Fishrot lawyers lose second appeal over convictions

Two senior South African lawyers who ended up being convicted on charges under the Immigration Control Act after travelling to Namibia to represent some of the accused in the Fishrot fishing quotas fraud and corruption case have lost a second Supreme Court case about their unwanted encounter with Namibia’s criminal justice system.

In an appeal judgement delivered on Friday, the Supreme Court overturned a High Court judgement in which the convictions and sentences of senior counsel Mike Hellens and Dawie Joubert on charges under the Immigration Control Act were set aside and declared null and void in June 2021.

The Supreme Court’s decision follows on a judgement in which a criminal appeal by Hellens and Joubert against their convictions was dismissed in the same court in December last year.

The judgement delivered on Friday was on an appeal by the prosecutor general and the minister of home affairs, immigration, safety and security against acting judge Collins Parker’s decision to set aside the convictions and sentences of Hellens and Joubert.

The two senior counsel pursued a two-pronged strategy in their attempts to get rid of the convictions after they admitted guilt on two charges in the Windhoek Magistrate’s Court near the end of November 2019.

They first appealed against the convictions, and then also launched a civil review application to have the convictions set aside.

The two lawyers were arrested before they were due to represent the first six accused in the Fishrot fishing quotas fraud, corruption and racketeering case – including former Cabinet members Bernhard Esau and Sacky Shanghala – in a planned bail application shortly after the arrests of the Fishrot accused.

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, Hellens and Joubert were each sentenced to fines totalling N$10 000 or a prison term of 18 months.

While their criminal appeal was dismissed in the High Court and also failed in the Supreme Court in December last year, Hellens and Joubert had success with their civil review application in the High Court when Parker found that their arrests had been unlawful.

Parker reasoned that because the arrests had been unlawful, their subsequent detention before they appeared in court a few hours later was also unlawful, and as a result they could not have committed the alleged offences with which they were charged.

In the Supreme Court’s appeal judgement, acting appeal judge Hosea Angula disagreed with Parker’s view of events, though.

Angula noted that according to Hellens and Joubert, neither they, nor their legal representatives, knew when they appeared in court that their arrests had been unlawful. As a matter of logic and common sense, it follows that since they did not know their arrests had been unlawful, that could not have influenced them to plead guilty, Angula said.

Hellens and Joubert failed to prove they were coerced to admit guilt, and there is nothing on record that suggests their pleas to the charges had not been made voluntarily, Angula added.

He also stated that the two lawyers’ failure to ask that their criminal appeal in the High Court should be put on hold while they tried to have their convictions and sentences reviewed and set aside “has disastrous consequences for their review application”, since by the time Parker made his decision, two judges had already dismissed their criminal appeal and confirmed their convictions and sentences.

The High Court’s judgement on the criminal appeal was final, and could only be set aside by the Supreme Court, which in December upheld the appeal judgement, though, Angula said.

Deputy chief justice Petrus Damaseb and acting appeal judge Shafimana Ueitele agreed with Angula’s judgement.

Senior counsel Norman Arendse, assisted by Slysken Makando and Cliff Lutibezi, represented the minister and prosecutor general in the Supreme Court appeal.

Hellens and Joubert were represented by senior counsel Raymond Heathcote, assisted by Yoleta Campbell.