Appeal court orders Emfuleni CFO to pay R100,000 and apologise for defamatory WhatsApp messages

The Johannesburg High Court has ordered Emfuleni municipality Chief Financial Officer Andile Philip Dyakala to pay R100,000 in damages and to publish an apology after he made defamatory remarks about the municipality’s Supply Chain Management manager on a WhatsApp group.

What the court found

The appeal court found that statements posted by Dyakala on a WhatsApp group called “SCM Management” in December 2019 were defamatory and unlawful where they referred to Supply Chain Management manager Jason Mkhwane as having “normalised corruption” and described him as a “renowned bully” and a “looter”.

Background of the dispute

The WhatsApp group included about ten managers and senior employees working in the Supply Chain Management division of Emfuleni Local Municipality. At the time of the messages, Dyakala was the municipality’s CFO and Mkhwane reported to him as Manager of Supply Chain Management. Mkhwane brought legal action after the messages, saying they conveyed that he was personally corrupt and associated him with looting.

Trial and appeal

In July 2024 the trial court found the WhatsApp statements were defamatory but dismissed Mkhwane’s claim after accepting Dyakala’s defences of truth, public benefit and fair comment. Mkhwane appealed that decision.

The appeal court said the key question was not whether there had been procurement problems at the municipality but whether evidence established the much more serious allegation that Mkhwane himself was corrupt and had “normalised corruption.” The court drew a clear distinction between irregular expenditure and corruption, stating that irregular expenditure “does not without more establish dishonesty, bribery or corrupt intent.”

Insufficient evidence for personal corruption

The court noted reports relied on by Dyakala identified procurement deficiencies and irregular expenditure but did not establish that Mkhwane had personally participated in a corrupt transaction. It found no specific corrupt tender or transaction was shown to have been secured through Mkhwane’s intervention.

Bullying and “looter” allegations rejected

The appeal court also found the factual basis for describing Mkhwane as a “renowned bully” was not established. Although Dyakala referred to complaints by other employees, those employees did not testify to support the conduct attributed to Mkhwane, and the court said the word “renowned” implied an established characteristic that had not been proved.

Similarly, the court found the suggestion that Mkhwane himself had “looted” or could properly be characterised as a “looter” was not supported by the evidence. A statement that an attorney associated with Mkhwane had “looted R52 million” was made in a context that the trial court found associated Mkhwane with looting, but the appeal court concluded the factual foundation for that implication was lacking.

Intent and consequences

The appeal court upheld the trial court’s finding that Dyakala had not rebutted the presumption that the publication was wrongful and intentional. It described the messages as personal, confrontational and accusatory rather than neutral reports of suspected misconduct, and found Dyakala intended to discredit and hurt Mkhwane and was at least reckless about the injury to his dignity.

Damages, apology and orders

Because the trial court had dismissed the claim, it had not assessed damages. The appeal court assessed the harm and awarded Mkhwane R100,000 in general damages, noting that corruption is an exceptionally serious accusation, particularly against an official responsible for supply chain management and procurement. The court considered the professional significance of the publication even though the WhatsApp group had only about ten members.

The court ordered Dyakala to:

• Pay R100,000 in damages with interest at the prescribed rate of 11.75% per year from 15 July 2024 until paid in full.
• Publish an unconditional written retraction and apology on the SCM Management WhatsApp group within 10 days of being served with the order.
• Remove any copies of the defamatory statements that remain accessible on platforms or WhatsApp groups under his control within 10 days.
• Pay the costs of the original action and the appeal.

Where the evidence fell short

The appeal court emphasised that while the municipality had experienced serious procurement and financial problems, the reports and evidence relied upon did not establish that Mkhwane personally participated in corrupt transactions or that a specific service provider had been appointed through his intervention. The court also observed that an alleged conversation in which Mkhwane allegedly said he had a political “mandate” did not, on its own, prove personal corruption.

The judgment thus restores Mkhwane’s successful appeal and requires Dyakala to make amends for the statements he published to colleagues and subordinates involved in municipal procurement.