A former Enoch Mgijima municipal manager convicted of contravening the Municipal Finance Management Act (MFMA) by inflating a contract has been granted leave to appeal against both her conviction and sentence.
Magistrate Sadia Jacobs of the East London specialised commercial crimes court, who sentenced Nokuthula Zondani in June, granted the application.
Zondani was convicted of contravening the MFMA and failing to prevent unauthorised, irregular and wasteful expenditure.
A date for the high court hearing is yet to be set.
Her attorney, Mxolisi Tsika, said on Monday: “We have been instructed to pursue the appeal to the high court as a matter of urgency.
“We ceased with the appeal procedures, hoping to have a date early next year.”
Tsika said Zondani regarded the conviction and sentence as unjust because National Treasury Circular 63 of 2013 authorised accounting officers to vary existing contracts provided the envisaged variation did not exceed a threshold of 20% of the original contract price.
“In this case it did not exceed. She is adamant that she acted consistently within both the Enoch Mgijima SCM [supply chain management] policy and the law.
”Furthermore, even if she could not have acted consistently with the policy and the law, irregular spending is usually condoned.
“Our client realised that there were exceptional circumstances warranting a deviation and work was done.
“The state conceded and confirmed that the work was done. In the circumstances, our client strongly believe that another court would have a different finding,” Tsika said.
However, regional spokesperson Luxolo Tyali said the NPA would oppose the appeal.
According to the state, during her three-year tenure as municipal manager, Zondani in 2019 awarded a service provider a contract to hire yellow plant and machinery at about R1.2m a month for 36 months.
After the first payment in November 2019, Zondani allegedly called a meeting with municipal officials suggesting an increase in the company’s scope of work.
The municipality’s finance department, supply chain and council were to be consulted, but payments exceeding R7.1m were made over four months without consultation or approval.
The monthly tender amount was reportedly doubled immediately after the meeting, from R1.2m to R2.4m a month, with effect from December 2019 for the duration of the contract.
The matter was reported to the Hawks, and Zondani was arrested on August 23 2023.
In her application for leave to appeal, Zondani argued through her attorney that the court erred in accepting the state’s evidence, which “did not prove the elements of the offence which the appellant was charged for”.
“The court found that the evidence presented on behalf of the accused does not speak to the conduct of the accused.
“The appellant disagrees because the court does not provide reasons and neither explains why it found the way it did and the appellant is of the view that another court would find differently.
“The court found further that the version of the accused as it was put to the witnesses does not constitute evidence presented by the accused and thus leaves a void. The appellant regards this as vague.
“The appellant is of the view that another court would find the evidence presented was incredible and unreliable as there is no justification and reasons provided which made the court to be satisfied with the evidence.
“The court found that the actions of the accused amounted to irregular spending, the MFMA provides and defines irregular expenditure and not irregular spending but the learned magistrate found that there was irregular spending and did not define or provide the basis and the authority for the terminology used.
“The appellant was authorised by Circular 62 to vary and amend the contract, the variation calculated in terms of the formula as provided did not go beyond the threshold and therefore did not have to consult the council.
“It is for these reasons submitted that this appeal has prospects of success and that should be considered by a higher court which may come to a different conclusion to that of the trial court,” Tsika argued.
The state called four witnesses during the trial, including municipal officials.
Prosecutor Siphamandla Ngxokolo said that while the work was done, Zondani had not followed proper MFMA procedures.
“The municipality ended up paying double the amount. If there’s a deviation of 20% and above, the council must be approached for approval.
“The speaker of the council was called and testified that they were never informed about the contract, that the council was never consulted when the contract was amended.
“The contract was just deviated from a meeting situation,” Ngxokolo said.
Daily Dispatch
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.