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Court questions SAA ex-CEO's appeal

Sep 10 2012 16:46 Sapa

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Bloemfontein - The Supreme Court of Appeal on Monday questioned an appeal by former SAA boss Khaya Ngqula in regard to legal proceedings over claims against him instituted by the airline.

The former SA Airways (SAA) CEO appealed against a ruling by the High Court in Johannesburg, which directed that two SAA claims against him, to the amount of nearly R30m, be heard in the High Court in Pretoria.

Judge Jonathan Heher asked Gerald Faber, for Ngqula, at the outset: "Why is this before the court?"

Faber said the high court decision had a substantial bearing on Ngqula's chances to submit a special plea of subscription.

He argued that SAA had deliberately instituted proceedings in the wrong court. As the case now stood, a plea of prescription could now be 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.

New proceedings in the Pretoria court could have given Ngqula the additional legal component of subscription.

The SCA was of the opinion that the matter before them related to court procedures only, which allowed the transferral of matters from one court to the next.

"Where is the problem?" Judge Malcolm Wallis asked.

Faber said the transferral could mean the High Court in Pretoria would not be required to deal with a special plea of subscription.

SAA filed papers in the High Court in Johannesburg submitting that the claims were not related to Ngqula's employment contract, which stipulated court proceedings against the two parties should be instituted in the Pretoria court district.

Ngqula objected to the Johannesburg proceedings and the SAA applied for a transfer of the case to Pretoria, to prevent a delay on grounds of the court's jurisdiction.

High Court in Johannesburg Judge Nazeer Cassim found for SAA.

The high court held a jurisdictional challenge had consequences of an avoidance of a debate whether public funds were appropriately utilised or not.

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.

On Monday, Vincent Maleka, legal counsel for SAA, was not asked to argue any points on the appeal application, except on costs.

No arguments on the merits of the SAA claims were heard.

Judgment was reserved.

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