SMU Vice Chancellor Inquiry

Higher Education, Science and Innovation

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

02 Mar 2021

SMU Vice Chancellor Inquiry

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 Committee met with the former chairperson and a former member of the University of Venda (Univen) Council to receive statements and engage on the appointment of Prof Mbati to head the Sefako Makgatho University (SMU), and other related matters – this as part of the committee’s inquiry into the matter. The Committee also met with the Department of Higher Education and Training to receive briefings on the infrastructure development at the university.

The former chairperson of Council submitted her statement to the Members, which covered in detail the sexual harassment case involving Prof Mbati and Prof Phendla, and infrastructure projects at the university.

The second witness who was the former member of Council, who provided detailed comments on the fitness to hold public office of Prof Mbati. These included his views on the abuse of subsistence and travel allowances; the use of security to spy on some members of Council, including himself; the abuse of performance bonuses to benefit his inner circle; appointing some former Council members to work in the Administration; using the university’s disciplinary committee to settle or get rid of staff who expressed views different from his own, thereby incurring huge legal bills for the University; pioneering the demise of the internal audit unit; and the mismanagement of the infrastructure development programme which had led to a large of number of uncompleted projects.

Members were not satisfied with the engagement with the former chairperson of Council, because she could not give a full account in response to the questions that were asked. She could either not recall certain matters, or her perspective on matters of governance that were before Council appeared fundamentally unsatisfactory. She was asked about a New York trip and whether she had travelled with her husband; a possible conflict of interest involving a legal firm; if due process had been followed by Council in response to the sexual harassment complaint; the reported R1.3m settlement proposal; and if the university’s sexual harassment policy was implemented to its fullest. The Committee also questioned the capacity of the Council to fulfil its mandate, and the fitness of the former Vice Chancellor to head the SMU.

Members were satisfied and pleased with the engagement with the former member of Council, Mr Lucas Makhado. Mr Makhodo provided responses in full detail to all the questions that were posed by Members.

The Department of Higher Education and Training touched on the overview of the Univen infrastructure projects; the abandoned infrastructure projects; its engagements with Univen Innovative Growth Company (UIGC); the Minister’s letter and the Univen Council’s response; the 2016 forensic report and its findings; corrective action; departmental oversight; the root causes of abandoned projects; and infrastructure support and oversight.

Members asked the Department if Univen had improved during the former VC’s tenure; the role of the Council on infrastructure projects; and if the former VC had capacity to fulfil the mandate of the Department at SMU.

Meeting report

Opening remarks

The Chairperson welcomed everyone present, and said that during yesterday’s meeting the Committee could not engage with Ms Shirley Mabusela, former University of Venda (Univen) council chairperson, because of problems with the audio settings on her gadget. There were people who had requested to come before the Committee, but they were asked to provide affidavits, which had not happened.

Witness Statement: Ms Shirley Mabusela

The witness was invited to take the oath.

Ms Fatima Ebrahim, Parliamentary Legal Adviser, administered the oath.

Ms Mabusela read out her statement to the Committee. Her statement covered in detail the sexual harassment case involving Prof Peter Mbati and Prof Sylvia Phendla-Tshivhase, and infrastructure projects at the University of Venda.

[See witness statement]  

Discussion

The Chairperson commenced with the complaint by Prof Phendla, and said the complaint had been received and submitted to the Council, and Maserula Attorneys were appointed to advise the Council. The attorneys had advised that it must implement provision 5.1 of the sexual harassment policy, which dictates that when a complaint of the nature was received, the Council must appoint a mediator. He asked if that was what happened

Ms Mabusela confirmed that that was what happened.

The Chairperson said the mediator had mediated the dispute and come up with an inconclusive report – was that what happened?

Ms Mabusela confirmed it was.

The Chairperson asked what the provision of policy said in the event a dispute like that was not resolved through the mediation process.

Ms Mabusela said she could not remember.

The Chairperson asked if she was aware of the provision of 5.1 and 5.2 of the policy.

Ms Mabusela said that the policy dictated that the allegations must be investigated, and then a disciplinary hearing must follow, but she was uncertain.

The Chairperson asked how long she had been chairperson of Council.

Ms Mabusela said for about five years.

The Chairperson sought confirmation on whether she sat in Council for a period of ten years – five years as a member of Council and the other five years as the Chairperson -- which would mean that she was familiar with the policies of the Council.

Ms Mabusela said that she was uncertain about all the policies of Council, but she could request them to refresh her mind.

The Chairperson said the sexual complaint had been very big on mainstream media, so surely she might have read about it many times. Was that the case?

Ms Mabusela said that was not the case, because none of disciplinary hearings that were happening at the University were matters that the Council had to deal with.

The Chairperson said that from what the witnesses had told the Committee, this had been a huge matter at the university and the Council had taken action by appointing attorneys, Mr Modise and Mr Mashego, who were later appointed. The policy of the Council was something that she might have read about more than once.

Ms Mabusela said she had been familiar with the policy at the time.

The Chairperson said that the policy dictated that an informal process to deal with the complaint of this nature must be instituted by Council, and if there was failure to resolve it through that process, Council must then institute the formal procedure outlined in provision 5.2 of the policy. Was she aware of that?

Ms Mabusela confirmed that she was aware of it.

The Chairperson asked if provision 5.2 had been initiated by the Council.

Ms Mabusela said that the process had been overtaken by the fact that the matter was also before the courts, so Council had taken a decision to wait until the judgment of the court. This matter went through formal external processes.

The Chairperson said that the application to the court came later, not at the time when the complaint was laid.

Ms Mabusela said the matter was already reported to the South African Police Service (SAPS). When the outcome of this process was concluded, Council took a decision to not take the matter further.

The Chairperson asked if there was a provision in a sexual harassment policy which said that if the matter was reported to the police, Council must suspend its internal processes.

