Moyo wants the high court to declare that Old Mutual’s non-executive board members, including chair Trevor Manuel, are in contempt of court for failing to reinstate him. This would force 14 non-executive directors to show, within 30 days, why they should not be jailed for six months or a period of the court’s discretion, according to Moyo’s legal documents filed on Monday.
The former Old Mutual CEO was suspended in May and dismissed by in June, after the financial services provider cited a conflict of interest and an alleged breakdown of trust.
Moyo, appointed Old Mutual CEO in April 2017, then challenged his dismissal, arguing the claims against him were “artificially manufactured” and a “deteriorating” relationship with Manuel was central to his dismissal. He also argued that no disciplinary hearing had taken place prior to his dismissal.
In late July Johannesburg High Court Judge Brian Mashile ruled that Moyo be immediately reinstated as CEO on a temporary basis, pending the second part of his application. This includes an application to have Old Mutual’s board declared delinquent directors and litigation for damages to his reputation. Mashile also barred the company from appointing an interim head.
But when Moyo reported for duty at the company’s Sandton head offices the day after the court made its ruling, he was barred from entering his office. Lengthy meetings between his and Old Mutual’s legal teams failed to break the impasse.
While Moyo held he should be allowed to immediately return to work, Old Mutual argued that because it has submitted a notice to appeal the ruling, its former CEO could not return.
Notice to appeal a final ruling suspends a court order while an interim ruling remains in place, despite notice to appeal. The legal teams of Old Mutual and Moyo, meanwhile, have offered different interpretations on whether Mashile’s order was final or not.
The JSE-listed financial services company, in court papers filed on August 1, had approached the high court seeking an urgent declaratory order to either find Judge Mashile’s ruling as final or suspend the implementation of his directives citing “exceptional circumstances”. They will also file leave to appeal the ruling.
Court order ‘ignored’
Old Mutual’s head of legal, Craig Mcleod, further said in the company’s affidavit that there was an untenable working relationship with Moyo. As such, he cannot be allowed back to helm the country’s second largest insurer.
“It is simply not an option to continue to risk the company’s stability over a dispute with an individual employee. This amounts to exceptional circumstances and shows the applicants will suffer irrevocable prejudice if Mashile’s orders are executed now,” Mcleod stated.
Moyo, meanwhile, said he never agreed that his relationship with Old Mutual had irretrievably broken down.
“[I] always maintained that the true reason for my suspension and dismissal is unlawful victimization due to having made protected disclosures. This claim was upheld by the court,” Moyo’s court documents read.
He added that Old Mutual’s board was not permitted to ignore a court order because it did not agree with it.
“Such behaviour amounts to self-help, anarchy and unlawfulness, it undermines the dignity of the courts,” Moyo stated.
Old Mutual spokesperson Tabby Tsengiwe said the company could not comment on Moyo’s application, as the matter is before the courts.
A set of emails attached as an addendum reveal behind the scenes maneuvering to try end the corporate legal battle, which has concerned investors and roiled the group’s share price.
In a letter dated August 5 from Moyo’s attorney Eric Mabuza to Bowmans Attorneys, which represents Old Mutual, Mabuza suggested that the company withdraw the application for a declaratory order to bar Moyo from work but continue with the leave to appeal process.
Mabuza further proposed that Moyo be re-instated as per the court order and take special leave until the outcome of the second part or Part B of his application, with full benefits except for his physical presence at the office.
The Part B refers to Moyo’s legal challenge to have the board declared ‘delinquent directors’ under Section 162 of the Companies Act and he was granted leave to do this by Judge Mashile’s ruling at the end of July, within 60 days of the court ruling.
However, in a letter from Bowmans to Mabuza on August 6, they state that Moyo was paid half a year’s salary as part of his dismissal conditions in June, and they cannot be expected to agree to his reinstatement while he litigates against the directors.
On Friday the court will hear arguments whether Mashile’s ruling was interim or final, if there are exceptional circumstances to bar Moyo from work, as well as Old Mutual’s application for leave to appeal.