Two senior South African lawyers who ended up arrested and convicted on charges under the Immigration Control Act when they travelled to Namibia to represent the men accused in the Fishrot fishing quotas corruption case are now off the hook, after their convictions were set aside and declared null and void by a High Court Court judge.
The arrest of senior counsel Mike Hellens and Dawie Joubert by an immigration official at the Windhoek Magistrate's Court on 29 November 2019 was not lawful, because at the time of the arrest they were entitled to be in Namibia on the basis of visitors' permits issued to them, acting judge Collins Parker concluded in a judgement delivered in the High Court on Wednesday.
If Hellens and Joubert had been accorded basic courtesy as senior counsel and the immigration official had only served them with a summons to appear in court, "all this very serious and dangerous misreading of the law, which resulted in uncalled for, disgraceful and undignified consequences, would have been averted", Parker said.
He said it did not matter that Hellens and Joubert pleaded guilty when they appeared before a magistrate in the Windhoek Magistrate's Court following their arrest, as at that stage they did not know their arrest and subsequent detention had been unlawful.
If their arrest was unlawful, they could also not have committed the alleged offences with which they were charged, Parker reasoned, after stating that "lawful arrest is firmly and indubitably an element of the crime for which [Hellens and Joubert] were arrested".
The judge reviewed and set aside the two lawyers' convictions and sentences in the magistrate's court, and also declared them null and void.
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 a planned bail application.
After admitting guilt on charges of working in Namibia without having the required employment permits and furnishing false or misleading information to an immigration officer, they were each sentenced to fines totalling N$10 000 or a prison term of 18 months.
Hellens and Joubert have also appealed against their convictions, but their appeal was dismissed by two High Court judges in September last year.
Last month, the same two judges gave them permission to appeal to the Supreme Court against the dismissal of their appeal.
In the appeal judgement last year, the court concluded that Hellens and Joubert had been carrying on their profession and as a result contravened the Immigration Control Act when they were due to represent the Fishrot accused, without having work permits in terms of the act.
In its judgement last month, the court stated it was nonetheless of the view that another court may find that since the two senior counsel were in Namibia for a once-off bail application they were not practising or carrying on their profession as contemplated in the Immigration Control Act.
Senior counsel Raymond Heathcote, assisted by Yoleta Campbell, represented the two lawyers in the case before Parker.
Slysken Makando represented the minister of home affairs, immigration, safety and security, the executive director of home affairs and the prosecutor general.