As long as Fishrot’s self-proclaimed paymaster and lawyer Maren de Klerk remains a fugitive, Namibian courts will not adjudicate his civil or criminal matters, the Windhoek High Court has ruled.
In a ruling delivered on Friday, judge Shafimana Ueitele said De Klerk falls under a class of persons who are prohibited from participating in criminal and civil proceedings as stipulated within the Prevention of Organised Crime Act (POCA).
“He (De Klerk) is a person in respect of whom a warrant of arrest has been issued and whose attendance in the High Court of Namibia cannot be secured despite all reasonable steps taken to execute the warrant,” said Ueitele.
He added that allowing de Klerk to be heard while his warrant of arrest remains unexecuted, “would be negating the unambiguous expression of the legislative will”.
The judge went on to say the reasons given by De Klerk why he remains outside Namibia are unsubstantiated by objective facts and do not reveal why South Africa or any other country, is a better safe haven than Namibia.
Ueitele struck from the court’s roll De Klerk’s rescission application of the preservation order granted on 2 December 2022 and leave to file an affidavit.
He further ordered De Klerk to pay the Prosecutor General’s costs of this application.
In the rescission application, De Klerk sought for an order rescinding the court’s preservation orders against N$1.8 million that were in his personal bank account and N$4.6 million belonging to his law firm, De Klerk, Horn, and Coetzee Legal Practitioners (DHC) Inc Trust. The orders were issued on 2 December 2022.
In his application, De Klerk claims the court erred when it prematurely granted the final preservation order on 2 November 2022 when he was not served with the provisional preservation order issued on 28 October 2022, as stipulated by law.
De Klerk claims he earned the money in the accounts, which is now under preservation by the State, by rendering legal services to then Attorney General Sacky Shanghala and James Hatuikulipi.
He said in March 2017, he was under Shanghala’s instructions as a lawyer to manage the Swapo election campaign.
According to him, he received funds from several companies which were then paid out by him to individuals and entities on the instructions of Shanghala and Hatuikulipi.
He said it was not until the breaking of the Fishrot scandal documentary, that was televised on Al Jazeera, that he realised the funds might have emanated from illegal activities.
However, he claims he cannot return to Namibia as he fears for his life, and the Anti-Corruption Commission and Prosecutor General have not given assurance that his safety will be secured.
Prosecutor General Martha Imalwa in court documents, claims there is a reasonable belief that the funds in the two bank accounts were the spoils from the Fishrot scheme.
Imalwa said investigations have revealed that a total of N$81.8 million meant for governmental objectives was misappropriated and distributed to individuals and entities by De Klerk through his personal bank account and that of his law firm.
On 19 May 2021, Justice Minister Yvonne Dausab addressed an extradition request to South Africa. The request, which is still being heard by the South African court, is opposed by De Klerk.
De Klerk is charged with counts relating to racketeering, contraventions of POCA, and fraud and was arrested in the Western Cape town of Paarl on Thursday 1 June 2023 and appeared in court the next day where he was granted N$50 000 bail. The case is ongoing.
In Namibia, he is yet to stand trial alongside his co-accused Hatuikulipi, and Shanghala, alongside Pius Mwatelulo and co-accused Ricardo Gustavo, Bernhardt Esau, Tamson Hatuikulipi, Mike Nghipunya, Nigel van Wyk, Otneel Shuudifonya, Phillipus Mwapopi, and Icelandic executives Ingvar Júlíusson, Egill Helgi Árnason, and Adalsteinn Helgason, who are still to be brought into the country.
His co-accused face charges ranging from theft to racketeering, fraud, bribery, corruptly using their office for gratification, accepting gratification, money laundering, tax evasion, and conspiring to commit corruption.
The prosecution is alleging that the Samherji directors corruptly paid at least N$103.6 million in bribes to the accused so they could get a competitive advantage in securing horse mackerel quotas in Namibia.
This allegedly took place between 2014 and 2019.
-mamakali@nepc.com.na