Old Mutual is to apply for the recusal of Judge Brian Mashile who ruled in favour of the reinstatement of fired CEO Peter Moyo, the insurer said yesterday. BusinessLIVE reports that the appeal against the order is set for 4 December.

Old Mutual approached the Office of the Judge President in September when Mashile granted the insurer leave to appeal against his July order, in which he said Moyo should be temporarily reinstated because his dismissal was illegal.

The insurer said the Deputy Judge President of the Gauteng High Court (Johannesburg) had agreed to an accelerated timetable for the appeal.

Old Mutual fired Moyo in June, citing a breakdown in trust and alleged conflict of interest. This prompted Moyo to sue for unfair dismissal, and he succeeded in getting the court to rule in his favour; however, Old Mutual has made it clear it does not want him back.

'Though keen to put the matter behind the company, the dispute with the former CEO threatens to upend corporate governance and general principles of company law if left unchallenged,' Old Mutual said.

The board that fired Moyo is also being sued by the former CEO for contempt of court and damage to his reputation. Moyo wants to see every single member of the board being given a jail term instead of a financial fine for the board's collective decision to prevent him from coming back to Old Mutual after the court ordered his reinstatement twice.

Old Mutual said it had been advised to seek the judge's recusal because of Moyo and his legal team's claims that the insurer had embarked on a campaign of insulting Judge Mashile personally.

'This has created a situation where it is not reasonable for Judge Mashile to hear the matter.'

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The Old Mutual move is a ‘desperate attempt’ to prevent the start of the contempt of court hearing against its directors, according to Moyo's lawyer Eric Mabuza.

‘You can't just wake up and decide that a judge should recuse himself. If Mashile is not good enough it means the entire judiciary is not good enough,’ said Mabuza in a Fin24 report.

However, Old Mutual legal head Craig Mcleod made the point the company is not accusing Mashile of any wrongdoing and the new application is being made purely because Moyo’s legal team has introduced a contempt of court charge relating to board chair Trevor Manuel’s now retracted remarks about Judge Mashile.

A Business Day report notes Manuel said during a media conference in September that a board’s decision cannot be overturned by ‘a single individual who happens to wear a robe’.

Moyo’s legal team added this statement as a sixth contempt of court charge in its court documents filed earlier in October.

What you are asking the judge to do is to adjudicate on whether they are in agreement that we’ve insulted him personally. He now has to sit and adjudicate on a matter that is about him personally and not about an order of court. It’s not an application we bring lightly. On the one hand, the judge is put in a very awkward position and we as respondents feel our rights to get a fair hearing are also quite compromised,’ Mcleod said.

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