Supreme Court allows De Klerk to testify via video link
The Supreme Court has overturned a High Court ruling that blocked key evidence in the ongoing Fishrot civil case, ruling that Fishcor may present the testimony of Marén de Klerk via video link.
De Klerk, a Namibian lawyer, was closely involved in the fishing sector deals that later became central to the Fishrot scandal.
He served as a legal adviser and director for African Selection Fishing and Seaflower Pelagic Processing.
De Klerk played a role in advising on and helping structure the agreements now being challenged by Fishcor.
After the scandal broke in late 2019, De Klerk provided a detailed affidavit to the Anti-Corruption Commission describing meetings and discussions allegedly involving senior politicians, Fishcor leadership and private fishing interests.
He subsequently left Namibia and is currently living in South Africa, where a warrant has been issued for his arrest in connection with the ongoing criminal Fishrot cases.
In a judgment delivered on 17 December, acting judge of appeal Dave Smuts, alongside justices Elton Hoff and Hannelie Prinsloo, said the High Court was wrong to refuse Fishcor permission to present De Klerk’s evidence remotely.
The court found that the High Court placed too much emphasis on De Klerk’s status as a fugitive and did not properly consider the interests of justice and the public interest in hearing evidence related to alleged large-scale corruption in Namibia’s fishing industry.
First-hand evidence
Fishcor is suing African Selection Fishing and Seaflower Pelagic Processing, along with several state entities, seeking to have a series of agreements set aside.
These agreements, linked to the Fishrot scandal, involved Fishcor committing to supply 50 000 tonnes of horse mackerel quota each year for up to 15 years. Fishcor contends the deals were concluded in a corrupt environment and should be declared invalid.
Fishcor says De Klerk is a crucial witness because he can provide direct evidence on how the agreements were conceived and concluded.
Other key figures involved are either facing criminal charges or have indicated they are unwilling to testify in the civil case, leaving De Klerk as the only witness able to provide first-hand evidence of important meetings and decisions.
The High Court had acknowledged that evidence could, in principle, be presented via video link, even though the rules of court do not expressly provide for this.
However, High Court judge Orben Sibeya refused the application, arguing that De Klerk had not sufficiently demonstrated that his fear for his safety if he returned to Namibia was reasonable and that allowing a fugitive to testify remotely could undermine the administration of justice.
Standard tech in modern courts
The Supreme Court disagreed, saying courts have the inherent power to regulate their own procedures and that the use of video technology is now a standard and accepted part of modern justice.
The judges stressed that De Klerk is not a party to the case and does not stand to benefit from its outcome. Preventing him from testifying would seriously weaken Fishcor’s ability to present its case, the judges noted.
The court also found that the High Court had set the bar too high by requiring De Klerk to prove that Namibian authorities would be unable to protect him if he were extradited.
Given the seriousness of the Fishrot allegations, the scale of the alleged corruption and the threats De Klerk says he faces, the Supreme Court said his fear could not simply be dismissed as unreasonable.
The appeal was upheld, the High Court ruling set aside, and Fishcor was granted permission to present De Klerk’s evidence via video link, subject to directions from the trial judge.
Fishcor will pay the cost of the video link, while African Selection Fishing and Seaflower were ordered to pay the legal fees of the appeal.
De Klerk, a Namibian lawyer, was closely involved in the fishing sector deals that later became central to the Fishrot scandal.
He served as a legal adviser and director for African Selection Fishing and Seaflower Pelagic Processing.
De Klerk played a role in advising on and helping structure the agreements now being challenged by Fishcor.
After the scandal broke in late 2019, De Klerk provided a detailed affidavit to the Anti-Corruption Commission describing meetings and discussions allegedly involving senior politicians, Fishcor leadership and private fishing interests.
He subsequently left Namibia and is currently living in South Africa, where a warrant has been issued for his arrest in connection with the ongoing criminal Fishrot cases.
In a judgment delivered on 17 December, acting judge of appeal Dave Smuts, alongside justices Elton Hoff and Hannelie Prinsloo, said the High Court was wrong to refuse Fishcor permission to present De Klerk’s evidence remotely.
The court found that the High Court placed too much emphasis on De Klerk’s status as a fugitive and did not properly consider the interests of justice and the public interest in hearing evidence related to alleged large-scale corruption in Namibia’s fishing industry.
First-hand evidence
Fishcor is suing African Selection Fishing and Seaflower Pelagic Processing, along with several state entities, seeking to have a series of agreements set aside.
These agreements, linked to the Fishrot scandal, involved Fishcor committing to supply 50 000 tonnes of horse mackerel quota each year for up to 15 years. Fishcor contends the deals were concluded in a corrupt environment and should be declared invalid.
Fishcor says De Klerk is a crucial witness because he can provide direct evidence on how the agreements were conceived and concluded.
Other key figures involved are either facing criminal charges or have indicated they are unwilling to testify in the civil case, leaving De Klerk as the only witness able to provide first-hand evidence of important meetings and decisions.
The High Court had acknowledged that evidence could, in principle, be presented via video link, even though the rules of court do not expressly provide for this.
However, High Court judge Orben Sibeya refused the application, arguing that De Klerk had not sufficiently demonstrated that his fear for his safety if he returned to Namibia was reasonable and that allowing a fugitive to testify remotely could undermine the administration of justice.
Standard tech in modern courts
The Supreme Court disagreed, saying courts have the inherent power to regulate their own procedures and that the use of video technology is now a standard and accepted part of modern justice.
The judges stressed that De Klerk is not a party to the case and does not stand to benefit from its outcome. Preventing him from testifying would seriously weaken Fishcor’s ability to present its case, the judges noted.
The court also found that the High Court had set the bar too high by requiring De Klerk to prove that Namibian authorities would be unable to protect him if he were extradited.
Given the seriousness of the Fishrot allegations, the scale of the alleged corruption and the threats De Klerk says he faces, the Supreme Court said his fear could not simply be dismissed as unreasonable.
The appeal was upheld, the High Court ruling set aside, and Fishcor was granted permission to present De Klerk’s evidence via video link, subject to directions from the trial judge.
Fishcor will pay the cost of the video link, while African Selection Fishing and Seaflower were ordered to pay the legal fees of the appeal.
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