UPDATE: Myeni will take delinquent director case to Supreme Court of Appeal, say lawyers

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In the original judgment the court found that Myeni failed to meaningfully dispute the evidence against he.i (Photo by Gallo Images / Rapport / Deon Raath)
In the original judgment the court found that Myeni failed to meaningfully dispute the evidence against he.i (Photo by Gallo Images / Rapport / Deon Raath)
  • In May this year the court declared Myeni a delinquent director for life in terms of the Companies Act.
  • The application was brought by the Organisation Undoing Tax Abuse and the SAA Pilots' Association.
  • The court has now dismissed Myeni's applications for leave to appeal against the delinquency order.

Former South African Airways chair Dudu Myeni intends to apply to the Supreme Court of Appeal for leave to appeal after being dealt a triple blow by the High Court in Pretoria on Tuesday in applications relating to the case in which she was found to be a delinquent director.

In a letter seen by Fin24, Myeni's legal team, Mabuza Attorneys, say they will make "all the necessary arrangements" for an urgent hearing as soon as their offices reopen in the new year. According to the letter, Myeni will ask the Supreme Court of Appeal for leave to appeal against Tuesday's judgment and order, and will do so within the legally prescribed time frame. 

One of the orders given in the ruling by Judge Ronel Tolmay is that Myeni must immediately relinquish all directorships she holds.

In May this year the same court declared Myeni a delinquent director for life in terms of the Companies Act. Myeni was appointed as non-executive director of SAA in September 2009, became acting chair in December 2012 and chair from September 2016 until 2017. She can, however, apply in three years from the date of the order to have the declaration of delinquency suspended if she can demonstrate she has "sufficiently remedied and rehabilitated her misconduct".

The application was brought by the Organisation Undoing Tax Abuse (OUTA) and the SAA Pilots' Association (SAAPA). The court found, among other things, that Myeni caused the demise of a lucrative deal SAA was negotiating with Emirates and meddled in dealings the airline was having with Airbus. Myeni indicated she earned over R4.3 million in director's remuneration during her time at SAA.

On Tuesday the court dismissed Myeni's application for leave to appeal against the delinquency order and her application to allow further evidence in the case. The court also granted OUTA's application for the immediate enforcement of the delinquency order against her, pending the finalisation of all appeal processes still available to her.

According to OUTA, it is understood that directorships still being held by Myeni include at the Mangaung metro's electricity utility Centlec and at the Jacob Zuma Foundation.

OUTA CEO Wayne Duvenage says the latest blow will be another three losses for Myeni, on top of four other judgments against her in the interlocutory matters and main case ruled on earlier this year. Furthermore, she lost her applications with costs orders against her.

Herself to blame

"She only has herself to blame and needs to come to realisation that her conduct whist chairing the board at SAA was out of line and gave rise to a significant negative impact on the airline's performance," says Duvenage.

Captain Grant Back, chair of SAAPA says the latest judgment shows that people who wield power in South African SOE's must be held accountable.

"SAA was put into its dire financial state and ended up in business rescue due to the delinquent actions of Ms Myeni and other government deployees. SAA's employees have suffered tremendous hardship as a result of the failures in governance, gross incompetence and corruption that took place over the last 8 years," said Back.

"While this will not bring back the thousands of jobs that have been lost, it will hopefully provide some comfort that Ms Myeni has been held to account by the courts thanks to the actions and perseverance of OUTA, SAAPA and their members. The pilots stood up for what was right, while the Department of Public Enterprises 'looked on'. That selfsame DPE now seeks to blame the pilots for the airline's problems."

Myeni wanted to obtain permission to introduce evidence given by former SAA board member Yakhe Kwinana at the Zondo Commission of Inquiry into state capture. Myeni claims if it were not for Kwinana having met with OUTA beforehand, she (Kwinana) would have been joined by OUTA in its case against Myeni too. At the commission, Kwinana denied OUTA claims she made to them about Myeni and her son's dealings. Myeni alleged that her own trial might have had a different outcome if Kwinana's evidence was heard. She claims OUTA's conduct was unlawful. OUTA denies having struck a deal with Kwinana.

In the latest judgment, Judge Ronel Tolmay says she accepts that the relevant evidence only became available on 7 November this year, but Myeni could have called Kwinana as a witness during the trial as she made mention of her (Kwinana's) role during her evidence. Yet Kwinana was not called to testify.

"There exist no special circumstances why the evidence should be allowed. It does not have any bearing on the question of whether Myeni should have been declared a delinquent director or not," the judge ruled. "The evidence is not weighty, material and even if believed, would not have had any impact on the outcome of the trial."

In the latest judgment, Tolmay pointed out that "it is trite that litigation should be resolved and that parties are entitled to finality" and that Myeni still has all the remedies of the appeal process available to her. The judge further found that, "apart from the attack on the court, no single example was given [by Myeni] of any error either in law or of any factual mistake based on the transcript". 

The judgment states that Myeni made a conscious decision to present her case the way she did and decided not to be present for most of the trial.

"It is unfathomable how bias, real or perceived, can be raised as a ground for appeal, if one considers the evidence in this matter," states the judge. "There is no reasonable possibility that another court would come to another conclusion on the evidence led at this trial and that a court of appeal would come to a different conclusion, nor is there any compelling reason why leave to appeal should be granted."

Immediate implementation

In granting OUTA's application that the delinquency order against Myeni must be put in effect immediately, the judge found that the evidence led pointed towards Myeni's disregard to follow the basic principles of corporate governance and her total disregard for the impact her actions had on SAA and the broader economy.

In the original judgment, the court found that Myeni failed to meaningfully dispute the evidence against her and that she was an unreliable witness. Therefore, in the latest judgment, the judge agreed with OUTA that public interest demands that there be swift and effective remedies when maladministration and mismanagement are brought to light.

"Myeni at this stage remains a director of Centlec, an SOE, which is therefore subject to the same statutory obligations as SAA. Myeni has illustrated her inability to comply with these obligations and as a result irreparable harm to yet another SOE could result if she should be allowed to continue her position as director until all appeal procedures have been exhausted," states the latest judgment.

Myeni argued there had not been any complaints about her actions at Centlec but Tolmay has ruled that this is not the point, because she proved herself to be unfit to act as a director. The judge is of the view that the public will suffer irreparable harm if the court order declaring Myeni as a delinquent director is not implemented pending the completion of all the appeal processes remaining at her disposal. 

Myeni's legal counsel has indicated she intends to continue her appeal efforts further. However, the judge found her prospects of success on appeal are weak and this contributes to the conclusion that implementing the delinquency order should not be suspended.

* This article was updated to include comment by SAAPA. 

** Additional reporting by Marelise van der Merwe.

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