SMU Vice Chancellor Inquiry

Higher Education, Science and Innovation

02 March 2021
Chairperson: Mr P Mapulane (ANC)
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Meeting Summary

Video: PC on Higher Education, Science and Technology 02 March 2021

19 Feb 2021: SMU Vice Chancellor Inquiry day 3
17 Feb 2021: SMU Vice Chancellor Inquiry day 2
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

The former Council Chairperson of University of Venda, Serobi Maja, and the Commission for Gender Equality investigator were questioned on 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 Committee asked the CGE investigator if his investigation into the sexual harassment matter was conducted properly. He confirmed that through his investigation of the matter, evidence suggested that there was a consensual sexual relationship between Prof Phendla and Prof Mbati. However, he was unsure if Prof Phendla was not put under duress to succumb to the relationship.

The Committee questioned former Council Chairperson, Serobi Maja, if due process was followed by Council in response to the sexual harassment complaint; the settlement proposal; if the university’s sexual harassment policy was implemented to its fullest; if it was ethical for a vice chancellor to engage in a consensual relationship with a subordinate; why Council failed to defend the second Modise Report when the former Vice-Chancellor challenged it in court; if Council held management to account on university infrastructure projects and measures taken by Council to resolve infrastructural challenges; if Council was fit to fulfil its mandate; if Council fairly and effectively executed its role in the sexual harassment matter; and if the former Univen Vice-Chancellor, Prof Mbati, was fit to lead SMU as Vice-Chancellor and principal.

The Committee complained that witness did not remember critical details or was evasive. The former Council Chairperson replied that had he been provided with the questions in advance, he would have been able to prepare.

The Committee could not engage with former Council Chairperson, Ms Shirley Mabusela, due to poor network connectivity and resolved to postpone her testimony to the following day.
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Meeting report

Opening remarks
The Chairperson said the Committee was expecting to receive testimonies from the two former Council Chairpersons of the University of Venda, Ms Shirley Mabusela and Mr Serobi Maja. Before that, the Committee will first receive testimony from Mr Victor Mavhidula who was lead investigator for the Commission for Gender Equality (CGE) investigation on the complaint lodged by Prof Phendla against Prof Mbati. Since then, the report has been taken on review and certain portions were excised and others remain as they were. The recommendation of that report remained as it is including that the court directed that certain things have to happen.

The Committee’s interest is to determine if the process followed in conducting the investigation was done in line with the rules that govern the investigation by the CGE, and if the university was given enough time to participate in that.

The Chairperson said the Committee had wanted Mr Mavhidula to appear last week and it has since received his statement. He invited him to read his statement into the record and then Members would ask questions.

Witness Statement – Mr Victor Mavhidula
Mr Victor Mavhidula read out his statement about the complaint lodged with the Commission for Gender Equality by Prof Phendla against Prof Mbati. He detailed the investigation by the Commission from date of receipt of complaint until the finalisation of the complaint (see statement).

Discussion
The Chairperson verified a few matters: You wrote a letter to the Council asking them to respond to the allegations but the Council failed to, how much time did you give the Council to respond?

Mr Mavhidula replied it was sufficient time because he was guided by the normal standards, which is usually more than ten days. The Council had sufficient time to respond. The team had to look at the sexual harassment policy while Council was being granted time to respond – what the policy outlined on handling allegations of sexual harassment and the procedure that must follow subsequently.

The Chairperson said there was an allegation that the Council was not given enough time to respond.

Mr Mavhidula replied that is incorrect. When the Council went to court he was not part of CGE anymore. With that said, when the CGE investigation team was requested to extend the time for Council to respond, it agreed.  During the investigation, the team ensured that everyone involved had enough time to respond. The team even went to the university physically to ensure the interviews were done and any inconvenience on the part of the parties involved in the case were reduced.

The Chairperson said that Mr Mavhidula interviewed the director of human resources, the legal advisor and Prof Mbati. Mr Mavhidula claimed that all three were not able to explain why the university was not able to comply with its own sexual harassment policy. Are you familiar with that policy, Mr Mavhidula?