Ms Mabusela replied that it did not say so. 

The Chairperson said it seemed that Council had suspended its policy based on provisions that did not exist in its policy.

Ms Mabusela said it sounded like that was what happened.

The Chairperson said that the executive committee (EXCO) had taken a decision not to apply provision 5.2 of the policy for the sake of convenience, because the policy did not say so. Did she agree?

Ms Mabusela confirmed.

The Chairperson asked if she would agree that Council had failed to implement provision 5.2 of the sexual harassment policy.

Ms Mabusela agreed. Council had not implemented the process.

The Chairperson said that there was no basis for Council to suspend its own policy. The matter was not before the court at the time, and there was nothing stopping Council from implementing its own policy. Did she agree with that?

Ms Mabusela agreed.

The Chairperson said in the Commission for Gender Equality (CGE) report, she had said that after the case was reported to the CGE, there had been correspondence addressed to the vice-chancellor (VC) and herself as the Chairperson. She had also said that she had responded to the correspondence, as well as the VC.

Ms Mabusela agreed. She had submitted a response to the CGE on 21 June 2012.

The Chairperson asked what she had said on her response.

Ms Mabusela said her response provided the background of how the complaint had come about.

The Chairperson asked if the Council had been afforded an opportunity to respond.

Ms Mabusela confirmed that it had.

The Chairperson asked if she was fully aware of the response of the VC, or if she had taken his word that he had responded.

Ms Mabusela said he took his word, and that was what she understood at the time. The response of the VC was not shared with Council. She could not remember how she came to know about it, but she claimed that he responded, based on what she understood at the time.

The Chairperson said that Mr Mavhidula (CGE) had told the Committee he had received a response from Prof Mbati, who had asked for more time to respond, and this was granted. Subsequently, they had driven from the CGE to the university where they had interviewed Prof Mbati in his office. Mr Mavhidula had told the Members that Council did not respond despite being granted sufficient time to do so, but Ms Mabusela was claiming that Council had responded. Maybe that response did not reach the CGE – did she think that was the case?

Ms Mabusela said she did not know why the CGE had said that. She possessed a letter that confirmed that she (the Council) had responded. The response was addressed to the Acting Head of the Legal Department at CGE, but she could not recall who it was. The response had gone through the university’s legal office.

The Chairperson asked for clarity as to whether it was she that had responded, or if it was the VC, and whether it was her signature that was appended to the response.

Ms Mabusela said it was she that had responded, but the response had been sent through the university’s legal office.

The Chairperson asked for that response to be provided to the Committee. What were the concerns that she had raised on that letter?

Ms Mabusela said that she had no concerns, because the CGE had the authority to investigate all matters presented to it. She had provided all the details of what the Council had done in dealing with the matter.

The Chairperson specifically asked for the issues that had been raised in that response.

Ms Mabusela said she had informed the CGE about the processes that been followed by the university, and that the arbitration had failed because there was no agreement between the parties. The whole procedure that was followed by Council was detailed in the response -- even the meeting with the mediator -- and then EXCO had to find a way forward when the matter was subsequently reported to the SAPS. EXCO had decided to wait for the outcome of that process.

She said Council should not have waited for the outcome of the SAPS -- it should have initiated its internal process.

The Chairperson said that he did not get a sense that there were concerns about the investigation of the CGE, but Council had merely explained the role it had played after receiving the complaint. Did she agree?

Ms Mabusela agreed.

The Chairperson said that the CGE report confirmed that provision 5.2 had not been implemented and recommended that Council implemented that provision.

Ms Mabusela agreed.

The Chairperson said the concerns of Council would have been addressed by implementing provision 5.2 and investigating exactly what had happened. Clearly Council did not have concerns, because if it had concerns, it would have invoked provision 5.2 and 5.2.2.

Mr Serobi Maja, former Univen Council chairperson, had been there yesterday, and Members had asked why Council had taken the report of the CGE on review. He had said that the CGE did not provide an opportunity for Prof Mbati to respond, but in her own statement she was saying that he did respond. He had not mentioned that Council had concerns. Mr Maja had lied to the Committee?

What were the concerns of Council that it took the report of the CGE on review?

Ms Mabusela said the report had not been shared with Council in order for the university to respond to the report.

The Chairperson said that this was another version that the Committee had not received from previous engagements and correspondence. There was no resolution of Council, according to the minutes – it was somebody’s decision. It was not the decision of Council to take the report on review. She was now making up a story to have a response.

Ms Mabusela said she was not making up any story.

The Chairperson said that the complaint of Prof Phendla must be understood in context, and it did not emerge as a stand-alone complaint. It had come up when she was subjected to the process of the disciplinary hearing for the corruption allegations she was going through.

Ms Mabusela said that the sexual harassment matter was never reported at any point until it was during the disciplinary hearing of Prof Phendla.

The Chairperson asked what the purpose of raising that to the Committee was.

Ms Mabusela said that it may have had implications for the outcome of the hearing.

The Chairperson said that she was claiming that those who had been subjected to gender-based violence must report matters in a prescribed manner -- they could not report matters when they were being subjected to disciplinary hearings. It could not be in the middle of their disciplinary hearings? It was as if being raised during the disciplinary process invalidated the allegation – for the person who felt they had been violated.

Ms Mabusela said victims could report matters at any time.

The Chairperson said that it sounded like she was implying that Prof Phendla had had an ulterior motive for raising or reporting the complaint during her disciplinary hearing. It sounded as if Ms Mabusela was saying that the complaint did not have merit because she had complained during her disciplinary hearing. Once the sexual harassment was raised, the university was under an obligation to follow its policy and implement it. The university could not wait for other external processes to be concluded.

Why do she think it was an oversight for Council not to defend the report of Mr Modise, when Prof Mbati had taken it on review? She had said this at the end of her statement.

