Former airline boss Ngqula loses appeal, with costs

AN APPEAL by former SAA boss Khaya Ngqula about legal action on two claims against him was struck off the roll by the Supreme Court of Appeal yesterday.

The appeal court held that Ngqula should pay the costs of the case, including the costs of two legal counsel.

The former SAA CEO had appealed against a ruling by the Johannesburg High Court, which directed that two SAA claims against him, to the amount of about R27 million, be heard in the Pretoria High Court.

SAA filed papers in the Johannesburg High Court, submitting that the claims were not related to Ngqula’s employment contract, which stipulated that court proceedings against the two parties be instituted in the Pretoria court district.

Ngqula objected to the Joburg proceedings and SAA applied for a transfer of the case to Pretoria, to prevent a delay on the grounds of the court’s jurisdiction.

Johannesburg High Court Judge Nazeer Cassim found for SAA. The court held that a jurisdictional challenge had consequences of an avoidance of a debate on whether public funds were appropriately used.

It was in the interest of justice that the case be transferred to the Pretoria court.

Ngqula objected, submitting that the Johannesburg High Court did not have the jurisdiction to make a transfer decision and that his prospects of a plea of prescription would be violated.

The unanimous judgment by Judges Jonathan Heher, Visvanathan Ponnan and Malcolm Wallis held that there should be no appeal against the lower court’s decision.

The judges found an appeal had to, among other things, lead to a more expeditious and cost-effective determination of the main dispute between the parties. It held that the Ngqula appeal was in direct opposition to this principle.

The judges also found the high court’s order was a practical pre-trial direction, intended to overcome a technical objection to help the parties come to terms with the real dispute.

Ngqula’s counsel argued that a plea of prescription, meaning SAA took too long – more than three years – to pursue the claims and they should therefore fall away, could now be only an academic exercise.

The appeal court judgment held that this argument was wrong. – Sapa