One of the deepest trenches, filled with mud, stones and treachery, can be found in the town of Oudtshoorn in the Western Cape. There, a brave DA politician, Peter Roberts, is being attacked by his own party for telling the truth. It’s a truth that the DA doesn’t want anybody to hear because it lifts up its blue skirt to show a pointy, red tail that’s joined to the arse of the DA’s top leadership.
At the request of the Oudtshoorn Municipality, Advocates Bruce Morrison and Elmien Vermeulen investigated alleged offences and irregularities surrounding a deed of settlement and a purported party political take-over (instigated by the DA) of the Municipal council. These allegations of fraud, corruption and contraventions under the Municipal Finance Management Act (MFMA) involved Oudtshoorn attorney, Nic Barrow, and DA councillors Pierre Nel and Ben (Bernardus) van Wyk.
The advocates were to investigate and report on events in and around the litigation instituted by Nel relating to the Council’s resolution to reinstate Reverend Noël Pietersen as Municipal Manager and an alleged application for leave to appeal to the Constitutional Court and the alleged, subsequent conclusion of a Deed of Settlement. In the event of criminal conduct being evident, they were briefed to provide a full report to deal with the offences.
The forensic report outcome contained the following:
1. It was reported by Die Hoorn newspaper that the Oudtshoorn Municipality and Nel had reached a settlement [The Nel Settlement] on 25 June 2013 in a court case that had been ongoing since 2011 and had allegedly cost the taxpayers millions. It stated that both parties would pay their own costs and seek no further court action. Strangely, the Oudtshoorn Municipality was unaware of the settlement which begged the question who the source of disinformation was. The Executive Mayor of Oudtshoorn, Gordon April, contacted the editor of the newspaper, Liesel le Roux. Le Roux informed him that attorney Nic Barrow had provided the information and a document entitled ‘Deed of Settlement’ (which she forwarded to April).
2. The court case referred to relates to an application brought by Nel for an order reviewing and setting aside a resolution taken by the Oudtshoorn Municipal Council to reinstate Reverend Noël Pietersen as Municipal Manager after his dismissal. Nel, represented by Barrow appealed against the agreement to the Western Cape High Court only to have his application dismissed in 2011 with costs to him and his client, Nel. Judge Nathan Erasmus concluded that Barrow was the “driving force behind this issue that resulted in this application” and that it was “clear from the founding papers, and more particularly the supporting affidavit of Mr Barrow, that he and the applicant [Nel] were under one roof with the launching of this application. I am, however, not going to make an order against the attorney himself, but I think it is appropriate in a case like this, that the court shows its displeasure in the way this litigation was conducted.”
3. Nel brought an application for Leave to Appeal against the judgment. Judge Erasmus dismissed the application for leave to appeal with, again, costs to Barrow and Nel.
4. Nel escalated his Leave to Appeal to the Supreme Court of Appeal (SCA) which was contested by the Oudtshoorn Municipality. The 5 judges of the SCA unanimously dismissed the appeal and awarded costs against Nel.
5. The Chief Financial Officer of Oudtshoorn Municipality estimated that total costs against Nel (and Barow) were in the region of R4million. It was a number widely circulated but hasn’t been substantiated. The DA has contested this figure, estimating R700 000. Either way, it’s a burden that the taxpayer should never have to carry.
6. On April 23 2013, Oudtshoorn’s Corporate Services Portfolio Committee held a meeting with an agenda that included a report on municipal legal cases. This included that of Pierre Nel versus Oudtshoorn Municipality. Oddly, in attendance was Nel who was not a member of the committee. His possible conflict of interest was raised to which he responded that the court cases were over so he had every right to attend. Advocate Human, the director of Corporate Services, informed Nel that Barrow was again appealing, this time to the Constitutional Court. As it was on behalf of Nel, it was notable that Nel was unaware. Consequently, Nel excused himself.
7. The document for leave to appeal to the Constitutional Court was dated 19 April 2013 and signed by Barrow with Nel as the applicant. Highly irregular was the fact that there was no case number and it didn’t carry the official stamp of the Constitutional Court. Duncan Korabie, the attorney for the Municipality, contacted the Registrar in June to file their opposition only to discover that Nel’s application didn’t exist.
8. Furthermore, the Oudtshoorn Municipality had won, with costs, in 2 courts so there would be no reason for them to agree to sharing the burden of legal fees. Additionally, the result of the alleged settlement would be Oudtshoorn’s ratepayers footing Nel’s expensive legal bills for his actions against the Municipality.