Refusing witness protection didn’t absolve state of duty to protect Witness D, says expert
The tragic murder of Marius van der Merwe, known as Witness D, has ignited a fierce debate about the effectiveness of witness protection.
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The state had a responsibility to protect Marius “Vlam” van der Merwe, who testified under the alias Witness D at the Madlanga Commission of Inquiry into police impropriety, before he was fatally shot on Friday.
IOL reported on Saturday that Van der Merwe, 41, a security company boss, was shot dead outside his Brakpan, Gauteng, home on Friday evening in front of his wife and children. Police said an AK-47 automatic rifle was used in the attack.
The suspects fled in a white Nissan NP200 bakkie with a canopy, and a manhunt is under way.
Police confirmed Van der Merwe was not under witness protection despite his testimony last month relating to a 2022 incident at the heart of his appearance before the commission. The government said he had declined witness protection.
Speaking to broadcaster Newzroom Afrika on Monday, Dr Johandri Wright, a researcher at the Dullah Omar Institute, said even if Van der Merwe declined witness protection, the state had a duty to protect him.
“Perhaps it is important to distinguish whistleblower protection and witness protection, because the law does not treat them the same. Whistleblowers are essentially those who make disclosures in terms of the Protected Disclosures Act and the protection afforded under this Act is limited to occupational detriment and other labour-related matters.
“To be protected as a witness, you have to give evidence in front of some form of proceedings such as the commission or courts. Then you will be entitled to apply for witness protection under the Witness Protection Act. Not all whistleblowers will necessarily enjoy the protection under the Witness Protection Act.”
Wright said Van der Merwe should have been protected by the police.
“You get protection under both Acts but you still need to apply under the Witness Protection Act to be entered into the witness protection programme which gives you essentially a range of protection measures and your physical safety. Van der Merwe, as I understood, refused to enter the witness protection programme and this did not actually absolve the state from its constitutional duty to still provide him with protection," she said.
“We all enjoy the right to physical safety and security of the person as confirmed by the Constitutional Court in many court cases. This just highlights our significant gap in the law for having alternative processes in place to provide physical and other forms of protections to whistleblowers – that is beyond just occupational detriment and that does not include entering the witness protection programme.”
She said there were “a range of different things” the state could have done to protect Van der Merwe.
“For example, I say this with great caution, having police uniforms outside his house, acting as security personnel. That being said, witness protection efforts can only be effective as the institutions administering it. We have seen now that our main institution responsible for protecting people, SAPS, might not be as strong as we would hope this institution to be.
“This means the protection that we can practically give these people is quite limited,” she told the channel.
Also known as “the man with the bakkie”, Van der Merwe told the commission in November that suspended Ekurhuleni Metropolitan Police Department (EMPD) acting chief Brigadier Julius Mkhwanazi had allegedly instructed him to dispose of the body of a suspect killed by EMPD officers in an attempted cover-up.
jonisayi.maromo@iol.co.za
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