OUTA is back in court on Monday against Dudu Myeni
On Monday 8 February, OUTA will be back in court to challenge another attempt by Dudu Myeni to escape her lifetime delinquency order.
Before the court is Myeni’s application, filed on 21 January, for an “extreme urgent appeal” to the full bench of the Pretoria High Court against the interim enforcement order which was handed down against her on 22 December 2020. The interim enforcement order was granted to OUTA and the SAA Pilots' Association (SAAPA) by Judge Ronel Tolmay, resulting in the immediate enforcement of the lifetime delinquency order against Myeni pending the outcome of any appeal process. This order overturns the standard arrangement of a judgment being effectively suspended pending the outcome of an appeal process.
Also on 22 December, Judge Tolmay dismissed Myeni’s application for leave to appeal against the delinquency order itself which was handed down in May 2020. For more on this judgment, see here.
In Monday’s hearing, Myeni wants the interim enforcement order against her removed, pending the outcome of any appeal against the main order.
Myeni is arguing that she is no longer a director on the board of any state-owned entity (SOE), including the Mangaung electricity entity Centlec. Myeni says her term of office on the Centlec board ended in November 2020, so there is no public interest need for an enforcement order against her.
Myeni also argues that her source of income will be removed if she is removed from the boards of other companies while her main appeal is underway.
OUTA and SAAPA are opposing Myeni’s application.
“This is the first time that Ms Myeni has faced any genuine accountability for her actions at SAA. Ms Myeni did everything in her power to obstruct this outcome and engaged in repeated conduct throughout the trial which was ‘calculated to cause maximum delay and disruption’,” says Advocate Carol Steinberg in her heads of argument for OUTA-SAAPA.
“Ms Myeni is a failed litigant who seeks to further delay the operation of a binding order. She has not taken any proactive action to preserve her rights of appeal and has instead allowed these rights to lapse,” says Steinberg in the heads of argument. She says Myeni was still a director of at least three companies, including the Jacob Zuma Foundation, and would be able to take up positions on other boards unless the delinquency order is enforced, and that Myeni’s versions flip-flop according to what best suits her argument.
By close of business on Friday 5 February, Myeni’s team had still not filed heads of argument, which were due on 2 February.
Myeni is also trying to appeal the main delinquency judgment through the Supreme Court of Appeal (SCA).
Her lawyers missed the deadline for filing this application, so filed an application for condonation of late filing. Part of their explanation for late filing was that they had difficulty serving papers on SAA and AirChefs due to SAA’s suspension of business operations as employees are retrenched or no longer at work.
“The sanction of a lifetime ban imposed by court a quo is unprecedented in South Africa and unwarranted in the circumstances,” says Thomas Sibuyi, Myeni’s lawyer, in an affidavit.
OUTA-SAAPA believe that Myeni’s failure to file appeal petition with the SCA timeously will not help her.
“Ms Myeni’s prospects have gone from bad to worse. Her failure to file the petition on time means that she will face an uphill battle convincing the SCA to grant her leave to appeal her delinquency order,” says Advocate Stefanie Fick, the Executive Director of OUTA’s Accountability Division.
OUTA-SAAPA will oppose any appeal which is filed.
The court papers
Myeni’s notice of intention to appeal the interim enforcement order is here.
Myeni’s application to the Supreme Court of Appeal for condonation of her late application for leave to appeal is here.
More information on this case is available here.
A soundclip with comment from OUTA Legal Project Manager Faizel Davids is here.