Delinquency order against Dudu Myeni is upheld

Triple loss for Myeni: delinquency order enforced, no further evidence allowed and her attempt to appeal is dismissed

The Pretoria High Court has dismissed Dudu Myeni’s application for leave to appeal against her delinquency order and her application to allow further evidence. The court also granted the application by OUTA and the SAA Pilots' Association (SAAPA) for the immediate enforcement of the delinquency order against her, pending the finalisation of all appeal processes.

This is a triple loss for former SAA chair Myeni. Furthermore, she lost both of her applications with costs orders awarded against her. Her losses today follow after she lost the main judgment in May 2020, and before that lost three interlocutory applications and the two appeals against those losses.

"Once again, Dudu Myeni has lost in court, as she desperately seeks to undo the delinquent ruling against her. However, she has only herself to blame and needs to realise that her conduct whilst chairing the board at SAA was out of line and had a significant negative impact on the airline's performance," says Wayne Duvenage, OUTA CEO.

The order of immediate enforcement means that Myeni must immediately relinquish all directorships she holds. These are understood to still include directorships of the Mangaung metro’s electricity utility Centlec and the Jacob Zuma Foundation. OUTA will be bringing this matter to the attention of the boards of these organisations.

“SAAPA is elated at the judgment against Dudu Myeni, as people who wield power in South African SOEs and act in a careless and negligent manner with total disregard for people’s livelihood must be held accountable. Let this be a warning to those who continue to do so today,” says Grant Back, who chairs SAAPA.

“SAA was put into its dire financial state and ended up in business rescue today due largely 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 eight years and, while this will not bring back the thousands of jobs that have been lost, there is 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 delinquency judgment of May 2020

On 27 May 2020, the court declared Myeni to be a delinquent director for life, as a result of an application by OUTA and SAAPA. The application was based on her actions as chair of the SAA board from December 2012 to November 2017.

In June 2020, Myeni filed an application for leave to appeal in the Pretoria High Court. OUTA-SAAPA opposed this.

In July 2020, OUTA-SAAPA filed an application for the interim enforcement of the court’s delinquent director order against Myeni. This was to oppose the standard arrangement of suspending a judgment pending the finalisation of an appeal process.

Days before the combined matters were due to be heard in November, Myeni filed a last-minute interlocutory application to bring in new evidence. This was evidence given by former SAA director Yakhe Kwinana to the State Capture Commission. OUTA-SAAPA opposed this.

The latest judgment

Judge Ronel Tolmay's judgment of 22 December 2020 is reportable.

In the judgment, Judge Tolmay said that Myeni could have called Kwinana as a witness if she had wanted and that her evidence would anyway have had no bearing on the delinquency ruling. “The evidence is not weighty, material and even if believed, would not have had any impact on the outcome of the trial,” said the judge. Myeni’s lawyer, advocate Dali Mpofu, had asked the court to develop the common law to allow the admission of the evidence at this late stage, but the judge said this was not appropriate under these circumstances. “It is inconceivable that the court is called upon to develop the common law in such a manner that could ultimately frustrate the principle that litigation should be resolved and finality reached,” said Judge Tolmay.

On the application for leave to appeal, Judge Tolmay said that several of the grounds which Myeni relied on had been raised during the trial in interlocutory applications and dismissed, so could not be revisited. Myeni argued that no proper version had been put on her behalf by her counsel, which the judge agreed with, but said she had “warned against this failure on numerous occasions”. The judge found no merit in Myeni’s other grounds of argument.

“Ms Myeni questioned the imposition of a lifetime declaration of delinquency. The court exercised this discretion in the light of all the evidence which speaks for itself. It cannot be said that in the light of the evidence led, that pointed out the damage done to SAA, that this court did not exercise its discretion judicially. The evidence stands largely uncontested. As a result, an appeal court will not lightly substitute its own decision with that of the lower court,” said Judge Tolmay.

Advocate Mpofu had argued that there was a perception of bias by the judge against Myeni. However, the judge said that Myeni had been afforded numerous opportunities to file applications, and that the judge had warned that no proper version from Myeni was put to the witnesses, and that her continued absence would prejudice her. She also said that the use in her judgment of OUTA’s summary of the case was accurate and legally acceptable in the face of the lack of a transcript, and that Myeni’s heads of argument had not been much help in this regard.

“The court could only decide this matter on the evidence before it. Ms 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,” said Judge Tolmay, adding that there was “no reasonable possibility” that another court would come to a different conclusion.

The immediate enforcement of the delinquency order

OUTA-SAAPA argued exceptional circumstances justified immediate enforcement, and the judge agreed that public interest demands “swift and effective remedies when maladministration and mismanagement is brought to light”.

“I am of the view that the public will suffer irreparable harm if the court order is not implemented pending the completion of all the appeal processes,” said Judge Tolmay, noting that Advocate Mpofu had indicated that appeal procedures would continue.

The suspension of orders pending appeal processes is governed by the Superior Courts Act. The judge said that key sections of this met constitutional muster, but that the wording of one section was, in her view, “intemperate and shows a remarkable lack of insight in the judicial process by the legislature”.

Statement issued by Wayne Duvenage OUTA CEO, 22 December 2020