LEGISLATION – HIGH COURT ACT, 16 OF 1990 – REVIEW OF ARREST OF SOUTH AFRICAN SENIOR COUNSEL ARRESTED FOR CONTRAVENING IMMIGRATION CONTROL ACT

LEGISLATION – HIGH COURT ACT, 16 OF 1990 – REVIEW OF ARREST OF SOUTH AFRICAN SENIOR COUNSEL ARRESTED FOR CONTRAVENING IMMIGRATION CONTROL ACT

On 28 November 2019 applicants, who are Senior Counsel from South Africa came to Namibia upon receiving brief from an instructing counsel practising in Namibia to represent certain former (Cabinet) ministers and other prominent businessmen on alleged charges in the Fishrot matter. The applicants were both issued with section 85(2) certificates issued by the Honourable Chief Justice in terms of the Legal Practitioners Act, 15 of 1995. On 29 November 2019, while waiting in court for the bail application to commence, an immigration officer confiscated applicants’ passports and arrested them without a warrant. The applicants were charged with two charges of conducting business without a proper work permit, and, making false representations with the purpose of entering or remaining in Namibia, in contravention of sections of the Act. The applicants pleaded guilty to the charges and they were convicted and sentenced accordingly in the magistrates court.

The applicants then noted an appeal to the High Court against the conviction and sentence but the appeal was dismissed. They then instituted a review in terms of section 20 of the High Court Act, 16 of 1990. The respondents raised a point in limine that applicants ought to have brought the application under rule 76, instead of rule 65(4) and on the merits, argued that the court lacked jurisdiction as a result of a number of factors. PARKER AJ considered dismissed the point in limine, and, on the merits found that:

Applicants were not prohibited immigrants nor could they have been treated as such in terms of the Immigration Control Act 7 of 1993. Applicants’ arrest was, therefore, unlawful and so they could not have committed the offence for which they were arrested, tried, convicted and sentenced. Consequently, court finding proceedings in the Magistrates court to be marred by, and tainted with gross irregularity, within the meaning of the section 20 (c) of the High Court Act 16 of 1990.

In the result, the applicants’ conviction and sentence on 29 November 2019 in the Magistrate’s Court of Windhoek were reviewed, set aside; and declared null and void and of no force.

Hellens v The Minister of Home Affairs and Others NAHCMD 23 June 2021