SMU Vice Chancellor Inquiry

Meeting report

The Chairperson noted the Committee had previously agreed to call back the Council Chairperson of University of Venda and the Vice Chancellor. The Committee experienced some difficulties with the Vice Chancellor. It was then made clear that if he refused to come, the Committee would institute its powers to summon him to appear before the Committee. When the Committee completes questioning these two witnesses, the Committee will conclude Part A of the inquiry and commence with Part B.

Witness: Mr Juneas Lekgetha - Univen Council Chairperson
Mr Lekgetha read out his supplementary statement, which covered utilisation of university resources by Prof Mbati in his legal battles on the CGE report; settlement offer drafted by Bowman Gilfillan; not locating the task team report prepared by Messrs Mashego and Maimela; and report on legal costs  (see statement for details).

The Chairperson asked if the Council Chairperson was aware of the concerns raised by EXCO about the application by the university to review the CGE Report.

Mr Lekgetha replied he was not aware of that but both EXCO and Council decided to ratify the review of the CGE Report.

The Chairperson asked if he was aware of the task team that was appointed.

Mr Lekgetha replied during his discussions and deliberations he became aware of it.

The Chairperson asked what the purpose of the task team was.

Mr Lekgetha replied that it was to clarify the matter.

The Chairperson asked how the task team was tasked with clarifying the CGE Report.

Mr Lekgetha replied that at the time the university was implicated in some matter but one of the aims raised was to bring a level of fairness to the CGE Report.

The Chairperson asked what the purpose of appointing the task team was and what the terms of reference were.

Mr Lekgetha replied he did not have the terms of reference but only the conclusion that was reached. Adv Lambani and the Vice Chancellor are better placed to respond to the matter.

The Chairperson asked what the minutes said the duty of the task team was.

Mr Lekgetha replied that he was more interested whether the matter was resolved. He was pointed to the decision to resolve the matter and how it was resolved. He was not interested in the negative publicity that the university received on the matter.

The Chairperson asked him not to be evasive and answer the question posed.

Mr Lekgetha replied he would not have seen the terms of reference. His aim was not to find out what had happened in the past. He was keen on how the matter was resolved. The Vice Chancellor who was part of the Council at the time is better placed to answer the question.

The Chairperson said in the university records the reason the task team was appointed was there was a concern about who authorised the court application to review the CGE report. Council and EXCO were concerned and so appointed the task team to investigate and report back to Council.

Mr Lekgetha replied there was supposedly a concern. The fact that Council brought in the task team, there may be some logic to that.

The Chairperson asked if he could or could not deny that the Council did not know about the decision to review the CGE report and it did not take that decision; hence, the appointment of the task team.

Mr Lekgetha replied that could be case if he followed that logic.

The Chairperson said this was in the Council documents – that it was ratified post the fact. The decision to review the CGE report was not a Council decision – it was not originally the Council decision. Can you agree with that? Secondly, in your statement, you claim that Mr Serobi Maja, former Univen Council chairperson, took that decision?

Mr Lekgetha agreed and confirmed that it was Mr Maja who took that decision.

The Chairperson asked if he would agree that Mr Maja did not have the necessary delegation to take such a decision.

Mr Lekgetha replied he was not aware of the delegation he had at the time.

The Chairperson said since the inquiry started, the Committee has not been told that Mr Maja had the necessary delegation to take that decision. When Mr Maja was asked who took the decision to review the CGE report, his response was that Council took that decision because it felt that Prof Mbati was not afforded the necessary opportunity to make his representation and he was not interviewed. When it was pointed out that what he said was a lie, he then "turned around". There is still this issue of his misrepresenting facts to the inquiry. Mr Maja was not aware of the letter he was purported to have written when he was questioned on the letter. It does appear from Mr Maja that he was not aware if this was a Council decision or not.

Mr Lekgetha replied that some of these issues where very difficult and he is not in a position to know why these decisions were taken as he was not part of the institution at the time. However, he has been interested in finding out if the proper protocols were put in place and if these protocols were put in place, the discussion would have been different.

