SMU allegations of poor governance & Vice Chancellor appointment, with Minister and Deputy

Meeting report

Opening Remarks
The Chairperson welcomed everyone present and acknowledged the presence of the Minister and the Deputy Minister. He read the agenda and noted apologies from Prof B Bozzoli (DA). 

Minister’s remarks
Dr Blade Nzimande, Minister of Higher Education, Science and Technology, said that some of the issues at Sefako Makgatho University (SMU) had been raised with the Department by the Committee. The Deputy Director-General of the Department would provide detail on some of those matters.

Briefing by the Department
Dr Diane Parker, Deputy Director-General: Universities, Department of Higher Education, Science and Technology told Members that the Committee was conducting an inquiry into the suitability of the appointment of Professor P Mbati as the Vice Chancellor of Sefako Makgatho University (SMU), to determine, inter alia, whether:
 • SMU complied with relevant laws and prescripts in appointing Prof Mbati, in particular the provisions of the Higher Education Act, 101 of 1997 (the Act) and the internal recruitment policies of SMU;
 • the SMU Council and other structures involved in the appointment process were aware of allegations of sexual harassment, financial misconduct and management failures levelled against Prof Mbati during his tenure as Vice Chancellor (VC) of the University of Venda;
 • having due regard to these allegations, the Council still maintains that Prof Mbati is able to provide the requisite leadership required to address the current governance challenges facing SMU; and
 • the University of Venda (UNIVEN) has taken steps to investigate the allegations of sexual harassment, financial misconduct and management failures against Prof Mbati and, if so, to account to the Committee on the outcomes of those processes and the implementation of corrective measures.

The Committee then requested a briefing by the Minister regarding his knowledge of the matter and whether he has taken any steps or intends, in terms of the Higher Education Act, to address the concerns raised; and if so, by when these steps would be taken. The first briefing with the Committee was cancelled but in this briefing the Committee asked the Minister to include in his presentation actions taken against the allegations of poor governance and administration at SMU; and action taken regarding the allegations of the irregular appointment of Prof Mbati as the VC of SMU.

On the matter relating to Professor Phendla (in 2011), the Department was made aware of the allegations relating to sexual misconduct against Prof Mbati when he was at the University of Venda as Vice Chancellor. In November that year, Dr Parker acknowledged receipt of the letter from Prof Mbati detailing the sexual harassment allegations levelled against him by Prof Phendla, who was the Dean of School of Education at the time. This letter was only received after Prof Phendla was dismissed by the University for allegedly meddling in the tender processes with a cleaning company, Clean Shop CC, which was allegedly awarded the tender illegally.

In that letter, it was outlined that the National Education, Health and Allied Workers’ Union (NEHAWU) had requested the university’s management to institute a forensic investigation into tender irregularities, in which Prof Phendla and the then-Registrar were implicated. Subsequently, the university appointed auditors to conduct an investigation. In the investigation, it was reportedly established that the then-Registrar and Prof Phendla, used their positions on the university Council to ensure that (Clean Shop CC) was awarded a tender by flouting the tender regulations of the university. In the report, the auditors also advised that the South African Police Service (SAPS) should be contacted, in compliance with the Prevention and Combating of Corrupt Activities Act and that a disciplinary inquiry needed to be conducted. Ultimately, the case was referred to the Sibasa Organized Crime Unit of the SAPS.

In accordance with the outcomes of the forensic investigation by Deloitte, the university instituted a disciplinary hearing in August 2011. During the inquiry, Prof Phendla alleged that she had been sexually harassed by the VC. Whilst the disciplinary hearing was under way, Prof Phendla laid a charge of sexual assault against the VC at the Littleton police station in Pretoria. The VC apparently denied the charge in a police statement. Around September 2011, Prof Phendla registered a grievance alleging sexual harassment against the VC to the university council. A mediator was appointed by the council to look into the allegation. The outcome was inconclusive.

In November 2011, the university dismissed Prof Phendla. Following the dismissal, allegations of sexual harassment were published on several media platforms.

