Controversial South African Airways chairperson Dudu Myeni twice lied to the minister of public enterprises, in writing, about a R10-billion transaction, the Companies Tribunal heard on Monday. Then the Companies and Intellectual Property Commission (CIPC) said, she lied again, this time under oath, as she tried to clear her name.
Such behaviour, the CIPC said, was “profoundly worrying”, not least of all because Myeni has avoided explaining herself, seemingly even to her own lawyers.
The legal team appearing for Myeni declined to respond to the allegations.
She was not personally present for the hearing.
Myeni had intended the hearing – which turned into a drubbing during which she was accused of misleading the government, acting suspiciously, and withholding information -– to clear her name.
In November 2016, the CIPC served Myeni with a notice that it believed she had breached the law when, in 2013, she told the minister of public enterprises that her board had decided to sell two Airbuses to a financing company. In fact, records clearly show, the decision had been to sell ten aircraft. Myeni was ordered to correct that misstatement, or face the consequences, which could include prosecution. She complied, and the CIPC closed the matter.
But on Monday Myeni argued that the notice served on her had been incorrect and should be overturned. The SAA chair had been genuinely mistaken about the number of aircraft, her advocate Francois van Zyl said, and had corrected that mistake, while the CIPC had gone beyond its powers and launched an investigation it didn’t properly constitute. As such, he said, the notice “was never in force because it was not legally issued”.
The CIPC, which is opposing Myeni’s application, disagreed vehemently. Myeni could not have been mistaken about two planes versus ten, advocate Robin Pearse told the tribunal, because she signed both minutes and a letter that showed the number was ten. When Myeni argues that she corrected the mistake, Pearse said, she does so on the basis of letters in which she falsely claimed that the SAA board had taken new resolutions. And while the CIPC had given Myeni “every opportunity” to make her case before the notice was issued she failed to do so – until she started offering contradictory explanations under oath.
As such the CIPC had a duty to oppose Myeni’s application, Pearse said.
The tribunal reserved its decision on the matter, as well as a decision on whether it has the jurisdiction to act on Myeni’s application at all.
That decision could be crucial to an application in the high court by the Organisation for Undoing Tax Abuse (Outa) to have Myeni declared a delinquent director, which if successful would bar her from serving on any company boards, or on the board of the Jacob Zuma Foundation, which she also heads.
Myeni, the CIPC said in its heads of argument on Monday, had fallen “well short of the fiduciary and prudential standards reasonably required” by law in the Airbus matter – even if she had made an honest mistake.