The Chairperson said that the issue was not the absence of delegation but that the institution had an issue with the CGE report and it wanted to do everything possible to protect Prof Mbati. The Committee has already established the manner in which the complaint by Prof Phendla was handled, was not in line with university policy. The Council did not implement the university policy and if it were implemented, the CGE report would not have taken place. When CGE issued a report on the matter, the Council – well, Prof Mbati and Mr Maja – fought that report. So, it was not an absence of delegation but a deliberate action to fight the matter by Prof Mbati and Mr Maja. They frustrated the process from the beginning.

Mr Lekgetha replied that he respects the court pronouncement and he takes the matter from that point of view. If the court was able to correct the matter, his participation would end there. He did not want to get involved in the personal matter but only what the court said about the CGE report as it related to the institution not the individuals. After carefully reviewing the court judgment, he saw that parts of the CGE report were excised by the court, which related to the university.

The Chairperson was not pleased that Mr Lekgetha brought in the court. What the Committee would like to hear about is the allegation that Prof Mbati utilised university resources to fight his personal battle – this is what the Committee is mainly concerned about. Since you voluntarily mentioned the court, you claim that what you know about the court is that parts of the report were excised. Did you know that the court instructed the university to implement section 5.9 of the sexual harassment policy?

Mr Lekgetha replied he was not aware of that.

The Chairperson firmly asked why he mentioned the court when he did not even know anything about what the court had said.

Mr Lekgetha replied that he was here on hearsay and, as a new Council chairperson, he would not have had the capacity to research everything. He is not able to engage on some of the matters because he is new and he could help only with matters that were visible to him not those that were behind the scenes.

The Chairperson said he was talking about the Council decision, which did not exist because it was something between Mr Maja and Prof Mbati. Mr Maja does not know that he made the decision to review the matter. The question was simple: why such a big decision was made by only the Council Chairperson? He then said, Mr Maja did not remember and therefore he had the duty to remember and recall these matters on behalf of Mr Maja. The Committee wants to probe if the university resources were used for personal battles or not.

We have established that there was no Council decision and we have agreed on that. Secondly, a task team was established by Council simply because Council was concerned about what happened and who took the decision. Thirdly, Mr Maja was not aware that he took the decision to review the CGE report. Fourthly, this court application was signed by Prof Mbati. He was representing himself and Council – he is the only one who signed that affidavit. This is a fact. Lastly, the affidavit says that Council was not given an opportunity to respond to the CGE report – is this something that was said to you or is it a matter of fact?

Mr Lekgetha replied that it was ratification by Council to correct the matter. He agreed with the Chairperson on the last point.

The Chairperson handed over to Members to engage on the witness statement.

Mr T Letsie (ANC) asked if Mr Lekgetha remembered the oath he took earlier that morning about "nothing but the truth". Looking at the last part of section 7.5 of the statement, would you agree that what you have just said in your last answer to the Chairperson is not correct?

Mr Lekgetha replied that he was not aware of what was not correct – he said, in his statement that this was a subsequent decision, which was a ratification post the event.

Mr Letsie emphasized that section 7.5 of Mr Lekgetha’s statement states the proceedings were initiated by the university. That is a completely different statement.

Mr Lekgetha replied that the authority was given post the action; therefore, the "ratification" as referred to in the statement.

Mr Letsie asked about his understanding of the initiation of the review.

Mr Lekgetha replied the initiation was started by management and the Chairperson and that was ratified by the Council after the fact. The university or the Council took ownership after the fact.

The Chairperson said the statement said that the decision to initiate the review was made by the Council.

Mr Lekgetha replied that he meant to say the Council has taken ownership of the decision to review. Council has now accepted the responsibility.

Mr Letsie said that we must agree that one of the statements was not correct. On paragraph 8, you are clear that Prof Mbati never instructed Bowmans on his behalf. What informed that assertion?

Mr Lekgetha replied normally in all cases, it is the university that instruct the lawyers and at the time Bowmans were the lawyers acting on behalf of the university. He was not aware that Prof Mbati had retained Bowmans as his private lawyers. All he knows is that Bowmans were the attorneys of the university.  

Mr Letsie said that Prof Mbati said to the Committee that he was the one who deposed the affidavit on behalf of the university on the CGE review application.

Mr Lekgetha replied he was not sure who to believe. All he knew was what was on record.

Mr Letsie said that the fact is that the affidavit was deposed on behalf of the university by Adv Edward Lambani, former Univen Director of Legal Services.

