Namibia's anti-graft body targets counsel from South Africa

2 March 2020 · Carmel Rickard

Namibia’s Anti-Corruption Commission, already sharply censured by the high court for going beyond powers allowed it by law (see 'When the Shepherd becomes a Wolf' on this website), is now coming in for even wider criticism. This time it’s for serving a summons on counsel for the accused – in court and during a hearing related to the ‘Fishrot’ scandal that has stunned Namibia. The scandal involves allegations of international bribery and corruption for access to Namibian fishing waters. Last week, South African counsel, Tembeka Ngcukaitobi, appearing in the high court, Windhoek, on behalf of suspects in the matter, was served with a summons from the ACC demanding that he explain a payment he had received from Namibia’s national fishing corporation, Fishcor, in 2018, and given just an hour to answer. The SADC-Lawyers Association has issued a strongly worded statement on the incident, and the Namibian government has subsequently apologised to Ngcukaitobi. It is not the first time that counsel for the Fishrot accused have run into trouble with the Namibian authorities: late last year, two South African advocates were arrested, held in police cells and prevented from appearing to argue in court as they did not have the required work permits.

Counsel at the centre of Namibia’s growing Fishrot row, South African advocate Tembeka Ngcukaitobi, is no stranger to the elite of that country’s ruling Swapo party, and has appeared for them on several occasions. This time, however, he was not given the usual benign treatment accorded legal representatives.

Last Wednesday, intended to be a normal day in the high court, turned out to be anything but: Namibia’s Anti-Corruption Commission (ACC) served a summons on him – according to local media it was handed to him during a hearing in the Windhoek high court and he was given just an hour to respond.

The ACC’s query concerns a payment of N$50 000 made to Ngcukaitobi by the Namibian national fishing corporation, Fishcor, in 2018. Fishcor is at the centre of a scandal in which high-level Namibians from top government ministers down are alleged to have taken bribes to allow special access to Namibian fishing waters by vessels from Iceland. Among the suspects now in prison pending further investigations are the former minister of fisheries and marine resources, Bernhard Esau, and the former minister of justice, Sacky Shanghala.

News of the summons served on counsel for the Fishrot six spread quickly. Among others, the SADC Lawyers Association responded with indigation and issued a statement condemning the ‘unduly forceful and summary procedures’ used against Ngcukaitobi by Namibia’s ACC.

SADC-LA spoke of its deep concern about the way he had been treated, saying the incident had the potential ‘to erode the rule of law and compromise the fair administration of justice’ in Namibia.

Stressing that it supported the fight against corruption, the organisation said it was crucial, however, that independent commissions should work within the framework of the law.

‘The facts of the matter are that the Namibian ACC deployed summary procedure in issuance of summons and immediate demand for a response ….. Of greater concern … is that the summons was issued whilst he was in court, during a hearing in which he was representing the accused persons. The summons was issued at 1pm and response was demanded by 2pm. This is extraordinary and can only be viewed as an attempt to intimidate and prevent Ngcukaitobi from representing the six accused ….’

The summons suggests that he had taken a payment from Fishcor and the result could have been an immediate conflict of interest that would bar him from representing the six accused. ‘Seeking to link (him) to the activities of his client is not acceptable and will make it very difficult for lawyers within and from outside Namibia to take up sensitive cases (such as this).’

‘Lawyers must be allowed to execute their work without fear of intimidation and threats’.

The SADC-LA statement further pointed to the ‘curious history of recent intimidation of lawyers in the same jurisdiction’ and said it would be engaging with the ACC, the government of Namibia and the local law society on the matter.

The incident also sparked hot debate on Twitter, with political disrupter Julius Malema, who is the leader of SA’s Economic Freedom Fighters political party, taking on Namibian challengers over the ACC’s actions.

Then came a statement by Namibia’s cabinet secretary, George Simataa, who apologised to Ngcukaitobi ‘on behalf of the government … for the inconvenience this matter may have caused to him.’ According to Simataa the funds were paid to Ngcukaitobi to attend a conference at which he had been invited to be an official speaker.

That explanation and apology were not well received by the ACC. Officials, who appeared to believe the cabinet was trying to undermine the commission, said the explanation should have been sent to the ACC, and not made public by way of an official statement and apology.

The week before the Ngcukaitobi incident, the ACC was strongly censured by high court judge Thomas Masuku. The judge had been asked to consider the validity of search and seizure warrants issued against the six suspects. Though the judge upheld the validity of the warrants, he criticised the ACC's handling of certain documents seized during the search. One of the six disputed whether the ACC officials could take certain documents from him in their search, saying they were 'privileged'. But the ACC simply denied this was so, presumably on the basis of having read them anyway - this despite the law that sets out how documents, claimed to be 'privileged', are to be handled. The law clearly stipulates that a judge, not the ACC, is to decide the status of contested documents. The judge also expressed reservations about certain items taken by the ACC during the searches and that appeared, at first sight, not to relate to the issues the ACC was investigating.

Ngcukaitobi is not the first South African lawyer appearing for the Fishrot accused to run into difficulties. During November, two other prominent South African advocates found themselves in trouble. Like Ngcukaitobi, they were representing the accused in the Fishrot scandal. Counsel had been expected to apply for bail on behalf of the six accused that day, but the morning the bail application would have been brought, the two lawyers were arrested because they did not have work permits for Namibia.

Namibia is notorious for the bureaucratic difficulties it throws up for outsiders. In the case of the legal team from South Africa, Mike Hellens and Dawie Joubert, they were held in police cells and had to pay admission of guilt fines.

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.