South African Airways (SAA) board chairperson Dudu Myeni’s application to have a compliance notice against her, issued by the Companies and Intellectual Properties Commission, set aside was dismissed with costs by the Companies Tribunal on Thursday.
“The respondent [Companies and Intellectual Property Commission] issued the compliance notice to the applicant [Myeni] on November 28, 2016. The applicant complied with the compliance notice and, under protest, requested the respondent to issue a compliance certificate, which it did on January 25, 2017,” Peter Veldhuizen of the tribunal’s presiding panel said, presenting the decision at a media briefing in Pretoria.
Veldhuizen said a compliance notice remained in full force until a compliance certificate was issued. Once a compliance certificate was issued, the tribunal said it no longer had jurisdiction on the matter.
“The tribunal has no power to review and set aside a compliance certificate and any attempt to do so would be ultra vires [beyond one’s legal power or authority] its powers derived from the [Companies] Act. This is so, despite the nature of the circumstances under which the compliance certificate was issued – including when the compliance certificate was issued under protest or where there are grounds to impugn the preceding compliance notice,” Veldhuizen read out the findings.
“The decision is therefore that the application for the review of the compliance certificate is dismissed, with costs. That is the decision of the full panel of the Companies Tribunal.”
In seeking the review, Myeni argued that she had mistakenly misrepresented information to the then minister of public enterprises, Malusi Gigaba, in the transaction relating to a lucrative aircraft deal in 2013.
Myeni is accused of misrepresenting a board decision about the multimillion-rand deal to lease 10 Airbus aircraft for SAA. In 2013, Myeni reported to Gigaba that the board had decided to lease two new planes, when the board had, in fact, decided to lease 10 aircraft.
She was subsequently served with the compliance notice by the CIPC after it was found that her “misrepresentation” was in contravention of the Companies Act, because she had “acted in a manner materially inconsistent with the duties of a director”.