NEWS & ANALYSIS

Cuban engineers: Legal proceedings started – Solidarity

Union is giving govt opportunity to explain, says country deserves an answer

Legal proceedings against Minister regarding legality of Cuban engineers  

26 April 2021

Solidarity today started a legal process against the Human Settlements, Water and Sanitation Minister Lindiwe Sisulu regarding the importation of Cuban engineers for water infrastructure projects in South Africa.

In the legal letter, Solidarity asks that the Cuban engineering programme be suspended immediately and that assurance be provided regarding the legality of the Cubans’ licensing and registration.

It appears that the Minister’s decision to import Cuban engineers is not only foolish and immoral, but also illegal. At face value, these engineers do not appear to meet the registration requirements of the Engineering Council of South Africa (ECSA) that would enable them to practice fully.

“This means the group is paid a large amount of money, but they will be limited with regard to the work they may do, and in certain cases they will only be permitted to work under supervision. We now give the government the opportunity to explain. South Africa deserves an answer,” said Solidarity Chief Executive Dr Dirk Hermann.

According to Solidarity's letter, there is major concern regarding the legality of the Cuban engineers, and specifically whether they are registered and licensed in terms of the Engineering Profession Act of 2000. Solidarity also asks, among other things, that the government should confirm whether all legal requirements are in place for Cuban engineers to work in South Africa.

In its letter, Solidarity also asks whether the advice and recommendations of the Engineering Council of South Africa were obtained and whether the requirements of the framework for the engineering profession have been met. He also requests that all information regarding the legal basis of the decision be disclosed.

The importation of the Cubans apparently stems from a bilateral agreement between South Africa and Cuba signed in 2014.

The Minister has until Friday, 30 April, to answer, and then the content of the answer will determine whether Solidarity will bring an application for an interdict against the Minister.

Solidarity’s legal letter follows after the Engineering Council of South Africa implied in a letter that the Cuban engineers do not comply with registration requirements. The letter confirmed that the Cuban engineers must comply with the registration framework of ECSA, and it was brought to the Minister's attention that Cuba is not a member of the International Engineering Alliance (IEA).

Solidarity also plans to communicate with the Engineering Council of South Africa.

“The question whether the Cuban engineers meet the necessary legal requirements is aggravating, but it still does not conclude whether it is right that they are here. Solidarity has made available to the Minister a list of 132 local engineers and other specialist skills that can do the job at a much lower cost than the Cubans. In addition, Cuba’s own water infrastructure is in chaos. There is therefore no reason why the Cubans should be in South Africa,” Hermann concluded.

Read the letter here:

Our Ref           : Mr. Claassen/ Mr. Venter/ fb/ Date            : 26 April 2021

TO:      THE DEPARTMENT: WATER AND SANITATION THE MINISTER OF WATER AND SANITATION THE HONOURABLE MINISTER LINDIWE SISULU

AND TO:         THE ENGINEERING COUNCIL OF SOUTH AFRICA

URGENT

BY EMAIL

Dear Minister,

RE: SOLIDARITY OBO MEMBERS // DEPARTMENT: WATER AND SANITATION – IN RE: CUBAN WATER EXPERTS SECONDED TO SOUTH AFRICA’S OWN EXPERPTS – 22 APRIL 2021

1. We refer to the above matter and confirm our appearance on behalf of Solidarity, who in turns acts on behalf of its members, upon whose authority we address this letter to you (“our client”).

2. Solidarity is a duly registered trade union, established in 1992, since which it has safeguarded the rights of its members, especially within the employment sector. Our client directs this letter to you in pursuit of the protection of its members’ interests; their own; and the citizens of the Republic in general.

3. From the outset we should note that this letter is not intended to address every issue and avenue of recourse afforded to our client in terms of its rights, and we reserve our right to address any issue that may further arise, should it become necessary to do so. Our client’s rights remain reserved.

4.It is our instruction that the Honourable Minister Sisulu, currently at the helm of Department: Water and Sanitation, has imported Cuban engineers to “transfer skills and knowledge around water and sanitation because South African engineers do not have the necessary specialities in particular areas”. The aforesaid is both unfortunate and incorrect, as indicated in a letter from our client dated 22 April 2021, which letter came to naught.

