The Devil in the DA Deal

Wicked Mike on DA principles

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Wicked Mike in Knysna K.E.E.P. 24 March 2014. 13h15.In the war between the DA and the ANC, the DA has publicly (and ironically) maintained the high ground as saint whilst also being a devil in the trenches.

One of the deepest trenches, filled with mud, stones and treachery, can be found in the town of Oudtshoorn in the Western Cape. There, a brave DA politician, Peter Roberts, is being attacked by his own party for telling the truth. It’s a truth that the DA doesn’t want anybody to hear because it lifts up its blue skirt to show a pointy, red tail that’s joined to the arse of the DA’s top leadership.

At the heart of this is what is being called the Nel Settlement. To understand it, one needs to take note of the sequence of actions and events over the past 3 years.

At the request of the Oudtshoorn Municipality, Advocates Bruce Morrison and Elmien Vermeulen investigated alleged offences and irregularities surrounding a deed of settlement and a purported party political take-over (instigated by the DA) of the Municipal council. These allegations of fraud, corruption and contraventions under the Municipal Finance Management Act (MFMA) involved Oudtshoorn attorney, Nic Barrow, and DA councillors Pierre Nel and Ben (Bernardus) van Wyk.

The advocates were to investigate and report on events in and around the litigation instituted by Nel relating to the Council’s resolution to reinstate Reverend Noël Pietersen as Municipal Manager and an alleged application for leave to appeal to the Constitutional Court and the alleged, subsequent conclusion of a Deed of Settlement. In the event of criminal conduct being evident, they were briefed to provide a full report to deal with the offences.

The forensic report outcome contained the following:

1. It was reported by Die Hoorn newspaper that the Oudtshoorn Municipality and Nel had reached a settlement [The Nel Settlement] on 25 June 2013 in a court case that had been ongoing since 2011 and had allegedly cost the taxpayers millions. It stated that both parties would pay their own costs and seek no further court action. Strangely, the Oudtshoorn Municipality was unaware of the settlement which begged the question who the source of disinformation was. The Executive Mayor of Oudtshoorn, Gordon April, contacted the editor of the newspaper, Liesel le Roux. Le Roux informed him that attorney Nic Barrow had provided the information and a document entitled ‘Deed of Settlement’ (which she forwarded to April).

2. The court case referred to relates to an application brought by Nel for an order reviewing and setting aside a resolution taken by the Oudtshoorn Municipal Council to reinstate Reverend Noël Pietersen as Municipal Manager after his dismissal. Nel, represented by Barrow appealed against the agreement to the Western Cape High Court only to have his application dismissed in 2011 with costs to him and his client, Nel. Judge Nathan Erasmus concluded that Barrow was the “driving force behind this issue that resulted in this application” and that it was “clear from the founding papers, and more particularly the supporting affidavit of Mr Barrow, that he and the applicant [Nel] were under one roof with the launching of this application. I am, however, not going to make an order against the attorney himself, but I think it is appropriate in a case like this, that the court shows its displeasure in the way this litigation was conducted.”

3. Nel brought an application for Leave to Appeal against the judgment. Judge Erasmus dismissed the application for leave to appeal with, again, costs to Barrow and Nel.

4. Nel escalated his Leave to Appeal to the Supreme Court of Appeal (SCA) which was contested by the Oudtshoorn Municipality. The 5 judges of the SCA unanimously dismissed the appeal and awarded costs against Nel.

5. The Chief Financial Officer of Oudtshoorn Municipality estimated that total costs against Nel (and Barow) were in the region of R4million. It was a number widely circulated but hasn’t been substantiated. The DA has contested this figure, estimating R700 000. Either way, it’s a burden that the taxpayer should never have to carry.

6. On April 23 2013, Oudtshoorn’s Corporate Services Portfolio Committee held a meeting with an agenda that included a report on municipal legal cases. This included that of Pierre Nel versus Oudtshoorn Municipality. Oddly, in attendance was Nel who was not a member of the committee. His possible conflict of interest was raised to which he responded that the court cases were over so he had every right to attend. Advocate Human, the director of Corporate Services, informed Nel that Barrow was again appealing, this time to the Constitutional Court. As it was on behalf of Nel, it was notable that Nel was unaware. Consequently, Nel excused himself.

7. The document for leave to appeal to the Constitutional Court was dated 19 April 2013 and signed by Barrow with Nel as the applicant. Highly irregular was the fact that there was no case number and it didn’t carry the official stamp of the Constitutional Court. Duncan Korabie, the attorney for the Municipality, contacted the Registrar in June to file their opposition only to discover that Nel’s application didn’t exist.

8. Furthermore, the Oudtshoorn Municipality had won, with costs, in 2 courts so there would be no reason for them to agree to sharing the burden of legal fees. Additionally, the result of the alleged settlement would be Oudtshoorn’s ratepayers footing Nel’s expensive legal bills for his actions against the Municipality.

It’ll be already apparent to readers of this article that the battle for control of Oudtshoorn is a vicious one. The town is led by a coalition government of the ANC (11 members), the NPP (1 member) and ICOSA (1 member), and an opposition coalition of the DA (11 members) and Cope (1 member) – essentially, that’s 13 for the ANC versus 12 for the DA.

Even for South African politics, what happened next was astounding not only in action and drama but in media bias.

On May 31 2013, a normal meeting of the Oudtshoorn Municipal Council was held. Therein, it was discovered that 5 ANC members had defected to the DA. They were Hendrik Ruiters, Pieter Luiters, Hendrik Botha, Jurie Harmse and Jeremy Goliath. Speaker John Stoffels adjourned the meeting. The ANC ended party membership of the 5 rebels and the Municipal Manager announced 5 vacancies. 2 were filled by PR councillors whilst 3 awaited by-elections.

