Myeni loses bid to change plea
Saapa, Outa to proceed to trial to declare her delinquent director
OUTA and the SAA Pilots Association (Saapa) insist they are ready to go on trial next year in their application to declare former SAA board chairperson Dudu Myeni a delinquent director.
This comes as the North Gauteng High Court in Pretoria yesterday dismissed Myeni’s application to strike out a damning plea she filed in 2017.
Speaking after the ruling, Outa chief legal officer Stefanie Fick said: “We are delighted with the ruling. This means that we can go on trial in January.”
The court found that Myeni failed to give a reasonable explanation for her application to strike out a plea explanation she made in 2017.
In her application Myeni claimed she was not aware of the contents of the plea, saying her previous attorneys did not consult with her properly to explain its legal implications.
In delivering her judgment, Judge Ronel Tolmay relied heavily on the affidavit of Myeni’s former attorney,
George van Niekerk.
In his affidavit, Van Niekerk gave the court detailed account of their consultation with Myeni, saying they first met for consultation on May 25 2017. He said the consultation lasted for more than three hours.
He said after that consultation they proceeded with drafting the plea. Van Niekerk told the court that they forwarded the draft plea to Myeni and according to him, Myeni fully understood what was contained in the plea.
He also said some of the documents were sent to Myeni’s private attorney for any corrections. Van Niekerk also said that they had a telephonic consultation with Myeni, which also lasted for more than three hours which they had recorded.
He added that following a series of consultation, they secured the services of a senior counsel who drafted the plea explanation. He said that plea explanation was forwarded to Myeni and her private attorney, before he filed her plea on June 19, 2017.
“The application (of Dudu Myeni) has failed to give a reasonable explanation to amend this plea. She wanted to strike out 11 admissions she made in her plea. I am satisfied with the evidence of her previous attorney. Her application cannot be granted,” Judge Tolmay ruled.
The court lambasted Myeni for bringing her application more than a year after she filed the plea. In her plea explanation, Myeni admitted that when the SAA board awarded BnP Capital (bid) to source funding of R15 billion for SAA it was unlawful, and that BnP had by then lost its financial services provider licence.
But in their papers, Outa (Organisation Against Tax Abuse) and Saapa hit back, and argue that the SAA board’s appointment of BnP Capital in April 2016 as a transaction adviser to SAA was unlawful. They also argue that the board’s decision in July 2016 to create and pay BnP a cancellation fee of R49.9m for the failed contract was irregular and unlawful.
They alleged that in June 2015, Myeni unlawfully intervened in a board-approved deal between SAA and Emirates airline to block it, claiming that former president Jacob Zuma had reservations about the deal and resulted in significant financial losses and reputational harm for SAA.
They also claim that in 2013, Myeni unlawfully interfered in the financing of SAA’s contract to buy 20 new Airbus A320-200 aircraft for SAA, apparently to gain a financial advantage for another party and that in September 2015, Myeni unlawfully intervened to block an SAA agreement with Airbus to cancel the purchase of the remaining 10 aircraft in favour of leasing five aircraft.
They further said that Myeni’s actions were intended to improperly involve and benefit a new aircraft leasing company and would cause unnecessary costs to SAA.The parties also argue that when Ernst & Young reported to the board in December 2015 on significant problems with SAA procurement and contract management, Myeni and the board ignored the report and took no action to safeguard SAA’s interests and assets.
Myeni’s bid to add 28 other board members, saying her application should have been made two years ago was also dismissed.