SMU Vice Chancellor Inquiry

Meeting report

The Chairperson commented how well the Department of Higher Education and Training (DHET) budget vote debate had gone.

Witness: Mr Jeffery Mabelebele - SMU Registrar
Mr Mabelebele read out his statement, which covered matters raised in the meeting with the Council Chairperson on the lack of provision of Prof Mbati’s sexual harassment disclosure records to the Senate and Institutional Forum (see witness statement).

The Chairperson asked what documents were required from the candidates who applied for the position.

Mr Mabelebele replied that it is the curriculum vitae and declaration of intent.

The Chairperson stated that the policy does not require disclosure of matters that the Council and Senate would want to know about the candidate.

Mr Mabelebele replied that the policy does not definitely ask these two committees to require the candidate to furnish other documents.

The Chairperson asked what the policy stated must be supplied to the selection panel.

Mr Mabelebele replied that according to the policy, the documents required by the selection panel are the CV, declaration of intent, referee reports and the results of the voting by the Senate and Institutional Forum.

The Chairperson said that it was not specified that the disclosure must be in full and made available to the selection panel.

Mr Mabelebele replied that it is not something that is pertinently expressed in the policy.

The Chairperson asked if information made available to the selection panel or any other relevant structure, must also be available across the board to these structures as they all played an important role in the recruitment process. Would he agree that all the structures must be furnished with the same set of documentation or information?

Mr Mabelebele replied that it was difficult to answer this question from his personal perspective; however, the University has learnt from this experience and it might be appropriate to ensure that the documents were made available to the relevant structures. The recruitment process of a Vice Chancellor has checks and balances from the date of the advert right up to the appointment by the Council. There are also quality assurance mechanisms in place. If the Senate, selection panel and the Institutional Forum are not furnished with the relevant documents that defect could be picked up down the line as the process unfolds. The other view is to look at the policy and how it lays out the appointment process. It might be appropriate to look into amending the policy to ensure that when the structures sit they are able to vote on the employability of candidates. The selection panel decided that the disclosure was adequate and it was not adverse in the sense that the court had already cleared the candidate of the allegations levelled against him.

The Chairperson said that the Council Chairperson was not aware that the Senate and Institutional Forum  did not get the full disclosure on the history of the sexual harassment allegations, so the Council Chairperson would not have known that the Senate vote was an outcome informed not by the same set of documents she had. What does he think is the relevance of the Senate and Institutional Forum  voting on the suitability? Is it just a tick box measure or a fundamental part of the selection process?

Mr Mabelebele replied that it is a fundamental part of the selection process.

The Chairperson said that surely then the Senate and the Institutional Forum  should receive comprehensive disclosure about the candidate they are voting on. Does he agree with that?

Mr Mabelebele replied that the structures should get information that would enable the structures to exercise their separate mandates as it were.

The Chairperson said that they have to get adequate and full disclosure about the candidate they are voting for. Does he agree with that? Does he think it is fair for the Senate and Institutional Forum  to receive all the necessary information about the candidate they are voting for?

Mr Mabelebele replied that the minimum information they should get what he had outlined, but he believed that both structures should get all the material information pertaining to the candidate.

The Chairperson said in this instance there was material information that was not brought to their attention, which was the full disclosure of sexual harassment allegations. The former Senate chairperson confirmed to the Committee that this information was material and it also considered the character of the candidate. That information was material in determining the character of the candidate. Does he agree with that?

Mr Mabelebele replied that this was putting him in a precarious position. The two structures in terms of the policy are required to receive a minimum of set of documents. His view was that if the University were to change this policy, it might be appropriate to convene the meeting of the two structures after the meeting of the selection panel, so that whatever comes out of the selection panel and other information considered by the selection panel were presented to the Senate and Institutional Forum .

The Chairperson said that this proposition was that the two structures must come after the selection panel and this might seem as if the structures were evaluating the work of the selection panel. This has the effect of evaluating the work of the selection panel. There is consensus that it is necessary that all the relevant information pertinent to the decision they make must be made available. The kind of disclosure that is made by the candidate about their history is not something that is required in the policy, but it is in expectation. Is it specific in the policy that background checks of a candidate are conducted?

Mr Mabelebele replied that the policy states ‘’the report of the qualified service provider’’, which will contain all matters of fact about the background checks and disclosures.

The Chairperson said but the policy states ‘’if applicable’’, which meant that sometimes it may not be applicable and the policy does recognise that.

Mr Mabelebele agreed that it is applicable.

The Chairperson stressed that the policy did not expressly provide that background checks were conducted thoroughly and that all material information is provided.

Mr Mabelebele replied that in the selection panel meeting there is a standard question across all layers, which probes all candidates to disclose any information that could jeopardise their chances for the position. Apart from the policy, there are other checks and balances that are conducted.

The Chairperson said that any institution must understand and be aware of the history and background of an individual at that level whether it is expressly stated in the policy or not. This information was necessary and relevant to the two structures voting on the suitability.

Mr Mabelebele submitted that it would be necessary and relevant to ascertain if the disclosure of the information the Portfolio Committee is sitting on (sexual harassment case) would have had a material impact on the outcome of both structures. This can be answered by the structures.

The Chairperson said that the structures said to the Portfolio Committee that they did not get this information and it is indeed material to their decision-making process. It could have influenced them either way if it was disclosed to them. What does he say to that?

