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They threw everything they could at the case, but last week’s decision by Namibia’s highest court has left two senior South African advocates with a criminal conviction each.

The two, Michael Hellens SC and David Joubert SC, are prominent Johannesburg-based criminal law specialists. They were engaged to act in a bail application for a group of people accused of corruption in Namibia’s notorious ‘Fishrot’ scandal, among whom is a former Namibian justice minister, Sacky Shanghala.

In November 2019, they flew into Namibia; one declared that he was in the country for ‘a visit’ and the other, for ‘a meeting’. They were duly given visitors’ permits. That first day, they met their clients to prepare for the bail application.

Arrested while waiting for court to start

While they were waiting for court to start the following day, however, they were both arrested by an immigration officer and taken to prison. The first charge against them was that they were working as legal practitioners although they didn’t have an employment permit. The second was that they had given false or misleading information to the immigration officers who had then supplied them with visitors’ permits.

Later that afternoon they appeared in the magistrates’ court, represented by junior and senior counsel. The two pleaded guilty to both the charges against them and were convicted after the magistrate questioned them to make sure they fully understood the pleas they were making.

Both were sentenced to a fine of N$6000 or one year in jail on the first count, and to N$4000 or six months on the second. The two then paid the fines and left Windhoek the next day.

Appeal challenged conviction and sentence

A fortnight later, on 13 December 2019, they lodged an appeal to the high court, challenging both conviction and sentence. The two judges who heard the matter, however, rejected their arguments. In May 2021, they were given leave to appeal this outcome. But in December 2023, Namibia’s apex supreme court found against them and dismissed their appeal, thus leaving their convictions and sentences untouched.

However, as this case against Hellens and Joubert was making its way through the courts, the two silks were also pursuing a separate, different course, via a review application in the high court. On this question, they were more successful, at least at first, and in June 2021, a single judge of the high court agreed to a review of their convictions and sentences and set them aside on the grounds that the decision to convict had been wrongly made.

This time it was the government that appealed. The minister of home affairs, the prosecutor general, the magistrate initially involved in the case, two prosecutors and others, in all, seven parties, became appellants in the supreme court to challenge the outcome of the review, and it is this appeal that the supreme court has now decided.

Among the grounds argued by the appellants was that the arrest of the two advocates was lawful, contrary to the decision of the high court judge in the review application, but that even if the arrest was unlawful, ‘an unlawful arrest does not constitute a ground for reviewing a conviction and sentence.’

Get the sequence right, says supreme court

The three supreme court judges had to decide that question as well as two others: is it permissible to bring an appeal and a review in relation to the same dispute; and, did the two advocates prove that they were ‘coerced into pleading guilty’?

On the question of whether they were ‘entitled in law to forge ahead with the review application after their appeal had been dismissed by the same court’, the three supreme court judges said that an appeal and a review process might be available in relation to the same matter, but that it was important to get the sequence right.

‘This is because, depending on the facts of the case, a wrong sequence might have the effect of closing the door to one of them irreversibly, particularly to the review if the appeal is heard first.’

Review court shouldn’t have agreed to hear the matter

In this case, the advocates had a procedural problem in that they couldn’t bring the review application after the appeal was dismissed, the supreme court held. Even if different high court judges sat to hear the two cases, it was incompetent for the same court – the high court in this case – ‘to purport to set aside the convictions and sentences which had already been confirmed by the same court sitting as an appeal court.’

In other words, Hellens and Joubert’s legal team did things the wrong way round: they should first have asked for a review by the high court, and only afterwards, if necessary, brought an appeal in that court.

The supreme court concluded on this question that the review court should not have agreed to hear the review after the appeal was dismissed, and added that on this issue alone, the present appeal should succeed.

Were the advocates coerced to plead guilty?

On the question of whether an unlawful arrest would stand in the way of a conviction, the supreme court held that it was not a requirement of Namibian law that, for the state to secure a conviction, ‘it must prove beyond reasonable doubt that the arrest of the accused person was lawful’.

The allegedly unlawful arrests of the two did not constitute irregularity in the proceedings and this ground of appeal was thus also upheld.

The final piece of the puzzle was the claim of coercion, made by the two advocates. In effect, they said they were told that if they didn’t plead guilty, they would be held in prison pending trial, and the state would put up a strong fight not to allow them out on bail on the grounds that they were a flight risk.

‘Feeble attempt’ to blame the prosecution

But the supreme court, after closely examining who said what and to whom in the period before the hearing at which the two advocates pleaded guilty, made this comment, ‘[the two advocates’] feeble attempt to blame the prosecution for their misfortune is not convincing. It needs pointing out in this connection that the prosecution has an obligation to oppose the granting of bail if the circumstance warrants it. It is ultimately for the court to decide whether to grant bail or not. In my view, the mere fact that the prosecution intimated that it would oppose a bail application was not a bar [to such an application] and did not constitute a coercive act.’

The two advocates would have been told by their legal team that, in terms of Namibian law, an arrested person could bring a bail application even outside normal working hours and even on weekends. But it was clear from the papers that the two weren’t interested in applying for bail. Rather, they were determined to plead guilty once they were told that the state would ask for sentence of a fine rather than for a custodial sentence.

The court thus found that they had not proved that they were ‘coerced’ into pleading guilty. ‘There is nothing on the record that suggests their pleas had not been made voluntarily.’ In fact, their plea explanations showed that they had pleaded guilty ‘freely and voluntarily with full appreciation of their consequences.’ All the facts, including their status as senior counsel, brought the court to the ‘inevitable conclusion’ that they had ‘pleaded guilty of their own volition and out of their free will’.

Too early to tell if there will be professional consequences in SA

The final order was thus to uphold the state’s appeal, coupled with a costs order against Hellens and Joubert on the review question, in both the supreme court and the high court.

It is still far too early to know whether there will be any consequences for the two in SA. However, given the nature of the two charges, one of which relates to providing false or misleading information to the immigration officers, it is likely to make the Johannesburg Bar, of which both are members, and/or the Legal Practice Council, take a closer look at the Namibian decisions against them and it is possible that disciplinary measures could follow.