‘Board member’s tampering put SAA at risk’

Johannesburg - The Johannesburg Bar Council is investigating a South African Airways board member for allegedly doctoring a legal opinion that led to the dismissal of five senior employees – including the acting chief executive officer.

But neither Public Enterprises Minister Malusi Gigaba nor the airline’s board have dealt with Lindi Nkosi-Thomas, the advocate accused of the tampering, since the matter first came to light six months ago.

Advocate Viwe Notshe, head of the Johannesburg Bar Council’s professional sub-committee, this week confirmed that the matter was still under investigation but would not elaborate.

The legal opinion at the centre of the debacle was compiled by Fikile Thabethe, head of legal services at the airline, in December last year.

It was the basis for a decision that the SAA board made earlier this year to end the contracts of four consultants who had been hired in November last year by the acting CEO, Vuyisile Kona.

A day after Kona notified the entire board of the alleged tampering, he was suspended by Gigaba and later fired.

But in a letter from Thabethe to Kona, which was forwarded to the board, Thabethe says the opinion is materially different from the opinion that she drafted.

In her letter to Kona, seen by The Sunday Independent, Thabethe said that the legal opinion was not her opinion: “It is important to state that the document attached to the board resolution is different to my opinion.”

Her concern was that the document misled the members of the board and that when the consultants reviewed their dismissals in court, it would place the board and the company at risk.

Thabethe would not comment, referring media queries to SAA spokesman Tlali Tlali.

SAA refused to explain why action was not taken against Nkosi-Thomas. Tlali said the board had not solely relied on the internal legal opinion to make its decision, but had also sourced a legal opinion externally.

This opinion was consistent with the board’s original view. “Suggestions that the board acted on the basis of altered opinion are misleading and malicious,” said Tlali.

He said the issue of the doctored legal opinion was “mundane”, administrative, within the purview of the board and did not require the minister’s involvement.

Gigaba’s spokesman Mayihlome Tshwete said the board had not informed the minister about the matter but they were discussing it.

“It’s a board issue between the executive who wrote the legal opinion and the legal board member who presented it to the board. They have not come to the minister with a formal statement. Until that happens we will not jump the gun.”

He said Kona’s complaint was part of a legal process and could not be taken and applied to a company.

While the board did not inform Gigaba about the doctored legal opinion, The Sunday Independent understands that Kona, in his submission to the minister on why he should not be placed on suspension, had informed Gigaba about the doctored legal opinion.

Kona did not wish to comment and referred media queries to his lawyer, Eddie Classen, who would not comment on the submissions made, saying they formed part of their case.

Classen however confirmed that Kona was awaiting a date for the review of his dismissal at the Pretoria High Court.

And Nkosi-Thomas said she was not aware of the bar council’s investigation but stood by the board’s statement.

At least two of the consultants have since approached the Johannesburg Labour Court to challenge the cancellation of their contracts.

According to the opinion, the fixed-term contracts were concluded in breach of the company’s recruitment policies and procedures as the positions were not advertised, but the contracts could not be declared null and void.

And a recommendation that the board institute a forensic investigation to establish if there was any collusion between the appointed employee and the appointing employee, was completely omitted.

Copies of the two opinions show several other significant changes were made and paragraphs were omitted in the final version.

The section on “labour and employment law principles applying to fixed-term contracts of employment” had been completely removed.

The section stated that if fixed-term contracts were terminated before they expired, the reasons needed to be based on “misconduct, incapacity or operational reasons”.

Another section stated that although the contracts were valid, the expenditure had to be deemed unauthorised, irregular, wasteful and fruitless.

Thabethe also recommended that disciplinary action be taken against Kona as the official who appointed the employees, as the contracts were concluded in an irregular manner and amounted to unauthorised expenditure.

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Sunday Independent