SMU Vice Chancellor Inquiry day 2

Higher Education, Science and Technology

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

16 Feb 2021: SMU Vice Chancellor Inquiry day 1
27 Oct 2020: SMU Vice Chancellor inquiry: briefing on analysis of witnesses statements
13 Oct 2020: NACI 2020 Science, Technology and Innovation Indicators Report; SMU Vice Chancellor inquiry: way forward
18 Aug 2020: SMU allegations of poor governance & Vice Chancellor appointment, with Minister and Deputy
17 Jul 2020: SMU Vice Chancellor inquiry preparations; Committee Reports on Adjustment Budgets

This was the second day of the Committee inquiry into the appointment of the Vice Chancellor of the Sefako Makgatho Health Sciences University. This part of the inquiry looked into the tenure of Prof Mbati at the University of Venda. The witnesses for the day were: Ms Robertson, Commission on Gender Equality CEO; Mr Modise, mediator appointed by Univen to mediate between Prof Phendla and Prof Mbati in the sexual harassment complaint; Mr Manenzhe, former Univen director of human resources; and Dr Legoabe, chairperson of Higher Education Transformation Network which brought certain matters to the attention of the Committee leading to the inquiry. Mr Manenzhe was not able to testify due to internet difficulties.

The sexual harassment complaint was discussed at length in the testimony of Ms Robertson and Mr Modise. The process and procedure undertaken by Univen under their sexual harassment policy was discussed at length. From the testimony, it was established that Univen appointed a mediator, Mr Modise, who gave his recommendation for further investigation, but who was of the opinion that the relationship between Prof Phendla and Prof Mbati was consensual. It emerged that Univen did not carry out further investigation and used the mediator’s report to close the matter. Since the matter had been decided by the Labour Court. The Chairperson urged Committee members to discuss issues pertaining to the process and not the merits of the matter.

Dr Logaobe from the Higher Education Network submitted as to the unfitness of Prof Mbati, giving evidence of allegations of gross misconduct and violation of the South African Constitution and the National Development Plan Vision 2030. In his submission, he made allegations of a policy of “Internationalisation” at Univen under the leadership of Prof Mbati that had benefitted non-South African students and academics to the detriment of South Africans. He relied heavily on various affidavits sworn under oath by a whistleblower, a former professor at Univen at the School of Health Sciences.

Committee members clarified the testimony of the witnesses. The Chairperson stated that Prof Mbati would be given an opportunity to respond to the allegations and give his side of the story.

Meeting report

The Chairperson welcomed the witnesses and noted this was the second day of the inquiry of the Committee on the appointment of Prof Mbati as the Vice Chancellor of the University and related matters. This part of the inquiry looked into the tenure of Prof Mbati at the University of Venda. The second part of the inquiry would look at the process that led to his appointment at the University of Sefako Makgatho Health Sciences University (SMU). 

The witnesses for the day were: Ms Robertson, Commission on Gender Equality CEO; Mr Modise, mediator appointed by Univen to mediate between Prof Phendla and Prof Mbati in the sexual harassment complaint; Mr Manenzhe, former Univen director of human resources; and Dr Legoabe, chairperson of Higher Education Transformation Network which brought certain matters to the attention of the Committee leading to the inquiry. Mr Manenzhe was not able to testify due to internet difficulties.

Ms Phumelele Ngema, Parliamentary Legal Services, administered the oath to Ms Robertson.

Ms Robertson brought to the attention of the Committee that she was only reading a statement written by a former colleague as she was the new CEO.

The Chairperson said that the Committee was well aware of this fact. The Committee appreciated that Ms Robertson and her predecessor were not there when the investigation was conducted.

The Committee had invited the person who had done the investigation, but unfortunately, he was not around, he was in Kenya. What the Committee wanted was to get an official report from the CGE, introducing their work in relation to the case on record. The Committee understood that some of the facts may fall outside of Ms Robertson’s personal knowledge.

The Chairperson gave a background to the inquiry and said the Committee understood and respected the separation of powers and it was not their intention to review matters which had been finalised by the courts. There was a court matter that was finalised by the court on the dismissal of Prof Phendla. The court had made a ruling on that and the Committee did not want to enter that space. What they were interested in was the governance and management at Univen. What the university did to implement the policies applicable at the time and if the management practices were in line with what was expected of a public institution. Also, how the resources of the people of the country had been utilised.

Witness: Commission on Gender Equality CEO
Ms Jameela Robertson, CGE CEO, read out the statement submitted to the Committee by her former colleague, Ms Marissa van Niekerk. The statement was about the complaint lodged with the Commission for Gender Equality by Prof Phendla against Prof Mbati. The statement detailed the investigative processes embarked on by the Commission from date of receipt of the complaint until the finalisation of the complaint (see document).

Discussion
The Chairperson thanked the witness. He reminded Members that as agreed in the terms of reference, the purpose of the process was not to determine the merits of the sexual harassment allegations, as the matter had been finalised by the Labour Court.

Ms T Mkhatshwa (ANC) asked in the spirit of wanting to ensure that due process was followed across the sector in future on gender-based violence, femicide, sexual harassment and other forms of violence, what process was currently being followed by CGE when such a complaint was lodged. Further, she wanted to understand if CGE intervention only took place if a matter was brought to its attention. Was it able to intervene on a matter if it perhaps gained public attention?

