The company is arguing the judge has now become too personally involved in the ongoing saga.
Old Mutual chairperson Trevor Manuel last month made a comment about Mashile being a “single individual who happens to wear a robe”. Moyo then introduced this as another count of contempt of court and, because of this, Old Mutual argues Mashile is now personally involved in the matter and should be recused.
Mashile has twice ruled against Old Mutual and has twice reinstated Moyo as the CEO after his dismissal.
Manuel said last month: “If you take a board imbued with the responsibility and accountability and you get that overturned by a single individual who happens to wear a robe, I think you have a bit of a difficulty.” His comment was widely criticised as being disrespectful of the judiciary.
Manuel expressed the view that Moyo had already been awarded R4 million in court, amounting to six months’ notice pay, and that this should be enough.
Moyo’s legal team has, however, asked for Manuel and the directors of the board to be declared delinquent and for a new, interim board to be appointed.
Old Mutual now feels that Mashile is the subject of contempt proceedings and it is therefore not “reasonable” for him to hear the matter.
“The decision to proceed with the recusal application was a difficult one. The directors emphatically state they mean no disrespect to Judge Mashile,” Old Mutual said on Tuesday.
“However, by making Judge Mashile the subject of the contempt proceedings, Mr Moyo’s team have created a situation where the judge would have to decide on claims which now directly involve him personally.”
Earlier this month, Old Mutual made an impassioned plea to the high court against the potential imprisonment of its board members if they are found guilty of contempt of court for not allowing Moyo to return to work.
Moyo’s application wants to declare the 13-member board in contempt of court for blocking him from returning to his office three times. Moyo believes the “failure” by Old Mutual to reinstate him “amounts to self-help, anarchy, and unlawfulness”.
He said Old Mutual’s conduct in opting to “willy-nilly ignore a court order” undermined the dignity of the court and contravenes section 167 (5) of the constitution, which provides that “an order or decision by a court binds all persons to whom it applies”.
Moyo is also vexed that Old Mutual fired him again – issuing him with a second notice on August 21 that terminated his employment contract with the insurance group. The first termination notice was given to him on June 17.
Moyo said his second firing was another count of contempt of court.
However, Old Mutual’s head of legal Craig McLeod said Moyo’s employment contract was lawfully terminated by the second notice “in a manner permissible in law”, as it was “logically and legally” distinct from the first termination notice.
The difference in the second notice, he said, was that the notice stated his continued employment relationship with Old Mutual was “untenable” since Moyo sued the insurance group for unfair dismissal and won.
The contempt of court hearing is expected to be heard next month.