Case postponed, but no way out for Dudu Myeni

The trial will now start on 21 October and sit for two weeks, then the court will sit again from 25 November to 6 December.

While the Organisation Undoing Tax Abuse (OUTA) and the SAA Pilots’ Association, who jointly brought the case against Myeni, had initially opposed the postponement on the grounds that Myeni should have been ready as she’d known about the court date for 18 months, we agreed to it after Judge Ronel Tolmay set conditions which would block further attempts at delays.

“We are satisfied with the outcome. If we opposed the postponement, there was a danger that if successful then Dudu may have seized an opportunity to appeal that court decision, giving potential for another case-within-a case and further delays,” said Wayne Duvenage, OUTA’s CEO.

“We are happy with the conditions imposed by this outcome. The judge has made it clear that the court will not tolerate unnecessary delays.”

The postponement is only 11 days while Myeni’s lawyers had asked for three months. The Judge President agreed to rearrange the court timetable so that Judge Tolmay would be available for the new court dates.

Judge Tolmay extracted a commitment from Myeni’s legal team that they would not withdraw – Myeni’s changes in lawyers was used to motivate this postponement – as they are acting pro bono and that Myeni may not fire them. The judge also made it clear that the case will continue on 21 October whether Myeni is part of it or not. The case is a civil matter, not a criminal trial, so the matter may proceed without her.

The trial was due to start on Monday but was hampered by Myeni’s failure to turn up and her initial failure to arrange formal legal representation.

On Monday, lawyer Dan Mantsha asked for a postponement on her behalf but said he wasn’t formally representing her. On Tuesday he confirmed that he was acting for Myeni and arranged time to file a formal request for a postponement.

Mantsha filed the postponement papers at 8.20pm on Wednesday night, more than three hours after the judge’s deadline. This included an affidavit from Myeni.

Our legal team compiled an argument against the postponement based on that document, but this was not used in Thursday’s hearing as Myeni’s team changed their argument in the courtroom.

Myeni’s affidavit says the postponement was also needed due to her “financial constraints” and “to allow me to resolve the funding of the legal cost of this matter with the insurance which had covered liabilities of second Plaintiff’s [SAA’s] directors arising inter alia from the work they undertook as directors”. She said she couldn’t get to court herself as she was unemployed, received no income from any of the entities she was linked to, and “had no means to come from Richards Bay to Pretoria. I was fortunate that my attorney and counsel agreed to come to represent me in this application without any undertaking of payment on my part”.

OUTA and SAAPA’s lawyers were ready to challenge the validity of Myeni’s claims of financial difficulties.

In court, Myeni’s legal team abandoned the financial constraints argument and instead said they needed the postponement solely so they would have time to prepare a defence as they were newly appointed. Myeni has changed her legal team twice in the last six months.

The application to declare Myeni a delinquent director was filed in March 2017 by OUTA and the SAA Pilots’ Association. The defendants are Myeni, SAA, Air Chefs (SAA’s subsidiary) and the Minister of Finance (who was responsible for SAA when the application was filed). Only Myeni is defending it.

OUTA and SAAPA are represented by advocates Carol Steinberg, Chris McConnachie and Nada Kakaza, instructed by Rashaad Pandor Attorneys.

Myeni was represented on Thursday by advocates Nqabayethu Buthelezi and Nolwazi Jili, instructed by Lugisani Mantsha Attorneys.