She said that there was finding by CGE that Univen’s sexual harassment policy was inadequate, especially because it left it to the Human Resources director to decide if there was a prima facie case before the matter could proceed to full inquiry. Cases of sexual harassment usually involved a complex factual matrix, such as in Prof Phendla’s case. Leaving it to the HR director to establish a prima facie case for a proper ventilation of issues could result in unfair treatment of victims of sexual harassment which had been seen across the board when it came such victims.

Does CGE confirm that this segment of the Univen sexual harassment policy is problematic? What efforts had been made by CGE to eradicate gender-based violence at Univen by, for example, supporting the review of the gender policy, assisting in establishment of gender offices and any other gender transformative interventions at the institution. If such interventions had not been done it was recommended that these be done with urgency.

She asked what recommendations would CGE propose to protect victims of sexual harassment from the financial and misogynist power play around settlements, for example, in relation to the R1.3 million that Prof Phendla was allegedly offered.

She asked if CGE had been working with the and Training (DHET) to solve other ongoing cases of this nature. Did CGE receive adequate support and response from DHET?

Ms Robertson explained that CGE has a procedural manual, which sets out the process to be followed once they receive the complaint. This was as per its mandate according to the Gender Equality Act. Once they received the cases, they investigated them, giving the affected parties the right to reply. Depending on the situation and the replies they get, they moved forward through the process as directed by the manual to a point its mandate allowed. She could provide the process through a written response at a later stage.

On the second question on the cases they took, in terms of mandate, they received individual complaints which form their entry points to address the bigger systemic issues. The investigation of the individual cases included hearing all the sides of the stories, and then addressing the case.

She noted that CGE did also investigate cases on their own accord. This would be a case that come to their attention, perhaps, through the media, or through people who had witnessed something that they feel should come to CGE’s attention. CGE has its own plans, where they looked at issues of concern in the wider public and would follow up and start research or investigation projects triggered by prominent problems in society, within their mandate.

On the Univen policy, as initially indicated, in terms of the current case, their mandate was to conduct public hearings with the university and workshops. This was because CGE’s mandate included educating and raising awareness within communities as part of changing the mindset on gender-based violence and gender inequality. CGE also helped the university amend its policy, precisely because the Commission did not think the policy was sufficient. This was especially on around the situation where matters were left to the HR director to decide on that may inadvertently disadvantage the survivors of gender-based violence. These were really complex issues emanating from the mindset as a society as part of cultural norms. Victims of sexual harassment continued to experience secondary victimisation in this regard.

On settlements, Ms Robertson did not want to make a value judgment on this under oath. This was because her opinion would not be very well informed. However, as a Commission, when they had grounds to challenge a situation, they did, as guided by their guidelines. However, some cases were complex because there were other issues going on around the case.

In this case, CGE played an advisory role with the attorneys involved, advising Prof Phendla to take the offer, which happened to be unavailable by the time the response was provided – with the condition attached to it, relating to the public apology.

On higher education institutions, CGE has general transformation programmes in the institutions. They worked with different sectors and depending on their plans, targeted sectors informed by the status of issues in each sector. The issues came to their attention through reports, media or individual reports. They worked with the education sector generally. In the previous year, they had worked with TVET colleges.

CGE would usually request information to assess if the institutions were complying with legislation and if they had gender sensitive policies. When CGE found that the institutions were probably not complying with existing legislation and did not have policies, CGE would make recommendations and then follow up. CGE conducts training that promote awareness and implementation of legislation and compliance with legislation.

CGE had worked with the Department of Higher Education in the TVET colleges through the transformation programmes to change the mindset of society.

The Chairperson asked what cooperation CGE had received from the Council of the University. Both Prof Mbati and the Council had an opportunity to respond, Prof Mbati responded but the University Council did not respond. In their own documentation, the University Council said that they were not afforded an opportunity to respond to the allegations.

Secondly, on the settlement, the University stated that they did not have records and that no settlement was offered. He asked CGE to confirm in terms of their records and also produce the records that confirmed that there was indeed an offer.

Ms Robertson replied that when she realised she was coming to read the statement, she tried to find the letter on the settlement offer. However, she would go back and try to find if there was one, she would submit at a later stage. She could not confirm that there was indeed a settlement offer that was given to the Commission in writing.

The statement indicated that the first respondent responded to the letter but the Council did not. If that would constitute a situation where the university can be said not to have cooperated, she would have to substantiate that.

On the university claiming it was not afforded the right to reply, the statement she had read was saying the contrary. She would need to do further research to answer “yes” or “no” to what exactly happened.

The Chairperson said that the Committee would appreciate receiving the information on the settlement offer from Bowmans, with CGE following up on the documents.

Ms C King (DA) asked if Univen had indicated how far they were with the process of revising the sexual harassment policy. Were there guidelines for staff and students on how to go about instituting and lodging complaints of a sexual nature at the university itself?

She asked if the Commission was given reasons why the university had refused to give CGE the second Modise report.

Ms J Mananiso (ANC) asked if CGE had a plan to ensure that they prevented gender based violence and femicide in institutions of higher learning.

She asked if CGE would say it was recommendable for a person whose rights had been violated, to opt for a settlement. The Committee would want to see CGE as activists of human rights. In her opinion, if the Chapter 9 institutions were active some of these things could have been prevented.

Another Member thanked CGE for taking on cases of sexual harassment and encouraged them to continue taking the side of the underdog. He asked if CGE was happy with the sexual harassment policies in each and every institution. And, if not, what was CGE doing about them?

Ms N Tarabella-Marchesi asked about the accessibility of CGE to the institutions of higher learning and if it was possible to have CGE representation at these higher education institutions (HEIs) in light of their budgeting limitation.

