Legal advisor, Nafimane Halweendo, has said fish rot accused Maren De Klerk must convince the state that his evidence is stronger than what they currently have, in order to be turned from being a suspect to a state witness.
De Klerk must also be frank, honest and layout his evidence without any fear or favour to convince the Prosecutor General that he is more useful as a witness than an accused person.
De Klerk has so far claimed that he is not the mastermind of the web of corruption which played out in the fishing sector and was only taken advantage of and used as a conduit to dish out dirty money.
He says that looking back, he is embarrassed to admit that at some point he became aware that he was participating in corruption.
He now wants protection against threats on his life and is willing to spill the beans if he is to be a state witness.
Speaking to Eagle FM, Halweendo said: “What we are dealing with is really not evidence currently. The affidavit itself is sort of an undertaking under oath by Mr De Klerk where he sets out the facts. When you look at some of the annexures that he refers to in the affidavit, those, of course, are evidence, whether they are emails and whether he indeed has physical evidence which he alludes to in the affidavit.
“As to whether it is believable, that is something that will have to be tested and that is through cross-examination if Mr De Klerk is to appear in court. Whether he is going to appear as a state witness or as an accused himself, giving testimony against those whom he alleges committed crimes in his affidavit is going to be up to the Prosecutor General to decide.”
He added that “If you look at Section 204 of the Criminal Procedure Act, that is the section that allows for someone who is implicated in offences, or someone who perhaps has played an important role in an offence, to be brought as a witness provided that they give an honest and frank disclosure to the court. They are then exempt, so to speak, from criminal prosecution in relation to that specific offence.
If the PG so decides, Mr De Klerk then comes as a state witness, and if he gives an honest and frank disclosure, if he speaks openly without fear and favour and the court is satisfied that the evidence that he gives is credible, then he will not be subjected to criminal prosecution.
To make a decision, whether he should be a state witness or whether he should be brought before the court as an accused person, is up to the PG, Hanlweendo said. “It will depend on the nature of the evidence that the PG has. One, against the other accused persons, and two, against Mr De Klerk himself.
So, for instance, if there is very poor evidence that the state has against the other co-accused and the state is struggling to get credible evidence and they feel that Mr De Klerk is one of the only witnesses who can give credible evidence against the other co-accused then the state is well empowered to subpoena him before the court as a witness as opposed to bringing him before the court as a co-accused,” he said