Ms Mabusela said that in hindsight, Council should have defended its report and it was a mistake not to do so. There was so much happening at the time, and there was also a lot of information coming forth from different sources.

The Chairperson asked what if someone said it was never an error or a mistake or oversight – that it had been the posture of Council to be on the side of Prof Mbati. From the very beginning, Council was siding with Prof Mbati, and this was what the evidence suggested. Do she agree with this?

Ms Mabusela said she could not deny or agree with that.

The Chairperson said that Prof Mbati was never held to account by Council. Do she agree with that?

Ms Mabusela said it was never Council’s intention to create that impression.

The Chairperson said that one of the directors from the university had told the Members that Prof Mbati was favoured by the Council. Prof Mbati had organised a trip for her to go to New York with her husband, and that trip was not necessary. This trip was just a way for Prof Mbati arranging something for her as an inducement. What did she say to that?

Ms Mabusela said she was shocked by that, and it was not true. The only time she travelled was when there was a fundraising function, and Council had been consulted on this. They had also gone to the Developmental Bank of South Africa to get a loan for infrastructure. The trip was paid for by the university, but she had not travelled with her husband to that fundraising function. It had been she and Prof Mbati.

The Chairperson asked how much funding was raised from that event.

Ms Mabusela said she could not remember. The only amount she remembered was the money that the university received from the Department of Public Service and Administration (DPSA). She did not remember receiving details of the inflow of money that stemmed from that fundraising event.

The Chairperson said then this would be treated as if there was no money received from the fundraising from that trip.

He asked whether Prof Phendla had received any support from the university during the allegations of sexual harassment.

Ms Mabusela said she could not recall.

The Chairperson asked if she thought she had failed Prof Phendla, as the university and Council, for failing to implement its own policy.

Ms Mabusela said that at the time there was so much going on.

Mr T Letsie (ANC) said that Ms Mabusela claimed the university had handled the matter in the best possible way. Was she sure about that?

Ms Mabusela said from what emanated from today’s discussion, Council did not.

Mr Letsie asked why Council looked at the way outside of its policy, when its policy provided the way.

Ms Mabusela said that Council took that decision because it was a very serious and sensitive matter. Therefore, it would help if legal opinion was sought instead of doing its own thing to get the matter properly resolved.

Mr Letsie refuted the assertion that Council had looked for a legal opinion, but had taken a decision because the matter was before the SAPS and had decided to wait for that process to conclude. Council did not take this matter seriously.

Ms Mabusela said that when it was discussed at Council, it had decided that because it was serious, should go the route that it went.

Mr Letsie said that one could agree that Council had failed to carry out its mandate regarding the sexual harassment policy.

Ms Mabusela agreed that Council had failed to execute its mandate on that matter. It had not dealt with the matter appropriately.

Mr Letsie said that in her statement, she had said that Prof Phendla and the other official, in hindsight, had been dismissed incorrectly.

Ms Mabusela she could not respond to that at the moment.

Mr Letsie asked who had been chairing the disciplinary hearing of Prof Phendla.

Ms Mabusela said she could not remember, and she would have to check with the university on this. She did not follow up on that process to ascertain who was chairing the disciplinary process. Council was not involved in disciplinary hearing matters.

Mr Letsie asked if she would agree that Council should provide a layer of protection for students and staff members when they were victims of abuse?

Ms Mabusela agreed.

Mr Letsie asked about Bowman Gilfillan Attorneys, and whether it had provided legal services to the university.

Ms Mabusela said she knew it, and it did provide services to the university.

Mr Letsie asked when it had started providing services to the university.

Ms Mabusela she was aware that they had been utilised by the university, even by the time the sexual harassment matter came up.

Mr Letsie asked if this firm had provided any legal services during Prof Phendla’s hearing, and had processed her complaint.

Ms Mabusela said she was aware that it had provided services, but she could not say which ones.

Mr Letsie asked if she was aware that Prof Mbati used the same law firm to lodge an interdict against Prof Phendla and on the review of the CGE report.

Ms Mabusela said she was aware.

Mr Letsie asked if she was not of the view that this created a conflict of interest.

Ms Mabusela said it would be a conflict if the university had paid for the VC’s legal fees. She was not aware if the university had paid for the VC’s personal costs. However, it was possible that there may have been a conflict of interest.

Mr Letsie asked if her daughter was an employee of Bowmans during her tenure as the Chairperson of the Council.

Ms Mabusela said that she had raised this matter with Council because she was not sure if it would have constituted a conflict of interest. At that time, her daughter was still doing her articles as a candidate attorney. She was not there for too long and when she found out, she had raised the matter with the Council. She was shocked when Prof Phendla had accused her of utilising the services of the company that her daughter was working for. Her daughter had been sought by four of the largest law firms in the country, and it was up to her to decide which company she wanted to work for. Clearly, Prof Phendla thought that something was crooked, but that was not the case.

Mr Letsie said given the circumstances, if you were in her position, would you not have thought the same.

Ms Mabusela said that perhaps she would have.

Mr Letsie asked if she was aware of the financial settlement of R1.3 million that had been offered to Prof Phendla. If so, what had she done after hearing about it?

Ms Mabusela said she had heard about it, but she was uncertain of the details. This would be best responded to by people who were involved in administration. She was not aware if the money was ever paid, or what happened afterwards.

Mr Letsie asked if it did not bother her that she did not know the details of the settlement offer that was put to Prof Phendla, at a time when she was Chairperson of Council.

Ms Mabusela said this was a matter that was discussed and dealt with by legal services. She did not follow up on it because she believed it had been dealt with.

Mr Letsie said that this was a worrying statement coming from the Chairperson of Council. Did she think Prof Mbati was fit to be the accounting officer of that institution?

Ms Mabusela said that there were areas of excellence and shortfalls. It would assist the Committee if that was raised with him directly.