Ms Robertson replied that they did not have CGE commissioners or employees at HEIs. The reason being CGE had only a staff complement of under 100, and a limited a budget as well. It did not have the capacity to have representatives in specific institutions.

The CGE had an annual plan targeting different sectors and they did not respond only to issues that that were in the public eye. Those individual cases were important as they become triggers to address bigger issues as they were symptoms or the manifestation of patriarchy. They have transformation programmes and advocacy programmes, with its staff component to address the plan each year.

From her own understanding, CGE was not happy about the existence of gender policies, especially sexual harassment policies in higher education institution. From the institutions that they had engaged with, they had found some that did not have sexual harassment policies. If that is the case, they work with them and follow through to empower them to begin to comply with existing legislation, and have a conducive environment to promote gender equality. For example, the Commission worked with the University of Venda and assisted them in amending the policy. As it had been five months since the review of the policy at Univen, they would follow up, as she did not have information at that stage to respond to that.

On the refusal to provide the Modise report to CGE, the reason for refusing was not in the statement she had read. She sought the indulgence of the Committee to conduct further investigation and she would answer that in her written response.

On whether it was advisable for complainants to take settlement offers, from her point of view as a person who had been working in the area of gender equality for more than 20 years, it would not be her advice. However, the context that the advice was given to the complainant was something that she did not have information on. She would have made a different decision, but not knowing the context, the Commission made the decision based on the information they had at that time.

The Chairperson followed up on the cooperation between the Commission and the University. He asked for her view on the conduct of the University Council, a public body that was enjoined by the Constitution, to cooperate with a Chapter 9 institution.

Ms Robertson reiterated that her opinion was based on the information she was exposed to. So as a personal opinion, and this was not the Commission’s opinion, she answered that when they requested information and they did not get a response, that would be called non-cooperation. When CGE, as a Chapter 9 institution, requested information, they did so in a transparent manner. They were requesting information they knew was in existence. As such, she would deem the University Council to be uncooperative.

The Chairperson thanked Ms Robertson and asked for the additional information to be supplied via a supplementary affidavit. The Committee would still endeavour to get the person who was responsible for the investigation.

Witness 2: Mr Modise
Mr Lavery Modise said that his statement had been covered by the statement of Ms Robertson. Unfortunately, this was a matter that took place nine or ten years ago. In terms of their firm’s policy, their files get destroyed or archived. Unfortunately, he could not locate the documents. He read his statement to the Committee:

1.         On or about 2010 or 2011 I was appointed by the University of Venda in my capacity as a practicing attorney to mediate a sexual harassment complaint lodged by Professor against Professor Mbati.

2.         Mediation of a sexual harassment complaint is provided for and is in accordance with the Human Resources Policy(Policy) of the University.

3.         After I had interviewed Professors Phendla and Mbati the dispute remained unresolved and I accordingly prepared a report (First Report) and submitted it to the University on the non resolution of the Dispute - I recommended to the University to invoke the next step provided by the Policy which includes the conducting of an investigation whose outcome may lead to the institution of a disciplinary hearing.

4.         It is not clear to me whether the University conducted an investigation arising from Professor Phendla’s complaint.

5.         Some months later I received a Court order directing me to prepare a report containing my findings arising from the mediation. I complied with the Court order and prepared a report (Second Report) and forwarded it to the University. I prepared a detailed report and found that based on my interviews with Professors Phendla and Mbati as well as documentary evidence provided by Professor Phendla that Professor Mbati and Professor Phendla had a consensual sexual relationship. (I pause here Chair as I was listening to Ms Robertson presentation, she alluded to a judgment that was handed down by the Labour Court, I was not aware of the judgment. But what is interesting in what she said is that the Labour Court seemed to have agreed with me that there seems to have been a consensual sexual relationship that when that went sour, remember that my finding was that there was consensual relationship. So the Labour Court seems to have been alive today.)

6.         To the best of my recollection, the Court order arose from an application brought by Professor Mbati and/the University to have certain adverse recommendations and/or findings contained in the Gender Commission’s report expunged.

7.         Subsequent to my Second Report, I received a telephone call and/or email from Professor Mbati, he pleaded with me to amend or change my report on my finding that he had a sexual relationship with Professor Phendla. I took strong exception to his request and accordingly refused to accede to his request.

8.         Shortly afterwards, I was served with an application launched out of the Venda High Court to review and set aside my Second Report. I filed an explanatory affidavit to assist the Court in considering the matter and arranged for our correspondent in Venda to file in Court. I am not certain whether the affidavit was before the Court when it made the order to review and set aside the Second Report - to the best of my recollection Professor Phendla did not oppose the application due to a lack of funds.

9.         It seems that the Court only issued an order without a written judgment. I wish to bring to the Committee’s attention that I made this statement without the benefit of any document before me because the file in which all the information was kept was in accordance with the firm’s then policy to archive files five years after a matter has been finalised and in the circumstances all the documents that would have assisted me to properly and comprehensively prepare my statement could not be found after a diligent search was conducted.

Be that as it may, the University of Venda and/or its attorneys (Bowman Gilfillan attorneys) should be in possession of my First and Second Reports. I suspect that Professor Phendla is in possession of all the relevant documents pertaining to this matter including the First and Second Reports and my explanatory affidavit.

I hope I have gone a long way in being of assistance to the Committee.


Discussion
Mr W Letsie (ANC) asked the witness to tell the Committee how he was appointed by the University of Venda.

