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SAA Airbus deal: 'Myeni made a simple mistake'

Jun 19 2017 13:46

Pretoria – South African Airways (SAA) board chairperson Dudu Myeni made a simple mistake when she signed off on an Airbus deal for two aircraft instead of 10, a tribunal was told.

At the Companies Tribunal at the Department of Trade and Industry on Monday, Myeni’s counsel Francois van Zyl argued that she acted reasonably in her capacity as board chairperson.

In November 2016, the Companies and Intellectual Properties Commission (CIPC) issued Myeni a notice of compliance. Myeni complied with the notice under protest as a safeguard against criminal prosecution, Van Zyl said.

He went on to argue that the notice was invalidly issued, as there was no action for Myeni to cease, rectify or reverse as she had corrected the misunderstanding about the aircraft by July 2016.

READ: OUTA turns to court to declare SAA's Dudu Myeni 'delinquent'
The Democratic Alliance and the Organisation Undoing Tax Abuse (OUTA) are taking Myeni to task by questioning her actions as board chairperson. OUTA filed an application to the North Gauteng High Court to have Myeni declared delinquent over the airline’s failures under her watch, with the Airbus deal among these.

But Van Zyl says although there was “room for confusion” concerning the number of aircraft that needed to be financed, he said that Myeni had sought clarity by approaching the company secretary before signing off. Thereafter a letter was set to the minister of public enterprises (Malusi Gigaba) to inform him of the mistake that there were 10 aircraft in question and not two.

He said it could not be said that she intentionally misled the minister, because there had been a misunderstanding. “If she did so innocently, then bona fides [good faith] comes into play.”

However, the panel - consisting of PJ Veldhuizen, Bongi Zulu and Khashane Manamela - asked whether Myeni, as an experienced director, had acted with diligence and care before signing off on the matter which involved a significant amount of money.

Van Zyl said that Myeni would have acted unreasonably by singing off on her own accord without consultation. The fact that she approached the company secretary, who gave her an explanation that “satisfied” her, and then wrote a second letter to the minister to inform him of the mistake, shows her reasonable behaviour.

He acknowledged that no formal meeting was held to overturn the resolution about the aircraft. He agreed that it appears there was a lack of skill and due diligence, but he pointed out the context surrounding the matter, such as that the aircraft had to be financed urgently.

“When we look at the purpose of the compliance notice to rectify the effect of the contravention, or to cease or reverse, none of that could be done by end of November 2016, all had been corrected,” he said.

Regarding Myeni’s decision to challenge the compliance notice, Veldhuizen asked if Myeni could simply have written a letter to indicate her intention to challenge, instead of complying first and then challenging. Van Zyl agreed that that could have been done instead.  

The CPIC will present its case after 13:30.

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