FORMER South African Airways CE Khaya Ngqula’s attempt to preclude a court from hearing South African Airways’ multimillion-rand claims against him was thrown out of the Supreme Court of Appeal on Wednesday.
The effect of the Supreme Court of Appeal’s order — striking Mr Ngqula’s appeal from the roll — is that the North Gauteng High Court will now hear the claims.
SAA issued two summonses against Mr Ngqula in 2010. In one, SAA claimed payment of more than R26.4m arising out of an alleged breach of Mr Ngqula’s fiduciary duties. In the other summons, SAA’s claims included $3.4m arising out of a sponsorship agreement with Argentinian golfer Angel Cabrera, which SAA said Mr Ngqula was not authorised to spend.
SAA had brought its cases in the South Gauteng High Court but Mr Ngcula objected, saying that in terms of his employment contract, only the North Gauteng High Court could hear the claims.
By so doing, he was hoping to delay the court cases, which would then have enabled him to argue that SAA’s claims had prescribed — because they would have been initiated more than three years after they arose.
But before Mr Ngqula’s objections to jurisdiction were heard, SAA applied for the cases to be "removed" to the North Gauteng High Court, an application that was granted by the South Gauteng High Court.
Mr Ngqula than appealed to the Supreme Court of Appeal. But in Wednesday’s judgment, Judge Jonathan Heher said the removal order was not appealable.
Judge Heher said Mr Ngqula was using the appeal "in an attempt to avoid a determination of the merits" and the effect of the high court order was a "procedural mechanism incidental and preparatory to" the main dispute.
"I conclude that a removal ... has none of the characteristics of an appealable order," Judge Heher said.