The Plettenberg Bay Ratepayers and Residents Association held a meeting on 5 November in the Piesang Valley Community Hall with over 450 people in attendance. Excerpts from Chairman Neville Petersen’s and Senior Counsel Martin Brassey’s remarks follow.
WHAT BRINGS US HERE TODAY?
The main purpose of this meeting is to exchange information and ideas, not just with our members but with all interested and affected parties attending.
- The 2018 forensic report into the municipality.
- Suspected overpayment of the top municipal officials.
- Problems related to the re-appointment of Mr Ngoqo as Municipal Manager.
We are here to tell you what is happening and to solicit your views.
At our AGM last year the members in attendance unanimously empowered us to be more proactive in dealing with any corruption and state capture that arises.
The problem seems to lie with the conduct of our officials.
- Both political parties have described our mayor as rogue. Whether they are right or not remains to be seen. But while he has been in charge there have been allegations of abuse of official transport, unauthorised expenditure in the amount of an estimated R150 million including personal protection for the mayor and deputy mayor, irregular expenditure, wasteful expenditure, body guards, and drunken parties on the municipal account.
- Our chief financial officer stands charged with corruption and fraud. He was recently arrested by the Hawks’ Serious Corruption Investigation and Fraud Unit over alleged fraud and corruption at his previous employer, Nketoana (Reitz) Municipality in the Free State.
- Our Municipal Manager, Mr Ngoqo, was dismissed from the employ of Bitou Municipality in 2012 after being found guilty of serious financial misconduct and found to be unsuitable to hold a position of trust. The municipality sustained losses running to millions.
In February this year, Ngoqo applied for the position of municipal manager, vacated by the previous incumbent Mr Ndovu, who resigned ahead of disciplinary action being brought after an investigation revealed serious mismanagement issues.
He was appointed in the face of a law that prohibits re-employment in such cases within ten years of dismissal. A deal was done in which the dismissal was airbrushed away.
On top of this, he was granted 1.5 million rand of council money:
A payment of R781 184 to compensate him for his legal expenses incurred in 2012 to fight his dismissal.
- A further R 325 000 to compensate him for what he would have earned if he had not been dismissed before his employment contract expired.
- An amount of R 83 835 to compensate him for the leave days that would have accrued to him, had he not been dismissed.
- And a bonus! The mayor agreed to compensate him with a R 127 000 performance bonus on the basis that if he had not been dismissed for serious financial misconduct he would have received that amount as a performance bonus!
What can we do as individuals?
Only by taking action collectively can we mobilize. Some of this requires recourse to law. This is a very unhappy result. Litigation is confrontational, time-consuming, and frequently unproductive. But we struggle to see how else we can remedy the problems.
We became aware of what appears to be very serious misconduct relating to apparent overpayment of senior officials’ salaries. We asked the municipality for the necessary information to properly investigate the matter. It was refused. We were forced to bring a Court application i.t.o. of PAIA. We were refused. We launched an internal appeal. The appeal was turned down by the municipality.
The information we have called for is not personal and not secret. In fact, the law requires that it must be made public in the Municipal Annual Report and that it must be published on the municipal website. Of course it is not. But they persist against all odds, using the residents’ money in the process.
Salary information is required to be in the public domain since salaries are paid with public money. It is a legal requirement that this information must be published on the municipal website and in its annual report, but it is not.
National legislation sets the upper limits of remuneration for senior municipal employees, based on criteria such as the grading of the municipality, its population size, its revenue, the individual’s qualifications and experience etc. It appears from the information at our disposal that the senior officials in Bitou are being overpaid. Our request for the information is simply to be able to calculate whether or not the salaries being paid conform to the legislation.
It follows that if they are indeed being overpaid, the money must be recovered and if there is a suspicion that a crime has been committed in the process, criminal charges must be laid.
We started the process last November and the municipality and its lawyers, HDRS are defending the application. A court date has been tentatively set for 29 November.
We are more determined than ever to enforce our right to know what is going on in our municipality, to hold those who prove to be guilty of malfeasance to account, to recover our money and to ensure that those who have indulged in criminal activities face the full might of the law.
A forensic report into municipal affairs was completed in 2018 on the instruction of the WC MEC for Local Government. This has not been made public, nor has the public been informed thereof and what has resulted from it.
To get the report, we have been forced to go through the whole PAIA rigmarole. We believe we are entitled to see it, perhaps under suitable conditions of confidentiality, and will litigate over the issue if we have to. Martin Brassey will explain further.
The vigilance of one of our committee members brought it to our attention that the MEC for Local Government was taking legal steps with regard to this appointment. We sought legal opinion and were advised that we should intervene in the pending case.
