CRIMINAL LAW – APPEAL AGAINST CONVICTION AND SENTENCE OF TWO SOUTH AFRICAN SENIOR COUNSEL

CRIMINAL LAW – APPEAL AGAINST CONVICTION AND SENTENCE OF TWO SOUTH AFRICAN SENIOR COUNSEL

On 28 November 2019, the appellants who are senior counsel practicing as advocates in the Republic of South Africa arrived in Namibia at Hosea Kutako International Airport where they sought entry into the country and made certain declarations to immigration officials and thereafter granted visitor’s permits in terms of section 29(1) of the Immigration Control Act, 7 of 1993. It later turned out that the appellants sought entry into the country to represent their clients in a bail application. Subsequently, the appellants were charged with contravention of section 29(5) and section 54(e) of the Act and they pleaded guilty in the Magistrates court and they were consequently convicted and sentenced, each to a fine of N$6 00 or one year’s imprisonment on the first charge and a fine of N$4 000.00 or six months’ imprisonment on the second charge. Thereafter, the appellants filed an appeal against their conviction and sentence before the High Court.

The first ground of appeal was based on s 29(6) of the Immigration Control Act 7 of 1993, in terms whereof it was argued that in as much as the appellants’ purpose was a single appearance in a bail application, it cannot be said that in doing so they could be said to have carried on a profession, being that of an advocate, and that in order to carry on a profession some degree of permanence was required, as opposed to a single appearance in a single case. The court found that by representing their clients in a bail application, they would have rendered a professional service to their clients, and by appearing on their behalf in a bail application they would have been engaged in practicing the profession of an advocate.

The second ground of appeal was based on the argument that a person who has been issued a certificate by the Chief Justice to appear in Namibian courts in terms of section 85(2) of the Legal Practitioners Act 15 of 1995 needs only a visitor’s permit issued in terms of s 29(1) of the Immigration Control Act 7 of 1993. The court found that this ground of appeal had no merit and held that the Legal Practitioners Act 15 of 1995 and the Immigration Control Act 7 of 1993 co-exist, and they serve different purposes that are not related.

In the result, the appeal was dismissed.

Joubert v State NAHCMD 4 September 2020