He asked why Mr Modise’s first report was inconclusive and if Mr Modise thought the inconclusiveness of the first report might have prejudiced Prof Phendla’s quest to seek redress.

He asked for Mr Modise’s expert opinion as a labour expert and practicing attorney on the failure by the university to implement the next step as stipulated in its sexual harassment policy after the collapse of the mediation process and how that may have prejudiced Prof Phendla.

Lastly, he asked why Mr Modise did not oppose the challenge on the setting aside of his second report and only gave some sort of affidavit.

Mr Modise responded to the first question, that to the best of his recollection, he received a letter from the university asking him to provide them with a quote. He provided them with the quote and after two or three weeks, he received a letter from university that he had been appointed to mediate. He pointed out that prior to getting appointed, he had never done any work for the university and did not know anyone at the university or done any work for them in the past.

On the second question on why the first report inconclusive, Mr Modise replied that the first report was meant to be inconclusive because in terms of the policy, the Human Resources policy of the university, when there was a sexual harassment complaint, the first step was to find someone , a neutral independent person to try and mediate the dispute and not to make a finding. Mediation by its very nature is not meant to make findings.

On the failure to invoke the next step which is to investigate, he was not aware whether or not the university instituted investigation. He would have expected them to do that, because that was their policy. It was unfortunate if there was failure to implement the recommendation, as that would have been the University flouting their own policy.

He had been appointed as an independent third party and as such he did not have any interest in the matter, therefore he did not oppose the motion to challenge his report.

The Chairperson gave a brief background of the chain of the events. He said Mr Modise’s report was utilised to then exonerate the person against whom the complaint had been raised. The university utilised his report to take a decision to clear him because Mr Modise’s report said there was a consensual sexual relationship.

He asked Mr Modise to speak about the inappropriate advances by Prof Mbati who sought to influence him to change the report. Secondly, to speak about the second report. Did he expect the University Council to finalise the matter based on his report or to do further investigation.

Mr Modise replied about the approach by Prof Mbati. It was not an allegation, rather essentially what happened. Prof Mbati called him, and they discussed it. Thereafter, Mr Modise wrote to him. Unfortunately, he did not have the email with him. He confirmed that Prof Mbati had called him and asked him to change his report.

Mr Modise replied that the problem with matters that went unopposed was that often, with the greatest respect to the judges, some judges found the easy way out, and did not properly deal with the matter.

Mr Modise replied that his report was not binding on the university. It was not necessarily conclusive, because he spoke only to both Profs Phendla and Mbati. There could have been other witnesses that the parties could have wanted to call, or there could have been people who knew about this thing.

There could have been other evidence that could be relied on if an independent investigator was appointed. He was not an investigator in terms of the policy, he was just there to listen to both of them and make a recommendation to the university.

The Chairperson asked if there were any other inappropriate advances from Prof Mbati.

Mr Modise replied that that was the only inappropriate conduct; had there been any other, he would have mentioned.

Mr T Letsie (ANC) asked what other issues Prof Mbati wanted changed in the report, other than the the existence of a consensual sexual relationship.

Mr Modise answered that Prof Mbati was only concerned that Mr Modise found that he had a consensual sexual relationship. As a married person, he was worried about his family.

Mr S Tambo (EFF) thanked the witnesses. He said that the testimonies gave the Committee an opportunity to reflect on what seemed to be a questionable and dubious character of Prof Mbati at that stage. He did not want to delve into reaching conclusions, but they were making certain character judgments on the type of person he was.

He asked Mr Modise what standards he used to make a determination that there was a consensual relationship and if he thought this impacted how the university handled the sexual harassment case.

Mr Modise answered that the University found an easy way out. He had come to this conclusion of a consensual relationship, due to most of these things that happened had happened mainly in Prof Mbati’s house. To the best of his recollection, even after the first incident, Prof Phendla still went back to the house to be alone with Prof Phendla.

Mr Tambo said he was not sure. He did not want to delve deeply into the politics of power and the relationship of a subordinate and one in authority. This was in light of what CGE had outlined earlier on Prof Phendla’s assertions that she felt that their professional relationship might have been affected by her continued declining of the sexual advances. He was not sure the returning of Prof Phendla to Prof’s Mbati house, which was likely under duress, could amount to indicating a consensual relationship.

Mr Modise agreed about power relations, saying that in most cases of sexual harassment, usually the complainant is someone who would be subordinate to the perpetrator of the offence. He said that the reasons for his conclusions were in his report.

The Chairperson said that at the moment the court’s holding was the final authority in the matter. Three bodies had come to that conclusion. He asked if it was ethical and professional for a person in the position of a vice chancellor to have a sexual relationship with a subordinate.

Mr Modise agreed with the Council Chair who had answered the same question the previous day of the inquiry. This conduct was not acceptable in the workplace. In some companies or institutions, the sexual harassment policy states that a person in the position of power is not allowed to have any sexual relationship with a subordinate.

The Chair asked Mr Modise’s views on the decision by the University Council to exonerate Prof Mbati and if he thought that decision should still stand or should be rescinded. Given that the report which was used as the basis for the University Council to take that decision had been set aside by the court.

Mr Modise answered that on the basis that the Council had not conducted an investigation, just on the basis, his opinion was that the Council should actually go back to the drawing board and review the decision.

Witness 3: Mr Manenzhe
The witness had connectivity issues and the Committee decided to take his evidence at a later date.