Mr Mavhidula confirmed that he did interview all three and none of them were able to provide substantiated reasons why the university was not able to comply with its own sexual harassment policy.

When an allegation is received, it is part of the investigation process to review the internal policy of the institution to ascertain if the institution complied with it. The team realised that there was non-compliance; thereafter the director of human resources was approached as well as the legal advisor of the university, but there was no cooperation from either of them. There were steps outlined in the policy that ought to be followed but that was not done.

The Chairperson asked Mr Mavhidula why he thought the steps were not followed by Council.  

Mr Mavhidula replied that the human resources manager was supposed to initiate the steps but none of them took the steps laid out in the policy. There was no action taken. That gives the perpetrator time.

The Chairperson read clause 5.2 of the sexual harassment policy – the procedures that must be followed.

Mr Mavhidula replied the policy clearly outlined what the human resources manager was supposed to do. To his knowledge, the respondent was not even charged by the university. It failed to create an opportunity for the respondent to clear the allegations. When the team received the SMSes from the parties, there was no clear confirmation whether they had a relationship, but it suggested that something was going on between them. During the investigation, the team was able to extract from interviewing the complainant that there was indeed a relationship between her and Mbati.

The Chairperson said that the Committee asked the HR Manager when the complaint was laid and he replied that the complaint was not submitted to him but to Council. Normally these complaints are submitted to him. However, this complaint dealt with his superior and he could not get involved. It is therefore Council that must initiate the process. Do you remember when the complaint was laid with Council?

Mr Mavhidula replied that he could not remember but she raised this with the council but the council was not doing anything. The HR manager’s approach means that we are still going to fail a lot of people about sexual harassment in the workplace. If a staff member is using the wrong procedure to lodge a grievance, he could assist the staff member to follow the right channel. The intention should be to clear the air on what exactly happened. You cannot let the matter be just because the complainant reported the matter to the wrong channel. In this matter, there was no provision of assistance but they were aware of the case. The Council did not do anything.

The Chairperson indicated that advocate told the Committee that he interviewed both parties and was granted access to communicate with them. You say there was something going on between Prof Phendla and Mbati based on the SMS exchanges?

Mr Mavhidula confirmed that there was something happening but the question was if it was consensual or it was a relationship that existed under duress or the complainant was coerced to be in. That question still remains to be answered.

Mr T Letsie (ANC) said that on paragraph 17 of the statement, you note that the council chose to allow the respondent to use the university resources in his legal battle with Prof Phendla. Can you explain this?

Mr Mavhidula replied that the sexual harassment complaint was outside the VC's duties so why did the university provide resources to him to fight the battle. The university was supposed to support the victim. It was wrong for the university to appoint legal minds to represent them in this case. The complainant did not have the resources to have a legal representative. She did not have a legal representative. When it comes to sexual harassment matters, it is about the balance of power – which has the resources to fight. Council failed to give proper support to the victim and the case was not related to the mandate of the university.

Mr Letsie asked for confirmation that the university paid for the legal fees for Prof Mbati but gave no support for Prof Phendla.

Mr Mavhidula explained the university was fighting side by side with the respondent. This case would have been handled differently if the university was serious about it.

Mr Letsie asked if he was invited by CGE to take part in the court review process.

Mr Mavhidula replied he was invited to confirm the report because he finalised it, when he left the organisation that process was not yet done. So he was just asked to confirm it. He confirmed that it was a true reflection of what was gathered during the investigation.

Mr Letsie asked if a settlement was proposed to remove certain portions of the report.

Mr Mavhidula replied that he did not know why that was done. If he was given the opportunity to defend the report, he would have done so successfully. The investigation part of any matter is crucial – if this is messed up, it will determine the outcome.

Mr Letsie asked him if he would not have agreed to have certain portions of the report taken out.

Mr Mavhidula replied that he was not aware which parts of the report were taken out. The university breached its own policy and the question was why it failed to comply with its own policy.

