SMU Vice Chancellor Inquiry day 1

Higher Education, Science and Technology

16 February 2021
Chairperson: Mr P Mapulane (ANC)
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Meeting Summary

Video: Portfolio Committee on Higher Education, Science and Technology
Audio: SMU Vice Chancellor Inquiry

27 Oct 2020: SMU Vice Chancellor inquiry: analysis of witnesses statements
13 Oct 2020: SMU Vice Chancellor inquiry: way forward
18 Aug 2020: SMU Vice Chancellor allegations; with Ministry
17 Jul 2020: SMU Vice Chancellor inquiry preparations

The Committee met with the University of Venda Council Chairperson, Registrar and Acting Director: Legal Services to probe matters relating to former Univen Vice-Chancellor and Principal, Prof Peter Mbati who left in February 2018 after 10 years and was later appointed as Sefako Makgatho University Vice-Chancellor on 1 June 2020. The Higher Education Transformation Network (HETN) issued a statement in May 2020 that it planned to interdict the Sefako Makgatho University (SMU) Council from proceeding with the appointment as claiming that Mbati “is not fit and proper for the role of vice-chancellor”. The Portfolio Committee had decided to set up an inquiry about this.

The Committee was unhappy with two former Univen Council Chairpersons who cancelled appearing before the Portfolio Committee inquiry at the very last minute. It said that it would subpoena the two former Council Chairpersons who presided over matters that were at the centre of the inquiry.

Members asked prepared questions about the former Univen Vice-Chancellor/Principal – including: his relationship with Vandani Holdings which he appointed to implement Univen infrastructure projects; his high salary; if university resources were used to contest the findings in a sexual harassment case against him; if due process was followed by Council in response to a sexual harassment complaint; if the fraud allegations against the Univen Dean arose after she laid a sexual harassment complaint against the Principal; the settlement proposal to the Dean; if the Principal used his personal lawyer for the Dean's disciplinary hearing; if there were unfair staff dismissals; if action was taken by the Council to implement the mediation report; if the Univen sexual harassment policy was implemented to its fullest; and if Council provided support to the Dean at the time of the sexual harassment complaint.

Meeting report

Inquiry background and procedure
The Chairperson stated that the Committee had started receiving complaints – one from the Higher Education Transformation Network – after the former Vice Chancellor was appointed. The Committee had asked questions and had an engagement with the Commission for Gender Equality. After this, the Committee decided it needed to get into a detailed process to probe all matters relating to Prof Peter Mbati, both during his stint at the University of Venda and his subsequent appointment at SMU.

There were a number of exchanges between the Committee and lawyers. The Committee sought legal advice from Parliamentary Legal Services and thereafter the terms of reference were revised. It is not the Committee’s intention to probe matters that were finalised by a court of law. However, due to the seriousness of the matters, the Committee revised the terms of reference and was proceeding in line with those.

The main objective was to establish if the university has implemented a sexual harassment policy, and it was also interested to see how these allegations were handled by the university. Since then, a number of allegations have come up and a report on the handling of infrastructure projects was also produced by the Department. This was also going to be probed by the Committee.

The Committee is empowered by the Constitution and the National Assembly Rules to inquire on any matter before it.

Witnesses were identified and witness statements requested. Most of the witnesses have cooperated with the Committee. Witnesses were asked to appear today but two former Council Chairpersons, Mrs Shelly Mabusela and another, indicated that they would no longer participate. Unfortunately, these cancellations came at a late stage. Be that as it may, the Committee decided to proceed and it will exercise its powers to ensure they come and account about their tenure.

Today, the Committee will only be engaging with the current Council Chairperson.

The Chairperson said that Committee Members were each allocated a set of questions drafted by the research team, based on the analysis of the witness statements. He was confident that the questions would assist in extracting the relevant information the Committee was seeking. This would assist in establishing a structured process. Any matters that were sub-judice would not be entertained.

Mr T Letsie (ANC) suggested that the Committee must subpoena the two former Chairpersons who refused to come before the Committee as early as possible. It cannot be that people who accept public office, decide when they want to account about how the resources of the public institution they led were utilised. They must be subpoenaed to appear before the Committee. The Committee needs to send a strong message by doing so. He expressed his disappointment at the refusal of Ms Mabusela after seeing the letters she had sent to the Committee. The invitations to other witnesses should be accompanied by subpoenas to save the Committee’s time.