Witness 4: Higher Education Transformation Network (HETN) Board Chairperson
Dr Reginald Legoabe, HETN Board Chairperson, said it was a great pleasure on behalf of the Higher Education Transformation Network to appear before the Committee. For the most part, the statement falls within Part B of the inquiry. But he will do his best to cover testimony items that relate to part A and they will file a supplementary statement if the Committee directs them to do so.

In brief, the Network is a nonprofit organisation. We are a national alumni association. Our objectives are to lobby and provide policy advocacy for the transformation of the education sector. And we do have an allocation journal to promote quality research output.

We provide policy advocacy and lobbying and policy advocacy reports and strategic litigation on issues when we feel that statutory targets relating to the National Development Plan are not being attained.

Our involvement as the Network in this matter stems from Phendla’s membership of our network. Prof Phendla is not an ordinary member but has been with the network for some years now. She is part of our elected board and currently occupies the position of Director of Research with the current board or the Network.

Our trigger for what led to the complaint in the letter of 15 May 2020 relates to what we will be following as part of Part B. However, the bulk of the testimony is on the basis of an affidavit laid under oath by a whistleblower who is a local member of the network.

This affidavit was deposed on 13 December 2016. The whistleblower is a former Professor at the University of Venda in the School of Health Sciences. The name of the whistleblower is indicated in the statement for purposes of this inquiry, and there was a supplementary affidavit filed by the whistleblower in support of our judicial review application against Sefako Makgatho University in the High Court, in the Gauteng Division.

The bulk of our submission today relates to two main items, excising what would fall under part B, that Prof Mbati does not possess the quality of honesty, integrity, and accordingly is not fit and proper for the role of Vice Chancellor, as demanded by the Higher Education Act, as well as section 195 of the Constitution. Our second main submission is that this appointment is not in line with objectives of the National Development Plan Vision 2030 of the South African government,

Section 195 of the Constitution states that public administration, and that includes higher education councils and vice chancellors, must maintain a high standard of professional ethics, fairly, equitably, and without bias in an accountable, transparent manner as far as their discharge of public power in the management of institutions is concerned. That means that it imposes a duty on the university councils and its lawfully delegated officials to act at all times with fairness, honesty, impartiality and transparency in the public interest in all decisions.

The National Development Plan Vision 2030, which is part of our key guiding documents, informs the targets of the South African government. It aims to eliminate poverty and create 11 million jobs. But what is important in terms of the higher education sector is that there are targets set in terms of the NDP that South Africa has set to increase the output of black and female researchers, students and researchers and lecturers to ensure progress in reversing gender and racial imbalances in the education sector, to ensure that by the year 2030, that Africans and women make up 50% of the teaching and research staff of universities in the South African higher education sector.

So, it is based on this policy backdrop, we make our submission, to make sure that the percentage of PhD qualified staff, doctoral staff in the education sector, increases from the current 34% to 75% by 2030, to produce more than 100 doctoral graduates per year.

In the interests of time, he would not go into what has already been served before the committee. But he will not go much into the merits of sexual harassment matter of Prof Phendla, although some aspects form part of the letter of complaint to the Portfolio Committee.

The chairperson of the Univen Council delivered testimony yesterday. There are quite a few items that we would like to bring to the attention of the Committee without getting into the merits. Prof Phendla’s hearing was instituted on the basis of an alleged complaint by National Education, Health and Allied Workers Union (NEHAWU). What unfortunately was neglected to be mentioned to the Committee was that on 17 October 2017, NEHAWU issued a statement that whilst its Univen branch initiated the complaint, there was no evidence that was linked to Prof Phendla so in that part in reading their statement: “NEHAWU’s name must not be used by Prof Mbati to cover up for his dismissal of Prof Phendla.”

The second issue we wish to highlight for the Committee's further emphasis, is there is a nolle prosequi certificate issued by the National Prosecuting Authority on 2 September 2015 that indicated that there is no basis for any criminal action against Prof Phendla.

Further, there was a report by Deloitte and Touche, which was used as part of the basis for disciplinary action against Prof Phendla. It is our knowledge that this Deloitte and Touche report was rescinded, or rather it was disowned by Deloitte post proceedings.

The testimony to the Committee deals with the workplace practices that took place at the institution that further justify our assertion that Prof Mbati is not fit and proper to occupy the role.

On 5 October 2015 at the University of Venda there was a large march and Memorandum of Demands by more than 70 South African masters and doctoral postgraduate students. This came as a result of alleged favouritism and discrimination taking place. Around 51 demands were conveyed to Univen management and some to the Ministry. In brief, some of the allegations were:

1.         South African masters and doctoral students were being unduly delayed from completing and getting their research proposals approved.

2.         All lecturing, senior mentoring tutors, research assistants and research supervisors at Univen are non-South Africans and the criteria for their appointment is unknown.

3.         The Univen work study programs, it benefits for in non-South African students and covers 100% accommodation which is not afforded to South Africans.

4.         There were other complaints that foreign non-South African students receive preference in masters and doctoral admissions and employment as junior lecturers, mentors to tutorships and research assistants.

5.         All the staff members of the Department of Business Information Systems were all male Zimbabwean nationals, and no South African was employed there.

6.         South African students were unfairly discriminated with regards to admission, approval of proposals etc.

7.         Gateway academic jobs, especially in lecturing positions are reserved for foreign non-South African students

8.         That accommodation is reserved for foreign non-South African students while the students and even not yet in the country.

