Bloemfontein - An appeal by former SAA boss Khaya Ngqula
about legal action on two claims against him was struck off the roll by the
Supreme Court of Appeal on Wednesday.
The SCA held that Ngqula should pay the costs of the case,
including the costs of two legal counsel.
The former SA Airways (SAA) CEO had appealed against a
ruling by the High Court in Johannesburg, which directed that two SAA claims
against him, to the amount of about R27m, be heard in the High Court in
SAA filed papers in the High Court in Johannesburg,
submitting that the claims were not related to Ngqula's employment contract,
which stipulated that court proceedings against the two parties be instituted
in the Pretoria court district.
Ngqula objected to the Johannesburg proceedings and SAA
applied for a transfer of the case to Pretoria, to prevent a delay on the
grounds of the court's jurisdiction.
High Court in Johannesburg Judge Nazeer Cassim found for
The high court held a jurisdictional challenge had
consequences of an avoidance of a debate on whether public funds were
It was in the interest of justice that the case be
transferred to the Pretoria court.
Ngqula objected, submitting that the High Court in
Johannesburg did not have the jurisdiction to make a transfer decision and that
his prospects of a plea of prescription would be violated.
The unanimous judgment by Judges Jonathan Heher, Visvanathan
Ponnan and Malcolm Wallis held that the lower court's decision should not be
The judges found an appeal had to, among other things, lead
to a more expeditious and cost-effective determination of the main dispute
between the parties. It held that the Ngqula appeal was in direct opposition to
The judges also found the high court's order was a practical
pre-trial direction, intended to overcome a technical objection to help the
parties come to terms with the real dispute.
They held that Ngqula employed the appeal proceedings in an
attempt to avoid a determination of the merits.
The SCA further held that the high court ruling did not
dispose of any portion of relief claimed in the main proceedings.
Ngqula's counsel argued that a plea of prescription could
now be only an academic exercise.
A prescription plea means SAA took too long - more than
three years - to pursue the claims and they should therefore fall away.
The SCA judgment held that this argument was wrong.
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