When Old Mutual recently emerged victorious at the Johannesburg High Court after a nine-month battle against former CEO Peter Moyo, SA’s second-largest life insurer believed that its path to appointing a new leader was clear of any obstacles.
Days after its court victory, Old Mutual advertised a CEO vacancy in the City Press newspaper – a formal process to find Moyo’s successor. In this process, Old Mutual has probably short-listed several suitable candidates who are being interviewed by a panel that will ultimately recommend names to the board of directors and the chair, Trevor Manuel.
But Moyo is not going down without a fight to relinquish his corner office at Old Mutual’s swanky headquarters in Sandton, Johannesburg. Moyo has launched an urgent application at the Johannesburg High Court to block Old Mutual from continuing with the CEO recruitment process, saying the CEO role is still “lawfully occupied” by him in terms of his employment contract and an earlier court ruling in his favour on 30 July 2019.
That ruling, which was delivered by Judge Brian Mashile, temporarily reinstated Moyo as CEO and blocked the insurer from appointing a successor pending the conclusion of his other lawsuit that seeks to declare Old Mutual’s 13-member board as delinquent directors.
Mashile ordered Moyo’s reinstatement because he wasn’t offered a disciplinary hearing after he was suspended on 23 May 2019 on the grounds of “a material breakdown in the relationship of trust and confidence”. He was subsequently dismissed on 18 June.
Old Mutual accused Moyo of declaring ordinary share dividends — linked to his private investment firm, NMT Capital — worth R105-million at the firm’s board meeting on 4 July 2018, which he chaired. Of the total dividends declared (R105-million), Old Mutual said Moyo wrongfully pocketed dividends worth R30-million, while the insurer wasn’t paid preference share dividends, breaching its rights as a 20% NMT Capital shareholder.
Old Mutual successfully appealed against Mashile’s ruling on 14 January 2020, with a full bench of judges saying Moyo wasn’t entitled to a disciplinary hearing as his employment contract had been terminated on six months’ notice with R4-million pay, making his sacking lawful. However, Moyo launched an appeal application on 29 January against the ruling.
In court papers, Moyo said Old Mutual cannot appoint a new CEO because his appeal against the ruling by the full bench of judges immediately suspends its implementation by the insurer under section 18 of the Superior Court Act.
“In terms of the relevant case law, the pending finalisation of an application for leave to appeal and the appeal itself, any decision of the court which is final in effect is automatically suspended,” said Moyo about the effect of the act.
This is the same argument Old Mutual used when it barred Moyo from entering his office and resuming his duties as CEO after Mashile ruled in his favour.
Moyo said Old Mutual’s decision to launch a recruitment process while his appeal is yet to be finalised is “unlawful and defiant” as any potential victory against the insurer would “have been rendered academic and meaningless”. This is because a new CEO would have already been appointed.
“It is also clear that should Old Mutual be permitted to continue with the reinstatement process, my rights will be violated. I also have a right to work and the inherent rights to dignity, self-worth, and ubuntu. My reputational rights will also be adversely affected should a new CEO be appointed while I am in court to be reinstated to the same position.
“If the relief sought is not granted and Old Mutual goes ahead and hires a CEO, then the harm of permanently losing my employment will be irreversible. My rights to work, dignity, and self-worth cannot be replaced by money,” said Moyo.
Old Mutual, which has until 20 February to formally respond to Moyo’s application, said the insurer will oppose the application. In a statement released on Tuesday, Old Mutual said it has been advised that “there is no reason why it should not continue with the process to recruit a permanent CEO in the interim”.
“Old Mutual’s lawyers have reviewed Mr Moyo’s latest application and have confirmed that the application is based on a mistaken understanding of the legal position. Mr Moyo is entitled to raise his arguments in court.” BM