Despite conceding that Gary van Niekerk violated Nelson Mandela Bay’s supply chain management policy and breached the code of conduct, attempts to have him removed as a councillor have failed.
Instead, Eastern Cape co-operative governance MEC Zolile Williams, who was responsible for making the final determination on Van Niekerk’s fate, has reprimanded the deputy mayor and slapped him with a written warning.
Williams wrote that Van Niekerk should refrain from involving himself in procurement matters in the future.
Van Niekerk has been against the ropes since the council adopted an ad hoc committee report that recommended he either be placed on suspension or fired as a councillor for hiring legal firm Boqwana Burns Incorporated without authorisation in 2022.
At the time, his seat in the council was declared vacant by now-suspended city manager Noxolo Nqwazi.
He was also accused of soliciting legal opinions for various issues involving Nqwazi, Eugene Johnson when she was mayor, and for his party’s members to attend council meetings after their positions were declared vacant with the Electoral Commission of SA.
Van Niekerk racked up a legal bill of more than R551,586.
In December, the council resolved that the recommendations contained in the report be referred to Williams as only he could legally suspend or remove a councillor.
In a letter to speaker Johnson, dated July 14, Williams said he was not persuaded that a suspension or removal from council was an appropriate sanction, considering the circumstances which led to the breach.
According to Williams, there was no evidence that Van Niekerk personally benefited from the procurement of the legal services.
“The breach was mainly caused by internal divisions of the council over the appointment of the city manager [Nqwazi].
“The city manager was eventually suspended, and this confirmed the correctness of the council resolutions of March 23 2022 which councillor Van Niekerk sought to protect when he appointed Boqwana Burns, albeit unlawful,” Williams said.
On Monday, Williams’ spokesperson Pheelo Oliphant said that while noting the municipality’s findings and recommendations, the MEC felt they were too harsh and had asked the council to suggest alternative sanctions.
“The MEC felt that the sanction was too harsh for the transgression and requested the council to reduce the sanction in line with the principle of natural justice and progressive discipline.
“The MEC is awaiting a response from the council about the final sanction the municipality will impose on councillor Gary van Niekerk,” he said.
Johnson declined to comment on Williams’ letter.
Van Niekerk said on Monday that he was ready to put the “smear campaign” behind him.
“I have been accused of being a criminal and having my hand in the cookie jar.
“I have been alone in this journey of being vilified in council but justice has prevailed and I am happy that episode is closed.”
Van Niekerk is also facing criminal charges, including cyber fraud and violating the Municipal Finance Management Act (MFMA) related to this matter.
Included in the four counts being prosecuted at the commercial crimes court is soliciting an unauthorised legal opinion later the same year from McWilliams and Elliott Incorporated, costing R23,393.
He said he was hopeful that the case would also get thrown out of court.
“I have faith in the justice system and now that the MEC has vindicated me, the people at the Hawks will come to a similar outcome and I am confident they will,” Van Niekerk said.
The turmoil befell the municipality after a March 17 council meeting where the ANC pushed through a late-night appointment of Nqwazi as city manager despite opposition parties walking out, leading to uncertainty over the quorum.
Van Niekerk called for a follow-up meeting a week later to revisit the agenda item.
However, on the day of the meeting, Nqwazi declared vacancies for the three NA seats, creating uncertainty about whether Van Niekerk would be able to preside over it.
Van Niekerk who was locked in a battle with a faction of his party that wanted him out, then solicited Boqwana Burns to interdict the vacancies.
The March 23 2022 meeting was then held at the council chamber after Nqwazi also instructed security to lock the Feather Market Centre.
All ANC members boycotted the meeting; however, with a quorum, it was adopted that Nqwazi’s appointment be set aside and she be suspended as the acting city manager.
Van Niekerk repeatedly hired Boqwana Burns to defend controversial city manager appointments.
The legal wrangle began when Anele Qaba was named acting city manager, prompting Nqwazi, supported by then-mayor Johnson, to go to court to block the move and reverse her suspension.
Van Niekerk later pushed for Lonwabo Ngoqo’s appointment, sparking more legal action from Nqwazi.
On September 6 2023, the municipality received a R551,586 bill from Boqwana Burns for the four cases.
ACDP councillor Lance Grootboom laid a criminal complaint against Van Niekerk, accusing him of misusing municipal funds to settle internal party disputes.
The council launched an ad hoc committee to investigate.
A week later, Grootboom wrote to Johnson, who was now the speaker of council, informing her that he had laid a criminal complaint against Van Niekerk, who had now taken the mayoral chain.
In his letter, Grootboom said Van Niekerk authorised the appointment of Boqwana Burns for personal and internal party issues at the cost of the municipality.
Defending his decisions to Williams, through his attorney Paul Roelofse, Van Niekerk argued that in all instances he had acted to protect the interests of council.
“Mr Van Niekerk’s conduct was transparent, communicated via official email; institutionally motivated, aimed at defending council’s decisions; without personal or political gain; and was not concealed from other role players in the municipality,” Roelofse wrote.
“The municipal manager had refused to authorise legal counsel for council.
“She was litigating against the municipality in her personal capacity at the time and had taken steps to exclude the speaker from participating in council, including a unilateral declaration of his seat being vacant.”
Roelofse said Van Niekerk was still the speaker of council, which was later confirmed in court on June 7 2022.
When asked about the Boqwana Burns representation for their court battle over the declared vacancies, NA secretary-general Vasu Padayachy said that was an error.
“We had already settled that account months before September,” he said.
He provided The Herald with a copy of an email from Aneesa Abrahams, the assistant of Max Boqwana, which confirmed the account of R90,160.00 had been settled.
On Monday, Grootboom said they were shocked by the decision and would request the council to urgently seek a legal opinion on the MEC’s decision to see whether the decision could be reviewed by the high court under the Promotion of Administrative Justice Act (PAJA).
“These actions put the city at legal and financial risk.
“We believe the MEC failed to consider all the evidence before him, especially the invoices submitted under various case numbers.”
The Herald
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