In January 2015, the office of the VC sent the Minister of Higher Education and Training a copy of the investigative report of the Commission for Gender Equality regarding the allegations against Prof Mbati of sexual harassment. A letter from the then-Council Chairperson to the Council regarding the matter was also attached. The documents were sent to the Ministry to fulfill a recommendation made by the Commission that the Minister be notified of the Report. The Commission further recommended that the Minister take any decision deemed appropriate to resolve the matter, taking into account the interest of both the complainant and the university. Following receipt of the report, the Minister wrote to Council Chairperson (Mr Serobi Maja at that time) on 26 March 2015, requesting the Council deal once and for all with the allegations, by transparently and fairly applying the university rules and the laws of the country. On 1 April 2015, the Council Chairperson responded to assure the Minister that the Council would do everything in its power to ensure that the matter was fairly and transparently dealt with in the interests of both the university and the two affected parties.

On 20 May 2015, the Council Chairperson wrote again, indicating that the university had instituted a judicial review on the basis that the Commission did not provide the VC with an opportunity to respond to the allegations, and made no attempt to obtain relevant documentation or information that would have addressed some disputed facts. During 2016, the matter was under judicial consideration.
The Ministry and Department learnt through media reports that, the National Prosecuting Authority found that there were no reasonable prospects for a successful prosecution and decided not to proceed with the prosecution against Prof Mbati. In May 2016, although the South Gauteng High Court did not set aside the findings of the Commission, it ordered the Commission to remove certain findings from its report. The Council cleared Prof Mbati of the allegations in July 2016.

In October 2017, the Department received correspondence from the university regarding the judgment of the Labour Court, in which the sanction against Prof Phendla was found to be procedurally and substantively fair, and she was ordered to pay legal costs. In March 2018, when former Minister Naledi Pandor was appointed as Minister of the Department of Higher Education and Training, Prof Phendla again wrote to her for intervention in the matter relating to her dismissal. The Minister responded on 26 June 2018 indicating that she could not intervene on a matter pronounced by a court of law.

Appointment of Sefako Makgatho University Vice Chancellor
When the news about the appointment of Prof Mbati as the VC if SMU broke, a plethora of articles were written in the media. The university released a statement defending its decision and responding to the number of allegations that were being made. The Portfolio Committee also reacted to the news, and announced its decision to institute an inquiry into Prof Peter Mbati’s fitness to hold the office of the VC at SMU. SMU subsequently provided a detailed report to the Portfolio Committee on the policy and processes undertaken for appointing its new VC. A copy of this report was also provided to the Minister and the Department. In a statement, SMU welcomed the Committee’s announcement.

Dr Parker went on to inform Members on ways a Minister could intervene, and took them through the steps that were taken, which were:
• The request by Prof Phendla for intervention in her dismissal was found to fall outside the ambit of the Higher Education Act.
• Unfair dismissal or unfair labour practices fall within the purview of the Labour Relations Act, and there was therefore no basis to intervene.
• The Labour Court attended to the matter of the unfair dismissal and found against Prof Phendla, and the case was dismissed on appeal.
• Regarding the appointment of Prof Mbati as the VC of SMU, the SMU Council notified Dr Parker of its decision to appoint Prof Mbati.
• The Ministry and the Department have no involvement in the appointment of VCs. However, before the Minister could write to the Council noting the appointment and requesting its assurance that it had complied with the provisions of its policies, the Committee had already pronounced its decision to conduct the inquiry.
• It is also important to mention that the Minister had not received any specific complaint regarding the appointment of Prof Mbati prior to the Committee’s decision to conduct an inquiry into the appointment.
• There has not been any finding that the appointment was irregular.
• Given that the Committee is already conducting the inquiry, and to avoid duplication of work and efforts, the Minister will await its findings.
• The findings of the investigation will inform the recommendations that the Committee will make to the Minister, and the Minister will thereafter determine what further action to take, as guided by the prescripts of the Act.

