with prosecutors, and informed them that if they didn’t plead guilty, they could be trapped in the country.

The lawyer told the South Africans that the prosecution believed the two were a flight risk and therefore not suitable to get bail and that if they did not plead guilty, the prosecution would add charges of fraud.

To escape the additional charge, they needed to plead guilty as part of their package deal.

After pleading guilty to both charges, the magistrate sentenced each to a fine of N$6 000 or one year’s imprisonment in respect of the first count. In respect of the second count each respondent was sentenced to a fine of N$4 000 or six months imprisonment.

They paid their fines and left Windhoek the following day.

But weeks later, the two launched an appeal and lost before launching a successful bid to have both the convictions and sentences set aside.

The Namibian government challenged this in the Supreme Court and won with costs.

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High Court judgment overturned

In a scathing judgment on Friday, judges Hosea Angula, Petrus Damaseb DCJ and Shafimana Uetele noted:

“The finding of this Court is therefore that the respondents had failed to prove that they were coerced to plead guilty and that such coercion constituted irregularity in the proceedings. There is nothing on record that suggest that their pleas had not been made voluntarily. In this regard their plea explanations demonstrate that the pleas had been made freely and voluntarily with full appreciation of their consequences.”

Another extract read: “When one considers all the facts coupled with the fact that both respondents are senior counsel, one is driven to the inevitable conclusion that the respondents had pleaded guilty of their own volition and out of their free will.”

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