I wrote this as my first contribution to the Justice & Equality Front website in Plettenberg Bay. My hats off to them for the court cases they’ve won which in turn shone a light so that there was a little less bias on the Garden Route.
You will all remember the BIG ruckus that ensued after the DA-led Bitou Municipality removed Lonwabo Nqogo from his post as the Municipal Manager of Bitou. He was, of course, just one in the line of many but, obviously, because of his important position, it sent earthquakes through the seaside town of Plettenberg Bay.
For the hearing, the DA had pulled in retired Judge Combrinck who seemed to disregard the law in favour of the DA. The consequence was a farewell to Lonwaba who then secured himself as the Municipal Manager for Sundays River Valley. The DA screamed blue and media latched onto their bias (one ran with the headline, ‘Disgraced Municipal Manager Hired’). This supposedly related to Lonwabo being found guilty of financial irregularity on 4 charges – this included misconduct for his role in the R28 million purchase of land alleged to be have only been worth R2.4 million (for a more realistic opinion on the Wavelengths fiasco, read Decoding the Wavelength Debacle in Bitou). Mr Niel de Klerk (one of the highest authorities in South Africa on these type of valuations) said that, “DDP Valuers (hired by the Province) failed dismally in determining the values of the above mentioned properties. I am of the opinion that the DDP valuations should become a matter of a disciplinary investigation.”
Songezo Mjongile, the provincial secretary of the ANC, said that Lonwabo was removed to make way for DA “lackeys”. Transnet’s CEO, Brian Molefe, gave witness to Lonwabo’s side of the story. This was interpreted by many as the ANC and government supporting corruption.
An appeal to the bargaining Council was initiated by Hardy Mills (Mills Attorneys) through Advocate Ferreira. Mills controversially stated that he would stop practicing as an attorney if they did not win because that would mean that he no longer understood the law and, consequently, shouldn’t advise anyone on it.
That was then!
Truth and justice finally emerged this week with an Arbitration Award by Commissioner Coen De Kock that found Lonwabo Nqogo innocent and Judge Combrinck biased.
Here are highlighted points (with quotes) from the judgement (they make for very interesting reading):
- Judge Combrinck, as Chairperson, called for an extra witness. Not only was the applicant, Lonwabo Nqogo, not duly informed but the action occurred after the disciplinary hearing had concluded and after the respondent’s final argument. This was considered by the Commissioner to be a “grave concern and…a serious irregularity…and created more than a reasonable perception of bias…the applicant was severely prejudiced by the chairperson’s actions and this procedural irregularity caused the applicant’s dismissal to be procedurally unfair.”
- Thys Gilomee was appointed as investigator. The applicant put forward that he was not independent as prescribed by regulations owing to him being in talks, for a position, with the government of the Western Cape. The Commissioner never found for procedural unfairness as the talks had not cemented into a course of action. We know today, however, that he was appointed as the CEO of the Western Cape Provincial Government Liquor Board.
- Thys Gilomee alleged that Lonwabo had misrepresented the sale of the property in his letter to the seller when he said that monies had been received from the provincial government and that he could go ahead with the signing of documents relating to the transfer. The issue was over suspensive conditions i.e. that further evaluations by Province could alter the deal.
- Commissioner De Kock stated that, “I find it difficult to believe that the applicant (Lowabo), in writing this letter to the seller, made a false representation…the respondent was legally obliged to advise the seller in writing once the monies were acquired. The fact that the Department (Province) paid the full amount, despite the valuation already having been done and showing a substantial difference, only came to the fore after the letter of 1 April 2011 was written…any other reasonable person in the position of the applicant would have done exactly what the applicant has done…”…I was taken aback in reading the finding and seeing the basis on which the applicant was found guilty by the chairperson. The chairperson firstly brought issues into the charge for which the applicant was never charged…The position adopted by the chairperson was clearly incorrect and, in fact, unfair towards the applicant…his findings in respect of the charge is highly indicative of someone who showed clear biasedness in favour of the respondent (Bitou) at the direct expense of the applicant.”
- The Municipal Manager was also charged with unauthorised expenditure in that he authorised use of some of the grant money for payment of purposes other than intended. The fact is that the grant monies were placed into a separate account by the Chief Financial officer, Mr. Lotte who then, owing to the municipality’s poor financial position, utilised some of the funds to pay debts. Although ultimate responsibility for all staff actions lie with the Municipal manager, the Commissioner thought it more appropriate that Mr. Lotte have been charged but mitigated that “there was no fruitless and wasteful expenditure” and that he doubted that the Chief Financial officer had any other alternative at the time. The Commissioner found that Lonwabo was wrongly found guilty and should have been acquitted.
- Lowabo was further charged for failing to fill staff positions in Bitou Municipality. The Commissioner found that there had been work done on filling staff positions and noted that, because it had never been raised as an issue before, that it was added “in an attempt to find as many wrong-doings against the applicant as possible” i.e. it was a frivolous action by the Bitou Municpality. Lonwabo “ought to have been found not guilty of this charge.”
- The final charge of misconduct to be dismissed was for Lonwabo sending a letter to Mayor Memory Booysens, the Speaker and representatives of the Western Cape Provincial Government, purportedly on behalf of municipal staff members. Commissioner Coen De Kock accepted that provincial employees had investigated concerns which resulted in senior staff asking Lonwabo to address their concerns to Bitou and provincial representatives. Although some remarks were thought unnecessary, they were not grounds for dismissal and were not considered transgressing any sections of the law. De Kock went on and ruled “Be it as it may, I do not believe that the Applicant should be blamed for those parts of the letter to which the Respondent took such serious offence. The fact of the matter was that not only the applicant but numerous other senior officials felt unhappy with the manner in which there was interference and something needed to be done”.
Summarily, Lonwabo Nqogo, ex-Municipal Manager of Bitou, was railroaded by the DA-led municipality. He was shamed and slandered for the sake of politics and power. He was used as an example of ANC corruption that never happened.
Commissioner De Cock ordered that Lonwabo be returned to his position, be given 9 months back pay and that the involved parties reach a settlement on damages.
Lonwabo vindicated, Mills retains his faith in the legal system and ratepayers will again pay for the mistakes made by their leaders. Tragically, this seems the norm for Bitou.