TWO senior South African lawyers who admitted they transgressed the Immigration Control Act when they entered the country last year to represent people arrested in the Fishrot corruption case, were in actual fact not guilty of any offence, it was argued on their behalf in the Windhoek High Court yesterday.
Although senior counsel Mike Hellens and Dawie Joubert admitted guilt on two charges under the Immigration Control Act, they actually did not commit any offence, as they were not in Namibia to practise their profession on a continuous basis, senior counsel Raymond Heathcote argued during the hearing of an appeal against the two lawyers' convictions.
Heathcote asked judge Dinnah Usiku and acting judge Kobus Miller, who heard arguments on the appeal, to set aside the lawyers' convictions and sentences.
On behalf of the state, Cliff Lutibezi argued Hellens and Joubert were carrying on their profession when they travelled to Namibia near the end of November to represent former Cabinet ministers Bernhard Esau and Sacky Shanghala and four co-accused in the first Fishrot corruption case during a planned bail application in the Windhoek Magistrate's Court.
The bail application did not take place after an immigration official arrested Hellens and Joubert at the court during the morning of 29 November.
Following their arrest, they were detained by the police until they made a late-afternoon court appearance on charges of working in Namibia without having the required work permits, and furnishing an immigration officer with false or misleading information.
Hellens and Joubert admitted guilt on both charges and were each sentenced to fines totalling N$10 000 or a prison term of 18 months.
They subsequently appealed against their convictions, and also filed a civil case in the High Court in which they are asking the court to review and set aside their convictions and sentences and declare these as null and void.
The review application is still pending.
On appeal, Heathcote noted that the Immigration Control Act states that a person who enters Namibia on a visitor's permit, like Hellens and Joubert did, may not "carry on any profession or occupation" while in Namibia.
Hellens and Joubert entered the country only to appear on behalf of their clients in a once-off bail application, and not to practise their profession on a continuous basis, he argued.
He further noted that the chief justice issued a certificate allowing Hellens and Joubert to appear in the Fishrot case despite not being admitted as legal practitioners in Namibia.
Having received the chief justice's permission to appear in that case only, they did not need an employment permit as well, and the magistrate to whom they admitted guilt should not have been satisfied that they had come to Namibia to practise a profession, Heathcote argued.
Lutibezi argued that since Hellens and Joubert were issued with visitors' entry permits on their arrival in Namibia, they were not supposed to engage in any employment, business or carrying on of a profession in the country.
The certificate issued to them by the chief justice only authorised them to appear as legal practitioners in a specific case, but did not absolve them from having to comply with the Immigration Control Act as well, Lutibezi also argued.
The two judges reserved their judgement after hearing the oral arguments. The appeal judgement is scheduled to be delivered on 4 September.
Heathcote is representing the two senior counsel with Yoleta Campbell on instruction of Corlia Maritz.