Tribunal shuts out Dudu Myeni’s plea
SAA board chairwoman draws blank in effort to have compliance certificate issued against her declared invalid
Controversial South African Airways (SAA) chairwoman Dudu Myeni will have to approach the courts if she wants a compliance certificate issued against her by the Companies and Intellectual Properties Commission to be expunged from her record.
Myeni’s application for a review of the compliance certificate was dismissed on Thursday by the Companies Tribunal, which said it no longer had the power to set it aside.
This was because she had complied with a compliance notice issued by the commission, even though she may have done so under protest, according to her.
Myeni’s bid to have the compliance certificate declared invalid was seen as an attempt to clean up her record ahead of new Finance Minister Malusi Gigaba’s decision on her contract as chairwoman of the national airline’s board. The one-year contract will expire in September 2017.
Pressure is also mounting on Myeni from a legal effort by the lobby group Organisation Undoing Tax Abuse (Outa), to have her declared a delinquent director. Outa has filed an application in the high court. One of the grounds for delinquency is repeatedly being subject to a compliance notice or similar enforcement mechanism.
Myeni could not be reached for comment on Thursday following the tribunal’s decision.
A compliance notice was issued when Myeni faced accusations of misrepresenting an SAA board decision relating to the purchase of 10 aircraft from Airbus in 2013. She told Gigaba, then public enterprises minister, that the SAA board had resolved to lease two aircraft.
But the board resolution stated that 10 aircraft would be leased. On being confronted by the board, Myeni wrote to Gigaba, saying SAA had planned to purchase 10 aircraft. In November 2016, the Companies and Intellectual Properties Commission asked her to explain herself, resulting in a compliance notice being issued against her.
Myeni complied with the notice in January and was issued with a compliance certificate.
During the tribunal’s hearing earlier in June, Myeni’s lawyer Francois van Zyl argued that the SAA chairwoman had "innocently made a mistake" in her communications with Gigaba.
Van Zyl also told the tribunal that Myeni had complied with the compliance notice under protest and had always intended appealing against it.
Companies Tribunal presiding member Peter John Veldhuizen, who read out the decision on Thursday, said that in accordance with the Companies Act, the tribunal could review a compliance notice only if no certificate had been issued.
"The compliance notice remains in force until a compliance certificate is issued. Therefore, once a compliance certificate is issued the jurisdiction of the tribunal is ousted," Veldhuizen said.
Myeni’s application for the review of the certificate was dismissed with costs.