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Old Mutual’s Case Is Nothing Like Zuma’s, Manuel Was Apologetic – Lawyers

Former Old Mutual CEO Peter Moyo and chair Trevor Manuel. Image: Grafika24

Old Mutual and its directors’ behaviour towards the courts is nothing like the disrespect that former president Jacob Zuma showed, say the insurer’s lawyers.

Replying to Dali Mpofu’s plea to the Gauteng High Court in Johannesburg on Wednesday that it should jail Old Mutual board members for defying a court order by not reinstating its former CEO Peter Moyo, the company’s legal team said the two cases were not comparable.

The insurer is back in court to defend itself against Moyo’s application to have the company declared to be in contempt of court. This is because, after Judge Brian Mashile ordered Old Mutual to temporarily reinstate Moyo in July 2019, it refused him entry into its offices. But the company is arguing that it did reinstate him on paper by reinstating his contract and paying him for a six-month notice period.

Moyo’s other lawyer, Tembeka Ngcukayitobi, however, argued that an order to reinstate an employee should not be equated to an order to pay a debt. By not taking Moyo back into service, Old Mutual defied the court order, he said.

Moyo is also in court in a bid to have all 13 Old Mutual directors who sat on the board at the time of his axing declared delinquent. And his lawyer, Mpofu, thinks the directors deserve nothing less than a jail term.

Mpofu suggested that, should the court find that the directors were indeed in contempt, it should refer the matter to the National Prosecuting Authority.

However, Old Mutual’s lawyer, Gilbert Marcus, said Mpofu was clutching at straws.

“I appreciate that we as counsel have wide latitude in presenting our arguments. But I have to submit, with the greatest of respect, that was an incautious and inappropriate submission to make,” he said.

Marcus said Zuma had made egregious attacks on the Constitutional Court, calling its processes a sham. He had attacked the legal system and adopted a boycott strategy by refusing to participate or make submissions when invited to do so, Marcus added.

Judge Joseph Raulinga said that, by giving Zuma a jail sentence for contempt of court, the Constitutional Court had drawn a line in the sand on how such matters must be treated. And lower courts had to toe that line.

“But we can only toe the line if there are similarities… but we’ll have to actually check, and cross-check and see where the similarities are and where the distinctions in that particular case,” said Raulinga.

Acting on legal advice

Marcus said Old Mutual had barred Moyo on three occassions from entering its offices and resuming his role as the CEO, based on the legal advice it got.

The first lockout was a day after Judge Mashile ordered the insurer to temporarily reinstate Moyo to his position. The second and third instances happened after the company reinstated him on paper and fired him on notice.

Marcus argued that those two instances were therefore not related to the July court order because Old Mutual had barred Moyo after firing him for the second time, a move that the court found it was entitled to.

As for the appointment of Iain Williamson as interim CEO, Marcus said that was before Judge Mashile’s order to temporarily reinstate Moyo. And after that order, Old Mutual had retained Williamson as a “caretaker”. It didn’t appoint a CEO. Judge Mashile had interdicted the company from appointing a CEO at the time.

Marcus said every one of Old Mutual’s directors had acted “perfectly legal”, within good faith of legal advice.

However, Ngcukaitobi told the court that, if it allowed people to use legal advice as a defence for disobeying a court order, it would be a slippery slope, opening a floodgate for people to disrespect court rulings.

“There will be so many people who do not comply with court orders. But if your judgment loosely allows non-compliance based on unproven allegations of reliance on legal advice, you will never find anyone in contempt because it is the easiest thing to say that my lawyer told me not to do it,” said Ngcukaitobi.

Manuel was apologetic

Marcus told the court that the big difference between Old Mutual, and particularly its chair Trevor Manuel calling Judge Mashile “an individual who happens to wear a robe” was that he retracted that statement immediately.

“Let me not beat about the bush. We accept that that comment was impolite. It’s probably best described as a facetious comment which Mr Manuel immediately retracted and for which he apologised unreservedly,” said Marcus.

He said Manuel acknowledged in a statement issued afterwards that it was “wholly inappropriate” to express his disagreement with the Judge’s decision in that manner.

Marcus said Manuel’s behaviour had no grounds for contempt or delinquency. He also said it was hard to understand how Moyo and his legal team wanted to hold every Old Mutual board member legally liable for what Manuel had said. Only four of the 13 directors were in the press briefing where Manuel made those utterances. Furthermore, the company had issued a statement apologising for those remarks.

Marcus asked the court that, should it in any way find that the directors were in contempt of court, they must be afforded a further hearing where they each get to hear what exactly they are charged for and plead their defence.

Ngcukaitobi said Moyo’s legal team did not mean that Zuma’s case was similar to Manuel. However, the Constitutional Court had set a precedent on how to deal with contempt of court. Also, like Zuma, Manuel held a prominent position.

“There are words, and then there are insulting words. What we have here are not words of criticism. These are words they deliberately intended to be to the giant,” said Ngcukaitobi.

The court has reserved judgment on both the delinquency and contempt matters.

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