Tshepiso Tshabalala and Manyane Manyane
tshepiso.tshabalala@inl.co.za manyane.manyane@inl.co.za
THE stand-off between embattled Emfuleni Municiaplity and its suspended Chief Financial Officer (CFO), Andile Dyakala, appears to be taking a financial toll on both parties.
Dyakala is pleading with the court to hold off on the sale of his immovable goods attached in order to pay the municipality's legal fees incurred in the long-standing battle with the city.
Emfuleni Municipality suspended Dyakala last year following allegations of his role in the unlawful extension of contracts of employees in the political office. He also stands accused of financial misconduct: unauthorised, wasteful and fruitless expenditure on short-term insurance.
Since then, Dyakala and Emfuleni have been battling it out in court. After a back-and-forth with the municipality in court, Dyakala, in April last year, found himself in a tight spot when the case was struck off the roll because it lacked urgency.
Moreover, he was ordered to pay legal fees that the municipality incurred from the continuous legal fray.
“The applicant is to pay the application costs, including the costs on April 22, 2022, and April 29 2022, on the scale between attorney and client,” read the order.
In a letter dated May 26, 2022, Isaac Raphela, an attorney for the municipality, broke down the costs that Dyakala was liable to settle. The fees amounted to R508, 962, 09 per Labour Court case J454/2022.
The letter read: “I confirm further that I have perused and considered the attached bill of costs and find same to be in order and correct with reference to the work done, time and figures as reflected in the bill. I further confirm that the Attorney and Client Bill of Costs was drawn as follows: Total of Fees: R247 532.70. Total of Disbursements: R192 986.60.”
In September, Dyakala proposed a payment plan to the municipality. In his motion of notice application, he alleges that the municipality declined his proposal. With the assistance of his attorneys, Dyakala filed a motion of notice in October.
The urgent application filed by the former CFO sought to stop the sale in execution in respect of the warrant of execution issued by the Gauteng High Court, Johannesburg on October 5, 2022, which the sheriff was instructed to attach and take into execution.
"On September 16, 2022, my legal representatives made a payment proposal to the First Respondent's legal representatives to settle the amount in (6) six equal monthly instalments as per our client's financial capacity. On September 20, 2022, we received a letter from First Respondent's legal representatives rejecting the payment proposal. On October 5, 2022, the First Respondent's attorneys issued a warrant of execution out of this Honourable Court in respect of the court order of 29 April 2022,” read the application.
In his application, Dyakala cited Section 25(2) of the Constitution, which states that every individual has the right to proper shelter. Additionally, he said in his application that should the sale be executed, it would negatively impact his marriage.
"I will suffer irreparably should the Second Respondent execute the writ of execution dated October 5, 2022, in that I am a qualified accountant and the Chief Financial Officer of the First Respondent (Emfuleni Municipality). I am married in community of property, in which marriage still subsists. The arbitrary execution of the writ of execution will have a negative impact on my profession and marriage."
The application also stated that he was the breadwinner of his family and would not be able to provide shelter for his family if the sale of his immovable property was to be executed.
In their conclusion, Dyakala’s legal representative said he had no alternative but to seek relief in section 158 of the Labour Relations Act.
“I submit that the balance of convenience favours that the Application be granted, and should the Application not be granted, then I would suffer irreparable harm as my property will be attached, and I will not be able to recover the property back while I am not refusing to settle the judgement debt, but rather requesting to settle it within my criteria and means.”
In their founding affidavit, the municipality’s legal team said Dyakala and his legal representatives were not co-operative regarding the matter, thus they filed an application to compel.
Raphela said the application was to compel Dyakala and his legal team to assist in the reconstruction of the missing portion of the record by perusing, considering and commenting, if necessary, on the draft reconstructed record, which has been in their possession since of 6 March 2023.
“It will be noted that the draft consisted of a mere 12 pages, unlike the transcribed record that we received, that is in excess of 3 000 pages which they have not challenged so far, implying that they had perused it and were happy with it. In so far as may be necessary, request for an extension of the time for the filing of the complete record, which has been irregularly delayed by the Respondents.”
Raphela went on to state that his office had not received any notification from the Registrar of the Court that the third respondent in the matter, Zola Majavu, had filed the record.
“On October 13, 2022, the First Respondent and acting on behalf of the Second Respondent, filed an answering affidavit to the review application. On October 14, 2022, we wrote to the First Respondent advising them that the filing of the answering affidavit was premature since the Third Respondent had not yet filed the record. My office requested the First Respondent to withdraw the answering affidavit pending the filing of the record by the Third Respondent. The First Respondent withdrew the answering affidavit.”
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