Not even SA’s judiciary is safe from intense criticism in the five-month-old public battle between Old Mutual and its axed-but-reinstated CEO Peter Moyo.
First, Old Mutual board chair Trevor Manuel flubbed at a media conference on 13 September when he attacked a ruling by Judge Brian Mashile on 30 July that temporarily reinstated Moyo as CEO because his axing was unlawful.
The same Johannesburg High Court ruling blocked Old Mutual from appointing Moyo’s successor, leaving the insurance group without a permanent CEO for months.
Moyo was suspended on 24 May and fired on 18 June for his handling of a conflict of interest relating to his private firm, NMT Capital, in which Old Mutual holds a 20% stake.
Responding to the bruising court loss – delivered by Judge Mashile – Manuel described the former as a “single individual who happens to wear a robe” holding court over the insurance group’s entire board.
His exact words were: “If you take a board imbued with the responsibility and accountability and you get that overturned by a single individual who happens to wear a robe, I think you have a bit of a difficulty.”
The former finance minister and respected anti-apartheid activist has since apologised for his comments, and withdrew them.
But Manuel’s comments about Judge Mashile have made a stunning comeback, with Old Mutual’s legal team using them to fire another shot at Moyo’s protracted attempts to have his job back.
Recusal of Judge Mashile
Old Mutual filed a court application on Monday 28 October to have Judge Mashile recused from hearing impending court proceedings in a lawsuit launched by Moyo against the insurance group’s 13-member board.
On 5 November, Judge Mashile was expected to hear Moyo’s contempt of court lawsuit against board members because they didn’t allow him to return to his office three times since his reinstatement by court order.
Moyo has cited Manuel’s comments about Judge Mashile, who “happens to wear a robe”, in his lawsuit to demonstrate that board members are allegedly guilty of at least five counts of contempt of court. Contempt of court offence relates to being disobedient or disrespectful towards a court of law regarding its judgments/orders.
If the High Court finds members of Old Mutual’s board to be in contempt of court, they might face hefty fines or imprisonment. Moyo is pushing for the latter, saying they should face imprisonment for at least six months, or a period determined by the court.
Moyo said the counts of contempt relate to him being blocked from returning to his office, Old Mutual serving him with a second notice to terminate his employment on 21 August, and comments made publicly by board members that have damaged his reputation.
In court papers, Old Mutual’s head of legal, Craig McLeod, said the insurance group “respectfully” fears that it wouldn’t be possible for Judge Mashile to “fairly and impartially adjudicate” contempt of court proceedings because “they involve him personally.”
In other words, the upcoming proceedings involve Judge Mashile personally because Moyo is asking him to consider his contempt of court application, which features disparaging comments made about the judge by Manuel.
“I respectfully point out that a ground for recusal is that a judge cannot be a judge in his own case,” said McLeod in court papers.
“I have also been advised that the judge should also not be exposed to a situation where [he] is called upon to make a pronouncement on matters which are attributed to his person, especially where… those matters are raised in the context of allegations of contempt in proceedings initiated by a party who relies on those matters.”
Considering that board members might face imprisonment if found guilty of contempt of court, McLeod said the proceedings “should properly be raised in a normal adversarial process before an impartial judicial officer – one not alleged to have been the object of contemptuous conduct”.
Old Mutual is vexed that Moyo introduced Manuel’s comments about Judge Mashile as new evidence to demonstrate further contempt of court without applying for permission from the court. This was “highly prejudicial” to the insurance group because the window for both legal teams to submit their arguments and evidence has been closed.
Since 18 October, Old Mutual has asked Moyo’s lawyers to withdraw the new evidence but they refused.
McLeod accused Moyo’s lawyers of trying to “poison the mind” of Judge Masile against Old Mutual by directly corresponding with the former’s office. In one instance, McLeod said a letter was sent by Old Mutual to Moyo’s lawyers on 8 September, which informed the axed-but-reinstated CEO to not return to work on 9 September. According to McLeod, Moyo’s lawyers said Old Mutual’s letter would be sent to Judge Mashile’s office without asking the insurance group for its permission.
Moyo hits back
Moyo’s lawyer Eric Mabuza said Old Mutual’s move to remove Judge Mashile is “an act of utter desperation”.
“What is even more ridiculous is that Manuel’s comment is against the entire judicial system; it applies to all the judges. Once you insult a ‘single individual with a robe’, there is no judge that can hear the matter,” Mabuza told Business Maverick.
“What they are suggesting is that the judge is biased,” he said, also questioning why Old Mutual would have a problem with Judge Mashile when he presided over Moyo’s lawsuit against the insurance group since he was fired.
Mabuza said Old Mutual is trying to delay the contempt of court proceedings for its appeal against Judge Mashile’s ruling, which reinstated Moyo, to be heard first.
Moyo’s contempt of court hearing was expected to start on 5 November, while Old Mutual’s appeal was set for 4 December.
But Moyo’s legal team plans to oppose Old Mutual’s application to remove Mashile and have the matter argued on 5 November. BM