Mr S Tambo (EFF) appreciated the questions drafted by the research team. However, he felt that it would not be fruitful for the questions to be asked in a stringent manner; perhaps those questions should be used to guide Members to ask relevant questions. Members should be given the opportunity to ask their own questions based on the analysis of the witness statements. They could perhaps use the drafted questions as a point of departure for Members to ask their own questions in line with that.

The Chairperson said that it is the Committee's view that the two former Chairpersons be subpoenaed to come before the Committee. There was still consideration of having an extra day to invite Prof Mbati as well. The two chairpersons played a critical role during the period the Committee is holding an inquiry on, particularly Ms Mabusela as she presided over the Council while all these matters were happening. She must come and account publicly – the Committee needs to know how she led the institution and what informed the decisions that were taken. The Committee will consult the legal advisors to seek assistance on issuing the subpoenas to the former chairpersons.

The Chairperson said that perhaps Members should be allowed some leeway to carve the questions using their own initiative, but the questions must not be too far off the set of questions drafted by the research team to extract the information the Committee seeks to obtain. Members were allowed to exercise their discretion to ask questions.

Ms Phumelele Ngema, Parliamentary Legal Advisor, administered the oath to the witness, Mr Juneas Lekgetha, University of Venda (Univen).

Questions to University of Venda Council Chairperson, Registrar, Acting Director: Legal Services
Mr Juneas Lekgetha, Univen Council Chairperson, thanked the Committee for the opportunity to account. He assumed the chair just over a year ago and some of the issues preceded him but he will give the appropriate answers where he can. A detailed file was provided to the Committee last year in June or July, and in his report he may refer to some of the information contained in that file. He was joined by Adv Eric Nemukula, one of the university executives, who will be able to give answers where he cannot.

Mr Lekgetha proceeded to read out his statement (see document).

The Chairperson welcomed the submission and said Members were already privy to the information read out by Mr Lekgetha. He asked Members to avoid long preambles and appealed to them to avoid raising matters that were subjected to other formal processes or were subjudice.

Mr Tambo said it is alleged Prof Mbati tried to change the university statute to allow his contract extension for the third time; however, the effort failed.
- Was the council aware of this allegation; if so, what action was taken; and were there exceptional circumstances that warranted his appointment for the third time?

- Was the council aware of Prof Mbati relationship with Vandani Holdings which he appointed to implement Univen infrastructure projects. Prof Mbati was a co-director of Black Capital Limited, a subsidiary of the Vandani Holdings – was council aware of this before the finding of the Department?

- Is it true that Prof Mbati earned R3.9 million per annum; if so, what was the rationale for this amount considering the number of students at the university and relative salaries of other vice chancellors overseeing more students?

- Was Council aware that Prof Mbati used university resources to defend himself against litigation in the sexual harassment matter?

- On the processing of the sexual harassment complaint, what due process was followed and was council aware that the adjudicator of Prof Phendla’s disciplinary hearing was the personal lawyer of Prof Mbati.

- Did the fraud allegation by the university arise after she raised a sexual harassment complaint against Prof Mbati?

- Prof Phendla claimed that Prof Mbati was willing to settle financially with her. The CGE submission alleges that after Prof Phendla referred the dispute to the Labour Court on 6 June as an automatic unfair dismissal, an 8 December 2016 letter was sent by Bowman Attorneys representing Univen. The university proposed paying Prof Phendla R1.3 million to change the misconduct dismissal to one of mutual separation and to give her a positive reference if she would withdraw the labour court matter and any other applications instituted against the university and keep the settlement proposal confidential. In your view, Council Chairperson, since the Council claims to have no record of such a letter, is it likely such a letter exists and would it be fruitful for the Committee to pursue acquiring it Prof Phendla or the CGE?

Mr Lekgetha replied that Adv Nemukula, as the legal counsel for the university, may be best suited to respond to some of these questions.

The Chairperson indicated that this was a formal inquiry and Adv Nemukula would need to be sworn in before addressing questions.

