Almost 16 months since Old Mutual appointed Iain Williamson CEO and sought to end an acrimonious legal battle with his predecessor Peter Moyo, the saga refuses to go away.
As the company accused the former boss of trying to “delay finality” on a case he has already lost, Peter Moyo was back in court, applying to have directors including chair Trevor Manuel, SA’s longest serving democratic-era finance minister, declared delinquents for alleged negligence and wilful misconduct while performing their duties.
In legal papers filed with the Gauteng division of the High Court, which Business Day has seen, Moyo, who was dismissed in 2019, says he wants 13 current and former non-executive directors of the insurance and investment group declared delinquents in terms of the companies act and be jailed for as long as six months.
The application, which was heard on Wednesday, also wants 16 members of Old Mutual’s board found guilty of contempt for their refusal to allow him to resume duties in accordance with a court ruling after his 2019 dismissal.
Moyo was suspended and dismissed over alleged conflicts of interest related to investment company NMT Capital which he helped found and in which Old Mutual was a 20% shareholder. He is alleged to have made a decision to pay dividends favouring NMT Capital over Old Mutual’s interests.
Though Moyo contested his dismissal, with Judge Brian Mashile ruling in July 2019 that it was unlawful and that he be reinstated, Old Mutual refused to allow him access to its offices. The highly publicised spat eventually resulted in a court victory for Old Mutual, which appealed against Mashile’s decision, with a full bench of the High Court ruling in January 2020 that the group did not have to reinstate him.
That left Old Mutual free to find a new CEO with former COO Iain Williamson appointed in July 2020 after serving as interim company head. Moyo’s lawyers allege that this was in “flagrant, wilful and mala fide [bad faith] breach of the court order” by Mashile.
Moyo’s legal counsel, led by advocates Dali Mpofu and Tembeka Ngcukaitobi, also argue that Old Mutual’s court victory against Moyo’s reinstatement does not nullify their alleged contempt of court by refusing to abide by the earlier reinstatement order.
Legal papers pertaining to the matter also take express aim at Manuel’s comments regarding Old Mutual’s refusal to allow Moyo to resume duties after he was reported as saying the decision of the group’s board “could not be overturned by a single individual just because he is wearing a robe”. The comments caused controversy at the time and Manuel subsequently apologised.
“The issue is that we are here dealing with one of the most serious, high profile, brazen and continuous cases of contempt of court ever witnessed in our courts,” Moyo’s legal papers state. “A party cannot elect to comply or not to comply with the judgment depending on its view of its correctness.”
Moyo’s legal papers also cite a previous ruling by the Constitutional Court that just because a party’s legal counsel conclude that a court order may be incorrect or invalid, it does not prevent the judiciary from imposing a penalty for disobeying that order to deter future litigants from doing the same.
The legal papers also accuse Old Mutual’s directors of deliberately trying to drain Moyo of his financial resources to “exhaust his capacity to litigate and protect his rights”.
Moyo’s lawyers want 16 of Old Mutual’s directors declared to be in contempt of court, 13 of whom it wants jailed without the option of a fine for up to six months. Alternatively, the legal papers propose that half the incarceration period be suspended for three years pending the immediate compliance with the previous reinstatement order, on condition that the affected directors are not convicted for contempt of court during the suspension period. Moyo also wants Old Mutual’s directors to jointly pay his legal costs out of their own pockets.
“We maintain that Old Mutual and its directors respected the legal process throughout,” Tabby Tsengiwe, Old Mutual’s general manager for public affairs and communications, told Business Day. “Both the contempt and delinquency claims will therefore be defended and we are comfortable that the court will vindicate our position.
“His [Moyo’s] failed attempts to get reinstated first began in 2019 and so it is now in everyone’s best interests to put an end to this with no further delays,” Tsengiwe added. “After all, a full bench has already found that Old Mutual acted within its rights when its board chose to dismiss Mr Moyo. It is in nobody’s interest to delay finality further.”
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