Ms J Mananiso (ANC) asked if in his opinion Council had no appetite to deal with this matter and if the HR manager dismally failed to ensure that the victim was protected.

Mr Mavhidula replied that in his view, the HR manager of the university dismally fail to implement its policy or they did not understand the magnitude of this case. We are dealing with a professor. If a professor reported a case and she end up being kicked out of the university; imagine what would happen to a junior employee of the university. They would not be able to lodge a complaint.

If an institution of higher learning is not interested in fighting GBV matters, then this country will not win in its fight against GBV. There are many women who have lost their jobs for reporting sexual harassment in the workplace. The HR manager and council failed the complainant and the women in this country.

The Chairperson said that there were two people who had access to information on the matter – it was you and Mr Modise, who was appointed as a mediator. Both of you came to the same conclusion. Mr Modise said that there was a sexual relationship between the parties as he had access to the information and interviewed the parties. In his explanatory affidavit, he explains why he came to that conclusion. Prof Mbati confessed to the existence of a relationship.

The question that had to be determined was if it was consensual or there was sexual harassment. Dr Tshitereke, Univen former Director in the Office of the Vice Chancellor, told the Committee last week that when he confronted Prof Mbati, Prof Mbati confessed to him that he had a relationship with Prof Phendla.

The judge that presided over the matter says there was a consensual relationship that went sour but not sexual harassment.

The University Council accepted the report of Mr Modise, and a number of people who investigated agreed that there was a relationship but Prof Mbati is denying it. He is the only one denying it out of everyone interviewed.

What can you say to that? We accept the conclusion by the judge that there was no sexual harassment but there was a relationship. What can you say about the ethical conduct of Prof Mbati on this matter?

Mr Mavhidula replied that there is nothing preventing people from having a relationship, but in a case where a victim is alleging that it was not voluntary for her to get into this relationship and it was coerced, that relationship becomes unethical.

He came to the conclusion that there was a relationship and that was evidence enough for the university to go forward to establish if it was consensual or the VC abused his power to make the relationship happen. We had to look into whether there was harassment. We put this to the complainant why there were SMSes and she explained why it happened. The VC was giving her a hard time in executing her duties but when she agreed to this relationship, things started going smoothly. The complainant had massive evidence to back this up.

When we put the SMSes to the respondent, he denied that there was a relationship. He denied it because he knew if he admitted to it, the team would have to determine if it was consensual.

The Chairperson thanked the witness.

Witness statement – Mr Serobi Maja
After he took the oath, Mr Serobi Maja, former University of Venda Council Chairperson, read out his statement. The statement detailed Prof Phendla’s sexual harassment allegations against Vice Chancellor and Principal, Prof Mbati. In his statement, he spoke about allegations of corruption against Prof Phendla and the disciplinary processes that took place after. He went on to give account on the sexual harassment complaint from Prof Phendla. He also spoke about the university infrastructure projects (see statement).  

Discussion
The Chairperson said that Mr Maja claimed that when the allegations were first made, Council appointed Mr Modise to mediate in line with the policy of the university; is that the case?

Mr Maja confirmed. Mr Modise was a referral because he was deemed an expert on these matters.

The Chairperson said that the work was undertaken and a report was produced, but this report was inconclusive, which meant the dispute was not resolved. What was supposed to happen after that?

Mr Maja replied that they contacted Mr Modise to clarify certain matters that were vague in his report but in his final report he confirmed sexual harassment took place.

The Chairperson said that was not true.

Mr Maja replied that Mr Modise confirmed to Council that there was a sexual relationship.

The Chairperson asked when Prof Phendla raised the allegations.

Mr Maja replied around 2011.

The Chairperson said the Council sought advice from Maserumule Attorneys and a mediator was appointed. The part that is not true is that Mr Maja said he requested Mr Modise to clarify certain parts of his report – this is not true. There was a court order in the matter between the Council, Prof Mbati and CGE. This happened four years after the report was produced.

