Renthia Kaimbi
The Supreme Court has authorised fugitive lawyer Marén de Klerk to testify via video link in the National Fishing Corporation of Namibia (Fishcor) and Sea Flower Pelagic matter.
This would enable the hearing of his testimony regarding an allegedly corrupt 50 000 metric-tonne fishing quota.
The ruling overturns a 2022 High Court decision that refused the request and settles a dispute over the use of courtroom technology.
It allows testimony that Fishcor says is critical to its case against Seaflower Pelagic Processing and others.
The case centres on a commercial arrangement in which Fishcor, a state-owned enterprise, agreed to allocate 50 000 metric tonnes of horse mackerel quota each year to Seaflower for 15 years.
Fishcor claims the deal, valued in the billions of dollars, arose from corruption and wants the agreements declared invalid.
The Supreme Court said De Klerk’s evidence goes to the heart of how the deal was formed.
In an affidavit given to anti-corruption investigators, De Klerk said he played a key legal role in drafting the agreements and attended a meeting in December 2016.
At that meeting, he claims former justice minister Sacky Shangala said those involved “could all stand to make a lot of money” from the arrangement.
In 2022, High Court judge Orben Sibeya refused to allow De Klerk to testify by video link.
Although he accepted that courts have the power to permit such testimony, he ruled that De Klerk’s status as a fugitive with an outstanding arrest warrant weighed against it.
Sibeya said allowing testimony from an unknown location abroad could assist him in avoiding arrest and limit the court’s ability to deal with perjury.
The Supreme Court, sitting with Justices Smuts, Prinsloo and Hoff, set aside that decision.
The court said De Klerk is only a witness in the matter and has no personal interest or benefit in the outcome of the case, unlike a fugitive who is directly involved as a party to the proceedings.
The judges held that the strong public interest in fully examining allegations of large-scale corruption outweighed other concerns.
They found that denying video testimony would serve no purpose apart from potentially depriving Fishcor of evidence critical to its case.
The court noted that De Klerk was closely involved as a legal adviser and played a key role in drafting the shareholder and quota agreements being challenged.
It agreed with Fishcor that, aside from the defendants themselves, he may be the only person able to provide direct evidence about the early discussions and the alleged corrupt intent behind the quota arrangement.
The judges said excluding his evidence would seriously weaken Fishcor’s ability to prove its claim that the agreement was rooted in corruption and contrary to public policy.
The ruling also resolved a separate debate among High Court judges on whether courts may allow video testimony without specific legislation.
In a separate decision in May 2024, Ueitele ruled that De Klerk, as a fugitive, could not pursue his own civil applications in Namibia. That ruling related to De Klerk’s attempt to overturn preservation orders on N$1.8 million in his personal bank account and N$4.6 million in his law firm’s trust account. The prosecutor general alleges the funds are proceeds of the Fishrot scheme.
De Klerk claimed the money was earned legally from managing a political campaign and said he only later suspected its unlawful origin.
He also said he feared for his life if he returned to Namibia. Ueitele rejected that claim, struck the matter from the roll, and ordered him to pay costs, saying the courts cannot assist a person who remains a fugitive.