Mr Mabelebele replied that it was possible that they would have voted differently. Ultimately, the Council is the one with the authority to make a call on the appointment of the Vice Chancellor informed by the recommendations of the selection panel.

The Chairperson said that what was important was the information made available and the possibility of influencing the decision-making process of those two structures. We have agreed that these two structures are a fundamental part of the appointment process; it is not just to tick the box. The selection panel must consider the voting of the two structures, as per the policy. So, this is a serious matter. The fact that this information was not available is a serious procedural defect. What does he think of that?

Mr Mabelebele replied that it depended from where one derives the inference. Sticking to the policy, the University would have complied, but he agreed that the two structures needed sufficient information to exercise their mandate.

Mr T Letsie (ANC) asked if Mr Mabelebele was now of the view that the policy had some gaps that might require a review.

Mr Mabelebele replied that once one puts these matters into an implementation phase, one is able to point out gaps. There is a time line of when policies are reviewed in the institution – this happened every three years to assist the University to deal with blind spots that might be inherent in the policy. He agreed that the policy had some gaps and there were grounds for it to be reviewed.

Mr Letsie submitted that according to the policy, the SMU Registrar did not do anything wrong. He was not on trial. The Committee wanted to ensure that in future they avoid a repeat of this.

The Chairperson thanked the witness and said his engagement with the Committee was helpful. The Council Chairperson raised an issue about an independent process. She said that the institution appoints external legal advisors to advice the Council. He wondered if a service provider was appointed to advice on the information received from the candidates and shared with the selection committee and Council.

Mr Mabelebele replied that his knowledge was very limited. He did not recall any legal expert that was appointed to validate the disclosure of records to the selection panel. The university only appointed a law firm to assess the extent to which the appointment process was procedural and that was shared with the Committee. He thanked the Committee for inviting him to the platform.

Witness: Dr Bernard Nthambeleni - Univen Vice Chancellor and Principal
Dr Nthambeleni read his witness statement in response to the Committee request at its 11 May meeting for additional information. This included the task team report investigating who authorised taking the CGE report on review; use of University resources by then-Vice Chancellor Mbati for his court defence and the instructions given by the SMU attorneys to interdict the inquiry of the Portfolio Committee (see witness statement).

The Chairperson submitted correspondence received from the Univen Vice Chancellor indicating that the task team report was not available in the records of the University. This was disappointing and it was pitiful that the Committee could not receive it. Was the Office of the Registrar not involved in the task team appointment as the Registrar provides secretarial support to all the university committees?

Dr Nthambeleni replied that he could not provide a clear answer on who was involved in the appointment of the task team other than what is his statement. He then made reference to the letter and read it out to the Committee.

The Chairperson said that this task team report was not available in the university records; in his recollection, was the task team not supported by university officials as is normally the case for all committees of the Council?

Dr Nthambeleni replied that he could not comment on what happened but when he spoke to the secretariat, they had not taken minutes. The minutes shared with the Committee were taken by an EXCO member. In this case, the secretariat did not take the minutes.
 
The Chairperson reminded him that on the 11 May he was unable to answer certain questions that were put to him. Can the Committee now get those responses?

Dr Nthambeleni replied that the Portfolio Committee letter stated that he needed to provide the Committee with the documentation and he has done that.

The Chairperson pointed out that the Committee had resolved to give him time to familiarise himself with the documentation that he needed to read. How long had he been a Council member before his appointment as Vice Chancellor?

Dr Nthambeleni replied that he was a Council member since 2010/11 until 2018. He was a member of two Councils, which meant that he served for a period of almost 10 years.

The Chairperson said that for a person who has served in Council for such a long time, would he agree that person carries institutional memory of that body?

Dr Nthambeleni replied that the statement was relative and dependent on the capacity the person was occupying.

The Chairperson rebutted that as Dr Nthambeleni was a Council member for 10 years and sat through many Council meetings.

Dr Nthambeleni replied that he could not agree or disagree with the statement.

The Chairperson said that documents and records do not tell the full story of the proceedings, how the matter was argued and so forth. When he is the member of a body that takes decisions he will understand and have a better perspective of how the decision was arrived at. Now, he has been a member of the Council for almost 10 years and he was part of the deliberations and knows how certain decisions were arrived at.

Dr Nthambeleni replied that he was requested to provide information based on his capacity as a Vice Chancellor and now he was being asked questions based on his capacity as a Council member. He found it difficult to account for what happened 10 years ago, particularly on the broader scheme of things, in his role as Council member.

The Chairperson asked if he thought it was a fair expectation that he should carry institutional memory and have a better perspective of the deliberations and decisions taken by the Council in his presence.

Dr Nthambeleni confirmed that it would be a fair expectation.

The Chairperson asked if he can confirm that the genesis of his statement was that he could not provide information on matters that happened during his tenure as a Council member.

Dr Nthambeleni replied that he was under the impression that he was invited to provide information or assist the Committee based on his capacity as the University Vice Chancellor not as a Council member.

Mr T Letsie (ANC) said that in the 11 May meeting there was a general consensus that the Vice Chancellor would not be evasive in answering questions. Subsequently the Committee took a resolution to engage again so that he could go back and refresh his memory. If this evasiveness continues, it means that the Committee is wasting time and resources. It looks like he did not get the time to refresh his memory. He asked why the task team report was not in the records of the University.

