Dudu tries another delay
Former SAA chair Dudu Myeni is trying again to block OUTA from bringing legal action against her.
In what we regard as an expected and obvious move, Myeni’s lawyers have filed papers asking for leave to appeal the December ruling that OUTA has the legal right (the locus standi) to apply to have her declared as a delinquent director.
The long-overdue court action against Myeni is set down for Monday 27 January in the Pretoria High Court. This case has already been delayed by three interlocutory challenges brought by Myeni’s team, all of which she has lost
“We believe these weak attempts have been deliberate moves to delay the real hearings into her delinquent director conduct,” says Advocate Stefanie Fick, OUTA’s Chief Legal Officer.
“This Stalingrad strategy is a common approach deployed by Jacob Zuma and many of his cronies who are facing various charges and inquiries into their role in state capture. One of OUTA’s strengths is our resilience and long-game strategy, no matter how long it takes to see accountability prevail.
“We trust the courts will deal with this minor distraction in a manner that does not allow justice to be delayed unnecessarily as this matter will proceed whether OUTA is there or not. Dudu is apparently forgetting the fact that SAAPA is also a party in this matter.”
The case is brought by OUTA and the SAA Pilots’ Association (SAAPA). It is a civil application to declare Myeni a delinquent director in terms of the Companies Act, based on her actions while chairing the SAA board, which would bar her from a position as a director in any entity. The application was filed in March 2017 but Myeni largely ignored it until the court hearing started in October 2019.
Myeni’s three interlocutory challenges were: to change her original plea to deny wrongdoing; to share the blame by joining other SAA directors to the case; and to challenge OUTA’s legal standing to bring the case.
The legal standing challenge is against OUTA only, not against SAAPA.
Myeni’s application for leave to appeal this ruling says that Judge Tolmay “misdirected herself” by hearing the other two interlocutory challenges first – OUTA and SAAPA won these – as those wins effectively granted OUTA legal standing.
Myeni’s application also claims that the judge misdirected herself by interpreting section 162 of the Companies Act to give OUTA legal standing. This section says that an application for an order of delinquency may be brought by “a company, a shareholder, director, company secretary or prescribed officer of a company, a registered trade union that represents employees of the company or another representative of the employees of a company”. However, section 157 gives a litigant extended standing to apply for remedies and reads as follows: “When, in terms of this Act, an application can be made to, or a matter can be brought before, a court, … the right to make the application or bring the matter may be exercised by a person... acting in the public interest, with leave of the court".
The court agreed that OUTA represents the public, as SAA is a wholly government-owned entity. It goes without saying that the public has a right to complain if a SOE misspent taxpayers’ money.
We believe the application for leave to appeal will be unsuccessful as the application has no merit and we believe that Myeni will not get away with yet another delaying tactic.
Time to face the music Dudu!