Emfuleni Local Municipality. Picture: Supplied
Emfuleni Local Municipality supply chain manager, Jason Mkhwane, suffered a legal blow after his defamation case against the municipality’s former chief financial officer (CFO) was dismissed.
Mkhwane sued ex-colleague, Andile Dyakala, accusing the former Emfuleni municipality CFO of defamation in a work WhatsApp group.
The group’s purpose was to help members communicate on matters relating to the purchasing of goods and services for the municipality.
Dyakala sent a series of messages to the group in December 2019, accusing Mkhwane of having “normalised corruption” and being a “renowned bully”.
The former Emfuleni CFO claimed that he was “tired of Mkhwane’s bullying tactics” and did not “fight with looters”.
The messages prompted Mkhwane to institute a claim for damages against Dyakala in June 2020.
Dyakala initially pleaded that the allegations contained in the WhatsApp messages were justified because they were true.
He later argued that he had not intended to injure Mkhwane, although he still maintained that the statement was true and in the public interest.
He told the Gauteng High Court in Johannesburg that he had taken up the CFO position on an acting basis in April 2018, before being permanently appointed in July 2019.
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He argued that it was known that the Emfuleni municipality had been plagued with financial mismanagement, loss of financial control and corruption as some departments were placed under provincial administration in June 2018.
Dyakala explained that he had questioned Mkhwane’s dual role as Emfuleni’s supply chain manager, and as an ANC member and regional secretary after his arrival in the municipality.
The former CFO was fired by the Emfuleni municipality in 2023. He was reportedly replaced by Mpfareleni Maseanoka in April.
In a judgment delivered on Monday, 15 July, Judge Stuart Wilson noted that Mkhwane himself had conceded that he was a member of the ANC’s “deployment committee”.
The former CFO alleged Mkhwane “took him aside” and had informed him it was his role to implement a political “mandate” to ensure the appointment of service providers to the Emfunleni municipality would favour the ruling party.
“Mr Mkhwane said that he would introduce Mr Dyakala to favoured service providers.
“The implication, at least as Mr Dyakala understood it, was that the ruling party would tell Mr Dyakala, through Mr Mkhwane, which service providers would be given municipal contracts,” Wilson said in his judgment.
Dyakala testified how he immediately pushed back against the pressure to toe the party line and managed to block appointments that were being made in breach of regulations.
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Wilson noted how Mkhwane, in his testimony, could not dispute Dyakala’s evidence.
“I asked Mr Mkhwane what he had to say about Mr Dyakala’s assertion that Mr Mkhwane had described his political ‘mandate’ in the terms alleged.
“Mr Mkhwane’s comment on Mr Dyakala’s version was revealing. He repeatedly asserted that Mr Dyakala’s version of the conversation was ‘hearsay’. That is of course an evasive answer, and certainly not a denial,” the judgment reads.
In this instance, the judge found that he was compelled to “accept that the conversation did in fact take place, more or less as Mr Dyakala narrated it”.
“There was nothing inherently improbable or unreliable about Mr. Dyakala’s evidence, which was, overall, credible and convincing,” Wilson said.
In early 2019, Mkhwane was suspended for his “poor record-keeping” after Dyakala submitted a report, which found that the supply chain manager was personally responsible for irregular expenditure at Emfuleni.
The Labour Court later set aside Mkhwane’s suspension and he ultimately returned to the municipality.
Wilson said this report provided “important information about the context in which Dyakala’s messages would have been seen and understood”.
The judge also noted how much of Mkhwane’s testimony focused on the reputational damage Dyakala’s messages had caused.
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Mkhwane told the court that the messages were broadcast on the radio, exposing him to wider public criticism.
“Although Mr Dyakala’s messages were addressed only to the procurement WhatsApp group, word of Mr Dyakala’s outburst quickly got out,” the judgment further reads.
But the judge found that Mkhwane’s evidence had “an imprecise, repetitive, and dogmatic character”.
“Mr Mkhwane’s hair-splitting manifested in other parts of his evidence.”
Meanwhile, Wilson said he couldn’t accept that Dyakala didn’t intend to injure Mkhwane with the messages.
“Dyakala painted himself as locked in a moral struggle with Mkhwane. The messages he sent were plainly part of that struggle.
“They were meant to discredit Mkhwane and to hurt him. From his point of view, an obviously corrupt official had largely succeeded in evading attempts to hold him to account. He had thwarted disciplinary action,” he said.
“Mr Dyakala must have appreciated that, however he felt about Mr Mkhwane, and whatever the truth of his allegations, the messages were inappropriate and defamatory.
“Mr Dyakala was, at the very least, reckless to the possibility that he would injure Mr Mkhwane’s dignity,” the judgment reads.
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Wilson concluded that there was evidence to suggest Mkhwane may be corrupt because he was “unwilling or unable” to separate his role as an ANC office bearer from his role as a government procurement manager.
“That is enough, I think, to truthfully describe Mr Mkhwane as corrupt.
“Accordingly, I find that the allegation that Mr Mkhwane was ‘normalising corruption’, and the implication that he was personally corrupt, to be substantially true on the proven facts.”
The judge further found Dyakala’s description of Mkhwane as a “renowned bully” and his implication that he was a “looter”, though defamatory, “were justified as fair comment on true facts”.
He, therefore, dismissed Mkhwane’s defamation case with costs.
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