This was done by Ms Ngema and the Chairperson interjected and asked Adv Nemukula to raise his right hand when affirming the oath, saying he found it difficult that Adv Nemukula was representing the university and there are certain questions that he may not be able to respond to.

Mr Lekgetha said that Adv Nemukula was best suited to answer the questions as he is an official officer of the institution and would have dealt with these matters.

Adv Eric Nemukula, Acting Director: Univen Legal Services, commenced with the allegation of Prof Mbati attempting to amend the university statute on contract extensions. For the review of the university statute there are various governance structures that are involved in this process. There is a senior management committee that would make such a proposal; an executive committee to make inputs; and the Institutional Forum (IF) which would assist as well as the Senate and Council. Therefore, it is very much difficult for one to influence the process given the steps that need to be taken. This process also needs to be approved by the Department and then gazetted. The university does not have the allegation of Prof Mbati having attempted to influence the statute. Even if that had happened, it would not have been possible given the steps that must be followed.

The Vandani Holdings matter was brought to the Council and the Council investigated as required. There was no such information found by the Council after conducting its investigation – there was no relationship established by the Council of Prof Mbati as the director of Vandani Holdings.

The Chairperson said that this engagement would be interactive. He asked who the directors of Vandani Holdings were.

Adv Nemukula replied that he was not aware of the directors and he did not consider looking into that as he did not anticipate being asked this question. However, he can provide this information to the Committee at a later stage.

Mr Tambo cautioned the legal representative not to speak unequivocally and declare with confidence that Prof Mbati had no link with Vandani Holdings, if there is no knowledge or documentation to assist you to respond. The Department of Higher Education found that Prof Mbati was a co-director of Black Capital Limited, which is a subsidiary of Vandani. Therefore, the question asked by the Chairperson becomes extremely relevant when one considers that the son of the personal assistant of Prof Mbati was a co-director in Vandani as well. Thus the confidence in which you declare that the university made no link between Prof Mbati and Vandani Holdings must be toned down because you are speaking under oath. He should have furnished the relevant documents.

Adv Nemukula replied that Mr Tambo was correct. He can find the documents and furnish them to the Committee.

The Chairperson said that he was experiencing some difficulty with this as these allegations were contained in the report provided by the Department, and this report was shared with the university. These questions were put to the university and Prof Mbati. For Adv Nemukula to say that he was not aware or did not anticipate these questions will not assist the Committee.

Adv Nemukula replied that for the purposes of preparation for this sitting, this question was not included. However, he might as well be given an opportunity to go back and prepare on this and come back with an adequate response.

The Chairperson asked: Do you know who are the directors of Black Capital Limited?

Adv Nemukula replied that he did not know who they are and had no records.

The Chairperson asked if it was true that a director was Mr Lindelani Cibi, who was the son of Ms Grace Cibi, personal assistant of Prof Mbati.

Adv Nemukula replied he cannot confirm unless he visited the documents.

The Chairperson asked if it was true Black Capital is the subsidiary of Vandani Holdings.

Adv Nemukula could not confirm as he would need an opportunity to look into the matter.

The Chairperson said based on his response one cannot conclude that Prof Mbati was not related to Vandani Holdings or Mrs Cibi’s son was the director of Black Capital Limited. Members can conclude that he cannot answer these questions comprehensively. He is not in a position to respond with facts that Prof Mbati is not in any way related to Vandani Holdings.

Adv Nemukula confirmed.

The Chairperson said that this matter can be left alone for now.

On Prof Mbati using university’s resources to defend himself against the sexual harassment allegations, Adv Nemukula indicated two things. One was that when this matter came up, it was a misconduct matter. There was a disciplinary hearing and she was dismissed. The matter was referred to the labour court. The university felt that it had a prima facie case, hence it defended itself.  The Council Chairperson had indicated that CGE had made a finding without given the university an opportunity to respond; hence, the CGE finding was taken on review. Therefore, there were no other processes where Prof Mbati might have used university resources to defend himself against the allegations.

The Chairperson interjected and said that he did not seem to understand the question. The crux of the allegation is that Prof Mbati utilised the university resources to act against those who were not agreeing with him. He utilised the resources of the university on matters against him.