Gender Based Violence and Sexual Harassment in the University Sector
While the Minister cannot intervene in a matter of labour law or express an opinion on a matter that a court has decided upon, it should be noted that the Department does play a role in ensuring that there is appropriate oversight of the university system. The Policy Framework for Addressing Gender Based Violence in the post-school education and training system has recently been released and outlines a number of ways in which institutions need to respond to claims of sexual harassment and gender-based violence and to create certain requirements for reporting and monitoring purposes. A Ministerial Task Team is also working to provide advice to the Minister on matters of sexual harassment and gender-based violence in the university sector and in particular will advise on the implementation of the policy framework within the university system. As part of its work, this Task Team is analysing the sexual harassment and gender-based violence policies of institutions with a view to advising on policy weaknesses.

Allegations of poor governance and administration
The problems that the Minister and the Department are aware of as far as SMU is concerned are related to infrastructure. In March 2017, the Minister approved an infrastructure and efficiency grant of R1.2 billion to SMU for the 2016/17 to 2019/20 period (R1 billion for infrastructure projects and R200 million for efficiency projects). The allocation was to be released in equal tranches of R300 million per annum (R250 million for infrastructure and R50 million for efficiency) over the four financial years.

The conditions of the allocation releases included the submission of a detailed infrastructure plan indicating projects that would be implemented under the R1 billion allocation; and funds are to be disbursed only against approved projects. Notwithstanding this, the university had already spent—prior to submitting the infrastructure plan for approval by the Minister—over R200 million of the R500 million transferred for infrastructure projects; some of the funds were spent on operations and not infrastructure. This is in contravention of the conditions of the allocation.

Professor Chris de Beer, the Former SMU VC, informed the Minister of his concerns regarding possible fraudulent activity in the supply chain management at SMU. He informed the Minister that he had commissioned a forensic investigation and of some of the issues that were being uncovered. The Minister called a meeting with the SMU Council on 14 August 2019. One of the key allegations in the problems at SMU is alleged to be the involvement of the SMU Council in the procurement decisions. The Minister wrote to the Council and requested it to respond to the allegations.

Concluding Remarks by Minister Blade Nzimande
The Minister said that the case of sexual harassment was followed through to the end. It was clear in the presentation the conditions under which the Ministry or the Department could act. He clarified that the aforementioned framework to deal with GBV was to take the policy forward to the university sector. Cabinet has already approved a framework that deals with GBV for universities and all institutions are expected to be guided by that in developing mechanisms when dealing with GBV.

The report of the forensic investigation conducted by the university on allegations of corruption and infrastructure projects is yet to be submitted to the Department. As soon as the Department receives this, it will act accordingly. Secondly, there was a reply received from the SMU about the involvement of Council Members in issues of supply chain management (SCM). This issue of university council involvement in procurement is one of the biggest challenges in the sector. We have analysed many assessors’ reports on interference of Council Members on SCM matters to the extent that they even micro-manage the distribution of monies and expenditures. The Department will prioritise addressing this matter and even abuse of Council processes where the Executive Committee (EXCO) takes decisions that must be taken by a full council.

The Chairperson said that he was disappointed by the report. He felt that the Committee was presented with a justification where intervention cannot happen. One of the matters that require the Department’s intervention is the allocation of the R1.2 billion where the SMU was required to submit the infrastructure plan, which was not done. The SMU spent about R300 million without submitting that plan. There was no indication from the Department about interventions on investigating more deeply what the money was used for and whether it was used properly or not and what happened to the R1 billion grant.

Today’s report sounds like a “hands-off” approach. The highest official in the university, the VC, made serious allegations of involvement of the Council regarding procurement matters and transactions. This VC was pushed out for raising these matters to the Department to act; but the Committee gets a presentation that pretty much states that there cannot be any intervention.

The question is, what would propel the Department to act when there are allegations of corruption in a university. The Minister has spoken very well on taking this matter seriously but there is no action taken on those allegations submitted to the Department. The appointment of an assessor has not even been done yet. The Higher Education Act has many provisions that necessitate the appointment of an assessor to probe such allegations.

