It’s strangely silent as mayor continues his role despite facing fraud charges

Is there any particular reason that the people of Nelson Mandela Bay are seemingly unperturbed that the mayor who speaks in their name continues to hold office while facing charges of fraud and corruption?

Is it “corruption fatigue” perhaps that has caused residents to resign themselves to living under a compromised political leadership?

Mayor Gary van Niekerk is facing three simultaneous investigations for breaching the code of conduct for councillors and for corruption and fraudulent misrepresentation.

On top of that, a section of his own party is trying to expel him from their organisation. Among their allegations is that he abused municipal vehicles and damaged one of them, bringing their party into disrepute. The matter is pending in the high court. 

So how is it that a mayor who is under such a cloud continues to present himself as the face of Nelson Mandela Bay?

For the benefit of readers, the core issue is the following: in his leadership feud with his party, Van Niekerk, presenting himself as the speaker of council, appointed a law firm to look after his interests.

But he appointed the law firm after he had been expelled from the council at the behest of his party and his seat had been declared vacant.

Even if, as he contends, his expulsion was stayed by a court interdict, he still had no legal authority to “appoint” a service provider of his choice, bypassing the municipal procurement system in the process.

Without a specific council resolution, the speaker has no authority in law to engage a service provider on behalf of the municipality. That is the function of supply chain management.

This is spelt out in regulation 11(a) of the Municipal Systems Act 32 of 2000, which stipulates that “a councillor may not, except as provided by law, interfere in the management or administration of any department of the municipal council unless mandated by council”.

This is where the three investigations kick in.

In the code of conduct in schedule 1 of the Municipal Systems Act, councillors  are enjoined to “perform the functions of office in good faith” and act “in such a way that the credibility and integrity of the municipality are not compromised”.

The council established a multiparty ethics committee in November last year to determine whether Van Niekerk, by his actions, had breached the code.

Unfortunately the ANC-EFF coalition which governs the metro seemingly does not have much regard for such trivialities as ethics and integrity in governance.

Their representatives on the committee promptly went about sabotaging its work by either boycotting its meetings or challenging the legitimacy of the very committee chair they had themselves elected. 

Almost nine months later the committee still has not produced a report on its investigation.

On the basis of the manner they have behaved, there is reasonable apprehension that they may be looking for any means to exonerate Van Niekerk or let him off with a slap on the wrist.

There is hope, however, that since the ANC suffered a humiliating rejection by the electorate in the national elections and the EFF lost five seats in parliament they will now view corruption in government with a different eye.

The Hawks, on the other hand, are focusing on the charge of fraudulent misrepresentation.

Van Niekerk would obviously be arrested for a serious criminal offence if they were to make a determination that he did indeed fraudulently misrepresent himself to the law firm. The investigation continues.

For its part, AIM (Abantu Integrity Movement) has lodged a request with the Public Protector to make a finding that Van Niekerk had no legal authority to appoint the law firm.

Consequently he should be held personally liable for the invoice of more than R550,000 from the law firm in terms of the Municipal Finance Management Act.

Section 32 (c) and (d) of the Act states that “any political office-bearer or official of a municipality who deliberately authorised an irregular expenditure is liable for that expenditure” and “any political office-bearer or official of a municipality who deliberately or negligently made or authorised a fruitless and wasteful expenditure is liable for that expenditure”.

It is instructive that Van Niekerk successfully advocated for the suspension of city manager Noxolo Nqwazi on the basis that she could not remain in office after corruption charges were formally laid against her.

So how is it that the same rule does not apply to him? And how is it that the ANC-EFF coalition fails to see the irony? Or is shielding a comrade from accountability a more important consideration for them?

In any well-run institution, Van Niekerk would have stood down of his own volition to clear his name.

But in our corruption-tolerant political environment, he is evidently not inclined to do so.

It is then up to the council to do the right thing — order him to stand down until the investigations have been concluded.

Mandla Tyala is a member of AIM

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