Dudu Myeni asks to offer 'new evidence' in her delinquent director challenge

Former SAA chairperson Dudu Myeni will on Thursday bring an application in which she wants the Pretoria high court to grant her leave to introduce new evidence pertaining to the testimony of the airline's former board member, Yakhe Kwinana, at the state capture inquiry.

Myeni intends to introduce the new evidence in her appeal against the judgment which declared her a delinquent director.

In May, the Pretoria high court ruled that Myeni was a delinquent director. This means Myeni is barred from becoming a director at any entity.

The ruling came after an application launched in 2017 by the Organisation Outdoing Tax Abuse (Outa) and the SAA Pilots' Association (Saapa), to declare Myeni a delinquent director in terms of the Companies Act, based on her actions while she was chairperson of the SAA board.

In October, Myeni filed a notice to appeal the judgment. The matter is set down for hearing on Thursday and Friday.

On Tuesday, Myeni’s lawyers filed a notice of an interlocutory application in which she seeks an order granting her leave to introduce new evidence.

She also wants an order granting her condonation for the late filing of the same application.

In her affidavit supporting the interlocutory application, Myeni said the new evidence she wants to introduce is relevant to the issues to be adjudicated by the Pretoria high court in her appeal.

“I therefore seek to introduce the evidence of Mrs Kwinana’s testimony at the Zondo commission as I believe it supports a number of points raised in the leave to appeal application, which include: the learned judge erred in granting the joinder application; and Outa’s claim to act in the public interest is disingenuous given that they acted selectively in deciding against whom to launch delinquency proceedings.”

Outa 'concealed deal made with Yakhe Kwinana'

According to Myeni, based on Kwinana’s evidence, Outa did not make a full disclosure to the court in the joinder application about why they refused to join Kwinana in the case.

“There is no escaping the conclusion that Outa had struck some sort of deal with Mrs Kwinana which Outa sought to hold Mrs Kwinana to by ensuring  she did not testify as a defence witness in the trial,” reads Myeni’s affidavit.

Outa, Myeni said, had “actively” concealed the deal it had apparently made with Kwinana.

“When the issue of the non-joinder of inter alios [among others] Mrs Kwinana was mentioned, pertinently all sorts of reasons were advanced by the plaintiffs in their heads of argument,” Myeni argued.

She said the new evidence she wanted to present showed that Outa was not acting in the public interest.

“It could never be in the public interest to single out one person fully knowing there were other qualifying persons and that the decision to exclude them was based on illegally obtained evidence which is false,” said Myeni.

According to Myeni, the public interest would demand that all those who should be declared delinquent directors be declared as such to save the public from them.

“Outa was in fact motivated by their own narrow and selfish political or other agendas which were undisclosed to the court.”

Myeni said the court deserved to know why, despite evidence that Kwinana and aviation specialist Dr John Tambi were the people leading negotiations with Airbus, were spared from the delinquency action.

“Given all the above and the overall context in which the present application takes place, the public interest and the rights of the applicant, it is clearly in the interests of justice that the court should exercise its inherent jurisdiction in favour of admitting the new evidence and taking into account in the adjudication of the application for leave and or possibly the section application as well.”

Myeni said she had become aware of the negotiations between Outa and other directors on November 7 during Kwinana’s testimony at the state capture inquiry.

“Were it not for this testimony, I still would not know anything about it. Thus, I could not have led any evidence about Outa entering into secret negotiations with other SAA directors over their exclusion from the delinquency application as defendants,” she contended.

Myeni said she believed that if the court had not been misled by the “silence and or concealment” of relevant information, the outcome of trial action would have been different.

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