Mr Lekgetha replied that the brief would have been made by Adv Lambani. However, who made what affidavit, he was not aware of that. The university had retained the lawyers and it had the responsibility to brief the lawyers. If Prof Mbati had submitted a sworn affidavit, it would have been relevant at the time. However, whether the lawyers were representing him or the university, he was not aware of that.

Mr Lestie asked Mr Lekgetha in his view if indeed Prof Mbati was the one who deposed the affidavit, do he think that would have constituted a conflict of interest?

Mr Lekgetha replied no because an affidavit is different. He would have been in support of the motion brought by the university. He was a silent or passive litigant, which could be the centre of the subject matter. The university joined in protection of its own image not that of Prof Mbati. The ratification was brought post facto.

Mr Lestie said if Mr Lekgetha was part of the University Council at the time, would he not have been concerned that somebody acted on its behalf and initiated the CGE report review. Would he not want to know that whoever has acted outside the mandate is brought to book?

Mr Lekgetha replied that a report was initiated by the two gentlemen. Out of that report Council would then have demanded how the money was spent and a report would have been written and submitted to Council. Council should have had the matter investigated fully at the time until a fair conclusion was reached.

Mr Letsie said the Council at the time put in place a task team to investigate the allegations, but no report was submitted by these two gentlemen. What did you say when you were told there was no report?

Mr Lekgetha replied that he looked at the role of the university in the court judgment and the role of the university was excised. If it had not been excised, he assumed that the university would have done the right thing if any malfeasance was pointed out by the court judgment.

Mr Letsie said he would been interested why there was no task team report. How much money was paid to this task team and the auditor's opinion on the matter.

Mr Lekgetha replied he would have looked at this from a governance point of view.  If issues were brought to his attention that he was not aware of, then he would raise them with management. At the moment he could not comment further because these matters were brought to this attention only now during the engagement with the Committee.

Mr Letsie lost connectivity.

The Chairperson said there was an issue with the task team report. The Committee would have to insist that the task team provide its report. The ratification was of a decision post facto after the Council appointed the task team and it came back to report. Council decided to close the matter and ratify. So Council did not ratify the matter at first when the matter was reported to it.

Mr Lekgetha agreed.

The Chairperson asked why the Council Chairperson and the Vice Chancellor went to court and initiated litigation without the Council’s approval – it was this action that triggered the ratification of Council. Can you agree that Council was not pleased with these actions, hence the ratification?

Mr Lekgetha agreed.

The Chairperson said it was only after the report of the task team that its decision to ratify was taken. Do you agree?

Mr Lekgetha asked about Council’s policy in assisting in the legal fees of a sitting employee or executive – would they not have that arrangement as part of his contract?

The Chairperson replied that the issue is that one of the most important decisions taken by Council, especially involving the most senior employee of the institution – that was decision was not taken by Council. We must agree that Council appointed a task team to ascertain why this decision was taken outside of Council. This was a good move by Council but we need to see the task team report and the concerns raised in its report.

Mr Lekgetha replied that the Committee can place this matter as one he needed to go back to management and find out about.

The Chairperson said the Committee wanted to understand why this happened and then Council came up with a corrective action. There has been significant momentum on consensus about the Council ratification. We cannot place too much emphasis that Council later ratified it as that ratification was not something Council was happy to do.

The Committee will insist that it gets the task team report. The Committee will follow up and write a letter to the two persons who instituted the task team. The Committee would expect that the current Council should do everything in its power to ensure that the Committee receives this report.

On the conflict of interest, this was canvassed at great length with Prof Mbati. He deposed an affidavit on behalf of Council and management and he was the only person who signed that affidavit on a matter that involved him personally. The CGE report talked about him personally and the university. This was a matter that involved him personally. Do you think he was conflicted on this matter?

Mr Lekgetha sought clarity if the affidavit deposed by Prof Mbati relating to him personally or to the institution.

The Chairperson replied that it was both. There were three applicants – he was the first applicant, then the institution and then the Council.

Mr Lekgetha replied that it was supposed to be the Council Chairperson representing the Council, not Prof Mbati.

The Chairperson appreciated the honesty. When Prof Mbati represented Council, there was no Council resolution that authorised him to go to court and review the CGE report that was a matter involving him and thus a conflict. He used university resources to defend himself – he was first applicant, meaning the matter involved him personally. Do you think there is undue benefit in that?

