‘Don’t jail our board mem­bers’


The Citizen (KZN) - - Front Page - Ray Mahlaka

Old Mu­tual has made an im­pas­sioned plea to the high court over the Peter Moyo saga.

Com­pany asks for le­niency should board be found in con­tempt of court.

Old Mu­tual has made an im­pas­sioned plea to the high court, say­ing the po­ten­tial im­pris­on­ment of board mem­bers – if they are found guilty of con­tempt of court for not al­low­ing ousted CEO Peter Moyo to return to work – would be “ex­ces­sive and in­ap­pro­pri­ate”.

Old Mu­tual was re­spond­ing to Moyo’s ap­pli­ca­tion at the High Court in Johannesbu­rg to de­clare the in­surance group’s 13-mem­ber board to be in con­tempt of court for block­ing him from re­turn­ing to of­fice three times.

Moyo has been pre­vented from re­sum­ing his du­ties as CEO de­spite the court or­der­ing twice that he should be tem­po­rar­ily re­in­stated as CEO since his fir­ing on June 18 fol­low­ing a “break­down of trust” be­tween him and the board, chaired by Trevor Manuel.

In court pa­pers dated Tues­day (Oc­to­ber 8), Old Mu­tual’s head of le­gal Craig McLeod says the im­pris­on­ment of the in­surance group’s non-ex­ec­u­tive di­rec­tors (or board mem­bers) would be an “in­ap­pro­pri­ately harsh pun­ish­ment and cer­tainly not war­ranted”.

In Au­gust, Moyo asked the high court to cen­sure the con­duct of Old Mu­tual board mem­bers by declar­ing them to be in con­tempt of court be­cause they “failed” to com­ply with a court or­der that re­in­stated him as CEO. A 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 board mem­bers need to ar­gue in court why they should not be com­mit­ted to im­pris­on­ment for six months or a pe­riod de­ter­mined by the court.

McLeod ar­gues that the in­surance group’s di­rec­tors have “at all rel­e­vant times” han­dled the ax­ing of Moyo in a man­ner that they be­lieve is “in good faith” and “in the best in­ter­est of Old Mu­tual”.

He adds that Old Mu­tual board mem­bers have not acted in their per­sonal ca­pac­i­ties but rather dis­charged their fidu­ciary du­ties as di­rec­tors – thus their im­pris­on­ment, which is a per­sonal sanc­tion, would not be ap­pro­pri­ate.

A more ap­pro­pri­ate sanc­tion, if board mem­bers are found guilty of con­tempt of court, would be, among other things, a sus­pended sen­tence, a fine or a warn­ing.

“It is re­spect­fully sub­mit­ted that if the court finds that the re­spon­dents [Old Mu­tual board mem­bers] have acted in con­tempt of court, then, in the cir­cum­stances of this mat­ter, remedies of this na­ture would be ad­e­quate,” McLeod says in the court pa­pers.

But Moyo be­lieves the “fail­ure” by Old Mu­tual to re­in­state him “amounts to selfhelp, an­ar­chy, and un­law­ful­ness”. “The Old Mu­tual board was not per­mit­ted to ig­nore and fail to im­ple­ment a court or­der sim­ply be­cause it does not agree there­with or be­cause it is un­com­fort­able with such im­pli­ca­tion,” Moyo re­cently said in his con­tempt of court ap­pli­ca­tion.

He said Old Mu­tual’s con­duct in opt­ing to “willy-nilly ig­nore a court or­der” un­der­mines the dig­nity of the court and con­tra­venes sec­tion 167 (5) of the constituti­on, which pro­vides that “an or­der or de­ci­sion by a court binds all per­sons to whom it ap­plies”.

Con­tempt of court hear­ing to be heard in Novem­ber

Pic­ture: Shut­ter­stock

GO TO JAIL. The 13-mem­ber board’s fail­ure to com­ply with a court or­der ‘amounts to self-help, an­ar­chy, and un­law­ful­ness’, says Old Mu­tual’s for­mer CEO.

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