Despite Nelson Mandela Bay mayor Babalwa Lobishe initially refusing his request to attend an international conference, Gary van Niekerk defied her, skipped his fraud trial and jetted off to Germany.
After much back-and-forth, Lobishe eventually approved the trip — after the fact — and only so he could claim a subsistence allowance.
But when the deputy mayor returns to court in October, he faces an angry magistrate and the risk of being held in contempt of court.
On Wednesday, what was meant to be the start of his trial, Van Niekerk was a no-show.
Defence attorney Danie Gouws explained to the Gqeberha commercial crimes court that his client had phoned him from the airport to inform him of his travels — and that he would not be able to honour his court date.
After fiery arguments from Gouws and state advocate Ken Cooney, a warrant was issued for his arrest, but held over until October 6.
His trial had been set down for three days.
A frustrated magistrate Khuselwa Majali said Van Niekerk had wasted the court’s time.
“The court will issue the warrant of arrest but hold it over until October 6 so that he can explain why he failed to come to court,” Majali said.
“If the court is not satisfied with his explanation, the law is clear on how to deal with such matters.”
Van Niekerk faces charges of cyber fraud and contravention of the Municipal Finance Management Act (MFMA).
Municipal documents show how Van Niekerk left SA on Sunday without approval from Lobishe, who then later had to sign off on the trip so that he could claim a subsistence allowance.
He travelled with the metro’s international relations director, Lulamile Moolman.
Regarding the first request, Lobishe wrote: “I [have said] several times that we cannot approve travel plans with no strategy from [the] international relations committee.
“The committee of international relations must sit, identify trade and investment points [in line] with SA’s international policy. I am, therefore, refusing to sign these in piecemeal.”
Lobishe’s later approval, signed on Monday, means Van Niekerk will be reimbursed for visa fees and will receive a subsistence allowance of R16,620 to attend the 6th partnership conference between German and African municipalities from September 8 to 11 in Giessen, Germany.
It is understood that the German government has covered flights and accommodation.
The conference focuses on sharing values, objectives, and best practices in municipal partnerships, featuring parallel workshops on topics ranging from waste management and climate resilience to digital urban planning and fair trade.
Moolman will receive the same amount.
Alongside her signature on the form, Lobishe wrote: “I am approving because you have already travelled.
“There is too much abnormality about this trip, [the] MMC [political head] and director of sport were left out. There is no concrete plan tabled for the intended relations.
“My approval is based on humanity for your subsistence, not on how the trip was organised and its intention.”
At the time of publication, Lobishe had failed to respond to further requests for comment.
Van Niekerk, meanwhile, said his trip had only been confirmed over the weekend.
“The invitations were sent to my office and then presented to the international relations sub-committee of the council on May 6, and this invitation was approved for attendance,” he said.
“After this approval, administrative processes were followed to get the approval of the [mayor].
“She initially did not support this due to concerns that she preferred that the trip be part of a calendar of trips for the year, which international relations needed to present to the sub-committee.
“However, the [mayor] was not aware that the concern she raised was already presented and approved by the international relations sub-committee on May 6.
“Accordingly, the [mayor] was consulted for clarity, and an international relations sub-committee was scheduled for September 5, and this item was again included for [Lobishe] to attend and be clarified for her approval.
“I spoke to the mayor and she afforded me her approval.
“While I appreciate the interest of the media in me, my work, and my life, I must say that there is nothing criminal about this trip.”
Asked about the approval of the trip, Moolman responded via WhatsApp that he would only be available to answer questions when he returned to the country.
“There is nothing here to dig [into],” he said.
“Thanks for your interest. If you want to understand anything about my work, you can secure a meeting upon my return to the country.”
The criminal trial involves Van Niekerk’s appointment of Boqwana Burns Incorporated in 2022 for various legal matters at a total cost of R575,000.
His position as speaker at the time was uncertain because city manager Noxolo Nqwazi had already declared vacancies in the council seats held by his party, the National Alliance.
It is further alleged that Boqwana Burns was not on the municipality’s list of approved legal service providers, and by appointing them, Van Niekerk had allegedly attempted to circumvent the MFMA.
He is also accused of soliciting a legal opinion from McWilliams and Elliott Incorporated, which cost R23,393.
While the firm was on the municipality’s list of service providers, the request for a legal opinion had already been denied by then acting city manager Selwyn Thys.
An irate Cooney, who was ready to proceed with the trial on Wednesday, said he had several witnesses on standby.
He described Van Niekerk’s conduct as disrespectful.
“To choose between court and a joyride to Germany, if I can put it like that, there should not even be a choice,” he said.
“For a person in the position of deputy mayor, a previous executive mayor and speaker of this city, you would expect that person to act a little more responsibly, show a little more respect for the court system, and set an example to other citizens who might find themselves in a similar position.
“Instead, he made an informed choice and did not even inform his attorney until he was boarding [a flight] from OR Tambo [airport] on Sunday.”
In response, Gouws submitted a letter from Van Niekerk to the court, in which he attempted to explain why it was his duty to attend the conference.
“The purpose of these engagements is to ensure the good working relations with the sister cities throughout the world and foster good relations with other governments which bring much-needed economic development to the city,” Van Niekerk wrote.
The invitation from the German embassy stated that these meetings aimed to deepen partnerships and discuss future projects.
The conference is funded by the German ministry of economic co-operation and development.
Majali, however, took exception that Van Niekerk had failed to inform the prosecution when the invite was first sent out in June, saying that it would have given the court enough time to reschedule proceedings.
“If he, on receipt of the invitation, had contacted you, Mr Gouws, surely you would have then contacted the prosecutor and there would have been cases that we could have dealt with now instead of wasting the court’s time.
“I must account for hours that are lost because of people who decide not to come to court. I am really frustrated.
“He accepted the offer of going to Germany, knowing there was a trial date set.
“If you are warned by the court to be here, then you must be here, unless you are sick,” she said, adding that the trial date had been arranged as far back as March 31.
“I am here for three days to hear his matter. Even if I want to utilise my services elsewhere, I cannot because I am assigned to this court,” she said.
Gouws submitted that he had warned Van Niekerk of the seriousness of his actions.
“I explained to him the seriousness of being at court ... and that is when the letter came out, which asks for the court’s indulgence to assist the province.
“It’s a sad, sad thing ... but I do think the province needs assistance. We need employment.
“I am not condoning any behaviour, your worship. I am just saying there might be some issues we are missing.”
The matter will now run from October 6 to October 10.
The Herald
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