9.         South African postgraduate students both masters and doctoral are not allowed to attend international and national conferences, whereas University funds are being used and being approved for non-South African doctoral and master's students.

10.       And that the further that there was abuse of the university work study program, in the form of where students were claiming timesheets as proof of employment as part of the university work study program. Some were found not even to be in the country, but then timesheets of being on duty, as part of my study program will be submitted.

11.       But most pertinently, in the in the School of Management Sciences, that there was a specific complaint that a certain Professor K., who was the Dean of the School he does not allow for the admission of South African postgraduate students at masters and doctoral level and only Zimbabweans employees were employed in this particular school.

After the march, and around October 2015, the Council of the University appointed a three-person investigative panel who drafted a report entitled “Investigative Report into Postgraduate Student Grievances” sometime in 2016.

This report was submitted as part of the dossier of information received from the whistleblower. It was submitted to the Committee. Based on this report, the findings were:

1.         There were indeed undue delays in the processing of applications and approval of research proposals by South African postgraduate students in the Faculty of management sciences, and Department of Information Systems, contrary to Univen policy,

2.         That there was proof of abuse of the work-study program by non- South African students registered at Univen.

3.         That international students rented out their rooms to fellow non-South African and rooms in res accommodation was not available to South Africans.

4.         Non-South African students have been registered by the University without any study permits.

5.         The report further found that failure to appoint South African students to gateway academic jobs.

6.         With regards to the appointment of South African students as junior lecturers, mentors, tutors, and such supervisor, the report could not find any policy on the recruitment of mentors, tutors, and research supervisors except to the generic recruitment policy.

7.         And what the report found more pertinent is that the deans schools who are overwhelmingly foreign academia and non-South Africans always recommend that non South African students as Junior lecturer, mentors, tutors, and a supervisor. So the report found that they overwhelming cohort of the management at Univen is overwhelmingly non South African. And as a result, where the top leadership the deans of schools, the heads of department are overwhelmingly African, that this practice of employment of junior lecturers, mental tutors and research unduly discriminate against South African students.

8.         The report found that the Univen Center for Teaching and Learning led by a certain Dr. Ndembele only provides for the foreign with the exception of South African academia, which abrogated the principle of growing on timber. And this goes to the heart of the National Development Plan, that there is a taxpayer funded institution within the Republic has to operate within the prescripts of the of the National Development Plan. So this was indeed a finding in terms of the university's own report, as we indicated,

9.         Lastly, that the report found that indeed that there is evidence which corroborated assertions that non-South African students were given better preferences as to admission over non-South African students. The investigation team found evidence that there was preferential admission practices in the School of Management Sciences under the Dean of the School of Management Science at the time. And then this practice discriminates against South African masters and doctoral students.

10.       With regards to their preferential allocation of research supervisors, it was found that international academic staff do not allocate research supervisors fairly, between South African students and non-South African students, and that this unfairly benefited non- South African students who were able to complete their masters and doctoral degrees much quicker, whilst South African graduates were delayed.

11.       Now, on page 73 of the aforementioned report, it reads verbatim
It should be noted that while the School of Management sciences was given prominence in the grievance document, it is the case that attention is a manifestation of an institution wide phenomenon. However, there was general agreement that for the department to be 100% Zimbabwean is not good practice for the university. If one adds to the gender dimension, it has the appearance of an exclusive Zimbabwean men's club. No matter what valid reasons are advanced for this, it is simply unacceptable and without which it happens anywhere else in the continent. Not to mention the risk entailed in the eventuality of a sudden change in the Zimbabwean political situation, which might add in a sudden exodus of Zimbabwean nationals from the University.

Dr Legoabe said he would like to give testimony on the issues raised by the whistleblower. The whistleblower is a retired professor within the University of Venda. The evidence is contained within an affidavit that was deposed in October 2016 to the South African Police, but there is a supplementary affidavit deposed by the same whistleblower in support of the judicial review sometime in June 2020.

The whistleblower, who is a member of the Network, alleges that discriminatory workplace practices existed at the University of Venda workplaces, where no South African professors were appointed as employees. He notes the appointment of Professor Emeritus after retirement without any advertisement, shortlisting or interviews taking place, as per the recruitment policy of the university. The whistleblower alleges that there is no record of any South African academic who retired and was retained and offered a post-retirement appointment as Professor Emeritus post-retirement.

The whistleblower upon alleging this matter was subsequently suspended at the University of Venda. As we speak, he has been dismissed, and his matter is currently with the Labour Court. Hence the fear not to want to appear in this forum today. However, an affidavit has been deposed to this effect.

Then whistleblower alleges that former staff members of the Department of Business Information Systems within the School of Management Sciences, were all male Zimbabweans nationals.

He further alleges that Prof Henry Abayomi Akinsola, who is a Nigerian national was employed as the former head of department of the Department of Public Health within the School of Health Sciences. He was appointed as a visiting professor on 1 May 2015 to 30 April 2018. This is contained in a council decision, tabled on 12 September 2014.

The whistleblower alleges that Professor M.A. was appointed as a visiting professor post retirement for two years without any advert, shortlisting or interview with full benefits, including flight tickets for family to and from South Africa and shipping of belongings from 2013 to 2016.

It is alleged that this Professor M.A was a personal friend and former colleague of Professor Akinsola since they both work together in an university in Nigeria.

And further the other names that are alleged here, I will name them:

Professor J.S Ogolla, a Kenyan national appointed a visiting professor in the School of Environmental Sciences from 2013 to 2015.

