The Supreme Court has dismissed the appeal of two senior South African lawyers found guilty of offences under the Immigration Control Act after they travelled to Namibia to represent six of the men charged in the Fishrot fraud and corruption case.
The appeal of senior counsel Mike Hellens and Dawie Joubert was dismissed in a judgement delivered in the Supreme Court on Thursday.
In the judgement, the court concluded that Hellens and Joubert failed to show that the magistrate who convicted them on two charges on which they had pleaded guilty had made any error in law.
“Based on the material that was placed before the magistrate, we cannot find that the magistrate made the wrong decision,” deputy chief justice Petrus Damasab, who wrote the court’s decision, stated in the judgement, with which acting appeal judges Hosea Angula and Shafimana Ueitele agreed.
Without proof before the magistrate that Hellens and Joubert had been issued with certificates in terms of the Legal Practitioners Act that allowed them to appear in a Namibian court for the case in which they were set to represent six of the Fishrot accused, the magistrate could not find that the two lawyers had a valid defence to the charges levelled against them, Damaseb stated.
Hellens and Joubert were arrested before they were due to represent the first six accused in the Fishrot fishing quotas corruption case – including former Cabinet members Bernhard Esau and Sacky Shanghala – in the Windhoek Magistrate’s Court on 29 November 2019.
During a late-afternoon court appearance on the same day, Hellens and Joubert admitted guilt on charges of working in Namibia without having the required employment permits and furnishing false or misleading information to an immigration officer.
Having pleaded guilty on both charges they faced, the two lawyers were each sentenced to fines totalling N$10 000 or a prison term of 18 months.
Hellens and Joubert subsequently appealed against their convictions, but their appeal was dismissed in the Windhoek High Court in September 2020.
While appealing against their convictions, Hellens and Joubert also filed a civil case in which they asked the High Court to review and set aside the convictions.
That application succeeded in June 2021, when a judge reviewed and set aside their convictions and sentences, which were also declared null and void.
An appeal against that judgement was heard in the Supreme Court three weeks ago, two days after the hearing of the two lawyers’ criminal appeal.
The court’s judgement on the civil appeal has not been delivered yet.
In the judgement on the criminal appeal, Damaseb noted that in the Supreme Court the argument on the two lawyers’ behalf was that they were not required to obtain Namibian employments permits, since the chief justice issued certificates in terms of the Legal Practitioners Act to allow them to appear in court in Namibia to represent the Fishrot accused in a one-off bail application.
However, no evidence that Hellens and Joubert had certificates that were issued by the chief justice was placed before the magistrate.
The record of proceedings before the magistrate clearly demonstrates that he made every effort to make sure that Hellens and Joubert clearly appreciated and intended to have the outcome they are now trying to dispute, Damaseb said.
It is “entirely unjustified” to criticise the magistrate after the fact of committing an irregularity and acting unfairly and unconstitutionally towards the two lawyers, he added.
“The inevitable result is that the appellants failed to demonstrate that the magistrate who convicted them on the strength of their guilty pleas erred in law,” Damaseb stated.
Senior counsel Raymond Heathcote, assisted by Yoleta Campbell, represented Hellens and Joubert in the appeal.
The state was represented by senior counsel Norman Arendse, SC, assisted by Slysken Makando and Cliff Lutibezi.
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