There was much back and forth, with the Chairperson clarifying further to Adv Nemukula what the question was as his answers were general and not specific to the question; Adv Nemukula finally responded simply and directly.

Adv Nemukula replied that Prof Mbati did not utilise university resources against those who did not agree with him.

The Chairperson asked if he was certain about this.

Adv Nemukula replied that he was certain.

The Chairperson said that going forward it would help if Adv Nemukula was specific in his responses. When Prof Mbati was defending himself on the allegations involving the CGE, did he use university resources or not?

The Chairperson asked Mr Lekgetha to respond to some of the questions because Adv Nemukula was not prepared at all.

Mr Lekgetha replied that he had indicated that he assumed his position recently and some of these matters preceded him. The sexual harassment matter only came to his attention last year, for instance. Therefore, he was not in a position to provide full details of what Members were looking for. However, he was willing to obtain a copy of all the questions and get the relevant more detailed information for the Committee.

The Chairperson agreed with Mr Lekgotla. However, he was expecting there would be some level of preparation and consultation with the documents and respond to the best of his knowledge.

The Committee will ask the relevant questions to the relevant persons. He was more concerned that Mr Lekgetha brought a junior official who was ill-prepared and did not seem to know what he was talking about. He did not seem as if he was part of the management team. The Committee needs to deal with a senior member of the executive or management. Adv Nemukula sounds like a junior official who lacked preparation and understanding of what it is to be accountable to Parliament. He asked Mr Lekgetha when he became a council member.

Mr Lekgetha replied that he became a council member in February 2020.

The Chairperson noted that was recent and asked the Council Chairperson if he was aware that Prof Mbati had utilised the university’s resources to fight his battles.

Mr Lekgetha replied that he had not been aware of that. When he enquired about this, he was informed that there were university resources that Prof Mbati used for his private matters. He was told this by the Vice Chancellor and the legal counsel.

The Chairperson said the Committee had asked for the breakdown of the legal costs of the university for the past ten years and it amounted to R109 million. This was from 2010 to 2020, but it was not an actual breakdown of who was paid what. This information must be furnished to the Committee so it can make its own determination about who was paid what. For now, Members will assume that he did not utilise the university resources for his personal battles but this will be probed further.

Is it true that the presiding officer in Prof Phendla's disciplinary committee is alleged to be the personal lawyer of Prof Mbati? Is it true Prof Mbati was earning an annual salary of R3.9 million?

Mr Lekgetha replied that he could not confirm about the personal lawyer but he could follow up. He confirmed that it was indeed true that Prof Mbati was earning an R3.9 million annual salary. However, since he assumed office, the Council has begun a process of developing a policy on salaries. Enquiries have also been made through other forums and a process to evaluate salaries will definitely be implemented by the Council.

The Chairperson asked about the settlement proposal referred to by Mr Tambo.

Mr Lekgetha replied that he was not aware of any settlement.

The Chairperson thanked the Council Chairperson. He was uncertain if it would be helpful to invite Adv Nemukula to answer the other questions as the previous contribution was not helpful at all.

Mr Lekgetha replied that Adv Edward Lambani, who is more senior at the university, was present in the meeting and had agreed to participate.

The Chairperson asked if Adv Lambani was able to assist the Committee as a senior person at the university (registrar). He appealed to him to answer the questions to the best of his ability. He asked when his employment at the university commenced.

Adv Edward Lambani, Univen Registrar, replied his registrar position commenced recently from 1 December but from 1 October 2019 he was acting registrar and he was the Legal Services Director since 2014.

The Chairperson asked if he was present at the time when many of these matters transpired.

Adv Lambani confirmed.

The Chairperson suggested that Adv Edward Lambani take the oath, which was done.

The Chairperson said that Mr Tambo asked the Council Chairperson questions who then asked the director of legal services to respond but the Committee did not get assistance. The questions were about the relationship between Prof Mbati and Vandani Holdings. The allegations are that Prof Mbati is the director of Black Capital which is the subsidiary of Vandani Holdings. Can you confirm where this is true and if the two companies had a relationship?