Mr Maja replied that he may concede to that. He cannot dispute what the chairperson said but he could not remember everything. He was saying that after the second report there was a conclusion that there was a sexual relationship between the parties.

The Chairperson asked what did Council do when it received the first Modise report.

Mr Maja replied the Council Chairperson convened a meeting to look into the matter and the decision was to follow the sexual harassment policy of the university. At the same time, Prof Phendla was going through a disciplinary action on matters of corruption.

While the Council was deciding, it learnt that Prof Phendla had taken the matter to the South African Police which was then referred to the National Prosecuting Authority (NPA). The NPA concluded that there was not enough evidence to support the allegations.

The Chairperson said that he was interested to know what Council did when it received the Modise report.

Mr Maja replied the council decided to leave the matter at that stage because it had gone to SAPS and the NPA and it would wait for the reports from all the other institutions.

The Chairperson said this was not true. At that time the complaint was not yet lodged with the CGE. Are you aware of the council policy on sexual harassment?

Mr Maja replied he was aware then about the processes that needed to be followed.

The Chairperson asked if he thought the processes were followed.

Mr Maja replied yes.

The Chairperson asked if the Council followed the provisions of clause 5.2 and quoted them.

Mr Maja replied that Council relied on the conclusions made by Mr Modise and based on that we were told that there was no case.

The Chairperson said that the policy clearly stated that if there was prima facie evidence then Council can proceed with the charge. The Committee wants to know why council did not follow clause 5.2.

Mr Maja replied that perhaps the Council Chairperson at that time will be able to explain why.

The Chairperson said that the reason Council did not pursue 5.2 was it was protecting the VC.

Mr Maja refused to agree to that. Council did not collude with the Vice Chancellor. He never wanted to protect either party. Council was trying to be objective.

The Chairperson said but the evidence suggests that council did not act on the inconclusive report by Mr Modise. The Council had to be dragged by the court order to comply with clause 5.2.1 to call for the Modise report. Are you denying that?

Mr Maja replied he was not denying that.

The Chairperson said Mr Maja was the Council Chairperson when the CGE report was taken to court; what were reasons for taking the CGE report to court?

Mr Maja replied that the council felt that the report was very biased and it heard that Prof Mbati was not interviewed by the CGE.

The Chairperson said Prof Mbati was lying to Council because the person who conducted the investigation informed the Committee that they had travelled to the Univen to interview Prof Mbati.

Mr Maja replied that it may not have happened because there were instances where the CGE only listened to one side of the story and made its conclusions based on that.

The Chairperson said Mr Maja then needs to confirm that Mr Mavhidula's testimony was a lie.

Mr Maja replied that had Prof Mbati been interviewed, maybe the truth would have come out.

The Chairperson stressed that he was under oath and he was supposed to be truthful. You are accusing Mr Mavhidula of lying to the Committee.

Mr Maja replied that he is not saying it is a lie but he was not aware that they met in his office to be interviewed. He could not say if it was truthful or not.

Mr Letsie clarified that Mr Maja agreed that there was a consensual relationship between the parties. Mr Maja did not agree that Prof Mbati was interviewed. Why did Council not establish at that time why Prof Mbati was not interviewed before taking the report on review?

Mr Maja replied that there were a lot of other factors that came in to play which influenced how council responded.  He said in his statement that he convened a task team to look into this matter and it advised that it was better to wait for the outcome of the court.

Mr Letsie said Ms Mabusela in her statement on page 2 noted that Exco which Mr Maja was part of appointed Maserumule Attorneys to investigate the sexual harassment matter. Did the council appoint Maserumule Attorneys to investigate the sexual harassment allegations?

Mr Maja confirmed that was the case.

Mr Letsie asked for the terms of reference of the Maserumule investigation.

Mr Maja replied that the Council provided the attorneys with the allegations received in line with the sexual harassment policy of the university.

Mr Letsie asked how the procurement of those services was conducted.

Mr Maja replied he could not remember but he believed that the SCM process was followed.