Dr Nthambeleni replied that there is no record and if there was a record it would have been provided to the Committee. He engaged with the university archives and there was confirmation that it was not available. One of the individuals on the task team was still available but the other had passed away. The Committee could engage that task team member on this matter.

Mr Letsie was still perplexed that the report was not available, especially such an important report. The Council cleared Prof Mbati based on that report. Why is that the 10 April records are lost in the system and why did the University lose such important records?

Dr Nthambeleni replied that in his letter, he provided the Committee with the minutes of the 10 April meeting. That is as far as he could go the 10 April matter.

Mr Letsie suggested that the engagement with the Univen Vice Chancellor should be postponed again and he be given the questions he must prepare for. This engagement was not fruitful nor was it helping the Committee with the inquiry. It is not fair to expect him to remember things from almost 10 years ago, but a date suitable to him can be proposed for him to respond to the questions that he cannot respond to at the moment.

The Chairperson asked if Dr Nthambeleni was willing to help the Committee. Does he still insist that he is above accountability and cannot be held to account on the role he played as a Council member? It is important that the Committee understood how he answered these questions because it will determine the way forward. 

Dr Nthambeleni asked to address the Chairperson as he had raised a number of issues with innuendos.

The Chairperson emphatically replied that Dr Nthambeleni must answer the questions put to him and he can then proceed to say whatever he wants to say.

Dr Nthambeleni replied that he was not refusing to assist the inquiry but he would respond to questions if they were not already responded to by the former Council Chairpersons who appeared before the Committee. Questions that were responded to by the Council Chairperson, he would not wish to respond to them. Furthermore, he is not above scrutiny.

The fact that he a Council member for almost 10 years does not give the Committee the licence to ask him general questions on what happened during all those years. He was willing to respond to specific questions where he could.

The Chairperson said that quite clearly he was a hostile witness, evasive and unwilling to cooperate with the inquiry and he was giving the Committee conditions under which he must be held accountable, as a Council member and now as the Vice Chancellor. We are back to the situation of 11 May – the Committee granted him time because he could not answer questions as he needed to refresh his memory and that was granted. He is here to undermine this platform and give a middle finger to this platform.

In the meantime the Committee would have to excuse him because no progress was being made. Meanwhile, he can consult and find out if he can respond to questions on his stint as a Council member. When he accounts to Parliament, he is accounting to the people of this country who pay taxes. These are the people who pay him as the Vice Chancellor. When he gives the Committee the middle finger, he does not only do it to Parliament but to our constitutional democracy and the citizens of this country at large. One is left with no choice but to wonder how he governs in that institution.

He assured him that the Committee will get him to come back to answer questions. There are legal instruments at the Committee’s disposal. We are determined to ensure that we prevail over him and he will account. No one is above accountability including the President of the country.

Ms N Mkhatshwa (ANC) raised a point of order on the Vice Chancellor. It has been a frustrating hour or two trying to engage the Vice Chancellor. Can we allow the Chairperson to speak and not be disrupted continuously by the Vice Chancellor?
 
The Chairperson welcomed the protection from Ms Mkhatshwa. The Committee will employ all the instruments at its disposal to ensure that Dr Nthambeleni comes before the Committee to account as Council member and Vice Chancellor. The Committee has the time, determination and legal instruments to ensure that the Committee discharged its role to hold the Vice Chancellor accountable. He is not going to insult and undermine the Committee in this platform. He may be excused and all the questions will be put to him and the Committee will ensure that when he comes back he will answer all questions put before him.

Ms Mkhatshwa agreed and registered how disappointed Members were about the Vice Chancellor’s conduct. The Committee was not on a witch-hunt here and the Committee does not want to see the discrepancies that have occurred at Univen happen anywhere else in the sector. The Committee would have appreciated the cooperation of all witnesses. The Committee felt a sense of evasiveness and that he was not cooperating with the Committee. She assured him that the Committee has no negative intent but only wishes to strengthen the sector. It was extremely concerning that it was at this point of this engagement.

The Chairperson dismissed the Vice Chancellor. What type of a Vice Chancellor behaves in this manner. On 11 May we had to adjourn because he said that his memory was evading him. Now he comes before the Committee and treat this platform as if it is his and tries to bully the Committee.

Mr Letsie suggested that the Committee asked Parliament Legal Services to request the briefing letter from Bowmans and Gilfillan. Secondly, the Committee should obtain the name of the task team member to get the task team report. Thirdly, the Committee should look into inviting other Council members who served during that period.

The Chairperson said that the Committee will consult and insist that Dr Nthambeleni comes before the Committee to account. He lives in a world of his own where he thinks he can do just as he pleases. It is the Committee’s duty to bring him closer to the world that he must account to. There will be a very long journey ahead to ensure that all parties understood where they were.

There is also Dr Nthambeleni's appointment as Vice Chancellor but this matter will be looked into outside the inquiry.

Witness: Prof Chris De Beer, Former SMU Vice Chancellor
Prof De Beer read out his statement which covered details on whether SMU complied with due process in the appointment of Prof Mbati as Vice Chancellor.

The Chairperson commenced that there was confusion when he was invited. The Committee did not invite him to give an account on the appointment process of the current Vice Chancellor because that information is not within his knowledge. The Committee invited him to talk about the application that was made by Prof Mbati for a position at the University.
 
