Old Mutual seeks judge’s recusal
Moyo sacking saga takes another twist with insurer citing Mashile as affected party in charge against Manuel
Old Mutual says it meant no disrespect to judge Brian Mashile by asking him to step aside in its case against Peter Moyo. But the axed CEO’s legal team says this is merely a delay tactic by Old Mutual, which has managed to expedite its appeal in which it seeks to overturn Mashile’s ruling that it should reinstate Moyo.
Old Mutual says it means no disrespect to judge Brian Mashile in asking him to step aside in its case against Peter Moyo. However, the axed CEO’s legal team says this is merely a delay tactic by Old Mutual, which has managed to expedite its appeal in which it seeks to overturn Mashile’s ruling that it should reinstate Moyo.
The insurer said on Tuesday it will be filing an application asking Mashile to recuse himself from the contempt of court case due to be heard in November and that it will be wrong for him to rule on a case in which he is now cited as “an affected party”.
Mashile, who ruled in Moyo’s favour in July after the former CEO challenged his dismissal, was due to adjudicate on the contempt of court argument as it is his order that Old Mutual has failed to execute. He had ordered the insurer to temporarily reinstate Moyo, saying his dismissal was not in accordance with labour law.
But Old Mutual refused Moyo entry into its executive suite as it immediately filed an appeal and opted to fire him for a second time in August. Old Mutual first dismissed Moyo in June, citing a breakdown in trust and an alleged conflict of interest.
The public battle between Moyo and the insurer’s board, which has dragged on for five months, has weighed on its share price, wiping about 8.7% off its market capitalisation since Moyo’s suspension on May 24. The life insurers’ index gained 2.5% over the same period.
Shareholders are pressurising the insurer to put an end to the matter, particularly since it cannot appoint a permanent CEO until Mashile’s ruling is overturned or it finds an amicable way to settle with Moyo.
Old Mutual legal head Craig Mcleod said the company is not accusing Mashile of any wrongdoing and the new application is being made purely because Moyo’s legal team has introduced a contempt of court charge relating to board chair Trevor Manuel’s now retracted remarks about Mashile.
Manuel said during a media conference in September that a board’s decision cannot be overturned by “a single individual who happens to wear a robe”. Moyo’s legal team added this statement as a sixth contempt of court charge in its court documents filed earlier in October.
“What you are asking the judge to do is to adjudicate on whether they are in agreement that we’ve insulted him personally. He now has to sit and adjudicate on a matter that is about him personally and not about an order of court. It’s not an application we bring lightly. On the one hand, the judge is put in a very awkward position and we as respondents feel our rights to get a fair hearing are also quite compromised,” Mcleod said.
Moyo’s lawyer, Eric Mabuza, said this was simply a tactic by Old Mutual to delay the contempt of court hearing until the insurer’s appeal is heard and, as such, they will be opposing the application.
Old Mutual also announced on Tuesday that the hearing of its appeal has been expedited to December 4. The contempt of court case was due to be heard in November. Mcleod said he expected the recusal application to be heard before Old Mutual’s appeal in December.
Mabuza said: “It’s clearly an act of desperation on their part. Any act of contempt is heard by a judge that you insulted. There’s nothing we’ve done that changes the situation. An act of contempt is not against a particular judge; it’s against the administration of justice in totality. So on their logic, no other judge can hear this matter.”
HE NOW HAS TO SIT AND ADJUDICATE ON A MATTER THAT IS ABOUT HIM PERSONALLY AND NOT ABOUT AN ORDER OF COURT