Africa-Press – Namibia. A LAWYER caught up in the Fishrot fishing quotas fraud and corruption case has failed with an attempt to appeal against a High Court judgement in which he was declared a fugitive from justice in Namibia and removed as the executor of three deceased estates in the country.
The appeal by lawyer Marén de Klerk that was filed with the Supreme Court did not comply with several of the court’s rules, and the explanations given for that non-compliance were not acceptable, acting judge of appeal Hosea Angula found in a judgement delivered in the court of appeal last week.
In addition to a failure to comply with the court’s rules, an application by De Klerk for his non-compliance to be excused by the court was fatally defective, since it did not deal with an important requirement in such an application, which is that the appeal’s prospects of success should also be addressed, Angula stated.
Deputy chief justice Petrus Damaseb and appeal judge Sylvester Mainga agreed with Angula’s decision to refuse De Klerk’s application for the court to condone his non-compliance with the court’s rules and to reinstate his appeal. In terms of the Supreme Court’s rules the appeal was deemed withdrawn after the appeal record was not filed at the court within the period prescribed in its rules.
De Klerk lodged an appeal after High Court judge Thomas Masuku in August 2020 ordered that he should be removed as executor in the estate of the late businessman Aaron Mushimba and of two other estates, and declared that De Klerk is a fugitive from justice in Namibia. Masuku also ordered that De Klerk should pay the legal costs of his opponents – including his former partners in his law firm – in that case.
De Klerk left Namibia abruptly in January 2020, after he had been questioned by Anti-Corruption Commission investigators in connection with his alleged role in financial transactions connected to the Fishrot scandal.
De Klerk opposed an application to have him removed as executor of Mushimba’s estate and two other estates, and disputed that he was a fugitive from justice in Namibia while he remained in South Africa, where he said he was for medical treatment and because he feared for his safety should he return to Namibia.
In charges that the state is levelling 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 De Klerk’s law firm and a company of which he was the sole director and shareholder.
The money channelled through the accounts of De Klerk’s law firm and his company was allegedly diverted to six of the men charged in the case – former Fishcor board chairperson James Hatuikulipi, former justice minister and attorney general Sacky 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 the Supreme Court’s judgement, Angula observed that De Klerk’s appeal was in essence against the costs order granted against him in the High Court.
To appeal against that costs order, De Klerk was required to first obtain leave to appeal from Masuku, Angula said. Since De Klerk failed to get leave to appeal, his appeal was not properly before the Supreme Court and stood to be struck from the court roll for that reason alone, Angula stated.
He also noted that with his appeal, De Klerk was no longer asking for an order setting aside Masuku’s finding that he is a fugitive from justice, but instead wanted the court of appeal to change that finding to reflect that at the time Masuku’s judgement was given he was not a fugitive from justice.
That change of stance on his part appeared to have been caused by the fact that a warrant for De Klerk’s arrest has been issued in Namibia in the meantime, Angula noted.
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