The Chairperson commented on the settlement matter, and said that if a VC was involved in a matter, was it not the responsibility of the Chairperson of Council to initiate processes and procedures accordingly?

Ms Mabusela said that was correct.

The Chairperson said that in this matter, did she not find it strange that the Chairperson of Council was not involved in the settlement offer made to Prof Phendla?

Ms Mabusela said that she had not been involved in the settlement matter.

Ms J Mananiso (ANC) asked her to define Prof Mbati -- whether he was an ethical or an unethical person.

Ms Mabusela said she never had picked up any indication that he behaved in an unethical manner. She never had to question his ethics.

Ms Mananiso asked whether Council in its interventions was protecting the institution or Prof Mbati.

Ms Mabusela said it had protected the institution.

Ms Mananiso said that the evidence suggested that Council had protected Prof Mbati. Was it not alarming that Prof Phendla had tried to get the necessary stakeholders involved in order for the matter to receive the attention that it required? Would she agree that with all the avenues that were explored by Prof Phendla, this was a sign of a person who was desperate?

Ms Mabusela said that was possible, but she could not speak on her behalf.

Ms N Mkhatshwa (ANC) asked about her views on people who were in a consensual relationship of sexually harassing their partners.

Ms Mabusela said her view was that sexual harassment happened even in consensual relationships. The reality of gender-based violence in the country was a significant problem and in most cases these occurred in relationships that were consensual.

Ms Mkhatshwa asked if she felt that she had a voice in the Council which she led, and if Council had autonomy in playing its role or whether at any point Council was under duress to have taken the direction that it did.

Ms Mabusela said her experience at the Council of Univen was that there was an understanding that Council decisions were best when they were taken after discussion and agreement. There were people in Council who would dissent in matters that were resolved on. Most of the decisions were taken in the spirit of the majority.

Ms Mkhatshwa asked if she had been able to lead her Council without duress.

Ms Mabusela she believed so.

Ms Mkhatshwa said that maybe the Committee needed to ascertain from the Chief Financial Officer whether any funds were raised on the fundraising trip to New York.

She asked if Ms Mabusela believed that Prof Mbati was fit to be the Vice Chancellor of SMU.

Ms Mabusela said she believed so. Prof Mbati had turned around quite a number of things at the institution. He had done an excellent job at Univen, and she believed that he was capable of doing the best he could for another institution.

Ms C King (DA) said on 17 September there had been a special meeting of Council where a report was tabled to say that approximately R18 million of the university’s funds had been used for Prof Mbati’s legal battles. Was she aware of this report, and what was the resolution of Council after this report was tabled?

Ms Mabusela said she would have to go back and check on this. She proposed to furnish the Committee with the details on this at a later stage, because she could not recall.

Ms King asked the university’s views on consensual relationships between senior staff members and subordinates.

Ms Mabusela said she was not aware of any policy regarding relationships between seniors and juniors. She did not recall whether this matter had been raised during her time on the Council, and it had never pronounced what should happen or developed a policy on it.

Ms King asked, after the labour court had declared on the matter, if there were any further discussions on the matter by the Council.

Ms Mabusela said, not really.

Ms King said in 2017, there had been a report on the R54 million given by the Adjudication and Finance Committee, and concerns had been raised by Council members that not all information was presented to the Council on finance matters. How far would she say the Council had gone to ensure that there were proper procedures in terms of finance and how long far did the Council go to establish the extent of irregular expenditure and abandoned projects? What was her take on all of these matters in Council, and what procedures had been instituted against the VC for the lack of oversight on human resources, infrastructure projects and finance?

Ms Mabusela said the university had several sub-committees which consisted of Council members – these committees looked after the finances, human resources and infrastructure projects of the university. These committees would prepare reports to present to the Council.

Ms King asked whether there were any reports presented to the Council that raised the issue of the fitness of Prof Mbati to manage these issues.

Ms Mabusela said the issues that were raised with concerns did not specifically point at the Vice Chancellor although, as the Vice Chancellor of the university, he was expected to appoint people who were fit and qualified for the positions to which they were appointed.

Ms D Sibiya (ANC) said she was concerned about the trip to New York. It was said to be a fundraising trip, but Ms Mabusela could not remember what had been fundraised. Did she mean to tell the Committee that no report was submitted to her detailing whether money was fundraised or not?

In 2010, the National Education, Health and Allied Workers Union (Nehawu) had demanded a meeting with the VC regarding the wasteful expenditure, and after that Prof Phendla had made serious allegations about the VC being allowed to utilise the university’s resources for his personal legal battles.

Ms Mabusela replied that as she had mentioned before, she could not recall how much had been raised from that trip, but it was indeed a fundraising trip. Information on this could be provided to the Committee. Secondly, she did not remember any reports on wasteful expenditure that had been reported in 2010.

The Chairperson asked whether she thought it was ethical in a workplace for a person who was occupying the position of a VC or an accounting officer to have a consensual relationship with a subordinate.

Ms Mabusela said that she would rather not speak of her personal opinion on this matter, because it was a situation that was between two people and she could not make a personal determination on it. However, she was not aware of any policies of the institution that did not allow people within the institution to have consensual relationship.

The Chairperson said that both Mr Modise and Mavhidula, based on the information that was gathered during the investigations conducted, indicated that Prof Phendla and Prof Mbati had a consensual relationship. This also included Judge Mosana saying the same thing. However, Prof Mbati had denied this consistently.

Do she not find it strange that as the Chairperson of Council, she was not aware of a settlement offer that involved the Vice Chancellor of the institution?

Ms Mabusela said it was strange, but she did not have the details of how everything had transpired.

The Chairperson said that the Committee had received reports that Prof Mbati was running the institution as a personal fiefdom.

Ms Mabusela said these reports never came to the attention of the Council, and she could comment on them.

The Chairperson asked whether she had made a formal declaration about her daughter’s employment at Bowmans.