Mr Lekgetha replied there may undue benefit but he was not aware about the contractual arrangement between Prof Mbati and Council, but there was a conflict of interest and the university should have dealt with the matter exclusive of him.

The Chairperson said that where Prof Mbati represented the university there may be no undue benefit but he stood to gain personally. He challenged the CGE report because it implicated him personally. He acted in his own capacity and sometimes acted against the university. There was an action in the Thohoyandou Court where he set aside the report of the mediator Mr Lavary Modise. In this instance, he acted on his own against the university and Council.

The Committee received letters last year from Bowmans representing the university threatening Parliament with litigation and an urgent high court application to stop the Committee from conducting this inquiry. It was almost the same as the letter received from Prof Mbati, raising similar issues – challenging the inquiry. As a result, the Committee had to retreat and sought legal advice and the inquiry terms of reference were then revised, especially matters that were of concern to Prof Mbati and those that were decided by the court. Who authorised the initiation of that legal challenge to Parliament – was it Council, the Council Chairperson or management?

Mr Lekgetha replied none of these. The Vice Chancellor can speak to this matter in particular and he was aware of this. The Council and he were not aware of it. It was brought to his attention but the Vice Chancellor was best placed to respond to the matter.

The Chairperson asked if it was brought to the attention of Council.

Mr Lekgetha replied not as yet.

The Chairperson said that the Committee was back to what happened three years ago where an action was initiated by the Vice Chancellor. When one signs the application or the affidavit and initiates a case on behalf of the institution, the court looks at the matter, sees the signature and assumes that that person has the necessary delegation and legal standing to bring the case. This point would be brought up with the Vice Chancellor.

Mr Letsie (through the chat box platform) asked for the minutes of the Council meeting that was to receive the task team report.

Mr Lekgetha replied that he would go back and look at this matter.

The Chairperson raised the settlement proposal. The Committee is in possession of a letter from Bowman Gilfillan, which was written to the attorneys of Prof Phendla and this letter set out a settlement and the conditions of the settlement. Prof Phendla did not accept this settlement but she was later advised to accept it. However, when she did so, she was informed that the settlement had been withdrawn. The Committee has been trying to establish who authorised that instruction. The Committee heard from Adv Lambani who explained what had happened. He had the idea of a settlement proposal and discussed this with the director in the office of the Vice Chancellor, Dr Chitereke. They agreed it was a good idea and it was taken forward. It was discussed with the Deputy VC who said that in view of the money being spent on this matter it would be prudent to put the proposal on the table. It remains unclear who then authorised the settlement proposal put before Prof Phendla. The Committee wanted to know who was ultimately responsible for authorising the settlement proposal.

Mr Lekgetha replied that Adv Lambani initiated that discussion with the view that if they found ground, it would be taken to the next level. Unfortunately, when no ground was established, the settlement was then withdrawn.

The Chairperson said that the view from the other party, including Prof Phendla, in some of the correspondence she shared with the Committee, was that the offer was made by Prof Mbati as the head of the institution. Do you think it was a fair assumption?

Mr Lekgetha replied that it would not have been prudent for Prof Mbati to get involved in that matter. That offer was still at the basic stage. Since it was rejected at the time, they felt that there was no need to elevate it to Council or the Executive Management Committee (EMC).

The Chairperson asked if he thought that Prof Mbati was involved in those discussions.

Mr Lekgetha replied that in his view, he should have not gotten involved.

The Chairperson thanked Mr Lekgetha for always availing himself to come before the Committee. In all instances, there was no indication of reluctance and the Committee appreciated his willingness to assist the inquiry.

The Committee would like to visit the institution sometime and interact with Council members.

Mr Lekgetha thanked the Committee.

The Chairperson requested the task team report and the minutes referred to earlier by Mr Letsie.

Witness: Dr Bernard Nthambeleni, Univen Vice Chancellor and Principal
Dr Nthambeleni read out his statement. The statement covered allegations against him; his appointment as the current Vice Chancellor of University of Venda; close relationship with Prof Mbati and if he unduly influenced his appointment as the Vice Chancellor; his engagement in the discussions as Council member on the appointment of a new Vice Chancellor.

