Did Barrow, Nel, and Van Wyk commit fraud?
Formal complaints lodged with the SAPD
Drewan Baird. Oudtshoorn. 7 August 2013. 05h15. Oudtshoorn’s acting municipal manager, Ron Lottering, yesterday afternoon lodged formal criminal complaints with the SAPD against Nic Barrow, Pierre Nel, and Ben van Wyk on suspicion that a fraud was perpetrated on the ratepayers of Oudtshoorn.
The DA go to the polls today with two of their sitting councilors, the seasoned Pierre Nel and the “mayor designate” Ben van Wyk, suspected of fraud and already suspended by the party executive.
With some of the sitting councilors claiming that all councilors were in on the spectacular Constitutional Court con when a questionable “settlement” based on some “decision of a majority of councilors” were dished up as a half-baked concoction and some other of the sitting councilors denying participation in what has been described as a spectacular fraud on the ratepayers, one wonders how anybody can trust a vote to a party whose very sitting public representatives are lying to each other and to their leaders – those leaders who are not in on the con!
Ye gods and faeries and the warm-blooded, dinosaur-like P’w’ecks, similar in appearance to the Ssi-Ruuk, but with lower intelligence, smaller size, short tails and drooping eyes.
Trust the DA!?
What, are you shitting me!?
These guys have just tried to con you out of millions, but they want your vote on Wednesday!
This is not impertinence, insolence, impudence and astonishing cheek, it is unimaginably shameless arrogance and condescension.
Talk about not having any respect whatsoever for the voter!
All the sentient Frozian felines from Froz!
The DA thinks you are stupid enough to vote DA.
Let me say again: The DA is convinced that you are stupid enough to vote DA.
Laughable, really. If only it was not so sad.
Remember, my longsuffering readers, this “settlement” is no ligte mistykie; this is a cold-blooded attempted con on YOU. This is a serious criminal accusation.
As O!O readers already know the facts, I thought it would be entertaining to have a peek at the ceremonious language of the formal affidavit covering the now familiar rogueries…
During June 2013 the Municipality became aware through a report in Die Hoorn – “Skikking na heraanstelling van Pietersen” – that a settlement had allegedly been reached between the Municipality and councillor Pierre André Nel with regard to litigation Nel had initiated against the Municipality.
Executive mayor Gordon April had no knowledge of this alleged settlement and he accordingly contacted the editor of the newspaper, Liesel le Roux. On 1 July 2013 Le Roux forwarded to April a document titled “Deed of Settlement” dated 25 June 2013 on which the newspaper article had been based.
During July the Municipality, through its attorney, Mr Hardy Mills, briefed advocates Bruce Morrison SC and Elmien Vermeulen, legal and forensic investigators, to investigate possible fraud, corruption, and contraventions of the Municipal Finance Management Act and/or other potential offences committed by the signatories to the deed of settlement, namely Pierre Nel, Bernardus Nicholas Van Wyk, and Nicolaas John Barrow.
An interim preliminary report dated 30 July 2013 and thereafter a final report dated 6 August 2013 was provided to the Municipality with the forensic investigators’ findings.
The legal forensic report contains allegations which, if true, give rise to at least a reasonable suspicion that Messrs Nel, Barrow and Van Wyk are guilty of one or more of the offences described in section 34(1) of the PCCA. Although the legal forensic report speaks for itself, the essence of the allegations therein is as follows.
On 4 August 2010 Mr Nel brought an application in the Western Cape High Court (“WCHC”) against the Municipality for an order interdicting the Municipality from implementing the Council’s decision taken on 4 August 2010 to reinstate Reverend Noël Pietersen, the Municipality’s erstwhile Municipal Manager, pending the determination of a review of the Municipal Council’s decision.
On 7 June 2011 the WCHC, per Judge Nathan Erasmus, dismissed Mr Nel’s application with a punitive costs order, i.e. costs were ordered against Mr Nel on the attorney and client scale including the costs of two counsel and the costs of various earlier appearances at which the hearing of the application had been postponed.
Mr Nel then applied to the WCHC for leave to appeal against Judge Erasmus’s order. On 24 August 2011 Judge Erasmus dismissed Nel’s application again with costs on the attorney and client scale.
On or about 7 July 2012 Nel applied to the Supreme Court of Appeal (“the SCA”) for leave to appeal against Erasmus J’s order of 7 June 2011. The SCA granted leave to appeal.
On 28 February 2013 the appeal was argued in the SCA and on 28 March 2013 a five-judge panel of the SCA unanimously dismissed Nel’s appeal with costs including the costs of two counsel.
The deed of settlement refers to an application brought by Nel in the Constitutional Court of South Africa against the SCA’s dismissal of his appeal and states that:
1. Nel, the applicant, will withdraw the application for leave to appeal to the Constitutional Court;
2. Each party shall bear its own costs in relation to this matter from its inception to the date hereof – that is all High Court costs, all costs attendant upon the application for leave to appeal to, and the prosecution of the appeal in, the SCA, and all costs attendant upon the application for leave to appeal to the Constitutional Court; and
3. The settlement shall constitute a settlement of all current disputes between the parties pertaining to the reinstatement of Rev Pietersen up to the date thereof.
Two representations arising from the deed of settlement are suspected of being fraudulent:
1. That Mr Barrow on behalf of Mr Nel had filed an application for leave to appeal to the Constitutional Court; and
2. That the conclusion of the deed of settlement on behalf of the Municipality was properly authorised.
The investigators conclude that there are grounds to suspect that no application for leave to appeal to the Constitutional Court was filed by Mr Barrow on behalf of Mr Nel.
The second suspected fraudulent misrepresentation is that although the deed of settlement states that Mr Van Wyk was duly authorised to enter into the deed of settlement “by Resolution 24/6/13” of the Municipality, the investigators were unable to verify the existence of such a resolution or whether a meeting was held where such a resolution was passed.
It appears from the legal forensic report that there are grounds to suspect that Nel, Van Wyk and Barrow have committed the offence of fraud, or alternatively, attempted fraud, in that they, with intention to mislead, made certain misrepresentations in the conclusion of a deed of settlement to the Municipality’s actual or potential prejudice which involves an amount of more than R100 000.
Section 34(1) of the Prevention and Combating of Corrupt Activities Act (PCCA) requires any person who holds a position of authority who suspects that any other person has committed, amongst other offences, the offence of fraud involving an amount of R100 000 or more to report such suspicion to the Directorate for Priority Crime Investigation. Section 34(4)(b) of the PCCA provides that the person who holds a position of authority in the case of a municipality, is the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act.
The acting municipal manager accordingly, on Tuesday, requested that the Head of the Commercial Branch of the South African Police in George conduct further investigation of these suspected offences.
Here is a photo essay of the filing…