The Chairperson asked the exact date the decision on his application for the position of Director. When was the decision taken?

Prof De Beer replied that it was taken during 2017 but he did not have the date. He tried to get access to the SMU records to refresh his memory but he could not as the Registrar indicated that it was misplaced. He confirmed that Prof Mbati applied and was interviewed and no candidate appointed and it was his responsibility to make the final decision.

The Chairperson asked what influenced him to make that final decision.

Prof De Beer replied that it was the unresolved matter of the sexual harassment allegations against Prof Mbati.

The Chairperson asked at what level was the position in the hierarchy of the university.

Prof De Beer replied that it was senior management, which was on level four.

Mr Letsie asked when in the appointment process did he decide to abandon this process.

Prof De Beer replied that the shortlisting and interviewing took place and the matter was then submitted to his office for approval but he decided to not appoint a candidate including Prof Mbati. It was public knowledge at that stage that there was a dispute involving Prof Mbati on sexual harassment allegations. As the Vice Chancellor of the University one have to manage risks of the university, not only reputational risks but also risks within the university. As outlined in his statement, the sexual harassment allegations moved him not to appoint any candidate rather than appointing somebody that may not be able to function internally with the required legitimacy.

Mr Letsie said that the former Vice Chancellor Prof De Beer could have simply disqualified Prof Mbati and continued with the process unless the panel would have recommended him.

Prof De Beer replied that there was no suitable candidate among those that applied. There was no candidate that would fit the position, in his view; the University had just established a new department of institutional advancement and internationalisation. He was looking for somebody that was strong and would provide legitimate leadership internally. At that stage, he was of the opinion that there was no candidate among those that had applied.

In Prof Mbati’s case, there was the sexual harassment matter, which was in the public domain and thus he felt that it was not appropriate to appoint him.

Mr Letsie asked if the process was not restarted on the basis that he was the preferred candidate.

Prof De Beer replied that he wanted to refresh his memory by obtaining the University records but that could not happen. However, from his background and experience, he was a strong candidate for appointment. The outstanding sexual harassment matter would not allow that appointment to be made in terms of what is in the good interest of the University – the staff and the students.

Mr Letsie asked if the labour court case motivated the decision of Prof De Beer

Prof De Beer replied that was not the only matter he looked into but also the CGE who made a pronouncement on this matter. He did not follow Prof Mbati that closely but in the public domain there was the sexual harassment matter that was in existence.

Mr Letsie asked if there were no allegations at the time, does he believe that Prof Mbati would have been appointed?

Prof De Beer replied that he was doing well in networking for the University of Venda and through that networking he was able to secure funds for the institution. He also possessed extensive experience in senior management. He was also aware that he was about to retire from Univen and he was looking for an energetic individual that would make an impact in terms of developing strategy and fund-raising to up the third stream of income for the university.

Mr Letsie asked at the time of Prof Mbati's appointment as SMU Vice Chancellor, did he think those allegations were now cleared?

Prof De Beer replied that he was not intimately involved in the appointment process of Prof Mbati as SMU Vice Chancellor. He read out paragraph 12 of his statement, which were his opinions on the matter.

Looking at the environment of higher learning and certain permutations around ‘marks for sex’ and other such issues – that is a very important matter in higher education. Now, if there is something around a person in this regard that may not qualify one to be appointed in a senior management or in any management position for that matter in the context we have in this country, even if the matter has been resolved, it may still have an impact on functioning effectively and dealing with the views of people within the university on these matters. It is a very vulnerable environment.

Mr Letsie asked if he were an SMU Council member, would he have considered appointing Prof Mbati.

Prof De Beer replied that in the spirit of fairness, on the conclusions reached, we need to ask the question, ‘what was put before the SMU selection committee and what advice did the selection committee get on whether this matter was resolved or not?’ It seems that the labour court judgment does not resolve the matter completely and he wondered if the SMU selection committee was advised correctly. However, in his personal convictions, he would not have supported the appointment.

Mr Letsie thanked the former Vice Chancellor and said that it may not have been fair to ask him this question. He apologised if that put him on the spot. What are his views on a senior executive dating a subordinate?

Prof De Beer replied that it would be problematic for the organisation as it would give space for certain perceptions about preferential treatment. He would not approve of that and something must be done by the institution to ensure that it is not something that can be toyed with within the institution. He has seen incidents in the institution where relatives were appointed but he ensured that this was disclosed.

Mr Letsie said that some of the witnesses occupying leadership positions in the institution have come out and said that they did not see anything wrong with that.

Prof De Beer replied that there is the power of perceptions and sometimes perceptions are not always aligned with the facts.

The Chairperson thanked the Professor for his assistance.

Witness – Ms Genevieve Michelle / Mr Jimmy Wayland - Academic Partners directors
Ms Michelle read out the statement and outlined the recruitment process conducted in the Vice Chancellor appointment.
 
The Chairperson said that the Council Chairperson was asked how Academic Partners was appointed and she replied that there was full compliance with SMU supply chain management. She stated an advert was issued and Academic Partners responded. Evaluation was conducted and a decision taken. She did not mention that Academic Partners submitted a proposal.

