Suspended city manager Noxolo Nqwazi is applying to have her criminal charges thrown out, arguing that the state has failed to produce any evidence linking her to alleged fraud and procurement irregularities in a R24m Covid-19 emergency toilet project.
She is joined by former housing director Mvuleni Mapu, former ANC regional secretary Luyolo Nqakula, HT Pelatona Projects owner Morne van der Linde, businesspeople Xolani and Nwabisa Masela, Nompumezo Ngotsha and her company Thuthiko Logistics, and former DA councillors Mbulelo Manyathi, Trevor Louw and Neville Higgins.
The charges against Nqwazi arise from her tenure as acting city manager of the Nelson Mandela Bay municipality in 2020, and concern her role in the appointment of HT Pelatona for the construction of permanent toilet structures in Motherwell.
At the start of trial, all pleaded not guilty.
Now, at the close of the state’s case, the various lawyers have brought applications for discharge in terms of Section 174 of the Criminal Procedure Act on the basis that the state failed to establish a prima facie case.
In papers before the Gqeberha commercial crimes court, they have taken the state to task for relying on circumstantial evidence, a poor line-up of witnesses and a flawed investigation.
In addition, lawyers said the legal process was being abused to settle political scores.
“There is not a shred of evidence against any of the accused,” court papers state.
It is the state’s case that Nqwazi and Mapu bypassed certain processes to award a lucrative tender to HT Pelatona for the construction of 2,000 toilets in the metro during the Covid-19 pandemic.
According to the state, on April 17 2020 Mapu drafted a document as motivation for Nqwazi to approve the appointment of HT Pelatona, but did not outline why the prescribed tender process could not be followed.
Less than a week later, Nqwazi signed the document and, on the same day, R400,000 was paid into the bank account of Thuthiko Logistics.
Days later, R300,000 was paid to Nwabisa, who then paid it over to her husband Xolani’s account.
The money was then allegedly paid to Nqakula, who subsequently paid R100,000 into the accounts of Manyathi, Louw and Higgins for what the state claims was gratification after they helped remove Athol Trollip as mayor.
The state is yet to file its opposing papers to the Section 174 application.
Nqwazi’s lawyer, Alwyn Griebenow, said: “The state’s case against Nqwazi relies heavily on circumstantial evidence, the admissibility and probative weight of which is contested.”
Griebenow further set out how, during the lockdown, municipal procurement operated under special emergency provisions.
He said they allowed for a shortened, deviation-based process where strictly necessary to protect life, health and property.
This permitted deviation from normal bidding in cases of emergency or exceptional circumstances, with proper record-keeping.
The National Treasury also set out how municipalities could urgently procure services such as sanitation, water provision and related infrastructure.
“For standpipes and permanent toilets, the emergency trigger during Covid-19 was an urgent need to provide water and sanitation in informal settlements to reduce population density, facilitate handwashing and sanitation, and minimise Covid-19 transmission risk.
“The municipality’s Local Command Council (JOC) identified areas including Motherwell NU30 as priority intervention zones.
“In the emergency context, the steps to be taken included identifying the urgent need followed by a written motivation stating the nature of the emergency; why normal competitive bidding was impractical; risks to health and safety if delayed; and estimated costs.
“Request for the deviation had to be submitted to the accounting officer (acting city manager Nqwazi at the time), for approval.”
Griebenow said the deviation record had to be reported at the next council meeting, as well as to the auditor-general and Treasury.
The Treasury’s Covid-19 guidance allowed for the use of suppliers from the Central Supplier Database with relevant capability, and direct approaches to known capable contractors.
Griebenow said it was evident through cross-examination that due process was followed.
“The JOC and municipal officials identified an urgent need for permanent toilets in Motherwell NU30 due to the relocation of households from flood-prone areas.
“A deviation memorandum was prepared by the relevant directorate citing Covid-19 emergency as justification, and submitted to Nqwazi for approval.
“Nqwazi approved the deviation, citing health risks and urgency.
“HT Pelatona was identified from the municipality’s existing database of service providers who had previously performed similar work.
“Evidence showed no formal competitive bidding process. The deviation approval and appointment were recorded internally and reported to council and the Treasury.
“The justification for permanent singular toilets and standpipes — especially in the pandemic context — compared to communal toilets or chemical toilets came down to public health, safety, dignity, cost-effectiveness and sustainability.”