This is a complicated but very important matter which affects each and every person in Bitou and Senior Counsel has agreed to report directly to you.
I will now ask Martin Brassey to update you on our legal matters. Martin has practiced as an advocate for no less than 45 years. He is, of course, a senior counsel, a specialist in labour law, and is held in high regard by the legal fraternity and judges in this country. We could not hope for a better man to represent the people of Plettenberg Bay in the Labour Court.
Excerpts from Martin Brassey SC:
My task is to report back on legal matters, principally the intervention in the Ngoqo case, and also the effort to obtain the forensic report under PAIA.
I am not here as a resident and ratepayer, though I am both. Nor am I here to punt the legal process: litigation is a mechanism of last resort.
In early 2011 the Bitou Council resolved to develop a low-cost housing estate – the largest ever undertaken in the locality.
A stand in Ebenezer was identified as suitable for the development and, in terms of a valuation secured for the purpose, the purchase price was fixed at approx R29.3 million.
The Province, approached by the Municipality, agreed to fund this purchase price and paid the money over on the basis that it was – not to be utilized until the Province, having secured an independent valuation, authorized its release, and not to be used for other purposes.
The independent valuation estimated the property to be worth a mere R2.4 million. A further estimation fixed its value at about R15 million.
In a letter to the seller, Ngoqo said the payment had been cleared even though, at that stage, the requisite permission had yet to be received. Then, under his watch, he permitted the utilization of some of the money for other purposes. Finally, when an investigation was launched by the Province, he wrote an insubordinate letter of complaint to the Council in which he took up the cudgels on behalf of other council officials as well.
In the ensuing disciplinary enquiry before a retired Judge of the highest repute, Ngoqo tried to explain away his conduct but without success. The judge dismissed his explanation as untrue, a serious finding against anyone but especially an advocate. After being found guilty of the misconduct in question, he was dismissed.
He successfully challenged his dismissal in the Bargaining Council, but the award was set aside before Lallie J in the Labour Court, who referred the matter back to the Bargaining Council to be decided afresh. Ngoqo noted an appeal against the decision but failed to prosecute it to finality. Instead he took up a position as municipal manager with the Sundays River Municipality.
Early this year, it became necessary to select a new municipal manager. Ngoqo, one of the applicants, was selected as best suited for the job and appointed to the position. Learning of this, MEC Bredell brought an application to set aside his appointment as unlawful. Papers considerably in excess of a thousand pages having been exchanged, the matter came before Judge Nieuwoudt who set the appointment aside on technical grounds.
Ngoqo has successfully applied for leave to appeal to the Labour Appeal Court. The effect of noting an appeal is to suspend the operation of the order unless the court orders otherwise. The MEC has applied to enforce the order pending the appeal and it is this application that the Ratepayers Association has sought, and obtained, leave to intervene as a friend of the court (amicus). It is likely to seek a comparable intervention in the appeal proceedings.
The Ratepayers Association is reluctant to litigate, but the intervention was thought desirable here. There are special legal points to argue and the voice of the community must be heard. Heads of argument are currently being exchanged and the matter will be heard in the Cape Town Labour Court on 20 November. As before, the municipality is defending its decision with unremitting rigour and, in the process, taking as many technical points as it can. The Ratepayers Association has been vilified in the process and so, for what it is worth, have I personally. The Association believes this ‘win at all costs’ approach is inappropriate and unbecoming.
Judgment can be expected on the day or shortly after the hearing. If the order is enforced pending the appeal, Ngoqo will have to vacate office. Otherwise he will stay and be able to exercise, to the full, the extensive powers delegated to him.
The forensic report
As Neville mentioned, early in 2018 the MEC of Local Government obtained a forensic report into the affairs of the municipality. The report, we are told, contains evidence of criminal activity and has been referred to the Hawks for further investigation.
The Ratepayers Association has made strenuous efforts to obtain this report. It believes the report will shed light on who should be disciplined and whether the municipality should be placed under administration. Finally it wishes to dispel rumours, which seem to abound, that the refusal to publicize the report is evidence of a political cover up.
Repeated requests for the report, not least under PAIA, have been resolutely rejected. The MEC will not even supply the report under conditions of confidentiality. The refusal is based on the proposition that the investigation in the criminal conduct may be compromised if there is disclosure. We have no idea who the report implicates, what offences have been committed, and when (if ever) the report will see the light of day.
The Association is considering its position. It may have to go to court but, here too, it has no desire to become embroiled in litigation. The issue is under consideration.
LITIGATION AND FUNDS
Litigation is expensive. We have managed to raise a modest litigation fund via the increased fees and some generous donations. We are lucky that we have ratepayers who are making donations towards our litigation costs. This has given us a welcome boost, but we still need more money if we are to persevere and succeed.
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