No fewer than five South African advocates have found themselves on the wrong side of the immigration laws in Namibia over the last weeks. The first to experience the rough edge of Namibia’s immigration law or its regulations was Cape Town’s Theodorus Adam Barnard, on July 10. Then came the turn of Gauteng silks, Michael Hellens and David Joubert, last Monday. They were quickly followed on Wednesday last week, by Dali Mpofu SC and his junior, Lerato Moela, who weren’t even allowed into court to argue a case involving the Namibian Economic Freedom Fighters.
Read judgment in the Hellens and Joubert matter
Read judgment in the Barnard matter
Read affidavit in Barnard matter
Michael Hellens SC and David Joubert SC have a dispute that begins in November 2019. Briefed to appear in Namibia, they had obtained certificates from the chief justice of that country, a document required before foreign counsel may appear in court there. When they arrived at the border, they declared that the purpose of their trip was a ‘visit’ and to attend ‘a meeting’.
However, they were arrested at court next day, and detained. Later the same day they appeared to plead to charges that they had offered the services of legal practitioners ‘without employment permits’, as well as giving ‘false and misleading information’ to the immigration officer to obtain visitors’ permits.
Both were represented by counsel, and, having pleaded guilty, were questioned by the court about whether they understood and admitted all the elements of the charges. Convicted and sentenced to a fine or imprisonment, they paid the fines and left the country soon afterwards.
Convictions reinstated by apex court
Since then, they have tried to fight back, arguing, for example, that they pleaded guilty under duress, and that they didn’t in fact need a work permit because they weren’t carrying out their profession in Namibia, but were appearing there on an ad hoc basis.
But their protestations and appeals haven’t helped, and four months ago, Namibia’s highest legal forum, the supreme court, dismissed their appeal, effectively reinstating their convictions. This wasn’t quite the end, however, as they then asked the supreme court to revisit the case under Article 81 of the Namibian constitution that creates a loophole for the court to reconsider cases.
But the supreme court has previously held that it would only rarely and in exceptional cases, revisit its decisions. The Hellens and Joubert matters wasn’t such a matter, the court has now held.
Not ‘exceptional’, so no reconsideration by the supreme court
An acting member of the supreme court, Theo Frank, said the chief justice, Peter Shivute, had ‘designated’ to him the task of deciding whether this case warranted revisiting and was in fact ‘exceptional’ as Hellens and Joubert claimed.
Perhaps unwisely, the pair referred to the supreme court’s March judgment against them as an ‘opinion’, something that Frank noted, and it wouldn’t have gone down well.
Having considered their claim that the matter was ‘exceptional’, Frank said that, in his view, no case had been made out for invoking Article 81, and he turned down the application.
And that, it seems, is finally the end of the matter as far as possibly overturning conviction and sentence is concerned. The long-term impact of the outcome for Hellens and Joubert is however, another matter, and it will be interesting to see what the bar council in South Africa makes of it.
Vendetta by Namibian counsel, claims SA advocate
The case of Theo Barnard was raised during preliminaries to a dispute between a party represented by Barnard, and a party represented by Namibian counsel, Raymond Heathcote SC, who is also admitted to practice in South Africa, and, ironically enough, someone who also acted for Hellens and Joubert in their saga against the courts’ findings against them.
Barnard appears in the Namibian courts reasonably often, but he is based in Sea Point in SA. He has a certificate issued by Namibia’s chief justice, allowing him, as foreign counsel, to appear in court in Namibia. But when Heathcote questioned the validity of that certificate, Barnard hit back, accusing Heathcote of wanting to prevent him from working in Namibia, of having some kind of vendetta against him and wanting to ensure that he would not be briefed by Namibian lawyers in the future.
He also said Heathcote used vulgar language about him – at a formal meeting he had said that Barnard talked ‘stront’ (shit), for example. His affidavit in the case goes into considerable detail about how Heathcote’s dislike for him manifested itself.
‘Plainly unlawful’ decision by the CJ – court
But when the matter of the certificate had to be decided, the acting judge, Collins Parker, referred to none of this heated personal background, and focused purely on the law.
He found that the delay in bringing the application to have Barnard’s certificate set aside was ‘unreasonable’. However, despite this fact, he decided to condone the delay since finality on the administrative decision involved, outweighed the other considerations.
Parker said the chief justice’s decision to grant Barnard the certificate was ‘plainly unlawful’ and not to set aside such a decision would be bad for the rule of law and legality.
Supreme court not synonymous with ‘Chief Justice’
He said that when the CJ decided whether to issue such a certificate, this was an administrative act and unconnected with his judicial functions. He didn’t get this power from the supreme court, Parker observed, adding that “the ‘supreme court’ is not synonymous with ‘Chief Justice’.”
While there could be no appeal from judgments or orders of the supreme court, administrative acts by the CJ were something different.
The law under which the certificates were issued says that a certificate may be issued where counsel satisfies four pre-conditions. One of these conditions is that the lawyer ‘is not resident in Namibia …’.
CJ’s decision amounts to ‘abuse of discretion’
In Barnard’s case, however, he had been given a permanent residence permit to ‘enter and to be in Namibia for the purpose of permanent residence’ and he had ‘taken up such residence to keep the validity of the … permit alive’. This fact was included in the information given to the CJ. By not taking these ‘relevant facts’ into account when making his decision, the CJ’s decision to issue the certificate to Barnard was ‘unlawful and invalid’.
Under these circumstances, the decision to issue the certificate amounted to ‘an abuse or improper exercise of discretion’, said Parker. But should the invalid decision be set aside? Yes, he concluded, because not to do so would be unfair to other lawyers who have permanent residence permits and have had to go through the Namibian qualification and admission processes before they can appear in court. In addition, it wasn’t in the interests of the rule of law for the unlawful and invalid decision to remain intact.
That certificate having been declared invalid, Barnard won’t be able to appear in the case, though perhaps he is planning an appeal on the validity of the certificate. It could well also mean that he won’t be able to appear in any future case in Namibia until he qualifies for, and is admitted to, the Namibian bar.
Barnard made it clear in his affidavit that, for financial and family reasons, he can’t move permanently to Namibia until he has been admitted to the bar – and that’s another problem. The permit is issued on the basis that the recipient must be resident within six months. But in Barnard’s case, five years have already gone by, and he’s still not resident.
No proof of academic qualifications provided
As for Dali Mpofu and his junior, Lerato Moela, they were planning to appear in court before a full bench to argue on behalf of the Namibian Economic Freedom Fighters. They would have challenged the electoral commission’s decision to deregister the NEFF because the party hadn’t complied with the law – its officials had failed to provide audited financial statements for the years the party has been given funding by the state.
But immigration officials refused to issue Mpofu and Moela the permits they needed and so they weren’t able to appear in court. While the NEFF claimed the refusal was politically motivated, immigration authorities said the pair hadn’t complied with the requirements and had failed to provide essential documentation such as their academic qualifications and certificates by Namibia’s CJ.
The case continued without them and judgment is expected in August.
What’s the problem with SA counsel?
The fact that so many SA counsel, including three silks among the five, have had such problems either interpreting or satisfying the law seems bizarre, even embarrassing. Perhaps a workshop might be necessary, explaining step by step, what SA lawyers need to do if they want audience in the courts of Namibia?