Linking the events of September 2018, when former Nelson Mandela Bay mayor Athol Trollip was removed through a no-confidence motion, to the Covid-19 pandemic that struck SA in 2020 is a tenuous and forced comparison.
Those were the words of magistrate Vusiwe Mnyani as she discharged former ANC regional secretary Luyolo Nqakula and nine of his co-accused.
She ruled that suspended city manager Noxolo Nqwazi and former housing boss Mvuleni Mapu still had a case to answer on their fraud and municipal finance charges.
It took place in the specialised crime court sitting at the magistrate’s court.
In a blistering ruling, Mnyani said prosecutors failed to link the money paid to former DA councillors Trevor Louw, Victor Manyathi and Neville Higgins to any crime and that the state had leaned heavily on a witness she found to be evasive and unreliable.
Nqwazi and Mapu face three counts relating to fraud and contravening sections of the Municipal Finance Management Act.
The case revolves around the alleged fraud and procurement irregularities in a R24m Covid-19 emergency toilet project.
Mnyani granted Nqakula’s application to have charges dismissed and found his co-accused — HT Pelatona Projects owner Morne van der Linde, businesspeople Xolani and Nwabisa Masela, Port Alfred businesswoman Nonpumezo Ngotsha and her company Thuthiko Logistics, and former DA councillors Manyathi, Louw and Higgins — not guilty of all charges.
Mnyani, who spent 50 minutes reading her judgment, found that state witness ANC national executive committee member and former Bay councillor Andile Lungisa was not a credible witness and was frequently evasive.
“His credibility is also at stake when taking into account that, though police requested him to come with supporting documents or evidence, he failed to do so,” Mnyani said.
“He blames the police for not doing their duty, yet he was not forthcoming with the requested information.
“The evidence of [the police] is contrary to his evidence, so is the evidence of [former ANC councillor Lunga] Nombexeza regarding when he met him for the first time regarding this matter.
“I’m aware of the fact that credibility plays a limited role at this stage, but Lungisa’s evidence cannot be said to be credible and reliable.
“He was avoiding answering questions directly, was evasive and at times refused to confine himself to the evidence.
“This is not conduct one would expect from a witness who claimed to have first-hand information and supporting documentation to prove allegations of this nature.
“Corruption is all too often an issue which tends to be determined by way of inference drawn from a proven text.”
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.
Subsequently, R400,000 was paid into Thuthiko Logistics’ bank account.
A few days later, R300,000 was reportedly deposited into Nwabisa’s bank account, which she then transferred to her husband’s account.
Four days later, the money was allegedly paid to Nqakula’s account, who, in turn, paid Higgins, Manyathi and Louw, for what the state claims was gratification after they helped have Trollip axed as mayor in September 2018.
Mnyani said the state had a duty to prove that the money in question was the proceeds of a specific crime and to show how an alleged corrupt relationship existed between the accused.
“The charges against Xolani, Nwabisa, Thuthiko Logistics, Nqakula, Manyathi, Louw and Higgins stem from the same factual matrix of the amount paid by accused number three.
“It follows that if the evidence does not show that the payment was equity or for suits of crime, the charges against the said accused cannot stand.”
Mnyani said when the tender was awarded, Nqakula could not have influenced the process as he was neither a councillor nor an employee of the municipality.
Turning to Nqwazi and Mapu, Mnyani said that when municipalities applied laws like the Municipal Finance Management Act (MFMA), they helped prevent corruption and ensure transparency and fairness in awarding public procurement contracts.
These statutes required organised and transparent processes in municipal spending and supply chain management.
In this case, the court found that certain procedures under Regulation 36 of the MFMA were not followed.
As a result, the magistrate ruled that the state had established a prima facie case.
“On the evidence presented in this case, the processes that were not followed as per the evidence tendered, by [former CFO Selwyn] Thys, [CFO Jackson] Ngcelwane, [human settlements director Simiselo] Nogampula and [human settlements director Sandisile] Mahashe, I’m of the view that the state has established a prima facie case on count one and two, and also count three, calling upon accused one and two to answer.”
Afterwards, Nqakula described his victory as a bittersweet moment.
“What has transpired in what has been revealed is that I was politically persecuted and prosecuted,” Nqakula said.
“I think there are notable figures whose names came up in these proceedings who belong to the ANC.
“For the past four years, my organisation hasn’t subjected me to any process, nor referred me to an integrity commission.
“Here, I believe I wasn’t the one who was indicted but the ANC.
“Several court documents came up which referred to structures of the ANC.
“It’s a sweet moment for me as a person because I get to close the chapter in my life and attempt to move on with my life after so much harm I’ve suffered at the hands of people who have politically and deliberately orchestrated this.”
An emotional Louw said he was relieved that after four years, his name had been cleared.
“From day one, my name was shattered. I’m vindicated.
“I knew from day one that I was innocent because I was implicated in things that I didn’t know.
“I’m happy that everything is over.
“Now I can start building my life with my family.”
Manyathi said he was pleased by the court outcome.
“I’m glad the magistrate has pronounced my innocence, and I’m released.
“We’ll have to start our lives afresh.
“Remember this has affected us in many ways in terms of getting opportunities because we’re perceived as fraudsters, all the ugly names you can think of.”
Xolani and Nwabisa’s representative, advocate Anneline Roestorf, said she was pleased.
Mapu said: “We will meet in the dock.
“We’ll meet when we’re presenting our case as to why we’re not guilty.
“It’s very clear that I’m in a political trial and I must deal with that head-on.
“Yes, I’m a political animal, I’m going to face the consequences politically.
“That’s where we are now.”
Nqwazi’s lawyer, Alwyn Griebenow, who also represents Mapu, said: “We will wait for a copy of the full judgment so that we can study it thoroughly.
“Only then will we decide how we want to approach the case.”
The Herald
