Your excuses won’t fly, OUTA and SAAPA tell Dudu Myeni
It’s taken more than two years to get the application to declare Dudu Myeni a delinquent director into court, and now she’s trying to postpone it further.
The case to declare former South African Airways (SAA) chairperson Myeni a delinquent director is finally due to start in the Pretoria High Court on 7 October. The case is brought by the Organisation Undoing Tax Abuse (OUTA) and the SAA Pilots’ Association (SAAPA).
In March 2017, OUTA and SAAPA filed the application to declare Myeni a delinquent director, arising from her actions as SAA chairperson from December 2012 to October 2017. Such a declaration would block her from any positions as a director. SAA’s demise is largely attributed to the period under Myeni’s governance.
It has taken years for OUTA and SAAPA to secure the October court date, when the case will be heard and Myeni and other witnesses are expected to be cross examined. On 7 June this year, having engaged with Myeni’s lawyers for the past two years in preparation for this case, we received notification from Myeni’s attorneys of record – Edward Nathan Sonnenberg (ENS) – that they were no longer handling this matter. We believe they made the decision to drop her.
Following several weeks of trying to track down Myeni to establish who her new attorney of record is for this serious case, on 29 August 2019 we finally received correspondence from attorney Daniel Mantsha stating that his firm had been appointed as the attorney of record on this matter. Then on 2 September 2019, we received correspondence from Mantsha’s office indicating that they will not be ready to proceed with the trial.
“We find this typical ‘lawfare’ tactic of delaying court appearances unacceptable and believe that although Mantsha’s firm was appointed only last month, they have had sufficient time to prepare,” says Advocate Stefanie Fick, OUTA’s Chief Legal Officer. “It would be a travesty of justice if Dudu Myeni is able to delay this court appearance, all because she dragged her feet in appointing a new attorney for several weeks. If indeed this case is postponed, it will be another classic case of justice delayed being justice denied.”
“We have written to the Deputy Judge President of the Pretoria High Court to seek urgency in driving this matter to be heard in October during the allocated court dates. We cannot allow people to escape being held accountable,” says Fick.
Myeni was appointed to the board of SAA in 2009 and chaired it from December 2012. She was finally replaced in October 2017 amid calls for her removal led by OUTA and SAAPA.
In 2016 OUTA exposed and stopped a deal to the value of R256 million between SAA and BnP Capital, which was irregularly appointed to source debt funding of R15 billion on behalf of the embattled airline. Through OUTA’s intervention, a cancellation fee of R49.9 million awarded to BnP for the same transaction was also stopped. OUTA at the time also called for the SAA board’s resignation, as it transpired that the correct procurement procedures for BnP’s appointment weren't followed.
On the back of whistleblower evidence, OUTA conducted further investigations and, in March 2017, the court application to have Myeni declared a delinquent director was filed. This application outlined six key allegations that form the basis of the legal case against Myeni.
It includes allegations that Myeni has breached the Companies Act‚ the Public Finance Management Act and the Supply Chain Management Policy of SAA. It says that Myeni has been seriously remiss in her fiduciary duties and responsibilities as the chairperson and, as such‚ has caused the airline significant harm.
During Myeni’s tenure as Chairperson‚ SAA lost an estimated R10.5bn over a period of five years‚ despite that fact that SAA was profitable between 2010 and 2012.
The recent testimonies of whistleblower Cynthia Stimpel and former SAA CFO Phumeza Nhantsi at the State Capture Commission not only corroborate but strengthen OUTA’s case against Myeni.
In August 2018, OUTA and SAAPA scored a significant victory in our delinquent director case, when former BnP Capital director Daniel Mahlangu agreed to comply with a subpoena and hand over some documentation relevant to the case.
In June 2017, the Companies Tribunal backed a compliance notice which Myeni had opposed, which ordered her to notify formally the SAA board and Minister of Finance that the CIPC had concluded that she had “acted in a manner materially inconsistent with the duties of a director”. This action further strengthens the OUTA and SAAPA case against her.