Professor Elma Minow, an Italian national appointed a visiting professor in the School of mathematical and natural sciences. And this is contained in the council decision of 16 August 2013 and 13 September 2013.

Further Professor R.B Bhaat was appointed a visiting professor. Unfortunately, he passed away. He was appointed in the School of Mathematical and Natural Sciences in 2015.

A professor AB, was allegedly appointed emeritus professor in the Department of Economics from 1 January 2015 to 31 December 2017. This is contained in the council decision of the term September.

Another professor was appointed as a professor emeritus in the School of Law from 1 January 2015 to December 2017. This is contained in the council decision of 21 November 2014.

Professor L, who unfortunately passed away and was a former director of the Center of Biokinetics. He was appointed as a visiting professor and a contract professor in the Center for Biokinetics. From January 2015. In the Department of Public Health, in the School of Health Sciences,

These appointments were only offered to non-South African academia. We believe, as a stakeholder in higher education, that this is contrary to the NDP prescripts. Preference must always be afforded the taxpayers funds to the growth and development of the South African academia. We are not saying that non-South African academia should not benefit whatsoever. Our concern is that taxpayer funds within a publicly funded institution cannot be utilised outside statutory provisions or other policy provisions of the National Development Plan Vision 2030.

We submit that as a legacy and direct outcome of Professor Mbati’s tenure at the University of Venda for the 10 years from 2008 to 2018, the strategic and operational management practices of a state funded institution, funded by South Africans taxpayers, currently has no less than six or eight executive faculties being foreign nationals, and not South Africans.

As we currently speak, of the eight key faculties of the University of Venda, only three faculties are held by senior South Africa academia, namely, the faculties of Mathematics and Natural Sciences, Human and Social sciences, and the Faculty of Health. The following faculties are not staffed by South African academia – the School of Agriculture, Education, Environmental Sciences, Management Sciences, and the School of Law.

We further submit that these practices cascade beyond the strategic leadership but cascade, at departmental level and to ordinary workplace level, where South African academia and students were unfairly discriminated against in a publicly funded institution, funded by taxpayer funds of the Republic.

We submit that under the leadership of Prof Mbati, the policy of internationalisation, which was reflected in the strategic plan of the University of Venda as objective number seven. We submit that this policy was implemented on a wholesale basis in a nefarious manner, thus undermining the strategic objectives of the NDP. This has resulted in the ranks of a taxpayer funded institute being composed of overwhelming non South African staff in non-compliance with objectives of the NDP Vision 2030 which says emphasis must be given to black and female South African teaching and lecturing staff to ensure that NDP targets are met.

Our testimony goes beyond this and delves into allegations of corruption raised by the whistleblower in the affidavits of 2016, as well as the supplementary affidavit filed in the High Court in June 2020.

The whistleblower alleges that between 2012 and 2015, the University of Venda, repeatedly awarded contracts to a company called Cornerstone without following normal tender procedures. These were mainly ICT contracts, and no tender processes were ever followed.

The whistleblower further alleges Univen in 2014 awarded a contract for a project called ICT Smart Campus, to a company alleged to be Microsoft, South Africa, without following normal tender processes. This was for an undisclosed amount of money, estimated to be around R75 million.

It is alleged that the contract was awarded after some Univen staff members had a meeting with representatives of the company alleged to be Microsoft, South Africa. There was no tender and the company was awarded the contract.

This is contained in some of the annexures transmitted to the Portfolio Committee as received from the whistleblower.

The whistleblower proceeds to indicate that in 2013, Univen budgeted R4 million for the work study programme but unfortunately about R10 million was spent on the work study programme. When the employee representatives in the joint structures of Univen raised the anomaly in the meetings, a task team investigated the work study programme, headed by a certain professor who was the Director of Research and Innovation. But the report of the task team was never shared with employee representatives in the joint structures of Univen who raised the mismanagement of the work study programme. The whistleblower requests that this matter be looked into. There are some annexures which were submitted.

The whistleblower alludes to a letter drafted on 19 April 2016 by a Mr Machado Rahman, a trustee and chairman of the Univen Foundation. This letter was annexed as part of the whistleblower’s annexures. It is alleged in this letter by that the university agreed to pay around R6 million for the land it currently occupies. The letter alleges that the accountant of the Univen Foundation reported that some of the funds donated to certain causes of the university were not being properly accounted for, and this allegation is contained in the same letter.

It is alleged that the subsistence and travel policy of the university was being abused. In some instances claims for subsistence and travel as high as R700 000 were submitted. These are allegations contained in this letter as well.

The whistleblower annexed audit reports of Univen for the year ended 31 December 2014. This audit report was done by an external auditor and there was a submission to the joint Bid Adjudication Committee and Finance Committee by management. There is a document dated the 30 November 2015 titled “Review of Contracts and Variation Orders: Corrective Steps”

The whistleblower alleges that, in terms of these two documents, there were many contracts at Univen where payments exceeded the budgeted amount, and the university proceeded to pay for them without any justifiable reasons, or following the normal procedures for the variation of contracts. In most cases, the director of facilities signed these variation orders running into millions without the delegated authority to do so.

For example, there was, in terms of the audit report, for the swimming pool, a budgeted amount for R1 000 500 but the eventual contract amount paid was around R4 million.  

For the sports field with the budgeted amount of R9 million, the eventual contract paid was around R10 million. There were two variation orders for the unaccounted difference of a million rand. And a second variation order for the sports field, which contract amount was exceeded by R2 million. With regards to the sport quad the budgeted amount was R1,250,000 but eventually contract paid out was about R3,000,000.