Ms Mabusela said that after going through the board pack that members had received, and when the matter came up in the Council, she had mentioned that her daughter was employed by the law firm as a candidate attorney. She was not the chairperson at the time and she believed that this was captured on the minutes of the Council meetings.

The Chairperson asked whether it was the VC that appointed Bowmans, or whether it was the Council.

Ms Mabusela said that she believed it was the VC. The Council had learnt of this only when Bowmans was already procured.

The Chairperson said that he was concerned that Ms Mabusela seemed not to know a lot of things. It seemed that there were a number of issues that Council was not aware of – matters that were meant to be in the purview of the Council, and for it to decide on.

Ms Mabusela said that one did not remember a lot of matters because the account of these events happened a long time ago. She could not get all the information that would satisfy the Members, but she wished she could have received the questions beforehand in order to prepare adequately.

The Chairperson said that the Committee had made it clear what the objective of the inquiry was.

Department of Higher Education, Science and Technology on infrastructure projects

Ms Thandi Lewin, Department of Higher Education and Training (DHET), took the Members through the presentation and touched on the overview of the Univen infrastructure projects; abandoned infrastructure projects; the Univen Innovative Growth Company (UIGC); the Minister’s letter and the Univen Council’s response; the 2016 forensic report and its findings; corrective action; departmental oversight; the root cause of abandoned projects; and infrastructure support and oversight.

[See document for details]

Discussion

Ms Mkhatshwa said that noting the challenges outlined in the 2016 forensic report findings listed on page 8, would the Department say the challenges at the university were the consequence of a lack of capacity to administer the process of ensuring that procurement was done properly as well as allocation of the projects, or it was mere corruption?

Secondly, would the Department be of the view that the VC was capable of running the institution?

Thirdly, upon the arrival of Prof Mbati at the institution, it had improved into looking like a proper university as opposed to the high school that it was informally referred to. Was the university truly where it should be? Probably not, perhaps the institution could be way more ahead, but it was not a VC issue because it spoke to the entire sector – could the institution have been much more ahead? Could one attribute some of the challenges that the institution had to the leadership of Prof Mbati?

Lastly, what was the role of Council in the case of infrastructure development projects? There were allegations that Council had interfered in the managerial roles when it came to the procurement of infrastructure development. What became the role of Council when it came to overseeing the development of infrastructure or the execution of infrastructural development plans? Was the Department confident that Prof Mbati had the capacity to fulfil the mandate of the Department as the leadership of the SMU?

Mr Letsie asked about the expectations of the prescripts from the accounting authority of an institution when a matter like sexual harassment involving a senior member was reported. Had the Department’s expectations on the processing of the sexual harassment complaint been met? Upon receiving the complaint from Prof Phendla, did she think this complaint had been dealt with transparently and fairly?

What had the Department done in its oversight responsibility to ensure Univen’s sexual harassment policy was strengthened? If nothing was done, why?

On slide 8, who should have been held accountable to ensure that all those findings could have been prevented?

Did the Department feel that the Univen Innovative Growth Company (UIGC) had entered into an agreement with a company that was owned by the VC? Was this presenting a picture that Prof Mbati was an ethical person?

What consequence management had been implemented by the DHET on the Council approving entering into a contract with UIGC for infrastructure development for an estimated amount of R2.1 billion without informing the Department and requiring ministerial approval?

Mr Lindelani Cibi (son of Prof Mbati’s personal assistant) alleged that he met with the Director General (DG) at Rhapsody at Centurion to get to the bottom of why there was a lack of support for the student accommodation project at Univen. Was it true that the DG had met with him, and if so, in what capacity?

The Chairperson was interested to find out about the forensic report that had been commissioned by Council that recommended that action must be taken against a couple of members – the Deputy Vice Chancellor for operations, and the director responsible for supply chain management (SCM) and others. Nothing had been said about the VC -- why was that the case? Who presided over the SCM processes of the institution? Was the VC not the presiding accounting officer of the institution? Who commissioned this report, and what were the terms of reference?

What had ultimately happened to the service level agreement with UICG that was entered into the university? The presentation said that nothing came out of the service level agreement. Was that the true situation? Who was responsible for the construction of the student accommodation? Was the Department satisfied that proper procurement processes had been followed for the development of the student accommodation?

He asked for confirmation on the directorship of Prof Mbati at the Black Capital firm – was it something that had been established as a fact, or not?

Regarding the UICG, there was an allegation that the son of Prof Mbati’s personal assistant was involved in one of the companies that were awarded work through the SLA for infrastructure projects at the university. Members would like a detailed response on this. Over R1 billion had been allocated for the infrastructure project, which could change the landscape of Univen. There had been implementation, but there had also been abandonment of some of the projects.

He found it problematic that no level of responsibility had been attributed to the person who was ultimately accountable -- the Vice Chancellor. Members would appreciate a response to this matter.

Responses

Mr Gwebinkundle Qonde, Director-General, DHET, said Mr Cibi had been correct to say that he met with him regarding the matters at Univen. Essentially the meeting had been about the assistance of the Department that was required for approval. He had provided some background of what was happening at the university, and had indicated that he must furnish some documents, which he did a few days after the meeting. These documents were taken to the university branch – this was when the probing by the Department got deeper. The Department realised that there were other institutions that the company was busy with, and they were trying hard to get Nelson Mandela University (NMU), North West University and about three or five other institutions. The outcome of the investigation at Univen had enlightened the Department on what was happening in the broader scheme regarding infrastructure at institutions. Since that encounter, he had never met with him again.

In respect to the experience in the system, in some instances one experiences a level of incapacity of management in dealing with these matters. When the Department got into Univen to assist in respect to conducting an in-depth analysis on the infrastructure roll out programme, it found there was a lack of capacity and conduct that could be described as unethical, which had cost the institution a lot. On that basis, the Department had decided not to release the second tranche to the institution until all those matters were resolved.

