Two South African senior lawyers arrested last year for working in Namibia without work permits when they came to represent Bernard Esau, Sacky Shanghala and James Hatuikulipi.
The ex-Jacob Zuma lawyers, Michael Hellens and David Joubert claim that their instructing lawyer, Appolos Shimakeleni, did not tell them that work permits were required as he only told them to apply for visas to come to Namibia.
“It turned out that when Mr Shimakeleni used the word ‘visa’, he actually meant work permit. Of course, Joubert did not refer to ‘work permits’ but to ‘visas’ and because he regularly comes to Namibia for holidays and hunting, he knew that no visa was required for a South African citizen to come to Namibia,” says Hellens in their affidavit.
He claims that “this unfortunate misunderstanding led to no work permits being applied for adding that Shimakeleni never informed them that permits were required”.
In the court papers, Shimakeleni accepts his mistake.
“When I used the word ‘visa’ I meant ‘work permit’. I am used to the word visa as the ministry of home affairs also refers to work permits as visas,” he says.
Shimakeleni is also accused of failing to notify the senior lawyers that it was required of them to apply for a work permit “even for purposes of a once-off urgent bail application in Namibia”.
But the two also claim in their papers that they did not have the fullest interpretation of the immigration law pertaining to when one should have a work permit.
“Upon proper interpretation of the Immigration Control Act of Namibia, Act 7 of 1993 (read with the Legal Practitioners Act, 1995) we were in any event not actually required to have a work permit if the chief justice granted us permission to appear pro-hac-vice,” Hellens adds.
Pro-hac-vice means “for or on this occasion only”.
Hellens adds that an immigration official at the airport who attended to him did not bother to ask why he had visited in Namibia and that he did not bother to check on his passport what the officer wrote as the purpose of visit.
He adds that he was later shocked to realise that the official had stamped that he was in Namibia for “a meeting”.
Hellens further submits that despite Joubert telling an immigration official who attended to him in a separate queue that he had jetted in to represent the Fish-rot six, his passport was marked that he had come for a visit.