Former South African Airways (SAA) board member Yakhe Kwinana (pictured) has filed an application in the High Court in Pretoria challenging the findings of the disciplinary inquiry instituted by the South African Institute of Chartered Accountants (SAICA).
In March 2023, SAICA’s disciplinary committee found Kwinana guilty of 13 of the 14 charges against her. One of the charges was withdrawn. SAICA removed Kwinana from its membership and fined her a total of R6.1 million.
Read: Former SAA board member barred from practising as a CA and fined R6.1m
Kwinana was a non-executive director of SAA from 2009 to 2016, and the chairperson of the board of South African Airways Technical (SAAT) between 2014 and 2016. She also served as a member and later the chairperson of the audit committee for both SAA and SAAT.
Kwinana appeared before the Judicial Commission into State Capture in connection with allegations of improprieties related to SAA and SAAT. The Commission made adverse findings against Kwinana and recommended that SAICA should investigate whether she was competent and fit to practice as a Chartered Accountant.
Kwinana asserts that these findings were made without proper facts and evidence, and the Commission’s handling of evidence was selective and aligned with preconceived narratives promoted by the media and political figures.
In her High Court founding affidavit, Kwinana challenges SAICA’s disciplinary process on procedural and substantive grounds.
Regarding procedure, she argues that the disciplinary inquiry was flawed from the outset, from the failure to provide her with an opportunity to be heard before charges were filed to the unjust duplication of charges and the premature findings of guilt.
She submitted, among other things, that the hearing continued in her absence after she instructed his attorney to file an urgent application to stay the hearing. Despite this, the hearing proceeded, denying her the opportunity to defend herself adequately. In addition, Kwinana said her legal team had not been provided with crucial documentation pertaining to the case.
Kwinana accuses the chairperson of the disciplinary inquiry of bias and prejudice. She claims that the finding is “irrational” and “blinded by bias”. Kwinana states she was unjustly treated because of what she perceives as prejudiced attitudes towards her.
The affidavit addresses each of the 14 charges and the findings.
One of the primary charges against Kwinana revolves around the promotion and implementation of the Set Aside Policy at SAA, a policy she was accused of pushing despite being advised that it was unlawful. The policy was designed to set aside 30% of procurement for black-owned businesses in the aviation industry, specifically targeting women, youth, and military veterans.
Kwinana denies that the Set Aside Policy was unlawful. She pointed to a letter from the B-BBEE Commission, which indicated that the policy could be implemented legally with an exemption granted by the Minister of Trade and Industry. Furthermore, Kwinana suggests that the policy did not originate from SAA’s board but from the office of the then-President, Jacob Zuma.
Another element of the charge suggests that Kwinana threatened two SAA employees – Masimba Dahwa (chief procurement officer) and Mathulwane Mpshe (human resources general manager) – with disciplinary action if they did not implement the Set Aside Policy, leading to their eventual dismissals. Kwinana denies these allegations, pointing out that he did not have the authority to dismiss these employees, and her actions were in line with facilitating transformation in the aviation sector.
In response to claims that she interfered with procurement policy at SAA, Kwinana argues that SAA’s board was actively engaged in discussions with National Treasury concerning the Set Aside Policy. She pointed to several letters exchanged between Mpshe and Kenneth Brown, the chief procurement officer at National Treasury, which confirmed that all procurement decisions were made in compliance with the Supply Chain Management policy.