Mr Wayland replied that it is a hybrid of the version. The SMU Director of Human Resources sent us the request for quotation (RFQ) along with a statement saying that an advert had been put in the public space and asked us to respond accordingly. We provided a quotation but we were also advised that the advert had been put out in the public space. The reason the SMU Director of Human Resources sent us the RFQ one would suspect was that it was mainly due to our track record in placing vice chancellors.

The Chairperson said that the two versions could not both be true. Moving right along, the Committee accepts this version as the correct one.

Secondly, the candidate, Prof Mbati placed at Univen by Academic Partners as well as at SMU as Vice Chancellor, was giving the Committee a tough time. He asked, seeing that there was prior interaction with Prof Mbati, is there any form of disclosing in the appointment process or is it something that is not relevant.

Ms Michelle replied that in its presentation Academic Partners covers the history of appointments it has done and who the appointed candidates were.

Mr Wayland replied that at the time the Univen Vice Chancellor appointment process not in a good state and Academic Partners was approached by the then Acting Vice Chancellor or Administrator to go through a robust process to find an appointment for the University of Venda. Academic Partners had not met Prof Mbati, but he was the appointable candidate at that time. The process is robust and there is no variation in the process to accommodate certain individuals.

The Chairperson said that Academic Partners (AP) was appointed and a number of people were approached to apply. AP submitted a list for the initial process, some candidates were turned down and AP was requested to go out and find a pool of female candidates.

Ms Michelle replied that that was correct but it was not exclusively female.

The Chairperson asked if Prof Mbati’s name was one of the candidates that was being looked at.

Mr Wayland replied that he had remained on the list from the first pool of candidates. It was possible that he was being used as a benchmark.

The Chairperson asked if candidates were identified.

Ms Michelle replied that there were two female and two male candidates, but one of the female candidates dropped out from the list.

The Chairperson said that there was a concern about the Prof Mbati disclosure and how that was handled and disclosed.

Ms Michelle replied that when the candidates submitted their application they signed a consent form and that declaration was on the consent form. Prof Mbati submitted all the documentation on the matter and the outcomes – there were about seven documents included. AP also obtained four references although we normally contact three. One of the referees spoke about the allegations at Univen and that he had been cleared. The referee who said that was Council Chairperson, Ms Shirley Mabusela.

The Chairperson asked which documents were submitted by Prof Mbati.

Ms Michelle replied that it was the Deloitte final report, labour court judgment, the communiqué on the labour court ruling on Prof Phendla, the judgment for application for leave to appeal, the labour court ruling, the apology from City Press and brief statement in a newspaper article on sexual harassment.

The Chairperson asked if he brought to AP's attention that there was an ongoing CGE investigation.

Ms Michelle replied that he had mentioned it but in her view the fact that he submitted all the documents and was cleared it did not influence anything.

The Chairperson asked when he mentioned the CGE investigation.

Ms Michelle replied that it was around the time when the City Press issued an apology. She was uncertain what that CGE investigation was about.

The Chairperson asked if the non-submission of that CGE information was not important to her.

Ms Michelle replied that it did not occur to her to ask as he had provided all the information on the matter and that he was cleared.  She did not know the entirety of the situation on CGE. There were also references from two Council Chairpersons about the investigation but nothing on the CGE. If this had been highlighted, AP would have sought more information.

The Chairperson mentioned that there was an issue with how SMU handled the matter. Was Academic Partners not furnished with this information?

Ms Michelle confirmed.

The Chairperson said that normally when candidates do not disclose this kind of information, what steps are taken to ensure this information is obtained or does Academic Partners simply rely on what the candidate provides to it?

Ms Michelle replied that the investigator had a look into the matter and at the time there was no criminal offence and the fact that he had been cleared by the labour court, we felt that there was no need to probe further. If the client had not disclosed this on the consent form, then it would have raised eyebrows.

Mr Wayland added that the process works on facts. Where there is a speculative matter in the public domain, AP would approach a former colleague from Deloitte to look deeper into what is being said in the public. On this matter, our investigator did not pick up anything that was alarming in any way.

The Chairperson commented that the investigator was unable to pick up that there was a CGE report which was taken on review by the Council and that there was a court outcome on that.

Ms Michelle replied that there was nothing about CGE that was picked up at the time.

The Chairperson asked if AP would have been interested to know how Univen handled the complaint by Prof Phendla.

Mr Wayland replied to say that absolutely but the fact that there was exoneration is the approach that we used. However, in our presentation we did share light on it.

The Chairperson said that the CGE recommendations were not set aside, so they were still standing but the court excised some parts of the report.

Mr Wayland replied that at the time AP would have made a decision based on information that was available at the time. We did not know about this at the time and the forensic investigator did not point it out. If we had known about the CGE report, we would have asked our investigator to look into the matter to provide further information.

The Chairperson said that AP was not aware of this information and how the Council handled how everything had happened.

Ms Michelle replied that all she knew was that the Council had cleared Prof Mbati of the allegations. Ms Mabusela had also confirmed that Prof Mbati had been cleared of the allegations by Council in her reference report.

The Chairperson said that this statement by Ms Mabusela was not correct. If a candidate does not disclose all the necessary information; what is the situation where full and sufficient disclosure was not made by a candidate? Does AP think that omission by a candidate is material?