Adv Lambani replied that he could not confirm this but he knew a little about Vandani’s engagement with one of the units of the university called the Univen Innovative Growth Company (UIGC). He did not know the directors of Vandani Holdings.

The Chairperson asked about the utilisation of the university funds by Prof Mbati for his private matters. In the Council minutes of 17 April 2015, the Council recommended that an investigation was conducted to probe if university resources were utilised by Prof Mbati on his personal matters. To the best of your knowledge, did Prof Mbati make use of university resources for his private matters? Are you aware of the legal costs incurred and if it was for the university or for his personal matters?

Adv Lambani replied that to the best of his knowledge, he was responsible for the legal division and Prof Mbati never used the lawyers that were used by the university. No money was paid for his personal legal matters. The council members would always ask for the legal costs incurred on university work. As far as he knew, Prof Mbati never used the same lawyers as the university or the money of the university for his personal matters.

The Chairperson asked which lawyers were used by the university.

Adv Lambani replied that the university made use of Bouwers for civil matters and Bowman for labour matters. There were other lawyers utilised for other matters but those two lawyers were the major areas for the university. He was not aware of any lawyers that Prof Mbati used.

The Chairperson said that if he put it to him that Prof Mbati was utilising Bowman Attorneys, how would he respond to that?

Adv Lambani replied he could not confirm if it was true or not as he did not know the relationship Prof Mbati had with the firm.

The Chairperson said that the Committee had received a letter from Bowmans before the inquiry commenced. The Committee was yet to confirm if Bowmans was acting for the university or Prof Mbati. Based on the correspondence provided to the Committee, it appears that Bowmans represented both the university and Prof Mbati. How would Adv Lambani respond to the statement that Prof Mbati never utilised Bowmans for his personal matters?

Adv Lambani replied that he never wanted to get involved in Prof Mbati's personal issues but he would not say if it was correct or not. He was careful to ensure that there was no confusion when Prof Mbati was dealing with his own matters that the university was paying it.

The Chairperson said the matter would be probed further. On the allegation that Prof Phendla's disciplinary committee was headed by Prof Mbati’s personal lawyer, can the Committee get a confirmation that this was true or not?

Adv Lambani replied he was not aware of that. He believed that occurred before his time.

The Chairperson asked if he was aware of ethical conduct concerns that were raised about a Bowmans lawyer who was handling matters for Prof Mbati.

Adv Lambani replied he was not aware of that.

The Chairperson said that a settlement proposal was put on the table by Prof Mbati to Prof Phendla when the matter was in court. Was he aware of that?

Adv Lambani replied that he was the one who made the offer. It was not a letter or the brainchild of Prof Mbati or by mutual agreement between them. Adv Lambani looked at the ongoing matters at the time and because he knew Prof Phendla personally outside employment, he felt the matter could be settled out of court – not necessarily settling on Prof Mbati's behalf. When he hinted at the matter to Prof Mbati, he did not even agree. Adv Lambani had the support of Prof Mbati’s director – the discussion was held about settling the case to halt the escalation of legal costs. This matter was discussed with the Deputy Vice Chancellor of Operations, Dr Zaayman , who was responsible for payment of university legal costs. The problem was that the case was intertwined with Prof Mbati because personally he was the one being accused, even though it was the university that was being taken to court.

No letter was ever drafted; it was a matter of discussion – unless the lawyers drafted the letter at a later stage. When he discussed it, nothing was written. He also discussed this with Prof Phendla but it was never proceeded with.

Mr Tambo asked in what capacity Adv Lambani made the offer to Prof Phendla – was it on a personal level or professional level?

Adv Lambani replied that he made the offer on a professional level and the intention was to stop the legal costs escalation that the university would have to bear. This would be better for all.

The Chairperson moved to the outcome of the task team commissioned by Council. Do you know what happened to that task team and if there allegations in its report on the inappropriate use of university resources? This is contained in Document PCH10, the Council minutes of 17 April 2015, on page six. It says there was a Council recommendation that the task team must investigate if there was inappropriate use of the university resources by the Vice-Chancellor (VC) and Principal, in defence of the court matter on the CGE report. Obviously Council suspected inappropriate use of the university resources by the VC. Are you aware of that task team report or its findings?