The Chairperson thanked the Vice Chancellor and commenced with the context for inviting him to the inquiry. There were allegations made by one of the witnesses against him. The Committee was not aware that he was a Council member before he got appointed as Vice Chancellor until the witness indicated this. The witness went on to say that he was close with Prof Mbati and the Committee needed to follow up on those allegations and receive responses as a former Council member and the current Vice Chancellor. This inquiry is not about his appointment but good governance in the University of Venda. It would be very careless for the Committee not to follow up on the matter.

The Vice Chancellor has raised a number of issues such as the Committee acting outside of its terms of reference and doing this in a malicious way – basically insinuating that we are a bunch of people who do not know what they are doing but who are engaged on a witch hunt. What do you think is an oversight responsibility of Parliament that gets exercised through the Committee? What do you think the Committee should be doing in exercising oversight? Do you think if there are serious allegations against an organ of state, which falls within our portfolio, we have no business following up on those allegations?

Dr Nthambeleni replied the Committee has a duty to investigate but his concern is arising from the inquiry terms of reference.

The Chairperson said he was pleased that there was consensus about the Committee’s mandate. Can he identify the issues that he thinks are outside the set terms of reference?

Dr Nthambeleni replied that his appointment was not covered in the terms of reference.

The Chairperson said that it is an issue that arose during the course of the inquiry – he was a  sitting Council member when he applied for and was appointed to the Vice Chancellor position which was approved by Council. Does he think it is not an issue of university good governance, which is part of the terms of reference?

Dr Nthambeleni asked to read out the terms of reference of the inquiry specifically section 5.1, 5.2, 5.3, and 5.4. These are the issues covered on the terms of reference, there is nothing about his appointment.

The Chairperson asked if matters of good governance, which fall within the scope of the remit, arise during the inquiry must they not be followed up? Must the Committee turn a blind eye to such issues raised during the inquiry?

Dr Nthambeleni replied that he was not saying that at all but merely stating the facts in relation to the terms of reference and his appointment.

The Chairperson said the Committee followed up on matters of good governance that have come up during the inquiry. What is it that the Committee did which is outside the scope of the inquiry?

Dr Nthambeleni replied he was not saying that – based on the inquiry terms of reference and what he was asked to respond to; these are not related to the inquiry terms of reference.

The Chairperson asked if he thought there was something wrong the Committee did by asking questions. Does he want us to follow up on these matters during the inquiry or outside the inquiry since he claims that they are outside the scope of the terms of reference?

Dr Nthambeleni replied that at the start of the meeting the Chairperson said he had difficulties in getting him to come before the Committee. He had found it very vague to come here and say that he was close to Prof Mbati. He had written back to seek clarity about what was meant by ‘close’.

The Chairperson wanted to understand the basis of the objection. The Committee is empowered to conduct oversight over the executive and all organs of state that fall within its portfolio. In doing that oversight, we have come across good governance allegations and we are now asking questions about those allegations. The allegations were made by witnesses that came before the Committee. It was following up and granting him the right to rebut the allegations made on this platform. Is he objecting to the Committee, as part of executing its mandate, following up on matters of good governance at the University of Venda? Does he have a problem with that or should it not do that within this inquiry?

Dr Nthambeleni replied that he was saying that the TOR for the inquiry do not relate to the questions being asked. For example, there was a reference to how Prof Mbati used his role to unduly influence Council about his appointment. He had serious difficulty to understand this. There is no way Prof Mbati had any impact or play in his appointment as Vice Chancellor.

The Chairperson said that he understood what he was saying and there is no fundamental objection to the inquiry itself. The Committee is probing allegations that were brought to its attention and it has a duty to be fair. When a serious allegation is made against a person during a parliamentary committee meeting, the Committee has the duty to invite that person to respond to the allegation. It is important to understand that it is not the Members who made the allegations but the witnesses that have come before the Committee. Members are simply granting him an opportunity to come before the Committee to respond. Members have a right to ask questions on his appointment. Part of the mandate of the Committee is to look at good governance.

Dr Nthambeleni replied the Chairperson said a mouthful – he made a statement and wanted to respond before he lost his train of thought. The issue raised by the Chairperson was known to him – the allegations that were made against him. If allegations are made, they must be proven because people’s reputations are damaged as a result of that. Therefore, it is a duty of the Committee to investigate those allegations to ensure that people’s reputations and names are not damaged resulting from untested allegations.