Mr Wayland replied that we can only work on the best relied information available at hand and to use the source of that information. If the gender issue was of substance and we knew about it we are obliged to give that information at a presentation. However, the Committee can appreciate that we did not only consult a forensic investigator, but also conducted background checks from a third party called MIE and did four references as opposed to three. The information that emerged was the one of the reference mentioned by Ms Michelle. It is unfair to comment on whether it is material or not this depends on the substance and we did not have access to that. If it is of particular high level of substance, then it is material. If it is something that is not proven and is still out there, we are incumbent to present it to Council.

The Chairperson explained that he was asking to get a sense if AP felt that it was material to be disclosed.

Ms Michelle agreed that it was material.

The Chairperson asked what it constitutes if the candidate fails to disclose material information.

Mr Wayland replied that at the time if there was nothing done which was material and there would be nothing to declare, either by us or anyone else.  It is unfair that the witnesses are now being asked. If they had this information at the time, it would have been looked at as material. All we could do at the time, we presented what we knew and at the time we did not have this new information.

The Chairperson said that this information should have been presented to the Council at the time because it would have influenced Council members to make an informed decision. It is important for Council members to know this information. This information should have been disclosed by Prof Mbati himself.

Mr Wayland replied that it subsequently became material.

The Chairperson asked who the referees were.

Ms Michelle replied that it was Ms Shirley Mabusela, Mr Bernard Nthambeleni, Mr Serobe Maja and Sidwala Amenda. There was a referee report from Mr Nthambeleni and Ms Mabusela and Mr Maja who gave him excellent but indicated that he did not work with Prof Mbati closely but liaised with him as Council Chairperson. As for Mr Amenda, he said that he knew Prof Mbati since 1999 and worked with him in a previous institution.

Mr Letsie said that after going through the company profile he felt that it was impressive. On recruitment, what does it mean to AP to do a reference check?

Ms Michelle replied that reference consultants would provide a template that must be filled in by the referee. There are certain questions where AP asks the referee as well as the rating of the competences, which forms part of the assessment.

We have to get consent from the candidate if we can contact the referee. This is within the law. There is also an intuitive referencing, which is purely based on judgment and how the referee responds to us. If we are of the opinion that the credibility of the referee might be in question, we go back to the candidate to ask for additional referees.

Mr Letsie asked if AP believed that the referee system cannot be beaten. He needed to get a sense of how the process works and what it entails in general.

Mr Wayland replied that there is no such thing as a waterproof or airtight reference checking process. It cannot be made as a stand-alone process that may lead to appointment. It is a process that can be flawed but by applying certain methods we have developed to help get closer to understanding the candidate and the referee, any inconsistencies are followed up on. There is also the option to take it to the forensic team for further investigation.

Mr Letsie asked for details on the process of the background checks.

Ms Michelle replied that it conducts a Google check to see if there was anything in the public domain; at the minimum the relevant qualification verification; credit report from four different credit houses; and a criminal check against the ID. If anything comes out positive, it is handed over to the investigator to expedite the report and then we check the consent form to check if the candidate has made any declaration.

Furthermore, we conduct an anti-fraud check and directorships through MIE. For the candidate that is appointed, we then check the qualifications.

Mr Letsie asked when the background checks were conducted on Prof Mbati, what was found.

Ms Michelle replied that nothing that was picked up from all the processes outlined in the previous response. All those checks were completed before the interviews.

Mr Letsie asked when the sexual harassment case was declared.

Ms Michelle replied that it was declared upfront before the presentation was made to the selection committee. This was during the assessment of the application of the candidate and on the consent form. All the reports were included in the presentation.

Mr Letsie asked if AP was provided with the labour court ruling.

Ms Michelle confirmed that it was provided.

Mr Letsie said that the AP presentation indicated that Prof Mbati was interviewed telephonically, but there was a lady that could not be interviewed because her mother was ill. Did she also get the option to have a telephonic interview?

Ms Michelle confirmed that this was correct because Prof Mbati was in Botswana. As for the lady, she had indicated the day before that she could not attend the interview but we did present the option of a telephonic interview, which fell by the wayside.

Mr Letsie said that in the fitness presentation on Prof Mbati, AP’s observation of him was excellent through knowing him a number of years.

Ms Michelle replied that was in the Fit Report and that observation came from having known him from an extended period of time, from when he was appointed at Univen.

Mr Wayland added that on the Fit interview, he had seen the University of Venda transform from a dire state to a viable, credible institution and it is based on that leadership where one makes that observation or comment. As a supplier referee, he would rate Prof Mbati highly.

Mr Letsie asked how AP dealt with conflict of interest when dealing with candidates that have been placed before by the company.

Ms Michelle replied that the company has an ethic where it does not approach candidates that work for current clients. This is why the Director of HR had reached out to AP directly. As for Prof Mbati, his term had ended at Univen and he expressed availability as a candidate and at the time he was working in Botswana. She then approached him.

Mr Letsie submitted that it remained clear then that Mr Wayland had a close relationship with Prof Mbati and has known him for quite some time, hence he wrote so well about him in the ‘Fit Report’. How many candidates who were shortlisted did AP work with before?

Ms Michelle replied that it was Prof Moche for a Vice Chancellor assignment and Prof Sonke had also applied for another Vice Chancellor assignment AP was working on. They were both newly acquainted but that was not the case for Prof Mbati being involved in his appointment at Univen. Prof Mbati was one of the first candidates that she approached knowing that he would meet the requirements but he was also subjected to the same processes as the other candidates.

