The National Prosecuting Authority (NPA) has thus far turned a blind eye to a judge’s instruction for the agency to probe criminal conduct by former SAA chairperson Dudu Myeni. Judge Ronel Tolmay ordered in her ruling handed down on 27 May that her judgment and the evidence led in the case should be referred to the NPA to probe for criminal conduct.

Three months after Tolmay’s ruling, NPA spokesperson Sipho Ngwenya stated on 17 August that it had made no progress in meeting the judge’s order because it had not received the judgment from Tolmay’s secretary, who delivered it on 18 August.

But Organisation Undoing Tax Abuse (Outa) spokesperson Samantha van Nispen said that the NPA had had Outa’s evidence about the matter since July 2019. Outa and the SAA Pilots’ Association (Saapa) brought the case against Myeni in 2017 on account of her destructive SAA reign.

Despite the ruling, Myeni remains executive chairperson of the Jacob G Zuma Foundation, which ignored a letter from Outa in June calling for her dismissal. 

Delinquent director for life 

In her ruling, Tolmay declared Myeni a delinquent director for life. In December 2012 she became acting SAA chairperson, and from January 2015 to October 2017 she was chairperson.

Tolmay wrote that there were multiple grounds for Myeni’s delinquency as a director of SAA. The judge found Myeni was dishonest, grossly abused her power, grossly negligent, reckless and her action inflicted substantial harm on SAA. “She was a director gone rogue,” the judge wrote.

Myeni filed a leave to appeal application against the judgment on 18 June. She argued that the judge erred in interpreting the Companies Act. Outa and Saapa on 23 June filed a notice in opposition to the leave to appeal application. 

NPA under fire 

The NPA has been under fire for failing to investigate and charge those that face allegations of corruption, especially inaction related to the politically connected. Frustration is building up and last month opposition members of Parliament criticised the NPA’s tardy prosecution of those allegedly responsible for crime and corruption.

Adding to this are allegations of corruption levelled against Myeni at the Judicial Commission of Inquiry into Allegations of State Capture. Outa CEO Wayne Duvenage on 16 July 2019 wrote a letter to NPA national director of public prosecutions Shamila Batohi where he reported suspicions of criminality at SAA to the agency.

Brigadier Burger of the NPA acknowledged receipt on 23 July 2019, of the letter and two files of evidence from Outa. 

NPA battles for Myeni answers 

Over a two-week period in August 2020, the NPA’s Ngwenya battled to supply answers to questions sent to him by Daily Maverick about Tolmay’s order and the agency’s response. He then stated that he was “struggling to extract a response” from the North Gauteng director of public prosecutions, advocate Sibongile Mzinyathi.

On August 17, Ngwenya said that the clerk of the North Gauteng High Court had to hand over the judgment to the NPA before the agency could review it. The set of questions that Daily Maverick sent Ngwenya included a link to Tolmay’s full 114-page judgment, which is a matter of public record. 

‘Mind-boggling response from the NPA 

Van Nispen said that the NPA’s response to the ruling against Myeni was “mind-boggling”.

“We hope that the NPA gets their house in order. Outa is getting impatient with the lack of action,” she added, saying that Outa was weighing its options.

“Maybe the NPA should give these cases to civil society to prosecute?” she said.

Tolmay’s secretary Karen Erlank on 18 August emailed a copy of the judgment to NPA deputy director of public prosecutions Trish Matzhe, who acknowledged receipt.

Van Nispen said that Outa had provided NPA deputy national director of public prosecutions Rodney De Knock with the court documents on August 19. De Kock acknowledged receipt of these documents.

In a follow-up response on August 27, the NPA’s Ngwenya said that the agency’s review of the judgment against Myeni might be included in a probe of corruption at SAA. Ngwenya did not respond to an email seeking confirmation that the agency had received the judgment, court papers and Outa’s evidence by the time Daily Maverick published this story.

Myeni, in a statement on May 28, said that she committed no crime to warrant NPA prosecution, according to the IOL website.

