Lawyers for SAA board chair, Dudu Myeni – who is facing an attempt by the Organisation Undoing Tax Abuse and the SAA Pilots' Association to have her declared a delinquent director in court – want other directors and executives added to the case as well.
This emerged in the High Court in Pretoria on Monday, where Myeni's advocate, Nqabayethu Buthelezi, submitted that the rest of the non-executive directors of the state-owned airline should be included.
In a statement issued on Monday afternoon, OUTA argued that in its view, any changes to Myeni’s pleadings should have occurred months ago. "The intended changes are partly to deny her personal involvement in wrongdoing and partly to shift responsibility for some matters to the SAA executive management," it said.
The case, lodged in 2017, has suffered several delays, mainly due to Myeni's inability to secure legal representation.
Buthelezi submitted that the papers before the court often refer to "the board" but their names are not listed together with Myeni's as defendants.
He said he plans to bring an application to have all non-executive directors who served on the SAA board under Myeni to be listed as defendants on the matter, as they also played a role in decisions taken by the airline.
'Why single her out?'
"If this court decides that the first defendant [Myeni] is a delinquent director, then the board members that passed those decisions with her must also be declared delinquent directors as well," said Buthelezi.
"Not only them - we are bringing a second application to bring in the executive directors who made recommendations to the board to pass those decisions ... they, too, should be declared delinquent directors.
"Why should we single out the chairperson who presided over a board with more than 10 people at [the] time?" he asked.
Hold them to account
He said he fails to understand why the rest of the board members and executive directors should not be held to account for their role in decision-making.
Myeni, dumped by two lawyers who had previously taken on the case, has not been in court since the hearing began on October 7, with her absence continuing on Monday.
The court earlier heard that she was out of pocket and could not afford legal fees. Judge Ronel Tolmay has indicated that the case will go ahead, with or without her presence.
Myeni headed the board of the loss-making national carrier from December 2012 to October 2017. OUTA says the airline recorded losses up R16.844bn over that period.
Although Myeni has pleaded poverty, OUTA says she is currently listed as a director of 13 entities, including Centlec SOC, which is a Mangaung municipality electricity utility.
A declaration of delinquency would see her no longer able to act as a company director. Other defendants currently listed with Myeni are Air Chefs, the Minister of Finance and SAA.
OUTA legal representative, Advocate Carol Steinberg, told the court at the first sitting of the case that some of the witnesses that were intended to be called were no longer based in the country. Steinberg raised a possibility of these witnesses testifying off site. Judge Tolmay indicated that such arrangements were not readily available and indicated she would find out from the office of the chief justice if such a request could be accommodated.
The case will resume on November 25.