Adv Lambani replied that he was not aware of nor recalled the task team submitting a report. The task team was established when they met together as external members of council. They would be excused from those meetings and even the report would be excused when everyone else met with external members of council in meetings.

The Chairperson said that a way forward would have to be determined to obtain more information on these matters.

Mr W Boshoff (FF+) asked Mr Lekgetha two questions in light of his testimony. Would he regard the inquiry into Prof Mbati as a form of malicious prosecution or inquiry? Could Mr Lekgetha provide an idea why he would be appointed Council Chairperson if he had never served on the board? Was there a specific reason why someone else who could provide continuity on Council work was not appointed, but instead he was appointed immediately?

The Chairperson said he had a problem with Mr Boshoff’s first question because it relates to the intention of the Committee to which he belongs in instituting this inquiry. Mr Boshoff is asking an external person if this inquiry was genuine or malicious. It is the decision of the Committee to pursue this inquiry.

Mr Boshoff said that he was not aware that his question would create such an impression but he was happy to withdraw it as that was not the intention. He asked it based on the assertions made by witnesses who had refused to appear before the inquiry, to ascertain if the current Council Chairperson felt or thought the same way.

The Chairperson said he understood where Mr Boshoff was coming from but nonetheless he would prefer that witnesses were not asked such questions.

Mr Lekgetha replied to the second question saying that he was involved with the university and he was an external member of the audit committee of the university and he also helped establish the risk management committee for the university. He possessed over 20 years of board experience and he was a businessman in his own right. When the former Council Chairperson term expired, he was nominated through the Minister to be the Council Chairperson.

Ms C King (DA) said that the Higher Education Transformation Network wrote to the Committee on 13 May 2020, raising concerns about the unfitness of Prof Mbati to be the SMU Vice Chancellor.
- Were there deviations from HR policies during consideration of the Prof Mbati appointment?

- Would you say that Prof Mbati used the Univen disciplinary committee to get rid of some staff?

- Prof Mbati was asked to leave Univen, according to the views of staff members, a day or two before the mitigation process took place. Would that not have affected the outcome of the mitigation process going forward?

- At a special council meeting in September 2017 it was reported that R18 million of the Univen budget was utilised by Prof Mbati to fight his legal battles due to personal litigation on the sexual harassment matter. What was the outcome after the Univen Council was made aware of these exorbitant legal fees and what action was taken against Prof Mbati on this? If you were to consider the legal costs, was there a way these high legal costs could have been avoided?

- Looking at the sexual harassment policy of the university, how often is this policy reviewed and amended? Can the Univen Council say it exhausted all avenues of the sexual harassment policy when it came to the Prof Phendla sexual harassment case?

- If you consider the VC appointment, the document claims that some senate members were not aware of the sexual harassment case. How could a professor be given a VC appointment when there was such a case pending? Was the appointment done before the court case or after?

Mr Lekgetha replied that he was uncertain if the VC appointment referred to by Ms King related to Univen or SMU. On the Univen sexual harassment policy, all policies related to gender-based issues were being reviewed to ensure that they were up to standard and par with the country.

An answer about the legal costs can be given by the legal counsel or Adv Lambani, as well as about the departure of Prof Mbati during the disciplinary committee (DC) process.

Adv Lambani was not aware of Prof Mbati leaving the university during the DC process. He was under the understanding that he left because his term had ended. As for the legal costs, he had already responded to them.

The Chairperson said that some of the questions would be difficult for the present witnesses to answer because the current Council Chairperson was not present when some of this happened.

All the questions required previous Council Chairperson. At the crux of the inquiry is Ms Mabusela should account on whether the University of Venda implemented its sexual harassment policy to its fullest. Based on the information the Committee had before it, it suggests that the university did not implement its sexual harassment policy to its fullest. It had to be directed by the court through the CGE review application. After the court judgment, Council requested the Lavery Modise mediation report. Council did not have the appetite to implement the sexual harassment policy and the Committee wants to find out why. The Council has a two-stage process of dealing with sexual harassment which is mediation and the second stage did not kick in until the court had to instruct it that way. This information will be sought from the previous Council Chairperson.

