Bad blood between Old Mutual and its former CEO Peter Moyo appeared permanent on Thursday when the two parties turned down judge Brian Mashile’s advice to find a solution that would benefit all parties.
Mashile tried to be the voice of reason, asking the two parties to consider finding common ground that could clear everyone. One way to do this would be to reinstate Moyo and initiate the disciplinary hearing process that was never afforded him. The insurer could reinstate the axed CEO and issue a statement clearing him of any wrongdoing.
Moyo, at the helm at Old Mutual for two years, was fired in June over a breakdown in trust and a conflict of interest linked to NMT, says Old Mutual.
At the centre of the breakdown is the payment of ordinary dividends by NMT Capital, co-founded by Moyo, in July 2018 without first paying Old Mutual its preferential dividends and preferential capital. Old Mutual has shares in NMT Capital.
"Everyone saves face [if you do this]. No-one will be dented. The applicant comes out clean, there’s nothing about the chairperson," said judge Mashile.
But after a brief deliberation, Moyo and Old Mutual’s legal teams said they could not agree. Old Mutual’s legal counsel Ngwako Maenetje said they "generally considered" the suggestion, but "couldn’t find each other". He said later it is clear "there is no mutual respect left here".
Advocate Dali Mpofu, for Moyo, said that if victimisation was behind his dismissal, as he submitted to court, it will continue and thus the court was best placed to rule on the matter.
Mpofu said in court on Thursday that Moyo was a victim of the insurer’s inability to protect whistle-blowers. He said he was victimised for speaking out about the insurer’s board chairman Trevor Manuel’s conflict of interest involving Rothschild and legal fees the insurer paid for him in a matter that had nothing to do with Old Mutual.
"What we are really (dealing) with here is a case of victimisation," said Mpofu. "The so-called breakdown in relationship is actually manufactured. It’s not real so the employer cannot benefit from it."
Moyo’s legal team argued that the only reason he was fired was because of his conflict with Manuel, whom he has accused of "gunning for him".
But Old Mutual’s Maenetje said Moyo was clutching at straws with "so-called disclosures" concerning Manuel’s conduct.
"There is nothing in that Protection in Disclosures Act claim. Reliance on it is completely misplaced," he said.
Old Mutual had dismissed this allegation in its court papers, saying it was an after-thought argument and Moyo was mocking a serious issue by casting himself as a whistle-blower.
Maenetje said that Moyo advanced weak evidence to support his whistle-blowing argument. But apart from that, he chose to argue Old Mutual’s case on technicalities, saying the question before the court was whether Moyo’s contract was terminated legally, and not whether his dismissal was fair or what the reasons for firing him were. He argued that Old Mutual was within its right to terminate his contract on notice because he was fired for a breakdown in confidence and trust and not for misconduct.
Old Mutual "didn’t say the reason for termination is that you are guilty of misconduct", he said.
Maenetje said he did not dispute that the board had a debate on whether Moyo’s conduct in relation to payment of dividends at NMT was in breach of his employment contract. But it never said that was the reason he was fired, in the termination letter, he said.
If the company dismissed Moyo on the grounds of misconduct, labour law would have required it to conduct a disciplinary hearing before dismissing him, said Mpofu.
The hearing continues on Friday.
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