Senior counsel Mike Hellens and Dawie Joubert – who routinely act for the Gupta family – were arrested by Namibian authorities for alleged immigration violations in November 2019 and pleaded guilty hours after they were detained.
• They later took their arrest and conviction on review in the Namibian High Court in Windhoek, which found the immigration official who detained them to have done so based on a "very serious and dangerous misreading of the law".
• The Namibian government has now successfully appealed that ruling, after the Namibian Supreme Court dismissed a separate application by Hellens and Joubert to appeal their convictions.
Senior counsel Mike Hellens has slammed a Namibian Supreme Court ruling that dismissed his and his colleague Dawie Joubert's claims they were unlawfully coerced into pleading guilty to immigration fraud as "a shocking failure of justice".
On Friday, three Supreme Court judges ruled in favour of Namibia's Home Affairs Minister Albert Kawana, who appealed a high court's findings that Hellens and Joubert's arrests were characterised by "gross irregularity" and should therefore be set aside as unlawful.
"I feel no doubt in my mind in concluding that the applicants [Hellens and Joubert] have established that a good ground exists to review and set aside the conduct or act complained of," Acting Judge C Parker stated in the now-invalidated high court decision.
Supreme Deputy Chief Justice Petrus Damaseb and judges Hosea Angula and Shafimana Ueitele disagreed with Parker's decision and, in a ruling written by Angula, held that Hellens and Joubert "had failed to prove that they were coerced to plead guilty and that such coercion constituted an irregularity in the proceedings".
"There is nothing on record [to] suggest that their pleas had not been made voluntarily.
"In this regard, their plea explanations demonstrate that the pleas had been made freely and voluntarily with full appreciation of their consequences," the Supreme Court found.
Hellens and Joubert are well-known criminal defence advocates who regularly represent the Gupta family and their associates in trials.
They previously acted for former president Jacob Zuma and his son, Duduzane.
Mike Hellens and Dawie Joubert were set to represent Bernhard Esau and five others when they were arrested in Namibia.
At the time of their arrests in November 2019, Hellens and Joubert were set to represent six accused, including former Namibian ministers Bernhard Esau and Sacky Shanghala, in a bail application for the high-profile "Fish-rot" corruption case.
The case emanated from claims made by whistleblower Johannes Stefansson, who alleged that Icelandic fishing company Samherji had paid millions of dollars, through tax havens such as Cyprus and the Marshall Islands, to bribe high-level officials in Namibia for trawling rights.
With an annual turnover of $700 million (R13.5 billion), Samherji is one of the largest fishing companies in the world.
When Hellens and Joubert applied for entry to Namibia to argue the Fish-rot bail application, they said they were in the country for a visit and a meeting, and were granted visitors' permits.
They then used their first day in Namibia to prepare for their clients' bail applications, which were scheduled for the following day in the Windhoek Magistrate's Court.
Before that bail application could go ahead, however, Hellens and Joubert were arrested by an immigration officer and charged with contravening the provisions of Namibia's Immigration Control Act.
They faced charges of rendering services as legal practitioners without an employment permit and furnishing false or misleading information to the immigration officers who gave them visitors' permits.
Hellens, who has acted for the defence and the State in several African countries, previously told News24 that he had never experienced the kind of reception he received in Namibia in any other country he had practised law.
He said:
I was shocked. We were locked up for four and a half hours in a cell with our own clients on a Friday and told we would be spending until 8 March [2020], from late November [2019], in custody because we were a flight risk.
"And if we got bail, we would be constrained to remain in Namibia for three months."
As a result, he said, they decided to plead guilty to charges of working in Namibia without having the required employment permits and furnishing false or misleading information to an immigration officer [by claiming they were in Namibia for a meeting rather than a court case].
They were each sentenced to fines totalling N$10 000 (R10 000) or a prison term of 18 months.
When Hellens and Joubert reviewed their convictions, after also unsuccessfully appealing them, they argued that the attorney who had briefed them had not told them they needed a work permit to act in Namibia.
Instead, they said, they had successfully applied for so-called s85(2) certificates which allowed them to practice law in Namibia.
Mike Hellens and Dawie Joubert are well-known criminal defence advocates who regularly represent the Gupta family.
They said that after learning the State intended to oppose their bail because they were South African citizens and a flight risk, and that they would be charged with fraud if they did not plead guilty to the two counts against them, they admitted guilt under duress.
According to Hellens and Joubert, they pleaded guilty "to all the elements insofar as required (with obvious reservations, subtle in nature, and intended to allow the reader of the transcript of the proceedings to see that we were under duress and not willingly admitting all the elements of the offences)".
While that evidence persuaded the high court that Hellens and Joubert were unlawfully arrested and their convictions should be overturned, Angula and his colleagues were not persuaded – and found that the high court should not have considered their review application after their appeals against their convictions had been dismissed.
Angula also found Hellens and Joubert's alleged unlawful arrest "did not directly relate to the actual proceedings and did not have the effect of causing [them] to plead guilty".
"That being the case, it follows therefore as a matter of logic and common sense that since they did not know, at the time when they plead guilty, that their arrests were unlawful, it could not have influenced them to plead guilty," he said, adding that Hellens and Joubert's guilty pleas were binding on them and were not vitiated by their allegedly unlawful arrests.
Regarding Hellens and Joubert's evidence that they were coerced into pleading guilty, Angula said their "feeble attempt to blame the prosecution for their misfortune is not convincing".
The prosecutor in the case denied saying the pair would be forced to stay in jail over the weekend if they did not plead guilty.
"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 [Hellens and Joubert] to apply for bail and did not constitute a coercive act."
According to Angula, it was "clear from the papers that [Hellens and Joubert] were not interested in applying for bail".
"They were determined to plead guilty after they were informed by their counsel that the State was prepared to ask for a sentence of a fine and not for a custodial sentence.
"It is clear that [Hellens and Joubert] were simply not prepared to spend the weekend in the holding cell waiting for their bail application."
Hellens told News24 he and Joubert would take advice on their next move.
Johannesburg Society of Advocates (JSA) chairperson Greta Engelbrecht said the organisation's professional committee had initially decided not to investigate Hellens and Joubert over their convictions in Windhoek in November 2019 because they had successfully reviewed those convictions and sentences in a civil court process.
Now that this decision has been reversed and their appeals dismissed, she said, the JSA professional committee would again consider the matter.