After the issuing of the ruling, Outa head of legal affairs Stefanie Fick wrote to the Jacob G Zuma Foundation calling for Myeni to relinquish her role as the executive chairperson. “The foundation didn’t respond,” Fick said. 

Former President Jacob Zuma and former SAA chairperson Dudu Myeni. (Photo: Flickr / GCIS)

Potential showdown 

This situation sets the scene for a potential showdown between the foundation and Outa over Myeni’s chairpersonship. The foundation didn’t respond to an email from Daily Maverick seeking comment and Myeni couldn’t be reached on her cellphone.

Lungile Dukwana, Companies and Intellectual Property Commission (CIPC) chief strategy executive, said that Myeni was a director of five companies, Maydeo Nineteen, Hope Fountain Investments 54, the Jacob G Zuma Foundation, Orestitrix and Free State state-owned electricity distribution company Centlec.

This number is down from 13 directorships she held in October 2019, according to Outa.

Dukwana said that the CIPC had written to all five entities requesting that Myeni resign from their boards. The CIPC had since May 27 placed Myeni on its disqualified directors register. 

Myeni must resign 

By law, Myeni could no longer hold any directorships, Dukwana said. She needed to resign, or the companies must remove her as a director, he added. The CIPC would ensure that Myeni got no further directorships unless a judge ordered her rehabilitation, or set aside the May judgment, he added.

Outa in June sent a letter to Centlec requesting the company remove Myeni as a director. The company distributes electricity to 177,000 customers in the Mangaung, Kopanong, Mantsopa and Mohokare municipalities in the Free State.

Centlec company secretary, Thabo Malgas, replied to Outa saying that the board of directors would discuss Outa’s letter, but provided no further response. Lele Mamatu, Centlec spokesperson, told Daily Maverick that the company had studied the ruling made against Myeni, who is its deputy chairman. 

Myeni still on the Centlec board 

Mamatu said that Centlec couldn’t comment on her directorship while Myeni, who joined the Centlec board in 2016, had applied for leave to appeal against the ruling. The Centlec board had held meetings since the 27 May ruling, and Myeni did not attend, but returned to the meetings after she filed her leave to appeal on June 18, Mamatu said.

She earned a salary in the 2018 financial year of about R274,000 from Centlec.

Outa and Saapa applied to the court on July 9 to ensure that Myeni relinquished all her directorships. Myeni filed a notice of opposition to Outa’s enforcement application on July 13.

Eric Mabuza, Myeni’s attorney, told Daily Maverick that the enforcement application had “no basis in law”. Outa’s Fick said that Outa hoped that the high court would hear the matter again later this year. 

Enforcement application 

Outa and Saapa argue in their enforcement application that Tolmay’s ruling should not be suspended while Myeni had applied for leave to appeal. The watchdog submitted an alternative challenge that seeks to declare a section of the Superior Courts Act unconstitutional that renders a court order unenforceable while it is the subject of an appeal.

“Outa’s alternative challenge is bad in law,” Myeni’s attorney Mabuza said.

Fick wrote in an affidavit that Myeni’s conduct showed that she could not be trusted as she posed a danger to investors and public funds.

“This court cannot allow a person it regards as unfit… to hold high public office for one day longer than is necessary,” she added. 

Defamation lawsuit 

In November 2019, Myeni filed a defamation lawsuit against Outa in the South Gauteng High Court in Johannesburg. She wants the court to declare a Twitter post that Outa issued on 3 October 2019 false, unlawful and defamatory.

Myeni applied to the court to forbid Outa from stating that she was responsible for R10.5-billion in SAA losses. She also wants the watchdog stopped from saying that she approved a R15-billion BNP Capital illegal contract at SAA and an associated R50-million cancellation fee.

Myeni wants the court to interdict Outa from stating that she caused delays in a key Airbus transaction and she lost a R2-billion Emirates partnership for SAA. She applied to the court to order Outa to pay her damages of R8-million.

Fick said that Outa denied that it had defamed Myeni and would file court papers in that regard. DM