Lawyer De Klerk barred from case about seized accounts

Lawyer Marén de Klerk, who is wanted in Namibia for his involvement in the Fishrot fishing quotas corruption, racketeering and money laundering case, will not be allowed to participate in a High Court matter about bank accounts containing about N$6,5 million allegedly linked to the Fishrot scandal.

De Klerk is a fugitive from justice in Namibia, and as a result the Prevention of Organised Crime Act precludes him from participating in court proceedings about the preservation and possible confiscation or forfeiture of property alleged to be connected to crime, judge Shafimana Ueitele ruled in a judgement delivered in the Windhoek High Court on Friday last week.

Ueitele said the Prevention of Organised Crime Act does not give the High Court discretion to allow a person to participate in court proceedings in terms of the act that the same law bars the person from taking part in.

The act states that a person in respect of whom a warrant of arrest has been issued “must not participate in any proceedings” under the act’s chapters on the confiscation of benefits of crime and forfeiture of property found to be the proceeds of unlawful activities.

Ueitele noted that a Windhoek magistrate issued a warrant for De Klerk’s arrest on charges under the Anti-Corruption Act and the Prevention of Organised Crime Act and also a charge of fraud in April 2021.

De Klerk left Namibia in January 2020, after he had been questioned by Anti-Corruption Commission investigators in connection with the Fishrot case, involving the alleged unlawful acquisition and sale of Namibian fishing quotas. He has reportedly been living in South Africa since leaving Namibia, and claims he has not returned to Namibia because he fears his life would be in danger if he did so.

Namibia’s minister of justice addressed a request for De Klerk’s extradition from South Africa to her South African counterpart in May 2021, Ueitele recorded.

De Klerk was arrested in South Africa in June last year, and court proceedings on Namibia’s request for his extradition are now pending in South Africa’s Western Cape province.

In Namibia, prosecutor general Martha Imalwa obtained a property preservation order over a bank account in De Klerk’s name and an account in the name of his former law firm, De Klerk, Horn and Coetzee Incorporated (DHC), in October 2022.

The account in De Klerk’s name held about N$1,8 million before the preservation order was issued, while there was about N$4,7 million in the DHC account.

In terms of the order, the money in the two accounts may not be transferred or used by anyone until the prosecutor general has applied to have the funds – alleged to be the proceeds of crimes – forfeited to the state. In charges against 10 men awaiting trial in the High Court in connection with the Fishrot scandal, it is alleged that N$81,8 million in fishing quota usage fees which were supposed to be paid to the state-owned National Fishing Corporation of Namibia (Fishcor) was channelled through bank accounts of DHC and the company Celax Investments Number One, of which De Klerk was the sole director and shareholder.

The money channelled through accounts of DHC and Celax Investments Number One was allegedly diverted to six of the men charged in the Fishrot case – James Hatuikulipi, who is a former Fishcor board chairperson, former justice minister and attorney general Sakeus Shanghala, ex-minister of fisheries and marine resources Bernhard Esau, Esau’s son-in-law Tamson Hatuikulipi, former Fishcor chief executive Mike Nghipunya and Pius Mwatelulo – or to entities of their choice.

In an affidavit filed at the High Court, De Klerk denied that the money in the account in his name is the proceeds of unlawful activities. The funds in his account, he said, are legal fees paid to him “by agreement with the then attorney general” – a reference to Shanghala, whose name De Klerk did not state, though.

De Klerk also said in his statement that “the then attorney general” of Namibia instructed him in May 2017 to manage “the Swapo election campaign”.

He added that on the basis of instructions received from the attorney general – a post that Shanghala held at that time – and “his agent”, James Hatuikulipi, he received funds from various companies and then paid out money to individuals and entities as instructed by Shanghala and Hatuikulipi.

It was only after the Fishrot scandal became public in November 2019 with media reports about alleged corruption around the use of Namibian fishing quotas “that I realised that the funds may have emanated from unlawful activities”, De Klerk stated.

Imalwa informed the court that a total amount of about N$6,2 million that originated from quota usage fees was paid to Swapo and affiliates from accounts of DHC and Celax Investments.

In his judgement, Ueitele ordered that an application by De Klerk for the rescission of the property preservation order granted in October 2022 is struck from the court roll.