5. Our client made the following plain in the abovementioned letter:

For your convenience we have hereby attached a list of available local engineering specialists, more than adequately qualified in the required fields, with some of these engineers having completed masters’ degrees and PhDs in their respective fields of study and who have many years of experience.

The aforementioned list contains the names of 120 engineering specialists government can choose from but it excludes the thousands of consulting engineers that are also at government’s disposal if they are serious about stimulating local business and supporting the “Proudly South African” initiative.

6. Furthermore, it is our instruction that the deployment of the Cuban engineers allegedly flows from a bilateral agreement between the two nations concluded in 2014. The aforesaid unfortunately does not assist our client and the public given that the nature and the contents of said agreement remains undisclosed. In the absence of proper justification and due diligence, the appointment and deployment of said engineers is also potentially unlawful.

7. It has been made clear to our clients that there are serious concerns regarding the legality of the deployment of the aforementioned Cuban engineers. Such concerns flow from an apparent disregard as to the licensing and registration framework applicable to the South African engineering profession, and in particular the provisions of the Engineering Profession Act 46 of 2000 (EPA).

8. Both our client and the citizens of the Republic have a right to efficient, fair and transparent governance, as well as the highest of safety and operational standards in relation to key infrastructure such as the provision and regulation of water supply. By acting without due regard to these rights, your department and the state are in violation of the spirit and tenor of the Constitution and all accepted standards of policymaking and administrative action.

9. In light of the above, our client therefore demands that the deployment of the Cuban engineers as stated above and flowing from the aforesaid agreement, be suspended, pursuant to full, urgent and effective disclosure of the following information:

9.1. Is the Department aware of the registration provisions of the EPA and if so, what steps has it taken to ensure compliance with said Act in the deployment of the foreign national engineers?

9.2. Is the Department aware that Cuba is not presently a member of the International Engineering Alliance (IEA), which organisation plays a key role in ensuring global educational standardisation in relation to the engineering profession, and to which the Republic is a signatory? If yes, has the Department sought out legal advice in respect of the potential disparity in educational and operational standards the above necessarily gives rise to?

9.3. Has the Department sought out the advice and recommendation of the Engineering Council of South Africa (ECSA), established in terms of the EPA, and the South African Qualifications Authority (SAQA), as to the requisite processes to be followed in relation to the registration of foreign engineers? If so, has the Department complied with any of the processes so recommended, and if not, how does it justify same?

9.4. Is the Department aware that in accordance with the provisions of the EPA and ECSA, foreign engineers are legally limited in the scope of the work which they are able to perform, and that the boundaries of scope applicable to such engineers may have a significant impact on their operational capacity? If yes, how does the Department justify their deployment?

10. Our client demands further and generally that the Department disclose in toto and effectively any and all legal bases for the deployment of the Cuban engineers as above, by way of any and all documentation on which such decision was based, including but not limited to minutes of internal meetings, cost estimates, records of consultation and/or communication with the relevant professional bodies, and the like.

11. We hold further instruction to request that in addition to disclosure of the above, a meeting be arranged and held between yourself and our client, in order to fully and properly ventilate the issues and rights at stake, following which our client will hopefully be in a position to properly evaluate the necessary steps to be taken, if any.

12. If you are amenable to the aforesaid, we will provide you with an agenda and terms of reference in respect of said meeting. If however, you are not amenable, our client will be forced to explore any and all appropriate legal steps.

13. Our client wishes to remind your good selves that the state is accountable to the people of the Republic and above all, the Constitution, and is therefore compelled to justify all its actions and conduct, whether executive or administrative in nature, and that legal mechanisms are in place to ensure compliance with same.

14. We request that you provide a written undertaking that you will cooperate with our client in respect of the above and to disclose responses to the requested information by no later than CLOSE OF BUSINESS FRIDAY THE 30TH OF APRIL 2021, by default of which, our client will be left with no alternative than to exhaust legal action supra.

Yours sincerely,

SERFONTEIN, VILJOEN & SWART

PER: NICOLAAS C VENTER

AND PER: JD CLAASSEN

[SELECTRONICALLY SIGNED]

Issued by Anton van der BijlHead: Legal Matters, 26 April 2021