The Minister was alerted about what was happening at Univen. There were challenges at the managerial level and with governance, so the Minister had written to the institution asking questions. At this time the Department was looking into appointing an independent assessor to get more deeply into the issues that were happening at the institution.

The analysis of the Department in its engagement with the institution indicated that the institution had missed quite a lot in terms of infrastructure development. Six infrastructure projects had been aborted, and this was a huge cost. Management may have been overwhelmed by these activities to a point where it had lapsed in discharging its responsibilities.

The role of Council in an institution was to ensure that there was proper governance. It must be furnished with reports about the developments and operations of the institution. There were certain prescribed decisions that were only for the competence of the Council.

As for the capacity, the conduct and fitness for the office may be a difficult question for the Department to answer, because to arrive to at a conclusion it would have had to make an assessment of the individual. This would have been the role of the SMU Council. The Department did not feature in the appointment processes of any institution, including that of the VC.

The matter of protection and ethical conduct in the premises of an institution was the responsibility of management and Council. The DHET, with High Health, ran programmes about HIV/Aids and sexual harassment and prescribed the policy regime and the facilities that must be made available to provide comprehensive support to victims of sexual harassment. It was incumbent upon the institution to ensure that anybody who was found to be at fault with this matter must be dealt with according to the policies of the institution and the applicable legislation.

On the infrastructure rollout, the first point of call would be the accounting officer to explain what had gone wrong in the area of their jurisdiction and the interventions that were made to resolve the matters.

As for directorship in a company that did business with the institution, which may constitute a conflict of interest, there were mechanisms to deal with such a situation because one was required to declare one’s conflict of interest. The question was whether this actually happened and how Council dealt with it. At face value, it could easily have constituted a conflict of interest.

The forensic investigation referred to by the Department was one that was provided by the Council. The people who were to be held accountable had left the institution.

These matters happened at a particular time, and that Council and VC were no longer with the institution. The Department was now dealing with new management, which was responsive and cooperative. The DHET had sent a team to assist and address all the challenges as and when they happen. That process had been running smoothly, and the infrastructure projects have been rolled out. There were departmental officials who were monitoring the situation full time.

Ms Lewin said that the forensic investigation was not instituted by the Department, but it was aware of it and its terms of reference, which were included in the presentation. The Department concurred with the findings, such as incapacity, proper structures in place, governance and policies, amongst others.

The Department tried not to benchmark institutions because their contexts were different, and it had picked up that as institutions grew, the demand for infrastructure development also grew.

The Department would like to engage on the sexual harassment issue, and would provide the details on the work that was currently under way. There were lessons from the investigation that it would take further to consider.

The 1 800 beds that the Development Bank of Southern Africa (DBSA) had funded did not come from the UICG service level agreement. It came from a loan that the institution took out from the DBSA. Currently, the Department was satisfied with the work that had been done so far to rectify the issues that existed before.

The Chairperson said that the UICG service level agreement did not follow the proper procurement processes, so Members would like to know what happened to that agreement.

Ms Lewin said this was addressed on slide number six of the presentation. All service level agreements that were previously entered into by the university with the UICG had been rescinded. The issue with the UICG had been highlighted to the Minister, and the Minister had sought some clarity on it, but the Council had written back reporting that all service level agreements with the UICG had been rescinded.

The Chairperson thanked the Department for its presentation and submitted that there were similar challenges at the Tshwane University of Technology (TUT) and Vaal University of Technology (VUT) involving abandoned infrastructure projects. This was a problem that required the Department to be proactive, and those that were responsible had to be held to account. It was concerning that everyone else had been held to account at Univen except for the Vice Chancellor. R1 billion of the infrastructure grant at Univen would change the face of the institution. All the good things that had happened at that institution had been attributed to the VC, except for the negative things.

Witness: Mr Balanganani Lucas Makhado

The Chairperson extended an apology to the second witness, Mr Makhado, former Venda University Council member, for all the delays that he was subjected to before Members could engage with him.

He was invited to take the oath.

Mr Makhado was invited to read out his statement to the Members. The statement went into great lengths, firstly detailing his professional background, and then his comments on the fitness to hold public office of Prof Mbati. These included:

  • the abuse of subsistence and travel allowances;
  • the use of security to spy on some members of Council, including himself;
  • the abuse of performance bonuses to benefit his inner circle;
  • appointing some former Council members to work in the Administration;
  • using the University’s disciplinary committee to settle or get rid of staff who expressed views different from his own, thereby incurring huge legal bills for the University;
  • pioneering the demise of the internal audit unit; and
  • mismanagement of the Univen Infrastructure development programme, which had led to a large number of uncompleted projects.

[See witness statement for details]

Discussion

The Chairperson asked why Mr Makhado had been dismissed from his employment.

Mr Makhado said he was charged for not producing the Foundation’s annual report for 2014; this charge came in 2017. The second charge was his failure to compile the follow up reports for people who did fundraising on behalf of the university, and the other one was for not producing the Fundraising Plan for the Foundation, as well as not updating the website. It was also alleged that he had refused to attend the follow up evaluation, despite overwhelming evidence that he had. He had been dragged to a disciplinary hearing that was chaired by a person who was representing Prof Mbati on his private matters. He was then found guilty and dismissed.

He could not provide the name of the person, but it was not Bowman and Gilfillan. He had the person’s name, which was in his records.

Initially he had had a lawyer, but the lawyer had recused himself and he had been given three hours to find another lawyer, and was therefore forced to represent himself.

The Chairperson asked whether he challenged the dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA).

Mr Makhado said he had. At first it was conciliation, and Mr Eric Nemukula (the university’s labour relations manager) had been present, who had led to the dismissal in terms of the policy. It was ruled that Mr Nemukula should reinstate him because the university had not followed the disciplinary hearing policy. That had not happened, and the matter was elevated to arbitration, and the Commissioner had found against him. He had then taken the matter to the labour court, where it currently was.