Griebenow said in the specific context of Motherwell NU30, the erection of permanent singular toilets and the installation of standpipes was a lawful and rational intervention in response to the pandemic.
“Communal or chemical toilets would have necessitated frequent shared use by multiple households, creating high-contact points for viral transmission, undermining social-distancing, and increasing risks of secondary infections due to poor hygiene management.
“Standpipes, located in proximity to dwellings, ensured safe and reliable access to clean water — a non-negotiable for sanitation during the pandemic.”
Griebenow said the state’s contention that the procurement of the permanent singular toilets and standpipes fell outside the ambit of lawful Covid-19 emergency procurement was without merit.
Turning to the allegations of collusion, Griebenow said there was no direct evidence that Nqwazi and Mapu had acted in common purpose to defraud the municipality.
He said according to the state’s own witnesses, quotations were obtained by other officials — not Nqwazi or Mapu — and were handled within departmental channels.
“Evidence from senior SCM and Treasury witnesses confirms lawful process was followed.
“The only connection between the accused is that they were both part of the municipal structure during the project.
“The allegation that Nqwazi failed to implement SCM policy is without foundation.
“Based on the testimony, the [municipality’s] SCM policy was implemented, albeit through emergency deviation provisions.
“In conclusion, the evidence adduced is riddled with hearsay and speculation, much of it emanating from witnesses whose credibility was severely compromised under cross-examination.
“There was no personal benefit accrued to Nqwazi.
“In the absence of proof beyond reasonable doubt, the only just and lawful course is for this court to order Nqwazi’s discharge.”
Supporting Mapu’s bid for discharge, advocate Johan Wessels argued that the claim he and Nqwazi had abused their positions to improperly influence procurement processes lacked evidence.
Wessels said HT Pelatona’s name had not even appeared by the time Mapu signed it.
“There is not a shred of evidence Mapu was in any way involved in the appointment of Pelatona.
“As correctly averred by the state, the regulations dictate that the accounting officer must record the reasons for the deviation. However, no such burden is placed on Mapu.”
Advocate Anneline Roestorf, representing Van der Linde, HT Pelatona, Xolani and Nwabisa Masela, Ngotsha and Thuthiko Logistics, similarly called for an acquittal.
Roestorf said the details of HT Pelatona had been found on the Nelson Mandela Bay municipality system because the company already had a pending contract at the municipality.
On April 18 2020, the appointment was accepted.
She said the price was reasonable and market-related.
“HT Pelatona erected 734 of the 2,000 toilets. Each was signed off by a quality controller of the [municipality].
“The project was not completed due to various reasons including SMMEs’ obstruction and nonpayment.
“It is submitted that having regard to the evidence of the state witnesses and the lack of substantiated evidence against the accused, this court and the legal processes are being abused to settle political issues.
“Intentional misconduct played a colossal role in infringing on the rights of the accused to a fair trial.”
Roestorf also zoned in on the testimony of ANC member Andile Lungisa, who told the court how proud he had been of the role the three former DA councillors had played in the “soft coup” to have Trollip removed.
Lungisa said he had suspected corruption surrounding the toilet tender because it was awarded through the human settlements directorate — an entity not responsible for constructing toilets.
“Lungisa was such a bad witness in that he answered only whatever he wanted to, and was very evasive throughout,” Roestorf said.
“It was more about him thinking up a story to embellish five years later to try to justify why he wanted the accused prosecuted.
“The evidence of Lungisa was so improbable and contained so many inconsistencies, one simply cannot know where the lies end and the truth begins.”
She said the state further proceeded to lead irrelevant evidence.
“It’s submitted on a conspectus of all the aforesaid reasons that the trial was littered with political interference and incompetence by the state.
“This court, on this ground alone, should discharge the accused.
“Numerous witnesses confirmed that the deviation was the correct process to have been followed.”
Representing Nqakula, advocate Siyabulela Mapoma SC said the state was required to prove guilt beyond a reasonable doubt.
“In these proceedings, the state never asked for the hearsay evidence to be admissible.
“No such ruling was given. Such hearsay evidence therefore remains inadmissible,” Mapoma said.
He said further that the tender was awarded as a result of emergency procedures followed by the municipality as a result of the pandemic, which only came about in March 2020.
“To link the events of 2018 [ousting of Trollip] with the Covid-19 toilet tender is stretching it a bit far.
“Our courts should not be turned into political battlefields.”
Argument will be heard on October 27.
The Herald
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