The Johannesburg High Court has reserved judgement on the Old Mutual appeal case for 2020. However, lawyers of axed CEO Peter Moyo say it’s already a forgone conclusion that it is an "unwinnable" battle.
Representing Moyo, Advocate Dali Mpofu said Old Mutual failed to convince the appeal court why it should interfere with Judge Brian Mashile’s July ruling that the insurer must reinstate Moyo. Old Mutual is appealing that July order in front of a full bench of three judges.
The insurer changed gears on Thursday and told the court that Moyo was afforded some form of hearing. Judge Mashile’s July order that Moyo should be reinstated was based on the argument that insurer did not afford him a disciplinary hearing.
During his closing remarks on Thursday, Advocate Gilbert Marcus, representing the Old Mutual board, said Moyo was afforded a hearing before his contract was terminated.
"It is not that Mr Moyo was afforded no hearing at all; the complaint goes to the form of the hearing. He contends it had to be in a disciplinary hearing," said Marcus.
Old Mutual spokesperson, Tabby Tsengiwe, said when the board started engaging Moyo about the dividend payment at NMT, he was given numerous chances to state his side of the story. Old Mutual's court papers detail that the board held several engagements with Moyo from March until the day before he was suspended on May 23.
However, no engagement took place between that suspension and Moyo's eventual sacking on June 18. Tsengiwe said that as Old Mutual has consistently argued in court, it was not required to have any other form of hearing at that stage because Moyo was fired on notice.
Marcus said while he raised the occurrence of those engagements with the board, Old Mutual maintained that it did not have to give Moyo any hearing, given the notice clause under which he was fired.
Moyo, however, said not at any point was he made aware that his engagements with the board amounted to some form of hearing. He said the company only told him that it wanted to understand certain things about NMT and throughout those engagements with the board, he never had to answer any questions about his personal conduct.
"They spoke to me because they needed information from NMT. They came back and said they were not happy with some of the information they received and then asked questions. Even on the last day, at the board meeting when I walked in, Paul Baloyi said, 'Speak to us as colleagues'. At no point did I believe I was actually having a hearing."
Judge Mashile said Moyo was supposed to be afforded a hearing or arbitration since the insurer had publicly accused him of conflict of interest and gross misconduct.
Old Mutual, however, cited breakdown in trust and confidence when it handed him the dismissal letter. The conflict of interest and gross misconduct related to Moyo’s handling of payment dividends at NMT. NMT, the private equity boutique that Moyo co-founded, declared two sets of ordinary dividends in 2018 before paying Old Mutual’s preferential dividends or preferential capital that was due for repayment.