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Lawyers representing the civil rights group Organisation Undoing Tax Abuse (Outa) and SAA Pilots Association (Saapa) have tied themselves in a knot and partially vindicated former SAA chairperson Dudu Myeni in their quest to have the courts declare her a delinquent director.
This was the argument presented by her lawyer, Nqabayethu Buthelezi, in his opening statement as the defence took the stand following the completion of submissions before the Pretoria High Court by the prosecution.
According to Buthelezi, it was the defence’s view “that the evidence will bail us out [as] that there is no case here”.
“There is no case because when we first received this case we were told by the plaintiffs that there were allegations around [financial advisory firm] BNP Capital, a 2015 forensics report by EY on SAA’s procurement investigation, the Emirates deal and Airbus, among many others.
“However, the plaintiffs have concluded their case and haven’t led any evidence on BNP Capital. Why? It is because it subsequently dawned on them as well that there is no case?”
“The same goes for the EY report, a central part of this case. The plaintiffs never led any submissions on this, so we now start our defence with 50% of this case already non-existent,” said Buthelezi.
He questioned why, at the end of January, the prosecution spent the opening two days of its opening argument making submissions alleging untoward behaviour by Myeni with regards to SAA’s dealings with BNP Capital and laying the blame at her feet over the irregularities identified in the 2015 EY report on SAA’s procurement investigation.
Legal representatives for Outa and Saapa led submissions on how in 2016 BNP Capital established a joint venture with Masotsha Mngadi’s In Line Trading and won a tender to advise SAA on debt relief funding without going to tender. The deal was later expanded for BNP to source R15 billion for the airline.
They detailed how BNP wanted to charge R2.6 million for its first deal and was set to make R256 million for raising the R15 billion for the cash-strapped airline, around R30 million more than BNP had quoted for its work.
Also submitted was the EY report, which selected a total 48 contracts across SAA, Air Chefs, Mango and SAA Technical, which represented a significant portion of the largest contracts with SAA.
The report showed that 28 of the 48 contracts (60%) were improperly negotiated, poorly contracted or weakly managed under Myeni’s guidance.
Buthelezi argued that the plaintiffs not making a submission on these after having mentioned then in their opening statements meant that they had come to a realisation that there was unsubstantiated evidence to prove any wrongdoing on his client’s side.
Outa legal representative Carol Steinberg objected and clarified that, contrary to Buthelezi’s claims, the plaintiffs “felt they had already proved their case and had no need to make submissions on BNP Capital and the EY report”.
“This is an entire misconstrual of the proceeding and an abuse of an opening statement by the defence,” said Steinberg.
Judge Ronel Tolmay, who is presiding over the matter, called Buthelezi to order, reminding him that it was premature of him to try and argue his case before presenting any evidence.
Notwithstanding that Myeni faces, among other allegations, claims that she was responsible for the failure of a R1. billion profit guarantee for the airline if it went ahead with a deal with Emirates in June 2015.
But the resolute Buthelezi maintained that Myeni had nothing to answer to as the entire case is allegedly built on boardroom politics.
Outa and Saapa want the court to declare Myeni a delinquent director for the rest of her life for allegedly playing a role in plunging the national airline into financial chaos during her six-year term as board chairperson.
The defence is expected to continue making its submission on Friday.
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