The whistleblower is alleging that it was a pattern of overpayment of contract amounts over the budgeted amounts, with variations signed outside policy. There were inflated contracts or where funds were over-paid outside normal budgeted amount in certain cases.

The audit findings of Univen for the year ended 31 December 2014 proceeds to detail several contracts, for example, for the auditorium, the natural sciences building, Conference Centre, the conversion and refurbishment of the life sciences building, water storage boreholes. Total contract payments were made under the contract that exceeded the original contract price and no approved expansions or escalations to the contracts were provided for, for audit purposes.

There were many contracts where payments exceeded the budgeted amount and the university proceeded to pay for them without any justifiable reasons or following the normal procedures or variation of contract.

On the basis of the evidence we received from the whistleblower it is our humble submission that we do not believe that Professor Mbati is fit and proper to occupy the role of vice chancellor.

For the very same reason that the whistleblower alleges criminal complaints of forgery, fraud and corruption against Professor Mbati, and there has not been an outcome in terms of the finalisation of investigations of these charges. The whistleblower alleges that these matters were transferred.

These are further matters that we believe should probed. There are alleged procurement misrepresentations that appeared in public information such as the Sunday Times newspaper, which alleges that prior to ending his term,  there was a company named Andany Holdings, which was appointed as part of the private infrastructure project management to implement backlogs in the infrastructure projects of the university. According to the published article, an investigation made by the Department subsequently found that Prof Mbati was named as a director of one of the subsidiary of Andany Holdings.

The person who is the director and chairman of Andany Holdings is Mr Lindelani Cibi. He is the son of Ms Grace Cibi. According to information from a whistleblower, she served as Prof Mbati’s personal assistant. According to information she is still employed there.

The anonymous source alleges that there are issues with a PIC loan that was taken out in 2018 totalling R2 billion.

These are some of the matters that we request the Committee looks into it.

Our submission is that a vice chancellor must be fit and proper in terms of section 195 of the Constitution, he must be above reproach, and must act in the interest of the Republic of South Africa. In our view, from what is transpiring out his tenure at Univen, that Professor Mbati acted against the interests of the Republic of South Africa, and the National Development Plan. This policy of internationalisation resulted in South African academia, and students being unduly discriminated against in a South African institution that benefits from South African taxpayers’ funds. A fit and proper vice chancellor must respect policies and act in line with policies, such as the National Development Plan, which is very explicit that the development of South African academia must come first.

Dr Legoabe said he was willing to submit a supplementary statement to cover areas based on the content of the whistleblower’s affidavits.

Discussion
Mr W Letsie (ANC) thanked the witness. He thanked the Higher Education Transformation Network for continuing to fight for the right things. He asked for HETN to produce the evidence, where they alleged that a report by Deloitte and Touche had been disowned by Deloitte. He requested the Chairperson if the Committee could follow up with Deloitte to get the alleged report.

Mr Letsie asked for a report that the witness had referred to where he alleged that R80 million of university funds had been utilised by Prof Mbati to fight legal battles and pay legal costs and expenses in his personal ligation against sexual harassment.

Ms N Mkhatshwa (ANC) expressed concern about some of the issues raised by the witness which were out of the remit of this particular inquiry as they relate to the status quo at Univen. She was concerned due to these issues at the institution such as the infrastructure development programme was absolutely under siege. It was a matter of urgency for the Committee to go to Univen.

She was concerned that there may be a resurgence of the particular issues in the new institution that Prof Mbati was appointed to as vice chancellor. She asked for the assistance of the Department in investigating some of the allegations.

Ms J Mananiso (ANC) asked Dr Logaebe if in his opinion in the case of Prof Phendla and Prof Mbati, whether he could affirm that this case was a reflection of many victims of sexual harassment keeping quiet as they felt that they would experience secondary victimisation.

Dr W Boshoff (FF+) wanted clarification if the Committee was looking into all the matters at Univen from the witness testimony of Dr Logoabe.

The Chairperson noted that the Committee had not received everything Dr Logoabe had spoken about. He requested that they receive any supplementary information. The principle of audi alteram required that they listen to the other side. The Committee needed to put these allegations to the parties involved and allow them to respond to be able to make a determination.

Dr Logoabe said that he would ensure the documentary evidence requested was submitted.

On the victimisation of sexual harassment victims, Dr Logoabe was of the opinion that most victims of sexual harassment keep quiet because of the fear of victimisation.

He would submit a supplementary report.

The Chairperson said that the dismissal of Prof Phendla had been finalised by the Labour Court as the appeal had been dismissed. He welcomed the evidence on the report of Deloitte.

The Committee had tried to get the alleged figure of R80 million in legal fees from Univen Council records, but they had been unsuccessful. The Committee would dispatch a letter to the university asking for a breakdown of the legal fees.

The Chairperson agreed with the need to visit the university. The Committee actually wanted to conduct the inquiry at the university. However, the level three lockdown announced by the President in December made it impossible to travel. They wanted to do a local inspection and understand the this deadlock in infrastructure delivery. The Committee would still go to Univen.

Most of the issues addressed might not necessarily be part of what they wanted to achieve. But there were areas that the Committee wanted to look at such as the implementation of policies that exist in that institution.

The Committee wanted to assess the issues at Univen under the leadership of Prof Mbati as that would inform the allegations that he was not fit and proper to be a vice chancellor. Prof Mbati would be given an opportunity to respond.

The meeting was adjourned.

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