Mr Letsie said Council Chairperson Lekgetha's statement noted the Council decided not to take further action because Prof Phendla had lost the case in court. He pointed to paragraph 3 of the University of Venda sexual harassment policy stating it protects employees and students from sexual harassment. The previous Council Chair would have revealed that Prof Phendla was facing corruption charges and was subject to a disciplinary process. During that process Prof Phendla revealed to Ms Mabusela that she was sexually harassed by the then Univen VC. Paragraph 5 of the Univen sexual harassment policy states that anyone who is a victim of sexual harassment has the right to seek redress without prejudice. Upon receiving this grievance, the previous Council Chair convened council to consider the grievance of Prof Phendla. He asked Chairperson Lekgetha if he was aware whether any support was provided to Prof Phendla; if so, what kind of support? If not, why? Having had the opportunity to review the sexual harassment policy and this particular case, do you think, in your opinion, that the steps that were taken by Council were correct and sufficient to deal with the matter appropriately?

Mr Lekgetha replied that when he assumed office, he came in and ensured that these policies were reviewed. He can only talk about the current council view now and ensure that these matters did not occur again. He was not aware of support provided to Prof Phendla and it is the previous Council Chairperson that would be able to respond to that.

The Chairperson agreed that it may difficult for the current Council Chairperson to deal with that. On 8 July 2016, Council resolved to accept the findings of the mediator, Modise, as follows:
- Prof Phendla and Prof Mbati had a consensual relationship;
- There was no basis for Prof Phendla’s complaint that Prof Mbati sexually harassed her;
- There was no prima facie case of misconduct;
- Council resolved to close the matter permanently; and
- The Council Chairperson should communicate the Council’s decisions to the Minister about the resolution to close the case.

It sounds like Council accepted Mr Modise's report which said that the professors had a consensual relationship. Now, in the view of Council, do you consider it to be ethical for Prof Mbati to have a consensual sexual relationship with his subordinate? Are there policies in the university that talk to this?

We have evidence that points to Prof Mbati taking the Modise report on review at the Venda High Court [to dispute there was a sexual relationship] and cited Mr Modise, Prof Phendla and the University of Venda as respondents. Thus, in essence, he was litigating against his own employer. There is also evidence that the university did not defend its own mediation report; the very report that the university had used to exonerate Prof Mbati when taken on review by Prof Mbati. The university was cited but the university did not defend its own report. Now, the matter was left to Mr Modise who wrote the report on the request of Council. Mr Modise had to write an affidavit explaining to the court what the essence of his report was. It is quite clear from that affidavit that his version and that of Prof Mbati was not the same. There were a number of matters that they differed on. Mr Modise did not oppose that process due to costs that would be attached to the case. This was explained in the affidavit.

Why did Council fail to defend its own report – the very report that was used as basis to exonerate the Vice Chancellor? The Council looked at the report compiled by Mr Modise and took a resolution based on that report. What is surprising is that Council did not defend that report.

Do you not think that any reasonable person can conclude that there was collusion between the VC and the Council at that point? Do you think that it is ethical and legally justified for Prof Mbati to benefit from a generous decision of Council to exonerate from allegations of sexual harassment, whilst on the other hand he challenged the very report which was the basis of his exoneration by Council? Do you think this is legally justified? It can be viewed as a person who had his bread buttered on both sides. The Council did not even defend that very same report when it was taken on review by the very same person that benefited from it and was exonerated.

Mr Lekgetha replied that some of the questions would have to be referred to the former Council Chairperson. It is unethical to have relationships with subordinates when one is in a position of power. This type of behaviour should not be tolerated or approved.

On the abuse of resources in the court review of the Modise report, there may be some information that he was not privy to and he asked Members rather to refer these questions to the previous Chairperson.

The Chairperson said he struggled to sensitize them to the fact that Prof Mbati challenged the report which was the basis for his exoneration. It seems as if the Council and Prof Mbati were working together on this matter.

Mr Lekgetha replied that he would agree with the Chairperson on the surface. He would not agree with the process that was followed but he was not in possession of all the facts.

The Chairperson said that Prof Mbati was a Council member and he was privy to the decisions taken by Council on his matter with Prof Phendla. The Council eventually decides to take a decision to let him go. Then he goes to court to challenge the Modise report but not the decision of Council. Do you not find that problematic or suspicious?

