Fugitive lawyer fights to access N$1.3m pension

The Windhoek High Court is set to determine whether the Namibian Police acted lawfully when they prevented fugitive lawyer Maren Brynard de Klerk, who is wanted for questioning in connection with the Fishrot case, from accessing more than N$1.3 million in retirement benefits.

After being informed by Sanlam in July 2024 that the Namibian Police had instructed the insurer to withhold his retirement benefits, De Klerk approached the court in February 2025.

He sought an order declaring the seizure unlawful and directing Sanlam Namibia to release the approximately N$1.3 million.

Court documents state that his retirement annuity matured on 1 June 2024 with a value of approximately N$1.32 million. He says Sanlam later informed him that the Namibian Police had instructed the insurer not to release the money after invoking section 28 of the Prevention of Organised Crime Act (POCA) as he is a person of interest in the Fishrot investigation.

De Klerk maintains that no restraint order, preservation order or pending POCA application existed when the police directed Sanlam to withhold payment. "POCA creates a judicially supervised mechanism. Property may not be restrained, preserved or forfeited without prior court authorisation in terms of the Act."

He adds: "The police therefore acted outside the statutory scheme. POCA does not authorise self-help, informal 'instructions' to third parties, or anticipatory seizures. Absent a court order, the police have no power to deprive a person of property under POCA."

State defends seizure

Apart from Sanlam Namibia Holdings, the respondents in the matter are the inspector general of the Namibian Police, the prosecutor general, and the Professional Provident Society (Pty) Ltd.

The inspector general and the prosecutor general have applied for condonation for the late filing of their answering affidavits, with deputy government attorney Janseline Gawises acknowledging that they failed to meet the prescribed court deadlines.

Despite the delay, the police maintain that they have strong prospects of successfully opposing the application.

They contend that De Klerk, who is wanted in connection with the Fishrot corruption case, is a fugitive from justice and therefore lacks the legal standing to institute the proceedings.

De Klerk reportedly failed to return for a second interview with the Anti-Corruption Commission in 2020, prompting the issuance of a warrant for his arrest. Extradition proceedings from South Africa are ongoing.

On the merits, the respondents maintain that the seizure was lawfully effected under section 28(1) of POCA after De Klerk instructed Sanlam to transfer the lump-sum portion of his retirement benefit to an ABSA bank account in Stellenbosch, South Africa.

They argue that once the retirement annuity matured and became payable, it became "realisable property" capable of being seized under POCA to prevent it from being disposed of before restraint proceedings could be instituted.

The police further submit that the protection afforded by section 37A of the Pension Funds Act no longer applies once retirement benefits have accrued and become payable to a former member. In their view, the proceeds then form part of the member's estate and may be restrained under POCA pending possible confiscation proceedings.

They also argue that section 28 of POCA permits the police to seize property before a restraint order is obtained, with the restraint application to follow.

On Tuesday, the parties jointly proposed postponing the matter for three weeks to allow for a case management conference and the filing of a joint case management report before the matter proceeds.