Advocate Dali Mpofu told Judge Ronel Tolmay on Friday, during a court hearing in the North Gauteng High Court in Pretoria, that his client was ready to take the matter of the ruling, which the judge handed down on 27 May, to the Constitutional Court over the next three to four years.
The judge found Myeni was dishonest, grossly abused her power, was grossly negligent, reckless, and her actions inflicted substantial harm on SAA.
“She was a director gone rogue,” Tolmay wrote.
The Organisation of Undoing Tax Abuse (Outa) and the SAA Pilots’ Association (Saapa) launched the application to have Myeni declared a delinquent director in 2017 due to her disastrous reign as SAA chairperson.
“Whether it is them or us, the case is not going to end here,” Mpofu told the judge.
Myeni has applied to Tolmay for leave to appeal the 27 May judgment.
However, advocate Chris McConnachie, for Outa and Saapa, argued that Myeni had minimal prospects of succeeding in her application for leave to appeal.
Outa and Saapa opposed Myeni’s application.
Myeni could wreak havoc
McConnachie said Myeni could wreak havoc over three to four years at the public institutions where she is a director if the appeal process was extended.
He said it was not in the interests of the public, or the public funds handled by state institutions, for Myeni to maintain her fiduciary duties for another four years.
Stefanie Fick, Outa legal officer, told Daily Maverick that she believed Tolmay would refuse Myeni’s leave to appeal the 27 May ruling.
If Myeni then petitioned the Supreme Court of Appeal (SCA) to appeal the judgment, the SCA would turn her down too, Fick added.
In this way, Myeni’s appeal process would be cut short, she said.
However, Fick said that whatever happened, Outa would defend the matter against Myeni all the way.
“The question is, if you do not have grounds, why go all the way to the Constitutional Court?” she added.
“This is a critical case. Myeni was the chairperson of a state-owned company and company directors need to take their jobs very seriously,” Fick said.
Myeni remains a director of five companies – Maydeo Nineteen, Hope Fountain Investments 54, the Jacob G Zuma Foundation, Orestitrix and Free State electricity distribution company Centlec, according to the Companies and Intellectual Property Commission.
Centlec is a state-owned company that distributes electricity to 177,000 customers in the Mangaung, Kopanong, Mantsopa and Mohokare municipalities in the Free State.
Myeni is Centlec’s deputy chairperson. She joined the Centlec board in 2016 and earned a salary in the 2018 financial year of about R274,000.
McConnachie highlighted that while Myeni was a Centlec director, there were indications that her directorship coincided with the poor management of Centlec.
Over the past four financial years, the Auditor General found that Centlec had engaged in wasteful and irregular expenditure of R231-million, he pointed out.
In Centlec’s 2017/2018 financial year, the Auditor General issued a disclaimer audit opinion after finding limitations when reviewing the company’s financial records, McConnachie said.
Myeni could face irreparable harm
Mpofu argued that Myeni would face irreparable harm if she had to relinquish her board roles, including her Centlec directorship, because she would lose the income she earned from these positions.
“A mere loss of earnings does not constitute irreparable harm,” McConnachie said.
He said Myeni posed a threat to the public purse by still holding directorships, such as that at Centlec.
Outa and Saapa argue in their enforcement application that the courts should not suspend Tolmay’s ruling while Myeni applied for leave to appeal.
The two parties submitted an alternative challenge that seeks to declare a section of the Superior Courts Act unconstitutional. The section renders a court order unenforceable when it is the subject of an appeal.
Mpofu told Tolmay that this application was a “very serious” matter as Outa and Saapa were asking the courts to enforce the 27 May order even though Myeni was appealing it.
“If the courts work like that, then we should not bother to have courts of appeal,” he added.
Mpofu said that Outa and Saapa had not cleared the hurdles required to have the court order of 27 May implemented, while Myeni appealed the ruling.
An essential requirement for such a situation was that Myeni would not suffer any irreparable harm, he added.
“How do I get past the words ‘no harm’?” Tolmay asked Mpofu during an exchange in the court.
Mpofu said there was no way that the judge could get around this when it came to Outa and Saapa’s application to enforce the 27 May order against Myeni.
Outa and Saapa’s court was just an “opportunistic attack”, Mpofu said.
Tolmay said at the close of the hearing on Friday that she would try to issue her ruling on the four applications submitted to her – two from Myeni and two from Outa and Saapa – by the end of the year. DM
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