With the University of Venda matter, the Commission for Gender Equality provided a report with recommendations, and the High Court, in May, did not set it aside but blinded certain things in it. One of the recommendations is that the Minister must act in line with sexual harassment policies.

This is a motivation for why action cannot take place but yet we speak against GBV. We are always presented with why actions cannot be taken against perpetrators of sexual harassment and GBV. If this is going to be a pattern, it means that there will never be any intervention in any university.

Discussion
Ms J Mananiso (ANC) acknowledged and commanded Prof Phendla for breaking the silence on the matter of sexual harassment. She believed that the presentation was an indication that there was a lack of political will to ensure that the right thing was done. We are not worried about the Minister regarding the execution of his duties but rather the brand of DHET in dealing with sexual harassment matters in higher education institutions.

If nothing is done at SMU, it will send a very distasteful message. She advised the Minister to take a decision to deal with these matters. In this country there are reports about people being sexually harassed for marks and so on. If we don’t take any decision regarding what is happening at SMU, it will give the wrong message that we are not serious and committed to deal with unethical conduct and behaviour in these particular institutions.

It is not business as usual, decisions must be taken by the political leadership to protect people from these unjust acts.

Ms N Mkhatshwa (ANC) acknowledged the Chairperson’s vigour on dealing with the SMU and the University of Venda matters and attempting to root out GBV in our universities.

She had the privilege of visiting the University of Venda through SASCO and she was concerned with the state of the institution. In a second visit, she went as an MP to look at the state of readiness for the 2020 academic year and the infrastructure. It was concerning that large amounts of money were sent to the university for development and to fairly compete with the historically white universities.

Looking at Higher Education, there is room for the Minister and the Department to intervene on these matters. The Department needs to hasten their response and put an end to this behaviour – we do not even know the extent to which the damage has been done at SMU.

Professor Mbati should not have been hired without being properly cleared of the sexual harassment allegations. No one is going to feel comfortable working in an environment where there is uncertainty on whether someone has sexually violated a colleague.

The Chairperson suggested a follow-up engagement. In the meantime, the Committee will attempt to devise more pointed questions based on the presentation which would then be responded to at a later stage. Members should be given an opportunity to ask questions about what happened at the University of Venda and the governance matters at SMU, and attempt to ascertain at which point the Department or Minister must intervene. Although, this is clear in the Act.

The former accounting officer says you have a case of the involvement of councillors in the procurement and supply chain. There may be many other things happening that are wrong in the institution, but there is still no appetite for the appointment of an assessor.

There was also never a clear process outlined on how Prof Mbati was cleared of the sexual harassment allegations. It is disappointing how the matter was handled.

The Minister said that he was pleased with the Committee’s forwarding information to his office. He sought to correct an impression that seemed to have been wrongly formed in the Committee that he was not acting on matters related to corruption. The Members may not be happy with the information presented today but action was taken by the Department. It is incorrect to give an impression that the Minister was not willing to act. We must be ruthless in dealing with corruption but we must stick to the rule of law and we must act within that. He has suffered setbacks before where the Courts have found that he had acted outside the rule of law and he learned from those experiences. Let us fight corruption but follow the rule of law scrupulously.

The Committee has a right to continue exploring these matters and the Department will cooperate to the best of its ability.

It seems that there is an appetite to reopen the sexual harassment case, but what informed the university Council in its decision was mainly the matters that were set aside by the Court.

When we confronted the university about matters that were raised by Prof De Beer, the university sought a chance to conduct its own investigation. The Department will receive that report and it will consult it thoroughly. The Department will also study the response of the report concerning governance and also the involvement of the council in procurement matters.

The Chairperson said that there was consensus that a follow up engagement will take place and the Committee would share information at its disposal relating to these matters. The appointment of an assessor is not punitive but seeking to obtain more information through a capacity that has the ability to unearth information.

He thanked the Minister and the Department for their input.

The meeting was adjourned.