The Chairperson asked about the relationship between the Vice Chancellor and his subordinate. Does AP think it is ethical to have a Vice Chancellor engaging in that type of relationship, consensual or otherwise, with a subordinate? What does it think about the ethics of that kind of relationship?

Mr Wayland replied that it was not fair to answer questions that relate specifically to the sexual relationship that any human being has with any other person. Therefore, AP ventures no comment.

The Chairperson asked the question in general terms not in relation to Prof Mbati. These are people AP is responsible for placing and we are simply asking its opinion on the matter.

Mr Wayland replied that there was no opinion because that it is outside the bounds of what AP does. AP looks at the competence of a person's qualifications and experience. The company does not delve into personal relationships that people might or might not have. It is a dangerous area for the company to venture into. With all due respect, no opinion will be ventured.

The Chairperson asked if it would be correct to assume that AP does not have an opinion on matters that border on the ethics and conduct of the senior personnel that it places.

Mr Wayland replied that it depends how the ethics are defined. If it is based on work ethics AP can have an opinion but it does not delve into venturing opinions on the personal side. It would be unethical to delve into the personal side when AP looks at somebody from a professional side.

The Chairperson said that the relationship that happens in the workplace affects the workplace. These matters end up creating problems for the workplace.

Mr Wayland asked hypothetically if Prof Mbati were to be considered for a position, is it ethically correct for AP to report on a relationship he had with a subordinate? The answer is clearly no, because it is outside of our responsibility to look at the credibility of the individual to perform on his job. So, in future, do we consider it material to present it to a client? The answer is also no because it is outside our area to delve into the personal business of clients. As a witness to a specific case, we are being asked to cast an opinion and we do not have an opinion.

The Chairperson said that he thought that a professional outfit like AP that prides itself for placing so many professionals at a high level would be concerned about matters of conduct, both professionally and personally; matters that bring disruption to the person and the company. Clearly AP is not concerned about those matters.

Mr Wayland replied that if an outcome is material and impacts on the future work relationship, AP will highlight it. In this context in how this is being asked and suggesting or alluding that this might be unprofessional, is both unfair and unnecessary.

The Chairperson said that he was asking for an opinion and that opinion would be central to matters that AP would have to consider. As for the court judgment, the court in its judgment said that there may have been a relationship, which like other relationships hit rock bottom. Why did AP not bring this to the attention of Council?

Mr Wayland replied that what happens prior to the presentation is a full zip folder is provided with all the relevant information that is available at the time. When the presentation commenced, Council members were informed that all the documents were provided and they were asked to raise specific questions pertinent to the candidates. What we would have done is draw questions  surrounding Prof Mbati and elicit questions which any of those panels would have asked.

The information on the court judgment – particularly what the judgment said on the sexual harassment matter – all that information was brought to the attention of the Council because it was part and parcel of the documents submitted to Council.

The Chairperson asked if he knew that the CGE report also made a similar point that there was a relationship between Prof Mbati and Prof Phendla. Did he see the mediator report and the Council resolution clearing Prof Mbati?

Ms Michelle replied that the only document she saw was the communiqué on the labour ruling on Prof Phendla, but as for the other documents she did not see them.

Mr Wayland sought clarity on whether these documents were before or after the AP presentation to Council.

The Chairperson said that all these matters happened before Prof Mbati was recommended by AP. The CGE report and its review took place when Prof Mbati was at Univen, even the mediator report and the clearing of Prof Mbati by the Council happened when he was still at Univen.

The Chairperson said there was an allegation that was reported widely but the only thing that AP relied on was the labour court judgment but even that judgment was not considered in its entirety by AP. It seemed suspicious that AP did not want to go to Univen to find out what happened at the university about the allegation.

The Chairperson said that AP also did not get information about a crucial investigation by a Chapter Nine institution, which issued a report. Prof Mbati then says he was cleared by Council and one of the referees confirms this but AP did not look at the resolution that cleared him and the supporting documentation. All that was relied on was the labour court judgment which was not read in full.

Ms Michelle replied that she could admit that the PowerPoint presentation was not explicit about the allegations but the fact that the information was provided puts the onus on the selection committee to read the information and the documents. The input from the Council Chairperson was the same and corroborated the information that AP gathered.

The Chairperson welcomed the response and submitted that AP ought to have mentioned the salient matters outlined in the judgment. He asked if she thought it was the service provider’s responsibility to summarise the salient matters in the documents.

Ms Michelle replied that the Chairperson was correct for thinking that way.

The Chairperson explained why he asked sought an opinion from AP on senior management dating subordinates. The court, the CGE, and the mediator came to the same conclusion that there was a consensual relationship between Prof Mbati and Prof Phendla. Dr Chitereke also confirmed this when he confronted Prof Mbati about the matter. When Council looked at the mediator report it also accepted that there was a relationship and the matter was considered closed.  The ethics of this relationship has created all these problems. If AP delved deeper in understanding the background to this matter, especially matters of this nature, then when AP goes to the SMU Council it provides a complete picture of what had happened. There were a lot of documents that AP had not seen about the allegations. After having been exposed to all this information, can AP still state that it conducted an extensive background check?