The Chairperson said that was exactly what the Committee is doing. These allegations were made in a public forum, and they must be rebutted in the same forum. This is what fairness is about. He developed an impression that the Vice Chancellor did not want to account. Was this a wrong impression?

Dr Nthambeleni replied it was a wrong impression. In the public space that one occupies, it would be wrong not to want to account.  It would be wrong for the Chairperson to conclude that he did not want to account. He works with government institutions and has always accounted when called to.

The Chairperson said that he seemed extremely irritated when invited to come. People tend to get too technical about process when they are called to account but forget that there is the Constitution, which is the overarching terms of reference.

Dr Nthambeleni replied that he had wanted an explanation about being "close" with Prof Mbati. He had written back to Chairperson seeking clarity on this matter, which he clarified. Now the issue of accountability can rest because he did come before the Committee after that matter was clarified.

The Chairperson pointed to paragraph 8 of his statement, which mentioned the manner in which the inquiry was conducted allowed hostile and disgruntled former employees of the university to come before the Committee to make unfounded allegations; meanwhile the current employees must carry the burden of responding to those allegations. Is he saying that we should not allow disgruntled employees from giving evidence before the inquiry?

Dr Nthambeleni replied that this process was allowing hostile and disgruntled former employees. The Committee would need to bear the responsibility of understanding from where these hostile and disgruntled employees were coming. A disgruntled person can say things carelessly that could potentially damage another person’s name. That is the point of his statement.

The Chairperson asked if he was saying that the allegedly disgruntled person(s) must not be listened to?

Dr Nthambeleni replied no they must also be listened to.

The Chairperson asked if the Vice Chancellor was saying that a disgruntled person was incapable of telling the truth.

Dr Nthambeleni replied he was speaking precisely about his own situation, not in general. He was referring to the individual that made the allegation.

The Chairperson said that is not what the statement is saying. It is questioning the process and saying that the Committee should not invite former employees that are hostile and disgruntled as they are making statements that are not corroborated. Is it his submission that a person who is hostile and disgruntled is not going to be truthful?

Dr Nthambeleni replied the Committee must decide that. These individuals have given ‘evidence’ that is uncorroborated with material evidence.

The Chairperson said issues are brought to the Members’ attention and most of the time the whistleblower has a reason to blow the whistle. This was the same with NSFAS where the Administrator said that people were disgruntled but the defining point is to ascertain if there is merit in what the person is alleging. The Committee will always ensure if those issues raised are worth following up. Everyone that comes here takes an oath. If that person is not truthful there is a legal course through the Powers and Privileges Act.

Dr Nthambeleni replied that when a person makes an allegation against another, the Committee must ascertain where the person was at the time and if they have first-hand information.

The Chairperson asked if it was true that he was a Univen Council member previous to being appointed as the Vice Chancellor.

Dr Nthambeleni confirmed.

The Chairperson said that the witness brought important information to the Committee's attention as it was not aware that he was a Council member. Moving on, who authorised the letter from Bowman Gilfillan to interdict the inquiry?

Dr Nthambeleni replied that he was not aware of this matter and has not seen the letter referred to. However, he could explain his role leading to the letter.

When the inquiry was put to the Council Chairperson, the issues that would be covered were listed and a date given. The University agreed when the responses were being prepared, that the new Council Chairperson and executive, in fact, even the former Council Chairpersons would be sent to the inquiry with legal representation to safeguard the interests of the university. When the date came, the legal representative was present but the Council Chairperson did not appear. He received a report back from the legal representative of how the meeting unfolded. He then suggested writing through the legal representative to the Committee to clarify what is intended to happen and if they were happy with the submission provided to the Committee. This is when he authorised the letter to be written after discussing it with the Council Chairperson.

The Chairperson said he needed clarity on who authorised the letter. So he was saying the mandate or instruction was wrong – all the University was concerned about was that the inquiry had proceeded without the involvement of the Council Chairperson.

Dr Nthambeleni confirmed that is what he was addressing but he was not privy to the content of the letter. He received a report-back that the letter was sent to the Committee and that the terms of reference had been revised.

The Chairperson pointed out that lawyers act on behalf of their client and they carry that mandate. He felt that the inquiry was going to proceed without the Council Chairperson – this was his main concern?

Dr Nthambeleni confirmed this and said that the legal team shared the inquiry programme and asserted that there is no way the Council Chairperson cannot be involved.

