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Old Mutual and on-again, off-again CEO Peter Moyo will hear the outcome of their increasingly acrimonious legal battle in approximately two weeks.
Judge Brian Mashile reserved his ruling in the Gauteng High Court in Johannesburg on Friday, following lengthy arguments from both sides.
Moyo was suspended in May and axed in June, while the JSE-listed financial serves company cited a breakdown in trust and a conflict of interest related to NMT Capital, a boutique investment firm he co-founded. Old Mutual’ is one of the shareholders in the company.
Moyo successfully challenged his dismissal in court in late July and argued he was being victimised for pointing out Old Mutual chairperson Trevor Manuel’s conflict of interest.
However, he was barred from work, the day after his court victory as the country’s second-largest insurer filed a notice to appeal against the judgment.
Aspects of finality
Advocate Vincent Maleka for Old Mutual told the court that the judgement by Mashile had aspects of finality and a notice to appeal the ruling would, therefore, suspend the order to re-instate him.
The company applied for a declaratory order to advise whether the July 30 ruling reinstating Moyo was a final or interim order and whether it can be suspended with notice to appeal, Maleka said.
Advocate Alec Freund also argued for leave to appeal Judge Mashile’s decision, saying another court could find differently to him. Mashile’s ruling reinstated Moyo pending Part B of his application, to be lodged 60 days from the end of July.
In this litigation, he will sue Old Mutual for damages to his reputation and ask that the non-executive directors be declared delinquent for failing to uphold their fiduciary duties when they agreed to fire him.
The company is concerned that this legal process could stretch beyond the four years left on Moyo’s contract and this will effectively make his reinstatement permanent.
“Untenable working conditions”
Also for Old Mutual, Advocate Alec Freund argued that working with Moyo would be “untenable” in these conditions, where he is trying to remove the board of directors. Representing Moyo, Advocate Tembeka Ngcukaitobi said the reinstatement order is not meant to operate in perpetuity and they have two months to set this process in motion.
Old Mutual asserts there has been a breakdown in the relationship between the board and Moyo but has not been proven this, Ngcukaitobi said.
Their claim could have been tested in a disciplinary hearing but Moyo was not granted this, instead he was dismissed in June with immediate effect and received a six month payout.
“Just grow up”
It is not just about the money however, Advocate Dali Mpofu also for Moyo told the court the financial services executive is sitting at home humiliated.
He added that Old Mutual will not suffer irreparable harm if Moyo is reinstated and they “should just grow up”.
Mpofu argued further that all 14 directors should be found in contempt of court for failing to allow Moyo to report for duty. “We can't behave as if the judgment is not there, as if no court has pronounced on this,” Mpofu said.
In a brief exchange, the 14 directors who did not individually form part of Old Mutual's application were represented by Advocate John Dickerson.
He argued that Moyo’s attempt to have them declared in contempt of court was not given with sufficient notice. Mpofu hit back saying the directors should have been named as applicants in Old Mutual’ s case and they were trying to “hide” behind a large corporate to escape individual accountability.
Speaking outside the court after adjournment, Moyo and his lawyer, Eric Mabuza, said he had not tried to report for duty since July 31, out of respect for court processes and will wait until the ruling in around two weeks.
Meanwhile, Old Mutual’ s share price which has fallen around 14% since Moyo was suspended on May 24 closed in the green on Friday up 0.5% to R17.97% while the JSE Fin 15 index was down marginally.
