Court name
High Court
Case name
Goba v The Minister of Home Affairs and Immigration and Others
Media neutral citation
[2011] NAHC 233
Judge
Heathcote AJ




















CASE NO.: A118/2011


IN
THE HIGH COURT OF NAMIBIA





In
the matter between:


RAY
H GOBA
…...........................................................................................
APPLICANT





and








THE
MINISTER OF HOME AFFAIRS &


IMMIGRATION
….........................................................................FIRST
RESPONDENT


THE
CHIEF OF IMMIGRATION
…..........................................SECOND
RESPONDENT


THE
CHAIRMAN OF IMMIGRATION


SELECTION
BOARD
…...............................................................THIRD
RESPONDENT


CORAM:
HEATHCOTE, A.J


______________________________________________________________


REASONS
FOR JUDGMENT





HEATHCOTE,
A.J:
.







[1] The applicant, a legal
practitioner and citizen of the Republic of Zimbabwe entered Namibia
to take up employment with the Government of the Republic of Namibia,
attached to the Ministry of Justice in the capacity of Deputy
Prosecutor General in or about July 1998. He had applied for the
position in 1996 while in Zimbabwe after seeing it advertised in a
local newspaper. The position was advertised as one, subject to a two
year contract which was renewable.







[2] Since 1998, the applicant had his
contract of employment renewed or extended or a new contract was
entered into at the end of each two year cycle save for two occasions
when it was extended by a period of six months each. At all times
when such contract was renewed or extended third respondent upon
application by the applicant similarly renewed or extended the
applicant’s employment permit by the same period until the last
contract and similarly the employment permit lapsed on 31 December
2010.







[3] On 31 December 2010, at which
point applicant held the position of Chief (Director) Legal services
and International Cooperation in the Ministry of Justice his contract
was not extended after a suitable Namibian had been identified to
take over from him. Accordingly, his employment permit also lapsed.







[4] When the applicant’s
employment permit lapsed on 31 December 2010, the applicant would
have immediately become disentitled to continued stay in Namibia,
save for a limited period to wind up his affairs. However, apparently
third respondent procedurally allows immigrants time to wind up their
affairs in the event of expiry of contract and employment permit.
Applicant then, applied again for a work permit as well as a
permanent residence permit to legitimize his stay in Namibia.







[5] On 15 February 2011, the applicant
found out that both applications have been rejected and no reasons
have been given. He pursued the matter with officials of first
respondent and was advised to lodge an appeal which he did by letter
dated 18 February 2011. In it he explained that his last contract of
employment had come to an end unexpectedly and pointed out that he
had also appealed against the refusal of permanent residence and was
also awaiting a decision in respect thereof.







[6] In this application the applicant
seeks relief on an urgent basis pendente lite, being the
determination of review proceedings to set aside the third
respondent’s refusal to reject his permanent residence
application as well as his work permit application, to the effect
that:







[6.1] the applicant may remain in
Namibia and carry on his profession with the firm Shikongo Law
Chambers, and that pursuant thereto he be issued with an employment
permit;







[6.2] the third respondent be
interdicted from deporting or removing or causing the enforced
departure of the applicant from Namibia.







[7] As I have pointed out, in the main
review application, the applicant seeks the review and setting aside
of the various decisions taken by the third respondent (“the
Board”), relating to the refusal by the Board to grant a
permanent residence permit or an employment permit to the applicant.
The applicant further seeks, in that main review application, a
declaratory order that he will be entitled to carry on his profession
in Namibia and an order that the second respondent – the
Director of Immigration – issue a permanent residence permit to
him.







[8] Mr. Corbett, acting for
respondents, raised the issue of lack of urgency, but I am satisfied
that the matter should be dealt with in terms of Rule 6(12).