The Chairperson asked if the Commissioner had ruled after the hearing.

Mr Makhado confirmed that he had.

The Chairperson said after his appointment in 2015, he had met Prof Mbati who had congratulated him and then said he had wanted to chat about the Chairperson of Council. Could he elaborate on that?

Mr Makhado said Prof Mbati had said it was important to have continuity in the chairpersonship of the Council. He was uncertain about what that meant, because Ms Mabusela was the chairperson at the time. He told him that he did not have the authority at the time to start discussions about who was going to chair the Council. Normally when a new chairperson came in there was an orientation, but Ms Mabusela could not make it and Mr Maja had become the Chairperson.

The Chairperson asked whether Prof Mbati wanted to influence him on who was going to be the chairperson.

Mr Makhado said he felt that had been an attempt to influence him. Before the expiry of the term of Council, there was an attempt by management to ask the Department to bring back the old people who had been serving on the Council.

The Chairperson said Mr Maja was then elected – would he say that was the preference of the VC, or did he not know?

Mr Makhado said he did not know.

The Chairperson asked when the internal audit committee had been disbanded and established.

Mr Makhado said he was not certain whether it was around 2014 or 2015. At that that time he was not yet on Council, but was attending a number of interviews. There had been an interview of the internal audit, and the VC had been present.

The Chairperson said the audit committee had been disbanded because it had raised a number of issues that Prof Mbati did not like.

Mr Makhado confirmed that that was correct.

The Chairperson asked if there was no internal auditor at the university after it was disbanded.

Mr Makhado said that he was not certain, because the process of disbanding it was still ongoing.

The Chairperson said during his period as a member of Council, had Council raised the matter of sexual harassment by Prof Phendla?

Mr Makhado said yes, the matter had come up and it had been discussed. As soon as he was elected, he had received an email from the Academic Transformation Forum. It had begun to make Council aware of those allegations, but the Council went on with its business. When they reached Council, there were issues that were raised by the community, and they were asking about the sexual harassment issue, and this had to be raised on Council. When Members asked for the status on this matter, there was no straight-forward answer except to be told that there were people working on it. There was an ad hoc committee that was working on this matter, but it never submitted a report to the Council.

When the report of Mr Modise came, he had not received it in time. The meeting had had to be delayed to allow them to read that report before they could engage in the special meeting.

The report was tabled and that meeting did not last even 15 minutes. After tabling the report, the Chairperson of Council at the time had said that as far they were concerned, there was no sexual harassment. He had then asked the Chairperson of Council about the element of improper conduct on the part of the VC, and as Council they needed to discuss that.

The response had been that if he was interested in that, he would need to submit a motion at a later stage. The meeting was then dissolved.

The Chairperson asked whether he was a member of Council when the CGE report was produced in 2014.

Mr Makhado said he was not a member of Council then.

The Chairperson said the Council had accepted the report of Mr Modise and had decided to close the matter, but later on, Prof Mbati had challenged the report, which was used by Council to clear him. Was this litigation by the VC brought to the Council?

Mr Makhado said this was not brought to the attention of Council. Members just heard rumours circulating on campus.

The Chairperson asked for his assessment or opinion of how Council had conducted itself. Would he say that it had exercised effective oversight over the VC, or would he say it was influenced by the VC?

Mr Makhado said when he arrived at Council, he was shocked at the speed at which the majority of the members of Council would approve matters without properly scrutinising them. The majority of Council members would just approve things. When some of them started to engage and interrogate issues, people were not comfortable. It was very difficult for him to understand that.

There was a case where he had questioned why the VC was signing off committee reports instead of the chairperson of Council. Other members of Council did not see anything wrong with this, but the VC had no authority to do so. His overall assessment was that Council was not effective, especially on a number of infrastructural reports or matters of escalation of contract prices.

The Chairperson said that yesterday Mr Maja had given his testimony, but he could not remember quite a number of things. Could Mr Makhado give the Committee his assessment of Mr Maja’s leadership as the chairperson of Council? Did he think he was effective or ineffective?

Mr Makhado said he was not effective in running the affairs of Council. He had voted for him, but he had become disappointed at how things were run. He would also dismiss issues that were raised by members and lean towards management resolving the issues.

The Chairperson said he was concerned that Mr Maja did not possess any qualifications that related to the expertise required to chair the sub-committees of Council.

Mr Makhado said he had raised this matter -- that people who were elected to chair the sub-committees must possess the related qualifications, but this had been ignored.

The Chairperson asked whether he was certain that the legal firms that were appointed were not appointed in the proper fashion, which adhered to supply chain policies.

Mr Makhado recalled one incident after an HR committee meeting where a decision was taken to appoint a consultant to look into issues that had been raised. After a day or two, he had received verbal communication from the then VC of operations, who said a company had been found. He had told him that he hoped the company had been appointed through the proper bidding processes.

Later on he had received correspondence from one of the HR directors who had told him that it had been good he raised that, because they had merely been given a name of the consultant and there was no competitive bidding that was going to take place. Raising the matter formally had forced management to embark on a competitive bidding process for a consultant.

The Chairperson asked about his experience with the Bowman Gilfillan.

Mr Makhado said that he had two experiences with them. The first was when they were tasked to investigate the issue of benefits for staff members, and they would come to campus and engage with leaders of staff, but during those engagements when one raised issues they would try and suppress them.

The Chairperson asked why Mr Makhado thought he had been dismissed from the university.

Mr Makhado said that he had been surprised about his dismissal, because the document (plan) that he was charged to not have produced had been decided on when he was on leave in 2014. The person who had been instructed to develop that plan was a fundraiser who was appointed by the VC and the director of communication. When he came back, he found that there was this plan that was required, and had worked with the fundraiser and produced the draft which was submitted to the board of trustees.