Mr Lekgetha replied that he agreed that it was problematic.

The Chairperson said the Pretoria High Court reviewed the CGE report as brought by the university and concluded that a mediation report must be produced. This was done. Then that mediation report  is challenged by Prof Mbati at a different court that did not have a history of how the matter was dealt with. The university still did not oppose that challenge and Prof Mbati got a default judgment to set aside the Modise report because the matter was not opposed.

He asked Mr Lekgetha for his comment about the former Vice-Chancellor as the person who did that and Univen's involvement.

Mr Lekgetha replied that he would try and get more facts on this matter to fully understand the background. The Council can then refer back to the Committee what it has found but the people best suited to respond to this were the former Council Chairpersons.

The Chairperson welcomed that response. He asked Adv Lambani’s view on this. It was not the Registrar’s decision but he could share some more light.

Adv Lambani replied that he agreed with the Chairperson’s sentiments. He could not recall why the Council did not act. It seemed some Council members were happy with the Modise report findings. Nothing was said to Legal about this about defending the Modise report in court.

Ms J Mananiso (ANC) thanked the male committee members for taking a stand on this matter.
- How many people wrote to the university about the VC appointment of Prof Mbati?

- When Members went through the report there was some indication about people who were supposed to be reinstated who were dismissed by Prof Mbati. Are they back at the institution yet?

- Are there similar sexual harassment cases at the institution that when they are brought up, the response is that it was a consensual relationship?

- What is the Council’s plan to ensure sexual harassment matters are dealt with differently?

Mr Lekgetha replied that he was not aware of any persons that may have been reinstated due to unfair dismissal from the institution. One of the companies that he used to work with had a policy that if a senior member of the company is having a relationship with a junior member, one of them must resign. This was a good policy. On policy matters, we need to ensure that our governance processes and principles are in place, especially on sexual harassment and gender-based violence. In some companies there are ethics committees that look into these types of matters. This may be one of the best places to start with.

The Chairperson said that the questions were completed.  From the information available to Mr Lekgetha, it appears that the Univen Council was reluctant to deal with the sexual harassment matter brought by Prof Phendla against Prof Mbati. This is irrespective of when the matter was brought to Council – that should not even be a question that can be asked.

A formal process was supposed to kick in where Council was supposed to investigate and charge the person alleged to have done wrong. When allegations are brought, you check the veracity of the allegations and whether they have merit. The person making the allegation must present evidence and the person alleged to have done something, must do the same. In this case, Council did not want to act - this is what the Committee picked up from the information it gathered. Council failed to implement its policy until there was a CGE report. It was not happy that the CGE said there was sexual harassment. Then, there was an out of court settlement which was made an order of court. Council then decided to call for the report compiled by Mr Modise and take the matter from there. Taking the matter from there meant that Prof Mbati was supposed to be charged.

There is a pattern and history of the Council being reluctant to act on matters to do with Prof Mbati. There was always an attempt by Council to protect him based on the information before the Committee right now. This picture is emerging about the Council's role which should have ensured the Vice-Chancellor acted in line with university policies and in an ethical manner. As the current Council Chairperson, what would you say about that?

Mr Lekgetha replied that he was inclined to agree with the Chairperson. Currently, in his Council the first step is to evaluate governance because governance is the cornerstone to safeguard the policies of the institution. This engagement was eye-opening. The current Council will certainly draw some lessons from the shortcomings of the former Council.

The Chairperson thanked the Council Chairperson and appreciated his efforts and availing himself for the inquiry. These were governance failures that must be corrected at some point. Some matters could not be responded to as they fell outside his tenure as Council Chairperson. He expressed his gratitude to the Registrar and asked him to be present when the Committee interrogates the two former Council Chairpersons. The Committee would like the Council Chairperson and the rest of the management team to be present as well.

As for Adv Nemukula, he was ill-prepared and full of denials and kept on being distracted. He did not make a good impression and the Committee did not benefit much from his attendance.

Most of the questions were not responded to, but the Committee will ensure that these questions are responded to, otherwise the Committee will be forced to draw its own conclusions. He thanked everyone present and adjourned the meeting.

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