Former Emfuleni CFO Andile Dyakala fined R100k for calling colleague corrupt

Former Chief Financial Officer (CFO) of Emfuleni Local Municipality, Andile Philip Dyakala, was ordered to pay R100 000 for defaming the municipality’s former supply chain management (SCM) manager, Jason Mkhwane, by accusing him of “normalising corruption” and calling him a “renowned bully” and “looter”.

The Johannesburg High Court on Thursday overturned an earlier judgement that had dismissed Mkhwane’s defamation claim against Dyakala.

READ: Emfuleni arrests expose allegations of deep municipal corruption

The full court declared that Dyakala’s statements, published on the municipality’s SCM Management WhatsApp group, were “defamatory and unlawful”.

Dyakala was ordered to pay R100 000 in general damages, with interest at 11.75% a year from July 15, 2024, until final payment.

Dyakala was also instructed by the court to publish an unconditional written retraction and apology on the same WhatsApp group within 10 days and remove the defamatory statements from any platform or WhatsApp group under his control.

He was further ordered to pay Mkhwane’s legal costs in both the original action and the appeal.

CORRUPTION CLAIM FAILED THE TEST

The case emanated from a bitter dispute inside the municipality over procurement controls and financial management.

Mkhwane, the ANC regional secretary in the Sedibeng region, had been Emfuleni’s manager of supply chain management since 2017 and was responsible for an area at the heart of municipal procurement.

Dyakala, who was Mkhwane’s senior as CFO, accused him in December 2019 of having “normalised CORRUPTION”, declaring, “Not under my WATCH …”

He also branded him a “renowned bully”, referred to his attorney as having “looted 52 million”, and said he did not “fight with looters”.

The statements were made on a work-related WhatsApp group containing about 10 managers and senior employees.

The trial court had accepted that the statements were defamatory but nevertheless found in Dyakala’s favour, accepting his defences of truth and public benefit and fair comment.

READ: Janitha van Reenen Coetzee denied bail over R424K Emfuleni fraud

The appeal court, however, drew a crucial line between a municipality having procurement problems and an individual official being corrupt.

IRREGULAR SPENDING IS NOT AUTOMATICALLY CORRUPTION

The judgement makes it clear that evidence of institutional dysfunction cannot simply be converted into proof that a particular municipal official is personally corrupt.

The judges noted that Emfuleni had experienced “serious procurement and financial deficiencies”.

But they stressed:

“The distinction between irregular expenditure and corruption is important.”

According to the court, irregular expenditure demonstrates non-compliance with procurement or financial requirements but “does not without more establish dishonesty, bribery or corrupt intent.”

The court found that the evidence did not establish that Mkhwane had participated in any identified corrupt tender or transaction.

Even evidence concerning an alleged political “mandate” to favour certain service providers did not bridge the gap between procurement irregularities and the serious allegation that Mkhwane himself was corrupt.

The judges found that the trial court had effectively crossed an “evidential gap” between evidence that could justify criticism of Mkhwane’s administration of SCM and proof of personal corruption.

POWERFUL WORDS, BUT NO PROOF

The court was equally critical of the allegations that Mkhwane was a “renowned bully” and “looter”.

Fair comment had not been pleaded as a defence, and the court found that the factual foundation for those descriptions had not been sufficiently established.

Dyakala had relied on complaints allegedly made by other employees, but those employees did not testify to establish the underlying allegations.

The court said the word “renowned” added particular sting because it suggested bullying was an established or generally recognised characteristic of Mkhwane.

That, too, had not been proved.

MUNICIPAL POWER COMES WITH RESPONSIBILITY

The judgement carries a broader lesson for officials entrusted with managing public money.

The court acknowledged that exposing genuine corruption in a municipality is a matter of considerable public importance and that a CFO may, in appropriate circumstances, have a duty to expose suspected corruption and maladministration.

But public interest does not give officials a licence to make unsubstantiated personal accusations.

The court stressed that once the truth of the defamatory allegation had not been established, the public-interest defence could not rescue it.

The court also found that the accusations were particularly damaging because they came from the municipality’s CFO and were directed at the official responsible for supply-chain management.