He had raised issues that the VC was not happy with, and issues about the statute, where he had picked up a statement that should have never been on the statute, which was about to be approved by Council. Secondly, there was a decision of the HR committee to develop a new organisational structure, because it had been noticed that the student affairs section, which had about 15 000 students, needed someone at a much higher level -- like a deputy VC on student affairs. The VC was then tasked to come up with something that could be discussed. After a day or two, he had produced a structure which he had then tried to canvass with a lot of the structures, but he had said that the entire university community needed to be consulted on this matter.

He had also raised issues about his subsistence and travel allowance during salary negotiations. At the end of the meeting, everything had been pointed at him. He had also raised the issue of the legal bill that the university was incurring because of the VC’s actions. A number of these things probably created the animosity from the VC.

In 2014, they had a deadlock on salary negotiations and had decided that they were going to picket. That did not go well with the VC, because he had confronted him and said that there was no deadlock, but the people that he mandated had created the deadlock.

When he was elected to chair the University of Venda provident fund committee, people did not like him as the chair, and he did not know why.

Mr Letsie said in Mr Makhado’s statement he had alleged that the person who chaired the disciplinary committee (DC) had prior working relationship with Prof Mbati. Was that so?

Mr Makhado confirmed.

Mr Letsie asked at which matters this individual had represented Prof Mbati.

Mr Makhado said it had been on a personal matter, but he was uncertain which matter it was. This had been raised by his lawyer, because he had wanted him to recuse himself for that reason.

Mr Letsie asked if that person had confirmed that he had represented Prof Mbati on other matters.

Mr Makhado said he had, but he could check in his report and would submit this document to the Committee.

Mr Letsie asked if he was still at Univen when the New York trip took place.

Mr Makhado said he was not on campus at that time. He had been based in Pretoria, and came back to campus only after the closure of the office in Sandton.

The fundraising was done by the Foundation. It was a separate entity set up by the Trust to deal with fundraising matters. If there was fundraising that had taken place, the VC would have submitted that to the Board of Trustees, but there was no report.

Mr Letsie said that he had alleged that before the election of Council in 2015, Prof Mbati had tried to lobby him for the re-election of Ms Mabusela.

Mr Makhado confirmed this to be true.

Mr Letsie asked if he knew whether Prof Mbati had attempted to influence any other members of Council.

Mr Makhado said he was not aware of that. All he knew was that he had asked Dr Chikereke (spelling?) to talk to members of Council about the new composition of Council, and he wanted Ms Mabusela to be back to chair the Council – he wanted continuity.

Mr Letsie asked if he was aware of the R1.3 million settlement offer that was made to Prof Phendla.

Mr Makhado said during the period when he was on the Council, nothing was tabled regarding the settlement offer to Prof Phendla.

Mr Letsie said if the matter was not presented to Council, this meant that somebody else might have given the instruction without the approval of Council.

Mr Makhado said Council used to have a habit of not bringing things before it. Before the Council would meet, the EXCO would meet and deal with all the matters coming from management. EXCO was the executive committee of Council, and it should report everything to Council, but this EXCO did not report everything to Council. It was very selective on the matters it decided to report to Council. This was deliberately withheld from going to Council.

The Chairperson asked about the current Vice Chancellor and whether he had previously been a member of Council.

Mr Makhado confirmed that he had been a member of Council for a long time. When he was appointed VC, he was a member of the external Council. He was in Council during his time, and before his time in Council. When Prof Mbati talked to him about continuity, he had the current VC in mind, as well as Mrs Mabusela. During the election, his name came up for the position of Deputy Chairperson.

The Chairperson asked whether he was a ministerial appointee or if he was coming from a constituency within the community.

Mr Makhado said he was uncertain, but he came from the National Research Foundation.

Ms Mananiso asked Mr Makhado to define the leadership of Prof Mbati. Secondly, were there any attempts at whistle-blowing on the matters that were going on at the university at the time?

Ms Sibiya asked whether the Council was aware of the allegation made that Prof Mbati wanted to change the university statute to be able to extend his contract. What had been done about this?

Dr W Boshoff (FF Plus) asked about the travelling situation of the Council members.

Ms Mkhatshwa asked whether he believed Prof Mbati would serve SMU well.

Mr Makhado said that at the very beginning, when he first met Prof Mbati, they had got along very well. He had been open and transparent until later on. Things started changing and he would initiate changes, and when he engaged with him he would get defensive. During his first term he was far better than in his second term. In meetings one could see that he was a person who did not tolerate a view that was different from his. He managed to bring all the people in the structures very close to him.

Overall, his leadership style was very autocratic, and one would pick this up only as one got to know him.

There were anonymous boxes on campus, but people were afraid because there were allegations that he had a company he had contracted that was spying on people, so people were afraid that things would be tracked back to them. Some of them had to take him head on in meetings and would raise issues, but nothing would get done about them.

The process to change the statute came from concerns that the VC must be allowed two terms, and structures were engaged to rewrite the statute. Towards the end, it was presented to Council for approval, and it was in that meeting that he had picked up the statement that Council may extend the term of office of the VC, depending on matters that were prevailing at that time. He had raised his hand and asked how that statement had made its way back to the statute, because the community had agreed that the VC could have only two terms of office.

Having worked with Prof Mbati, he would not know whether he would be fit for SMU, because SMU was advanced in infrastructure and academic programmes. However, he did not believe he would be good for that institution.

The Chairperson asked if he thought it was ethical for an accounting officer to have a consensual sexual relationship with his subordinates.

Mr Makhado said that was unethical

The Chairperson said that the development emanating from the engagement with Mr Makhando was that the current vice chancellor, who was previously serving in the Council, needed to be looked at very closely.

The meeting was adjourned.

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