It was duly announced to the media that the DA had taken control of Oudtshoorn and photos of the ex-ANC councillors donning blue shirts were circulated. Theuns Botha, leader of the DA in the Western Cape, was credited as the mastermind of the ‘coup’. ANC Western Cape local government spokesperson, Pierre Uys, claimed the involvement of Premier Helen Zille and MEC Anton Bredell too.

Ben van Wyk, who would soon become the alleged signatory to the Nel Settlement, was named as the new Mayor of Oudtshoorn.

The DA victory was short-lived as the High Court declared the takeover illegal and “slapped the DA, Cope as well as 5 ANC defectors separately and jointly with a cost order that amounts to an estimated R100 000 per head.” That, being bigger news than the floor-crossing itself, should have been front page news but was instead ignored by most media. As to who will eventually control Oudtshoorn remains undecided as now, 10 months later, the ANC still rules whilst court action continues.

In the legal forensic report submitted by advocates Bruce Morrison and Elmien Vermeulen in August 2013, they concluded that “there is prima facie evidence that fraud or attempted fraud was committed by Nel, Barrow and Van Wyk on the basis of misrepresentations against the Oudtshoorn Municipality and/or the or municipal rate-payers. We conclude that Barrow, Nel and Van Wyk had a common purpose and were acting in the furtherance of common goal to commit the fraud or attempted fraud. We conclude that there has been actual and/or potential prejudice in the form of unnecessary legal costs, potential legal costs, administrative costs and potential administrative costs being incurred… and, in addition, reputational damage to the Oudtshoorn Municipality and or the town’s leadership.

We recommend that serious consideration be given to reporting this matter to the head of the Commercial Branch of the South African Police in George for further investigation and the necessary steps to be taken to prosecute the perpetrators in question. In addition, we recommend that Barrow’s conduct as detailed in this report, be reported to the Cape Law Society.”

The Oudtshoorn municipal council has since endorsed the Speaker, John Stoffel’s report and recommendation to suspend Nel and Van Wyk’s voting rights pending the decision of Anton Bredell, the Western Cape Provincial Chairperson, (who has so far refused to act on the report).

Helen Zille distanced herself from the situation with the statement: “There was no resolution, by any competent authority either in the Oudtshoorn municipality or in the Democratic Alliance, for anyone representing either party to conclude a “Deed of Settlement” in respect of the matter PA Nel vs Oudtshoorn Municipality…..the so-called “Deed of Settlement is of no force and effect. It is not justified or condoned in any way by the Democratic Alliance. The DA would NOT allow a private legal Bill to be passed on to ratepayers.” On the surface, that sounds good but what it is is Zille protecting herself, not the public. If the citizens of Oudtshoorn were foremost in her conscience, she’d have long ago chosen to admit fix the DA’s wrongs with truth and subsequent action against the misdeeds local politicians.

Instead, the reality is that she has been informed and thus becomes part of the scandalous Nel Settlement cover-up. She isn’t alone. This insidiousness creeps through the higher echelons of the DA, infecting the likes of Anton Bredell, James Selfe (Fedex Chair) and several more junior leaders the likes of Debbie Schafer (Federal Law Commission) who “investigated” the Nel Settlement a long time ago yet have done nothing about it. When (if) they do, it will only be because they have been forced to do so.

In the midst of this mess, DA Councillor Peter Roberts was witness to Nel approaching, on several occasions, the DA caucus to foot the legal bills. Roberts opposed this, stating it was illegal. Consequently, Roberts was the only exclusion to the resolution passed by the DA for Van Wyk to conclude the settlement agreement with Nel. As important is the fact that this was a DA decision and that whether they were in power or not becomes moot considering that the decision was not proposed or passed in a Council meeting.

Last week, Roberts filed an affidavit in the Western Cape High Court that defies the version of events told by his colleagues regards the Nel Settlement. For his integrity in opposing corruption, he was suspended by the DA. You would think, in lieu of Zille’s statement, that she’d be supporting Roberts. That she isn’t, reminds us that politics is rarely what it seems or says.

As reported by the O!O, the suspension wasn’t the first time the DA has acted in this immoral manner. In 2007, before it would become supreme irony, DA councillor Pierre Nel was suspended by his party for opposing “a questionable deal with Patricia de Lille’s then Independent Democrats” that had the “ID’s Jeffrey Swartbooi embroiled, at the time, in an alleged R50m scam.” Nel won his appeal and was reinstated.

In Knysna, the DA (including Helen Zille and MEC Alan Winde) were well informed of the financial disaster approaching Knysna Tourism and the negative role that their councillors on the Board of Directors were playing by intentionally ignoring the Municipal Finance Management Act. Instead, they chose to cover it up and, in doing so, promoted mismanagement which cost the town a great deal of money. The Eden Corruption line they installed never responded regards this writer’s complaints about DA crimes. If Zille’s rules only apply to the ANC then that’s campaigning not sincerity. It’s hypocrisy.

In the Western Cape, the public are often as guilty, blindly choosing a side instead of choosing right over wrong (regardless of which political party is involved). In doing so, the public not only encourages the devil in the DA but becomes victims of themselves.

The DA continually claims the moral ground regards corruption when, as it is for other parties such as the ANC, it’s politics at all costs, power before the public, and double standards depending on what is to be gained or lost. Either way, the public is the ultimate loser.

For updates, new stories, and additional comment,
click here to follow @DrewanBaird on twitter

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