Mr Letsie asked if they submitted a report with recommendations.

Mr Maja replied that he remembered the report saying that because the process required an informal mediation process, the attorneys suggested approaching an experienced mediator in the person of Mr Modise, which Council did.

Mr Letsie asked if the appointed attorneys were labour experts.

Mr Maja replied he did not remember.

Mr Letsie said that the Committee requested the terms of reference of the Maserumule Attorneys investigation from the council. In its response, the current chairperson indicated that according to the records Exco had resolved to have the matter dealt with by labour experts to ensure the grievance was dealt with in a legal, objective, sensitive and fair manner. The university records do not show when and how Maserumule Attorneys were appointed and the terms of reference could not be found. Do you have anything to say to this?

Mr Maja replied he had nothing to say and did not remember what happened.

Mr Letsie asked if he did not find it a great concern that the university no longer had records of the Maserumule Attorneys appointment and the terms of reference.

Mr Maja replied he found it concerning that the records were no longer available.

Mr Letsie asked about the disciplinary process of the VC in terms of Univen policy as determined by the Council during his tenure as the Council Chairperson. Was the VC subject to the employee disciplinary code and procedure as it applied to every employee. What process was undertaken for disciplinary action of the VC?

Mr Maja replied if there was evidence to charge, the university would have appointed expert lawyers through its SCM process.

Mr Letsie asked if the disciplinary code and procedure were applied in the case of Prof Mbati

Mr Maja replied he did not remember that it was applied. Council looked at the matter and on the basis of insufficient evidence decided not to proceed.

Mr Letsie asked if he could share with the Committee if he appreciated the distinction of matters with criminal elements. What were the steps that must be taken when the university comes to a realisation that one of its employees has committed a criminal offence and incurred loss against the university.

Mr Maja replied that council would invite law enforcement agencies to investigate and council should have acted if there was evidence.

Mr Letsie asked if the university's sexual harassment policy provides that if the sexual harassment case is also reported to the SAPS, that the internal process must be halted to await the conclusion of the external process.

Mr Maja replied that the policy may not have had that particular paragraph but at the time the circumstances may have convinced Council to wait for that external process to unfold before deciding.

Mr Letsie said that Council was then ruled by circumstances not by policy, is that true?

Mr Maja replied yes that was the case.

Mr Letsie found it problematic that Council followed that route and ignored what the policy said. Policy is policy, it should not be compromised. Council relied on rumours instead of policy for the decisions it took. Can you agree to this?

Mr Maja replied that in hindsight the Council should have acted differently.

Mr Letsie referred to page 4 and said Mr Maja was part of an external council meeting held on 17 April 2015. What role did Council refer to in the minutes?

Mr Maja replied he could not remember.

The Chairperson sought clarity on the settlement as Mr Maja claimed he was unaware of the formal settlement offered to Prof Phendla.

Mr Maja replied he did not remember that.

The Chairperson asked if there was any reason why he was not aware of such a critical matter. One would expect that the Council would initiate the settlement because the matter involved the Vice Chancellor of the university. There was a case at the labour court. During the process the lawyers of the university initiated a settlement offer and wrote to the Prof Phendla's lawyers offering R1.3 million accompanied by terms and conditions. He found it problematic that as the Council Chairperson he was not aware of the settlement offer.

Mr Maja replied that it could have been a management offer.

The Chairperson said that it cannot be management because it involved a person who was at the apex of management, which should have been a Council matter.

Mr Maja replied he did not remember but he would investigate with the university.

The Chairperson sought clarity if Mr Maja was truly the Council Chairperson.

Mr Maja replied that he was and that during his tenure the university performed well and received a clean audit.

The Chairperson said that the Council Chairperson's duty was to govern the institution and the Committee was dealing with policy not audit matters.

Ms J Mananiso (ANC) asked if he knew there are married couples who have cases of sexual harassment opened.

Mr Maja replied he was aware.

Ms Mananiso asked if he understood that did not take away from the fact that there may have been sexual harassment.

