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Lawyers of axed Old Mutual CEO Peter Moyo say overturning the Johannesburg High Court's order that instructed the company to reinstate will be tantamount to spitting in whistle-blowers' faces.
Urging the three judges who listened to the firm's appeal against Judge Brian Mashile's July 30 ruling, Advocate Dali Mpofu said they needed to send a strong message that whistle-blowers are protected by law by throwing out the insurer's case.
Mpofu maintained the argument he presented to Mashile in the past - that Moyo was a victim of a company that sought to punish him for raising concerns about the company chair, Trevor Manuel.
"This court must send a message out there, to other whistle-blowers out that the law will protect you. Otherwise this country will go down in a pool of corruption and impropriety if we don't take measures to encourage whistle-blowers," said Mpofu.
Throughout the court proceedings, Moyo's lawyers disputed that Old Mutual fired him for any reason other than his conflict with Manuel.
His court papers say he fell out of favour with Manuel when he raised questions about the latter's positions in both Old Mutual and Rothschild & Co. Rothschild, an international advisory firm, was contracted by the insurer to help it manage the separation of the Plc group into four separate businesses, which led to Old Mutual moving its primary listing to the JSE in 2018.
He claimed to also have raised concerns about the company not disclosing to shareholders that it paid legal fees for Manuel in two matters that had nothing to do with Old Mutual.
The company has consistently dismissed this as "misrepresentation" and denied in its affidavits that Moyo was a whistle-blower.
On Wednesday morning, Old Mutual lawyer, Senior Counsel Vincent Maleka, again emphasised that Moyo was fired because the company was entitled to, if it game him notice.
He disputed that Moyo was a victim for speaking out or that he was fired for misconduct or conflict of interest, although the company did accuse him of those offences.
"The reason relied on by Old Mutual in suspending Moyo was the breakdown in the relationship between the board and Mr Moyo," said Maleka.
But Mpofu said it was disingenuous for Old Mutual to "create" this breakdown in trust and confidence, and then advance it as a legitimate reason for firing Moyo.
"An employer cannot rely on his own self-created so-called breakdown of a relationship to deny the reinstatement of the victim," argued Mpofu.
Also representing Moyo, Advocate Tembeka Ngcukaitobi said if Old Mutual says it did not fire Moyo for misconduct or conflict of interest, he accepts that, but the court should delve deeper into the real reason he was fired, rather than accept Maleka's argument.
"To say I have terminated because of a breakdown in trust and confidence is to asset a legal conclusion. It tells you nothing. One must always look at what are the factors that contributed to the breakdown," said Ngcukaitobi.
He also told the court that previous cases have set a precedence that prohibits people from appealing interim orders. Since Mashile's judgment on July, 30 said Moyo must be temporarily reinstated, Ngcukayitobi argued that Old Mutual jumped the gun. It should have reinstated him pending the outcome of the second leg of his court challenge.
Moyo's application came in two parts; Part A sought interim reinstatement and preventing Old Mutual from appointing his replacement until the court has ruled on Part B. In Part B, Moyo is asking the court to declare all Old Mutual board directors delinquent and argued in successive papers that they should also serve a jail term for being in contempt of court.
The contempt of court charges arose from the fact that despite being ordered by the court twice to reinstate Moyo, Old Mutual has barred him from its offices.
