Bombshell appeal against corruption ruling that shocked South Africa’s IT community

Six top former Dimension Data executives, including co-founder Jeremy Ord, have applied for leave to appeal a Johannesburg High Court ruling that found they had orchestrated a corrupt deal while selling The Campus business park.

According to the accused executives, the judge made significant errors in reaching her judgement, including relying on hearsay evidence and not allowing the case to go to trial.

Judge Denise Fisher’s ruling last week found that the executives had set up an underhanded transaction to enrich themselves under the guise of a Black Economic Empowerment deal.

The ruling said the executives did not disclose their financial interests and abused their positions to ensure the deal went through.

It sent shockwaves through South Africa’s IT community, as several of the executives in question were considered industry royalty.

Jeremy Ord co-founded Dimension Data and served as executive chairman until 2021.

Bruce Watson joined the company in 1984, the year after it was founded.

Saki Missaikos was the executive head of strategy and former MD of Internet Solutions.

Jason Goodall was Dimension Data’s CEO before being promoted to Global Chief Executive Officer for NTT’s IT services subsidiary, NTT Ltd. He left in 2021.

NTT acquired Dimension Data in 2010 and brought the case against the executives following a whistleblower complaint.

Grant Bodley was the Dimension Data Middle East & Africa CEO until May 2021.

Steven Nathan was head of corporate development at Dimension Data.

According to their application for leave to appeal, Fisher’s judgement relied solely on the affidavits and evidence filed in the court papers without hearing oral evidence.

This was despite substantial disputes of fact in the court papers filed by NTT and the executives.

The executives argue that because of this, they were not afforded a fair opportunity to present their case.

The hearsay evidence in question is a series of emails about the deal that the executives say were authored by third parties, not the people they were used as evidence against.

“The learned Judge incorrectly relied on such exchanges in finding that Ord, Bodley and Missaikos had already formed an intention to invest… at the time of approving the resolutions which gave rise to the transaction,” they stated.

However, they said the judge ought to have ruled that none of the emails were authored by Ord, Bodley, or Missaikos and therefore should be disregarded as hearsay.

They also said that Watson was not a party to any of the correspondence between them, and therefore, any emails the other executives exchanged were inadmissible against him and could not be used to find that Watson was conspiring with them.

It should be noted that Fisher stated in her judgement that the email evidence was not hearsay. However, the executives contend this was a mistake that should be rectified on appeal.

They also state that NTT had presented four grounds on which the transaction should be declared void.

These were: breach of fiduciary duty, Nathan’s conflict of interest, that Nathan received a secret commission, and fraud.

“The learned Judge declared the transaction to be void exclusively on the fiduciary duty ground,” the application states.

However, they said the executives did not have a direct personal financial interest in the transaction at the time it was approved. Therefore, there was no breach of their fiduciary duties.

They also said the financial interests of each individual executive must be assessed individually.

“There is no warrant for simply grouping them together and making generalised findings,” they stated.

“The very different position of Watson, which the learned Judge identified but then ignored in her findings, for example, demonstrates why it is inappropriate and unfair to decide causes of action based on conspiracy to defraud on motion.”

Regarding the issue of direct interest, they argued as follows:

“None of Ord, Bodley or Missaikos had a direct interest in the matters that were considered in terms of the DD Facilities and DD Investments Resolutions, as none of them was the purchaser under the agreements to be concluded pursuant to such resolutions.”

The executives said Identity Propco, as purchaser of The Campus, had a direct interest and that it was not a related person of Ord, Bodley, or Missaikos.

They said that to be a related person, Identity Propco had to be controlled by the executives — which they did not.

For these reasons and several others advanced in the 27-page application, the executives said they should be granted leave to appeal.

“It is in the interests of justice that the respondents be afforded an opportunity to redeem their tarnished reputations in view of the particularly serious and scathing findings made against them,” they stated.

“That in itself justifies leave to appeal. The judgment ought not to be the final word on this.”