[9] During argument, Mr. Narib, who
acted for the applicant, soon abandoned, and correctly so in my view,
the relief sought that the court should allow the applicant to be
employed as a legal practitioner with a local law firm. The court
cannot grant such relief if the applicant is not qualified to
practice as such. Applicant has made out no case for such relief.







[10] Unfortunately for the applicant,
he was convicted (by a Namibian Court after he came to Namibia), on a
charge of attempting to obstruct or defeat the course of justice. On
appeal, this conviction was confirmed by the High Court on 29 June
2004. An application for leave to appeal to the Supreme Court was
also refused.







[11] In various subsequent
applications for visas the applicant sought to downplay the offence
as a “traffic offence”, or failed to furnish details of
the offence as he was required to do.







[12] As a legal practitioner, the
applicant would have known that in terms of section 39(2) (f) (i) of
the Immigration Control, Act 1993, (hereinafter “the Act”)
any person who has been convicted in Namibia of any offence specified
in Schedule 1 of that Act, shall be a prohibited immigrant in respect
of Namibia. Schedule 1 of the Act includes the offence of “defeating
or obstructing the course of justice” and any attempt to do so.







[13] During argument it soon became
clear that, if section 39(2)(f)(i) declared the applicant a
prohibited immigrant, the application cannot succeed.







[14] Section 39 provides as follows;



(39) (1) Any of the persons
referred to in subsection (2) who enters



or has entered Namibia or is in
Namibia, shall be a prohibited immigrant in respect of Namibia.



(2) A person referred to in subsection
(1) shall be a prohibited immigrant in respect of Namibia, if-



(a) …



(f) such person (not having received a
free pardon) has been convicted (whether before or after the
commencement of this Act)-



(i) in Namibia, of any offence
specified in Schedule I; or



(ii) in any other country, of any
offence which is substantially similar to any offence specified in
that Schedule and, by reason of the circumstances of such offence,
is regarded by the Minister to be an undesirable inhabitant of, or
visitor to, Namibia
;(my emphasis)



[14] With reference to the wording of
section 39(2)(f), Mr. Narib submits that the phrase “by
reason of the circumstances of such offence, is regarded by the
Minister to be an undesirable inhabitant of, or visitor to,
Namibia’s”
used in subsection 39(2)(f)(ii), is
also applicable to section 39(2)(f)(i). In other words, so Mr. Narib
submits, for any person to become an undesirable inhabitant in
Namibia, he/she must be found guilty by a Namibian court, and, in
addition to that, must be regarded by the Minister as an undesirable
inhabitant by “reason of the circumstance of the offence.”







[15] I cannot agree with this
submission. The two subparagraphs of section 39(2)(f), clearly
constitute two different and distinct catagories. If convicted in
Namibia of a defined offence, such person automatically becomes an
undesirable inhabitant. If convicted elsewhere, and depending on the
circumstances of the offence, the Minister may then regard him/her as
an undesirable inhabitant. This interpretation, in my view, makes
perfect sense. The legislator trusts our courts, and knows that, any
person will only be convicted after he/she had a fair trial as
envisaged in article 12 of the Constitution. Not so with many other
countries. It is in such cases where the Minister may, despite a
conviction in a foreign country of a defined offence, still not
regard a convicted person as a prohibited immigrant, regard being had
to the circumstances of the offence.







[16] I conclude therefore that
applicant, having been found guilty of an attempt to defeat the
course of justice (in Namibia by the Namibian Courts), is a
prohibited immigrant, and the court cannot under such circumstances
grant the interim relief.







[17] As a result, I made the following
order on 14 June 2011:







[17.1] The Applicant’s non
compliance with the rules of court is condoned and the matter is
heard in terms of Rule 6(12).










[17.2] The Application is dismissed
with costs, including the costs of one instructing and one instructed
counsel.
















_______________


HEATHCOTE,
A.J








ON
BEHALF OF THE APPLICANT:


Nixon
Marcus Public Law Office








ON
BEHALF OF THE RESPONDENTS’:


Government
Attorney