A Mpumalanga municipality has failed in its attempt to freeze the pension benefits of its former chief financial officer (CFO) after it accused him of being responsible for millions of rands in irregular and wasteful expenditure.

Emfuleni Local Municipality chief operations officer (COO) Mothiba Mogofe was the CFO of the Steve Tshwete Local Municipality in Middelburg, Mpumalanga until last year.

After Mogofe left, the Steve Tshwete Local Municipality launched a Mpumalanga High Court, Middelburg application against him and the National Fund for Municipal Workers (NFMW) to have his pension benefits withheld based on the provisions of the Municipal Finance Management Act (MFMA).

According to the municipality, the MFMA provides that any political office bearer or official of a municipality, including Mogofe, who deliberately or negligently commits, causes the municipality to incur unauthorised and irregular expenditure is personally liable for that expenditure.

It accused Mogofe of misleading its council to authorise an illegal transaction through his report and motivation for a R20 million deal and that he misrepresented the cooperation agreement in its annual financial statements and contravened the MFMA.

In addition, the municipality claimed it incurred administrative costs of R1m as a result of the agreement the moment the R20m was paid into the bank account of another entity it had partnered with. The municipality stated that Mogofe also failed to disclose that the R1m administrative fee was at its expense.

Another reason it stated for attempting have his pension withheld was that he approved a payment of over R6.2m to a security company not supported by a service level agreement or deviation and without any supporting documents.

Mogofe was served with a charge sheet in February last year for the procurement and payments and the administrative fee but he resigned the following month.

He is still an NFMW member and the fund told the court that it is not allowed to make a deduction and payment to an employer where the member’s membership of a fund was not terminated as prescribed by its rules of that fund.

In court, Mogofe vehemently denied any wrongdoing on his part in particular the alleged dishonesty and misconduct in misleading the council and the allegation of his failure to avoid irregular and wasteful expenditure.

Last Wednesday, Judge Moira Mankge found that the investigation on which the charges against Mogofe were based found that some other officials, other than him, were responsible for the appointment of the security company, the approval of the agreement and the deviation.

She found that it was also clear in the report that the payments of the firm’s invoices was after approval by two other officials with Mogofe, which mean it was not his sole decision.

“I have found that the fraud, theft and the element of dishonesty is lacking,” stated Judge Mankge.

She said in the municipality’s investigation, there are no allegations of fraud or theft, which are sustainable against Mogofe, which is supported by its failure to open criminal charges against him.

“The best that can be said is that the applicant (the municipality) seeks to have this court draw inferences where there are no facts upon which a reasonable inference about fraud, theft, misappropriation of funds and dishonesty by the first respondent (Mogofe) could be made,” reads the judgment. Judge Mankge dismissed the municipality’s application with costs.

Steve Tshwete mayor Mhlonishwa Masilela claimed he was not aware about the ruling and referred inquiries to municipal manager Mandla Mnguni, who did not respond to questions.

Mogofe said the entire saga was a personal vendetta against him as he was the custodian of supply chain management at the municipality and he refused to append his signature to contracts that were suspect.

loyiso.sidimba@inl.co.za

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