Staff Reporter

SUPREME Court judges have ruled that Fishrot fugitive lawyer Maren de Klerk, who was implicated in using his law firm, De Klerk, Horn and Coetzee (DHC), as a conduit to channel illicit funds to fellow accused in the country’s largest fisheries and corruption scandal, be allowed to testify in the matter via video from South Africa.

De Klerk has made himself scarce in the “land of the brave” after a warrant of arrest was issued for him by Namibian authorities in mid-2021.

The matter to have De Klerk testify via video was heard by appeal judges Hannelie Prinsloo and Elton Hoff, as well as Acting Judge of Appeal David Smuts.

The granting of video evidence by the Supreme Court will successfully set aside a judgment handed down by the High Court, which had refused an application by the National Fishing Corporation of Namibia (Fishcor) to have De Klerk testify via video link.

In his judgment, Smuts, with concurrence from Prinsloo and Hoff, said that although there is a warrant for De Klerk’s arrest and he is a fugitive from justice, he is not a party to the trial action involving the Fishcor matter and does not stand to benefit from the proceedings.

“He is instead a witness willing to testify in the proceedings on an aspect which would, on the pleadings, be crucial to Fishcor’s potential success in those proceedings. The fact that Mr de Klerk is a fugitive from justice weighed heavily with the High Court in refusing the application. In doing so, the court erred in not taking into account that Mr de Klerk would purely be a witness in this matter and was not a party and did not stand to benefit from his testimony. The administration of justice would not, in the Court’s view, be brought into disrepute if he were permitted to give evidence via video link, particularly given the public interest in receiving evidence of potential corruption on a massive scale,” Smuts said.

He added that De Klerk established, in his personal circumstances and considering what is at stake in the Fishrot proceedings, that it is reasonable for him to harbour a fear for his life, after sharing several incidents in which he was almost abducted by fake intelligence officers as well as being kept under heavy surveillance by unknown motorists.

“The evidence to be tendered relates to an alleged corrupt scheme involving potential criminality on a massive scale in the context of the Namibian economy. According to Fishcor, the alleged corrupt activities are estimated to involve unlawful appropriation of around N$2 billion in revenue from the Namibian fishing industry. Fishcor contends that Mr de Klerk is a crucial witness in establishing that the impugned agreements were entered into in a corrupt environment and formed part of a corrupt scheme and are, as a consequence, against public policy, in fraudem legis, not in good faith, and unenforceable,” Smuts said.

He added that other suspects, including the former Minister of Justice Sacky Shanghala and former Fishcor Chairperson James Hatuikulipi, are awaiting trial on criminal charges and have indicated through their legal representatives that they would not be prepared to testify on behalf of Fishcor in its action against the respondents.

“Apart from Mr Louw, Mr de Klerk would be the only witness to provide direct evidence on the discussions concerning the setting up of the alleged corrupt scheme,” the judges said.

The evidence that De Klerk would testify about includes affairs concerning two erstwhile cabinet members, former Fisheries Minister Bernard Esau and Minister of Justice Sacky Shanghala, who were said to have colluded with the then Chairperson of Fishcor, James Hatuikulipi, and others to commit crimes relating to the allocation of fishing quotas through Fishcor.

Following the revelations in the Fishrot scandal, and after consulting the government, Fishcor instituted an action against African Selection Fishing (ASF) and Seaflower, seeking to declare those agreements, which it contends underpin and form part of a corrupt scheme, as void and unenforceable on the grounds of being against public policy, in fraudem legis, and not in good faith.

Photos: File

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