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Former SAA board chairman Dudu Myeni. (Photo: Gallo Images / City Press / Muntu Vilakazi)
Myeni will have to step down from all her senior positions, including her position as president of the Jacob G Zuma Foundation and her position as vice president of the Free State electricity distribution company Centlec.
A higher court judge today issued a ruling dismissing former SAA president Dudu Myeni’s appeal against the judge’s May 27 statement that made Myeni a delinquent director for life.
Read the statement here.
Judge Ronel Tolmay wrote in her May ruling that Myeni was dishonest, grossly abused her power, was negligent, reckless, and that her actions inflicted substantial harm on SAA.
“She was a director who had gone rogue,” Tolmay wrote.
In today’s ruling, Tolmay also confirmed the execution order presented by the Organization to Undo Fiscal Abuse (Outa) and the SAA Pilots Association (Saapa).
Myeni must leave his management positions
As a result, Myeni will have to step down from all her senior positions, including her position as president of the Jacob G Zuma Foundation and her position as vice president of the Free State electricity distribution company Centlec.
“The order granted will be enforceable immediately, pending the completion of all appeals processes,” Tolmay added.
He agreed with Outa that the court would better serve the public interest by ordering quick and effective solutions when mismanagement and mismanagement came to light.
Myeni questioned the judge’s imposition of a lifetime crime declaration.
The court issued its ruling because of all the evidence that came to light at the trial, Tolmay said.
“An appeals court will not lightly substitute its own decision for that of the lower court,” he added.
Myeni alleged bias on behalf of Tolmay
Myeni alleged bias in Tolmay’s favor, as the May 27 ruling was a “carbon copy” of Outa’s arguments.
“A reading of the transcript and the trial will remove any fear of bias,” Tolmay added.
The trial lasted five weeks and the full transcript was not available at the end of the court process, he said.
Labor pressure does not allow a judge to wait for the transcript before drafting the sentence, Tolmay added.
“In such circumstances, a judge must rely on his handwritten notes and arguments,” he said in his ruling issued today.
A party can only criticize a court when it did not consider the law and relied on an incorrect summary of the legal framework or facts, Tolmay said.
Myeni attacked the court in his appeal request, but did not provide a single example of where the judge made a mistake in law or fact, he added.
There are no grounds for accusations of bias
Tolmay said it was “unfathomable” that Myeni could generate biases, either real or perceived, as a basis for an appeal, given the evidence in court.
“There is no reasonable possibility that another court will reach another conclusion on the evidence presented in this trial and that an appellate court will reach a different conclusion,” the judge wrote.
There was no compelling reason for the court to grant Myeni permission to appeal, Tolmay said.
However, Myeni’s legal representatives indicated during a court hearing in November that he was seeking a three- to four-year fight to overturn the delinquent director’s statement.
Attorney Dali Mpofu told Tolmay on November 20, during a court hearing at the North Gauteng High Court in Pretoria, that his client was willing to take the matter of the May 27 ruling to the Constitutional Court.
“Whether it’s them or us, the case is not going to end here,” Mpofu told the judge.
As a result, Myeni is likely to ask the Supreme Court of Appeals to appeal Tolmay’s May 27 ruling following Tolmay’s rejection of his permission to appeal the request.
Defenders Nqabayethu Buthelezi and Nosisa Kekana assisted Mpofu.
Myeni’s request to submit new evidence is dismissed
Tolmay also dismissed Myeni’s request to present new evidence, with costs.
In November, Myeni asked Tolmay to submit additional evidence from the Judicial Investigation Commission on the allegations of state capture chaired by Judge Raymond Zondo.
The additional evidence was “extremely relevant” to the case at hand, and it was in the interests of justice that Tolmay allowed the presentation of evidence, Myeni said in November.
The evidence Myeni tried to present in his appeal related to the testimony of former SAA non-executive director Yakhe Kwinana at the Zondo commission on November 7.
Tolmay said in his ruling that he accepted that Kwinana’s evidence was only available on November 7. However, he pointed out that Myeni could have called Kwinana as a witness during the trial, as he mentioned Kwinana’s role during his trial, and Myeni gave no explanation as to why he did not call Kwinana as a witness.
There are no special circumstances for the judge to allow the inclusion of new evidence.
Myeni did not provide special circumstances why the court should admit the new evidence, the judge added.
Kwinana’s evidence did not influence whether Myeni was a delinquent director or not, Tolmay said.
“The evidence from Ms. Kwinana probably would not have changed the outcome of the matter,” the judge added.
Tolmay said Myeni’s request to present the new evidence was “ill-advised.”
Myeni remains a director of five companies
She continues to be a director of five companies: Maydeo Nineteen, Hope Fountain Investments 54, the Jacob G Zuma Foundation, Orestitrix and Centlec, according to the Business and Intellectual Property Commission.
Centlec is a state-owned company that distributes electricity to 177,000 customers in Mangaung, Kopanong, Mantsopa and Mohokare municipalities in the Free State.
Myeni joined Centlec’s board in 2016 and earned a salary in fiscal 2018 of approximately R274,000.
Indications of mismanagement at Centlec
Attorney Chris McConnachie, from Outa and Saapa, during the November court hearing highlighted that although Myeni was a director of Centlec, there were indications that her management coincided with Centlec’s mismanagement.
During the last four financial years, the Auditor General found that Centlec had incurred an irregular and wasteful R231 million, he noted.
In Centlec’s financial year 2017/18, the Auditor General issued a disclaimer audit opinion after finding limitations in reviewing the company’s financial records, McConnachie said.
But Myeni said that although she had been a director of Centlec, she had performed well and had received unqualified audit reports for the past four years.
Tolmay wrote in today’s ruling that Centlec’s success or not should not be the criteria for deciding the sustainability of Myeni to act as director.
The public will suffer damages for failure to comply with the order.
“I am of the opinion that the public will suffer irreparable harm if the court order is not implemented, pending the completion of the appeals processes,” the judge wrote.
Myeni had argued that he would suffer “potential harm” if the court enforced the May 27 ruling, as he would lose his Centlec earnings.
“The temporary loss of income of a public institution does not constitute irreparable damage,” said Tolmay.
Outa demonstrated exceptional circumstances of irreparable harm to the public if Myeni remained director and that Myeni would not suffer irreparable harm if the court enforced the May 27 ruling, he added.
“A consideration of the ruling and the evidence reinforces the conclusion that Ms. Myeni’s prospects for success on appeal are weak,” Tolmay said. DM
