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Former SAA President Dudu Myeni. (Photo: Gallo Images / Rapport / Deon Raath)
Dudu Myeni has retracted his ‘unnecessary attack’ on Judge Ronel Tomlay and seeks to present evidence from the Zondo commission in an appeal offer as he tries to fight the statement of the delinquent director.
The former SAA president’s lawyer, Dudu Myeni, has vowed to remove a sentence from her court documents, as they admit it was an “unnecessary attack” on the presiding judge.
The sentence in question reads: “Under the circumstances, this is a classic case of judicial plagiarism.”
Myeni’s attorney, Eric Mabuza, wrote a letter dated November 10 to Pandor Attorneys, representing the Organization Undoing Fiscal Abuse (Outa) and the SAA Pilots Association (Saapa).
These two parties launched legal action against Myeni which resulted in Judge Ronel Tolmay declaring her a delinquent director on May 27.
Outa and the SAA Pilots Association (Saapa) brought the case against Myeni in 2017 due to his destructive reign of SAA.
Tolmay wrote that there were multiple motives for Myeni’s delinquency as director of SAA. The judge found Myeni to be dishonest, grossly abused her power, negligent, reckless, and her action inflicted substantial harm on SAA. “She was a director who had gone rogue,” the judge wrote.
Tolmay ordered in his ruling that the National Prosecutor’s Office review the evidence conducted in the case to determine if an investigation for criminal conduct was necessary.
In his November letter, Mabuza said that “due to administrative oversight,” Myeni’s legal representatives did not remove the sentence from their final set of arguments.
“This is very unfortunate,” he added.
The consensus of Myeni’s legal team was that the public could read the ruling as an “unnecessary attack” on Tolmay, he added.
“An attack of this type would be unjustified, more particularly because it is not part of the essence of the complaint.
“Although bias is imputed, we do not go so far as to impute deliberate or even real bias, but only reasonable perception or apprehension of it.
“The difference between the two, although nuanced, is significant,” Mabuza said.
Myeni would remove the offending sentence from his arguments, he added.
In his arguments presented on September 25, Myeni claimed that Tolmay was biased in his sentence handed down on May 27, where he declared Myeni a criminal director for life.
Tolmay allegedly copied from Outa and Saapa’s legal documents, including at least 265 of the 285 paragraphs of the judgment, Myeni added.
In response, Pandor Attorneys agreed with Mabuza that Myeni had participated in an “unwarranted attack” against the judge.
“We hope that your attorney will issue a full apology to the court at the hearing,” added Pandor Attorneys.
Myeni wants to present evidence of Zondo
In another event, on Tuesday this week, Myeni filed a supplemental affidavit in North Gauteng Superior Court to present new evidence as part of her appeal of the delinquent principal’s ruling.
The request is submitted before the court hearing on November 19, where Tolmay will hear Myeni’s request for permission to appeal the May 27 ruling.
At the same time, Outa and Saapa oppose Myeni’s request.
They have asked Tolmay to enforce the May 27 order.
If this application is successful, Myeni will have to resign from all his remaining leadership positions, including his presidency of the Jacob G Zuma Foundation.
Outa’s legal director, advocate Stefanie Fick, said Myeni’s last request was submitted at the eleventh hour and was a “colossal waste of time.” Outa would object to this request because “it has no merit,” he added.
In his latest request, Myeni asked Tolmay to present new evidence from the Judicial Investigation Commission on the allegations of state capture that is chaired by Judge Raymond Zondo.
The new evidence was “extremely relevant” to the case at hand, and it was in the interests of justice that Tolmay allowed the introduction of evidence, Myeni said.
Fick de Outa said there was no relevance to a request for permission to appeal for new evidence to be presented.
The evidence relates to the presentations by former SAA director Yakhe Kwinana.
However, Pandor Attorneys said it was “inadmissible” for Myeni to present new evidence long after all parties had concluded the trial.
Myeni was again trying to obstruct and delay the judicial process, added Pandor Attorneys.
Outa and Saapa objected to Myeni’s request to present new evidence, Pandor Attorneys said.
Myeni appeared before the Zondo Commission on November 4-5, where she declined to answer most of the questions asked by test leader advocate Kate Hofmeyr because she said she wanted to avoid the possibility of incriminating herself.
Myeni said that Kwinana testified to the Zondo commission that she had a meeting with Outa on August 30, 2016 after she resigned as SAA director.
The meetings specifically concerned Outa’s decision not to join Kwinana in the legal action to declare Myeni a delinquent director, Myeni said.
If Kwinana had not met with Outa, it is most likely that Outa would have included her as a defendant in the matter, he added.
There was no escaping the conclusion that Outa reached an agreement with Kwinana, to which Outa tried to keep Kwinana by ensuring that she did not testify as a defense witness at trial, Myeni said.
Outa concealed his deal with Kwinana from the court, he claimed.
However, Fick de Outa denied that Outa had made any deals with Kwinana.
Outa filed a complaint against Kwinana with the South African Institute of Chartered Accountants (Saica). Saica, for its part, referred the matter to the Regulatory Board of Independent Auditors.
“At no point did Outa tell Kwinana that we would not go after her,” Fick added.
Myeni claims Outa illegally obtained evidence
“Outa recorded the meetings [with Kwinana] electronically without their knowledge and permission, ”Myeni claimed, for which Outa was guilty of illegally obtaining evidence.
On the Zondo commission, Kwinana claimed that he did not know that Outa had recorded his meeting with them.
Fick denied that Outa had done anything illegal in recording his meeting with Kwinana.
“Recording someone when you are part of the conversation, in my understanding of the law, is not a crime,” he added.
Outa vehemently denied that he had obtained evidence illegally, Fick said.
“It is undeniable that the above evidence is relevant and will greatly influence some of the key issues raised in this request for permission to appeal and, indeed, the intended appeal itself,” Myeni added.
One of the main reasons for Myeni’s appeal, and a point she also raised during the trial, is that Outa does not have the legal right to initiate the action that resulted in her being declared a delinquent director.
“The public interest can be adequately represented by a party, who is guilty of substantial non-disclosure to the court and possible abuse of the judicial process.
“Also, if Outa selectively, by targeting me in the crime petition, he was really serving the public interest in his narrow political interests,” Myeni said.
Myeni said she would like to present Kwinana’s testimony as she believes it supports several points raised in her request for permission to appeal.
The new evidence showed that Outa had no locus standi in the matter and did not act in the public interest, Myeni said.
It could never be in the public interest to single out one person while there were other qualified people, he added.
The public interest would require that all those who should be declared delinquent directors be declared so, Myeni said.
Outa was motivated by his “narrow and selfish or other political agendas”, which were not disclosed to the court, Myeni added.
“It is clearly in the interests of justice for the court to exercise its inherent jurisdiction in favor of admitting the new evidence,” Myeni said.
He said he did not present evidence during the trial because he only learned of Outa and Kwinana’s alleged “secret negotiations” and the alleged subsequent pact on November 7 during Kwinana’s testimony at the Zondo commission. DM