Mr Maja replied that if the relationship was consensual then there was no sexual harassment.

Ms Mananiso said that the Council felt that the CGE report was biased. Could this be an indication that the Council indeed was biased?

Mr Maja denied that either he or the Council was biased.

Ms Mananiso said from his responses today, could he confirm that he was also biased. Can you agree that as the Council you did not have appetite to pursue this case?

Mr Maja did not agree.

Ms Mananiso said the fact that he did not remember important details as asked by Members clearly shows that this case was taken as a ‘by the way’. Can you agree that this case is teaching other people that in public spaces there is much abuse of power and conflict of interest when people are executing their day-to-day operations?

Mr Maja agreed that was the case in some public institutions.

Ms N Mkhatshwa (ANC) said there are several views about Council overreaching its mandate in the management of the institution.
- Do you agree it is a fair statement that Council interfered in Univen managerial operations?
- She was not of the view that the management of infrastructure and maintenance of the institution was satisfactory. This was confirmed by the Department Report. The manner in which certain awards were granted was very questionable. Do you believe the Council  you served in and led was capable of holding management accountable. Are you aware of infrastructure projects that were delayed? What measures were put in place by Council to resolve the challenges?
- Was the composition of the Council you served in/led collectively fit to fulfil its mandate?
- Do you believe that Council fairly and effectively intervened and executed its role in the matter of Prof Phendla and Mbati? Do you believe the GBV and sexual harassment policies at that time were effective enough to protect individuals from sexual harassment in the institution?
- Having worked with Prof Mbati, do you believe he is fit to lead SMU as a Vice Chancellor?

Mr Maja replied he was convinced that Prof Mbati was fit and capable of leading SMU. When Prof Mbati took over the running of Univen, it looked like high school and after his term it was much developed. When he left we were sad because he had done a lot of good work at the university.

On governance of infrastructure projects, the university had many committees which did a lot of good work. Meeting with management and listening to presentations and scrutinising of processes were followed. These committees would then present to Council. The governance structure was running well. When the committees presented their reports to the Council, they were scrutinised. When it emerged that a process did not go well, Council was advised to appoint a forensic investigation team to investigate SCM non-compliance. SAB&T were appointed to conduct the forensic investigation. Its findings were that there was a breach of procurement policy and by some staff members as well as service providers. It recommended disciplinary hearings for the internal staff and the termination of services of certain external consultants. At the time of implementing the recommendation for disciplinary hearings, those staff members had already left the university; as a result the university had no jurisdiction over them. This was supported by legal opinion. The university terminated the services of service providers which had flouted the procurement process. The forensic report did not reveal any wrongdoing on the part of the VC, Prof Mbati.

Council did not overstep its role into management. Council had subcommittees, which received reports from management. These committees would meet with senior management to consider the tenders before them. If they thought they were not properly executed that would be reported to Council. He had no doubt about the fitness of Council in executing its duties.

Ms D Sibiya (ANC) said that the problem is that Mr Maja cannot seem to remember important details. SAPS said that there was no sexual harassment. Did this mean the matter was subsequently closed by Council?

Mr Maja confirmed that it was closed and Council felt that it could not take the matter further.

The Chairperson asked Mr Maja about his qualifications.

Mr Maja replied he holds a BA degree from the University of Limpopo.

The Chairperson said Mr Lavary Modise came to the conclusion that there was a consensual sexual relationship. This is the report that Council accepted and based its decision on. It believed the report and stood by that report. Is that the case?

Mr Maja confirmed.

The Chairperson said if that was the case, why did Council not defend the Modise report when it was taken on review by Prof Mbati. Council believed in it and it was used to decide on the matter? The University’s Council was the first respondent.

Mr Maja replied that Prof Mbati took the report on review because he was alleging or claiming that there was no sexual relationship between him and Prof Phendla. This was not Council’s matter to get into although he personally believed that Prof Mbati and Phendla had a consensual sexual relationship.

