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Khaya Ngqula loses SAA appeal

Former SAA CEO Khaya Ngqula
Former SAA CEO Khaya Ngqula

SAA was arguing in court in an attempt to recover millions that Ngqula allegedly misspent while he was with the airline. He allegedly spent the money on retention bonuses to company employees, in excess of the authority given to him.

An appeal by former SAA boss Khaya Ngqula about legal action on two claims against him was struck off the roll by the Supreme Court of Appeal on Wednesday.

The SCA held that Ngqula should pay the costs of the case, including the costs of two legal counsel.

The former SA Airways (SAA) CEO had appealed against a ruling by the High Court in Johannesburg, which directed that two SAA claims against him, to the amount of about R27 million, be heard in the High Court in Pretoria.

SAA filed papers in the High Court in Johannesburg, submitting that the claims were not related to Ngqula’s employment contract, which stipulated that court proceedings against the two parties be instituted in the Pretoria court district.

Ngqula objected to the Johannesburg proceedings and SAA applied for a transfer of the case to Pretoria, to prevent a delay on the grounds of the court’s jurisdiction.

High Court in Johannesburg Judge Nazeer Cassim found for SAA.

The high court held a jurisdictional challenge had consequences of an avoidance of a debate on whether public funds were appropriately used. It was in the interest of justice that the case be transferred to the Pretoria court. Ngqula objected, submitting that the High Court in Johannesburg did not have the jurisdiction to make a transfer decision and that his prospects of a plea of prescription would be violated.

The unanimous judgment by Judges Jonathan Heher, Visvanathan Ponnan and Malcolm Wallis held that the lower court’s decision should not be appealed.

The judges found an appeal had to, among other things, lead to a more expeditious and cost-effective determination of the main dispute between the parties. It held that the Ngqula appeal was in direct opposition to this principle.

The judges also found the high court’s order was a practical pre-trial direction, intended to overcome a technical objection to help the parties come to terms with the real dispute.

They held that Ngqula employed the appeal proceedings in an attempt to avoid a determination of the merits.

The SCA further held that the high court ruling did not dispose of any portion of relief claimed in the main proceedings.

Ngqula’s counsel argued that a plea of prescription could now be only an academic exercise.

A prescription plea means SAA took too long — more than three years — to pursue the claims and they should therefore fall away.

The SCA judgment held that this argument was wrong. - Sapa

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