OUTA asks court to order Dudu Myeni's immediate removal
The Organisation Undoing Tax Abuse (OUTA) is bringing an application for the interim enforcement of the delinquent director order against Dudu Myeni.
This is to ensure that the delinquency order comes into effect and is not suspended by any appeal brought by Myeni.
“This is one of those exceptional cases that justifies enforcement. The damage that Ms Myeni did to SAA and the South African economy is far too great to risk again. Her delinquency should operate immediately,” said Advocate Stefanie Fick, Director of OUTA’s Accountability Division, in her founding affidavit supporting the application.
On 27 May, the Pretoria High Court declared Myeni to be a delinquent director for life, arising from her conduct as the chair of the SAA board. This is a result of the case brought against Myeni by OUTA and the SAA Pilots’ Association (SAAPA).
The declaration of delinquency blocks her from being a director and requires her removal from any directorships. At the time of the order, she was still a director of four entities, including the Mangaung metro’s Centlec electricity utility and the Jacob Zuma Foundation. She appears to still hold these positions despite the court order.
On 18 June, Myeni filed an application in the Pretoria High Court for leave to appeal against this judgment. OUTA-SAAPA are opposing this.
On 9 July, OUTA-SAAPA filed an application in the Pretoria High Court for interim enforcement of the delinquency order. Myeni is opposing this. OUTA-SAAPA hope this application will be heard simultaneously with Myeni’s application for leave to appeal.
The OUTA-SAAPA application asks that the order of delinquency is not suspended by any application for leave to appeal or any appeal but will operate until the final determination of all appeals.
Alternatively, the OUTA-SAAPA application calls for section 18 of the Superior Courts Act to be declared unconstitutional and invalid. Section 18 of the Act does not give the courts any discretion in enforcing a decision pending an appeal. “Section 18 comes with no safety valve. On the text of the section, if a court finds that a respondent will suffer any irreparable harm – no matter how minor – judicial discretion is removed, and the provisions of the section are rendered immutable. There is no room for proportionality balancing,” said OUTA-SAAPA in the court papers, adding that the courts should have the discretion to decide whether to enforce a decision pending an appeal.
A delinquency order is to protect the public, so suspending it defeats the protective purpose.
Although OUTA sent the delinquency judgment to Centlec, it has not removed Myeni and she remains the deputy chair of its board. The Centlec board told OUTA it will meet to make a decision on this.
“The evidence led at trial, which was, by and large, uncontested, shows the damage that Ms Myeni did to SAA and the knock-on effects for the South African economy. SAA never recovered. It is now on corporate life support in business rescue, with a looming threat of liquidation,” said Fick in her affidavit, calling Myeni a “public enemy”.
“The investing public, taxpayers, and ordinary citizens need reassurance that ‘rogue’ and ‘reckless’ directors do not get away with it. There will be no reassurance if Ms Myeni is allowed to keep her cushy directorships for the years of appeals that lie ahead despite the damage she did at SAA and to the country,” said Fick.
She said the court could not allow Myeni to similarly damage another state-owned or private company.
The high court judgment which declared Myeni a delinquent director is here.
Myeni’s application for leave to appeal is here.
Outa’s notice of opposition to the application for leave to appeal is here.
Myeni's notice of intention to oppose is here.