The Chairperson said that it clear that the instruction of the Vice Chancellor was not carried. The Committee got a letter raising a number of arguments, also interdicting the process. So he is saying that the content of the letter was not what he had instructed the legal team?

Dr Nthambeleni replied that he received the concern about how the Committee would be proceeding without the University being called. He does not directly engage with the lawyers; he speaks to the legal department and the department takes the matter forward.

The Chairperson said that what the Committee received was not in line with the instruction of the Vice Chancellor – this is what one deduces from what the Vice Chancellor is saying. So far his observation has been that Prof Phendla's complaint against Prof Mbati was not handled in line with university policy. It was frustrated for almost four years until it got attended to due to the court directive on the CGE report; even the manner it was attended to was not correct.

That letter was not just a letter, but a threat and it was nothing close to the concerns that the Vice Chancellor says he had.

Dr Nthambeleni replied that the legal matters should be left to the legal experts. He could not explain what the legal experts wrote in the letter.

Mr Letsie said when he went through the Vice Chancellor's statement yesterday, from the tone of the statement it seemed that he did not want to account. He was part of the Council that appointed him as Vice Chancellor and he simply excused himself on matters related to his appointment to his current occupation. Members thought that this was interesting and worth look into by asking him questions about it and we have received confirmation from him that it is true.

Why does he think the Council Chairperson did not have the 10 April minutes which was the day the two task team members were supposed to give a report on the CGE report taken on review?

Dr Nthambeleni replied he did not want to speak out of turn; he has not heard the Council Chairperson say that he has requested documentation but has not received it. He was not aware that the Council Chairperson did not receive information that he requested.

Mr Letsie said that he had an attendance register of a meeting that took place on 18 April 2015 with the Vice Chancellor Nthambeleni present, which discussed the CGE report.

Dr Nthambeleni replied that he still did not recall what was discussed in that meeting; however, he was part of the meeting as the record stipulated.

Mr Letsie found it rather strange that he did not recall what took place in that meeting.

Dr Nthambeleni replied that he felt uncomfortable speaking on issues that he was not mandated to. He was not the Council Chairperson at the time. Former Council chairpersons have come before the Committee and spoken on these matters.

The Chairperson clarified that Mr Letsie was asking questions about matters that he presided over as a Council member. The question is relevant and it relates to her tenure as a Council member – it is information that is within his knowledge and understanding. He ruled that he should answer on questions that related to his stint as a Council member.

Dr Nthambeleni replied that he was being asked questions about his tenure as a Council member and he did not prepare himself for those questions. They were not part of the brief that he had to prepare for. He could not respond to questions outside the invitation letter because he was not prepared for that. He was willing to go back and prepare for that.

The Chairperson believed that he was being difficult and that he was one of the people who carried the institutional memory of the institution as a former Council member during the time when these issues were happening. The question asked by Mr Letsie was within that institutional memory and competence – the questions are also relevant. If he is not going to answer the questions, it means that he is not being helpful and is obstructing the process. Either we continue or we can adjourn if the Vice Chancellor refuses to answer questions. The Committee will seek advice on what should happening when a witness refuses to answer questions put to them.

Dr Nthambeleni replied that he was not refusing to answer questions. However he cannot answer questions that speak to his institutional memory, unless he is provided the documentation that speaks to what he is being asked. He felt that it would do the Committee an injustice to its process to respond to question relying on his memory.

The Chairperson said that he had questions on the Vice Chancellor’s tenure as a Council member. Perhaps, it would be helpful for the inquiry to get someone else who was part of the Council at that time. The Committee will allow the Vice Chancellor to consult all that he has to consult to benefit his memory on what happened.

The Chairperson ruled that he will not be asked questions on his tenure as Council member. The  Committee will pick this up on Friday after he has consulted all the relevant documentation.

Mr Letsie suggested that perhaps Members’ questions should be written and given to the Vice Chancellor, so that when he prepares he is aware of the questions that would be asked. He also requested the record of the brief he gave to the legal team when the interdict letter was sent to the Committee.

Dr Nthambeleni replied he will look into obtaining the records. He has not seen the records. He did not want to give Members the wrong impression that there were documents on these matters.

Mr Letsie said that he should do his homework and obtain some documentation that speaks to the correspondence and communication, even with the Department.

