SAA ‘knew’ its consultants were violating immigration laws

A New-York-based aviation consulting firm, awarded a six-month contract for $4.5 million (R59.1 million) by South African Airways (SAA), allegedly violated the Immigration Act by allowing its team to work in the country on tourism visas.

Seabury Aviation Consulting, now part of Accenture, has since March stationed about seven staffers at OR Tambo International Airport in Johannesburg without work permits. Yet the department of home affairs has taken no action against them.

Seabury started its work at SAA in January and the contract expires in June.

A document seen by The Citizen shows that Seabury’s vice-chairperson, Michael B Cox, executive director Michael Mason, associate consultants Christopher Jacobi and Abby Nutting, consultants Queenie Chan and Erin Jakupciak and associate Justas Gumbrevicius are among those accused by the SA Transport & Allied Workers’ Union (Satawu) of working in South Africa on visitors’ permits.

An SAA internal memorandum leaked to The Citizen, titled Immigration Law Implication, dated March 3, shows that acting CEO Musa Zwane confirmed to the board that only one team member from Seabury has the requisite “short-term work permit”, which, according to Section 11 (2), allows foreign nationals to engage in substantive work.

Immigration Law Implications- Foreign Consultants by Charles Cilliers on Scribd

The memorandum stated that several members of Seabury have ordinary tourism or vacation visas, which only allow for attendance of meetings or conferences and not execution of any substantive work.

“From information available and provided to SAA, it appears that the consultants have section 11 (1) permits, which does not allow any person to conduct any substantive work and in special circumstances be used to attend meetings or conferences, but is intended or issued for ordinary visitors.

“In this instance their continued work for SAA, albeit on behalf of the consultant, is in contravention of South African immigration laws,” reads the SAA internal memorandum.

The memorandum adds: “SAA is deemed an employer and bears the liability in the event of a contravention of the Immigration Act.”

The internal memorandum was circulated a few hours after Satawu accused the airline in writing of violating the Immigration Act.

Satawu addressed the letter to Zwane, general manager of human resources Mbongeni Manqele, and copied it to SAA board chairperson Dudu Myeni and the then minister of home affairs, Malusi Gigaba.

Satawu said Gigaba did not respond to them or address the issue.

A Cape Town law firm specialising in immigration services says it is a criminal offence to employ anyone who does not have a work visa. Prosecution and conviction of such a criminal act could result in a fine or a prison term of no less than five years.

SAA acknowledged in its internal memorandum that it was violating immigration laws, and informed the union the matter would be investigated.

In its letter, Satawu demanded to know why Seabury workers were being allowed access to SAA premises without work permits.

Satawu national sector coordinator for aviation Matthew Ramosie said it “clearly undermines the laws of this country, which includes among others labour laws”.

“Our understanding is that before these individuals can work in this country, a work permit application is supposed to be done in our embassy in the US.

“Satawu is greatly concerned and seeks your intervention in making sure that these individuals’ employment is terminated with immediate effect until they have work permits.”

After Satawu’s intervention, SAA’s legal adviser recommended these workers return to their home country immediately.

SAA then recommended that they obtain a work permit in their home country prior to coming to South Africa to execute the contract.

SAA also said it would send a formal notification to Seabury, but the airline would “exercise and reserve its legal and contractual rights in so far as this contravention amounts to a breach of terms and conditions of its contract with the consultant”.

In response to The Citizen inquiry, SAA spokesperson Tlali Tlali said they were not aware of any member of the Seabury team who was deported by home affairs in 2008 or recently for non-compliance.

Asked how many Seabury workers were stationed at OR Tambo, Tlali said, “Seabury operates in accordance with its own business model on assignments it undertakes. As such, SAA neither controls the allocation nor movement of resources during the assignment.”

Tlali added: “When we became aware that a number of Seabury consultants seconded to SAA were not in full compliance with South African immigration laws in that some were not in possession of required short work authorisation permits, SAA demanded from Seabury to comply with immediate effect. The airline, however, continued with the services offered by the consultants, albeit with a smaller team whilst the outstanding compliance issues received attention. Those issues were subsequently resolved.”

The Citizen also presented SAA and Seabury with the names of the employees who are accused of working without proper documents, requesting them to confirm, but they did not.

However, Tlali said: “I don’t speak on behalf of Seabury. I am aware you have sent questions to them. We do not speak on behalf of any service providers.”

Later, Seabury told The Citizen that all their workers had valid permits or South African citizenship.

Tlali said Seabury was contracted for an all-inclusive total amount of $4.5 million and alleged the airline was not responsible for any other costs related to this project. He said the contract was from January and ended in June.

“The appointment of Seabury consultants followed a multiple source bidding process, which is provided for in our Global Supply Management Policy (GSM Policy). Out of six potential bidders, to whom the tender was issued, and a thorough evaluation process undertaken, Seabury Corporate Advisors emerged as a preferred bidder and was appointed in line with the delegated approval authority,” said Tlali.

Kruger was shocked that SAA was paying Seabury R59 million yet their employees did not have proper work permits. She said in most cases employees would employ illegal immigrants at a lower cost and not pay them lots of money.

Home affairs spokesperson Thabo Mokgola said he would ask former Gigaba whether he received a memo from Satawu and comment thereafter. The Citizen forwarded Satawu’s memo to Mokgola, but no response was received from him at the time of going to print.

In terms of Seabury’s team failure to comply, Mokgola said he could comment without The Citizen’s submission of their passport numbers to the department.

Satawu informed The Citizen that the non-compliant workers were rotated with others, who also did not have proper work permits.

“Depending on the duration of their visitors’ permits, a team that does not have work permits will be allowed to work for a week or two at SAA premises.

“The same team will go back to their home country and then be replaced by another team that does not have work permits,” said Ramosie.

South African Cabin Crew Association treasurer Gift Bilankulu and general secretary Mpho Moikangoa said Seabury’s credibility was questionable.

They alleged there had been the same scenario in 2008.

Bilankulu said: “We want to know why the department of home affairs and SAA even allowed them to come back and work in South Africa without proper documentation.

“How can home affairs allow people who were working illegally to come back again?

“Even if they now followed the proper procedures, they were guilty so they can’t be allowed to come back without penalising them.

“We want to know what happened.”

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