The Chairperson asked why Council did not defend the Modise Report which was taken on review by Prof Mbati. This was the same report that Council used to exonerate Prof Mbati.

Mr Maja replied Council accepted the final report which confirmed the consensual sexual relationship between the two. When Prof Mbati took that on review, it was his personal matter and not that of the university. He did so to refute the conclusion that there was a consensual relationship between him and Prof Phendla. Council accepted the report as it was presented to it; when Prof Mbati pursued a review of the report, it was in his personal capacity.

The Chairperson said that the employee challenged the very same report that Council used to make a decision to close the matter. It was not a personal matter. Mr Modise was appointed by the Council and this was a Council report. Who was supposed to defend that Report?

Mr Maja replied that Prof Mbati did not challenge the Report but a part of the report that claimed he had a consensual sexual relationship with Prof Phendla.

The Chairperson asked if he understood that the challenge by Prof Mbati goes to the core of the reason Council exonerated him.

Mr Maja replied that Council did not see it that way. He asked what would have been the purpose of defending the Report and what would Council achieve from defending it from Prof Mbati.

The Chairperson said the Council was dragged to court and that Report was challenged on the very basis Council took a decision to exonerate Prof Mbati. He might as well have challenged the decision of Council.

Mr Maja replied he did not have any specific reason why Council did not defend the Report. Council should have defended its Report. He conceded that it comes across as though Council was protecting the Vice Chancellor.

The Chairperson said to a reasonable person it seems there is a pattern of collusion between Council and Prof Mbati.

Mr Maja conceded but felt the word ‘collusion’ was a bit of a hyperbole.

The Chairperson said Mr Modise was before the Committee last week and said that in his view, there was a sexual relationship which he thought was consensual. Council also came to that conclusion as well as Mr Mavhidula, but from his perspective it needed to be determined if this was consensual or not. Dr Tshitereke was before the Committee and confirmed that Prof Mbati confessed to him that there was a relationship between the two. The court judge also made an observation about a relationship that might have gone sour.

Do you think as a professional and a former Council Chairperson it was ethical and justifiable for Prof Mbati to have a sexual relationship with a subordinate, whether consensual or non-consensual?

Mr Maja replied there was nothing wrong if one considers the inter-marriage happening in the Defence force or SAPS. He did not think it is ethically incorrect. There is no law that prevents a Chief Executive from falling in love with a subordinate as long they both agree it is consensual.

The Chairperson asked if later this relationship develops complications in the manner of this complaint, are you saying that this type of relationship is ethical taking that into consideration?

Mr Maja replied it is ethical. However, in this case the charge of corruption against Prof Phendla seems to have led to the charge of sexual harassment. It is not a matter of ethics.

The Chairperson asked if he did not see that there was an uneven power relationship.

Mr Maja replied that there was nothing unethical about it. There is no law that says they could not have a consensual sexual relationship.

The Chairperson explained that there was a difference between ethics and law. A law may allow something to happen but it may not be ethical in terms of the expected conduct of a person occupying an influential office that comes with power. It is unethical. What do you say to that?

Mr Maja replied that was the Chairperson’s view, not his.

The Chairperson said that there were number of matters that Mr Maja did not recall – this included why it took four years for the second report of Mr Modise to be submitted to the university. A lot of pertinent questions which are contrary to your narrative that "there was nothing, you did not remember". You have not been helpful, but evasive in answering the questions. You could not remember critical matters. He did not understand why that was the case.

Mr Maja replied that as he did not get the questions in advance, he may not be helpful to the Committee because he may not remember the chronology of the events and some of the events. There were many other things that were happening concurrently.

He admitted that some of the things he could not remember and pleaded with the Committee to understand that he would have been more helpful if he had received the questions in advance. He confirmed that he did not prepare adequately because he did not have the questions.

The Chairperson thanked Mr Maja.

The Committee experienced a challenge in getting Ms Mabusela to connect to the virtual platform. After several attempts to assist her to connect, the Committee resolved to meet with her the next morning.
 
The meeting was adjourned.

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