Ms N Mkhatshwa (ANC) asked, as a former Council member and now Vice Chancellor of the institution, what does he think in retrospect were the strengths and weaknesses of Prof Mbati as the Vice Chancellor? Looking at the infrastructure projects and allegations about administration and management, what does he think should be the remedy to rectify these matters? How is he as the leadership planning to ensure there are sound systems in place and that policies on gender equity and rights are implemented?

Having spent some time observing the leadership of Prof Mbati, does he believe that Prof Mbati has the capacity to take SMU to the heights it must be taken to? There were already problems about infrastructure projects at SMU.

Dr Nthambeleni replied that he would respond to these questions on a general basis. When Univen was established it did not receive an establishment grant, it developed as it went and that created a lot of problems. These are not singular problems – it is a problem for planning, particularly the rolling out of infrastructure projects.

EXCO has reviewed a number of policies including policies that affect students. The management is doing its best in changing the trajectory of the implementation of policies on gender equity in the institution and policies were being reviewed and strengthened.

Lastly, it would be incorrect of him to judge Prof Mbati about his competence. However, he had a cordial relationship with him and he had put processes in Univen in infrastructure, governance, research profile of the staff, amongst others. He has put systems in place but we can agree that there are gaps but he did not inherit an institution that gave him sleepless nights.

Ms J Mananiso (ANC) asked the Vice Chancellor to define the leadership style of Prof Mbati.

Dr Nthambeleni replied that he found him to be a consultative leader and that is all he can say.

The Chairperson came in and suggested that the Vice Chancellor needed to go back and consult on some of the matters that he could not respond to especially when he was Council member. When the Vice Chancellor position was advertised; he were a Council member and when he applied for the position he were a Council member still?

Dr Nthambeleni confirmed.

The Chairperson asked if he was a Council member still when he went through the interviews.

Dr Nthambeleni replied he was a Council member up until his appointment as Vice Chancellor.

The Chairperson said he was interviewed by his colleagues who he was part of Council with.

Dr Nthambeleni was uncertain on how to respond. However, he could provide the documentation that speaks to the Council members who sat in the interviews.

The Chairperson asked if he going to resign as a Council member had he not been appointed.

Dr Nthambeleni replied he would not have resigned.

The Chairperson asked if he did not think he was in an advantageous position during the recruitment process. Throughout the process when discussions were taking place on the recruitment, did he recuse himself from those meetings?

Dr Nthambeleni replied that he was not party to those discussions. He is not the first person to be appointed to the position of Vice Chancellor who was a Council member. He was not aware of any law that prohibits that. In the absence of a law that precludes that, he would rather not comment on his appointment.

The Chairperson asked if he understood conflict of interest and at what point a conflict arises.

Dr Nthambeleni confirmed that he did. He asked what was different if he a Council member.

The Chairperson replied that a conflict of interest would arise. It is Council that constitutes and discusses the appointment of such a senior position and the selection panel.

Dr Nthambeleni replied that he recused himself from meetings on the recruitment process. He referenced the newly appointed Wits University Vice Chancellor who was also a Council member. There is no law that Council members cannot apply for positions. The best thing to do is to recuse oneself from the process and discussions on the Vice Chancellor appointment.

The Chairperson asked if he recused himself from all meetings on the recruitment and appointment of a new Vice Chancellor.

Dr Nthambeleni replied he sat in the Council meeting where there was an appointment of the Deputy Vice Chancellor.

The Chairperson said the Committee would investigate these claims and ascertain he did not attend any meeting or discussions about the appointment of the Vice Chancellor.

Dr Nthambeleni replied he had sat on a meeting where the term of the previous Vice Chancellor was coming to an end.

The Chairperson said that the Committee would request additional information from Council but he found it rather strange that a Council member is appointed as the Vice Chancellor of the university. The issue is if their concerns have been responded to such as the declaration of interest, being informed about how the recruitment process would unfold, amongst others.

The Chairperson said the Committee had resolved to engage the Vice Chancellor on 14 May. Some of the matters might need to be separated as the intention is not to probe his appointment. However, when these issues come up Members have to interrogate them. The Committee was meant to reflect on the inquiry but due to time constraints, it would postpone it.

Committee Report on Department Annual Performance Plan and Budget
The Chairperson submitted the Report for adoption.

The Committee adopted the Report without any proposed changes.

The meeting was adjourned.