Ms Michelle replied that it remains clear that there was more information that should have been obtained; AP should have obtained that information. However, having spoken to two Council chairpersons about this, if they had raised this matter with AP, AP would have looked into the matter much deeper.

The Chairperson said that the point is that this information is crucial and material in the appointment of a candidate. There is no need for us to fight over something that is clear. The Committee was not putting AP on trial, but sought assistance on the matter.

The Chairperson asked if AP has ever placed a candidate who was later disqualified or dismissed from employment because of information that surfaced after the recruitment process?

Mr Wayland replied that it has not happened and our track record is above 90% in placement of senior personnel. AP’s credibility and track record is impeccable.

The Chairperson asked if AP thought, with the benefit of hindsight, that there was not a thorough investigation on sexual harassment allegation due to the fact that he was known for a long time.

Mr Wayland replied with a resounding no.

The Chairperson said looking particularly that there was so much information on this matter that was not uncovered, what could be the reason? It could have been an oversight but what could have attributed to this information not being picked up?

Mr Wayland asked Ms Michelle to indicate what was presented to Council as part of the package of documents for its consideration.

The Chairperson interjected and said that there was so much information that has now been brought to the attention of AP. How could AP have missed all of this?

Ms Michelle replied that there was nothing that triggered a deeper investigation into the matter.

The Chairperson indicated there is consensus that there was relevant information that was not considered due to an oversight. We do not know the reasons this information could not be uncovered and brought to the attention of Council. He thanked the witnesses for their input. He requested Mr Letsie to take over chairing the meeting.

Witness: Dr Reginald Legoabe - Higher Education Transformation Network (HETN)
Dr Reginald Legoabe, HETN Board Chairperson, submitted the statement which covered the recruitment process of the SMU Vice Chancellor; fitness of Prof Mbati to hold the office of Vice Chancellor; alleged procurement misrepresentation; abuse of university resources for personal legal battles; and inflation of salary, amongst others.
 
Mr Letsie indicated that this was a repeat appearance at the inquiry by Dr Legoabe. Some of the things he raised, which were put before the SMU University, were denied by the Council. HETN has alleged again that the Council conducted interviews through a virtual platform and voting was not through a secret ballot. The University told the Committee that it had a service provider conduct the interviews.

 Dr Legoabe replied that by saying the ‘University’ he referred to the selection panel.

The Acting Chairperson asked if the selection panel did the interviews virtually.

Dr Legoabe replied that the submission by the SMU Council Chairperson and Registrar were noted but HETN stands by its assertions. The statute of the University is clear that voting must take place by a closed ballot. The voting took place through a virtual platform, which offered no secrecy or privacy and confidentiality of voting by the Council. When a provision of the statute is clear, one cannot choose to appoint a Vice Chancellor through an electronic platform.

Mr Letsie said the University Council stated that there were about 12 to 15 members on the selection panel. Does he know the correct number?

Dr Legoabe confirmed that 12 to 15 members was true.

The Acting Chairperson asked how HETN knew that the interviews were held virtually.

Dr Legoabe replied that it was through its members based at SMU and there was a letter that specifically indicated the platform that was going to be used to conduct the interviews. Whether or not it was held via Zoom or Skype or Blackboard, the statute is clear in its provision on an important administration action that voting by Council must be conducted through a closed ballot.

The Acting Chairperson asked if Network members were part of the selection panel that conducted the interviews.

Dr Legoabe replied that it was the members of the minority union who should have been part of that platform and we have been furnished with the records that support these assertions. We had a reasonable apprehension that this administrative action was unlawful. For example, the correspondence from the Registrar on the suspension of one chairperson of the institutional forum in a letter dated 10 February 2020, was some of the records shared with the Network and that suspension was subsequently revoked and hence the apprehension that this process was flawed.

The Acting Chairperson asked for the list of those who were part of the selection panel who can attest to the claims that the voting took place through an electronic platform.

Dr Legoabe replied that this information would be requested.

The Acting Chairperson indicated that the reason he was asking for this information was because the Council Chairperson told the Committee that the voting was done through procuring a service provider. The voting was said to be on a closed ballet.

Dr Legoabe replied that from the understanding of the records file and the testimony, SMU conducted voting via blackboard and there was a service provider at hand who was appointed to audit the voting process. The issue remained that the Council did not comply with the provision of the statute as far as Council voting was concerned.

In his understanding, the fact that voting took place on an electronic platform, which is subject to all sorts of malfeasance and there is no record filed by the service provider alluding to the integrity of the process. It is merely mentioned in affidavits about what happened.

The Acting Chairperson said that this would be followed up. There is a letter in his possession dated 13 May 2020 from the Registrar denying information that HETN had requested pertaining to the appointment process of Prof Mbati. Was this letter sent to the Committee as part of the attached documents?

Dr Legoabe replied that the letter was sent to the Committee.

The Acting Chairperson said that the Committee asked the Council Chairperson why the Network was denied information and she said that the Network was not denied information, it was rather requested to follow the PAIA Act.  

Dr Legoabe replied that the initial letter was succinctly clear that the Network was humbly requesting the information and what followed was a blunt refusal to comply with the PAIA Act. This was unfortunate because the Council of SMU did not wish to subject themselves to public oversight as envisaged by the PAIA and PAJA Acts. Hence, we then wrote to the Committee to complain about this matter so that we were able to engage based on facts.

Mr Letsie asked if he can confirm that the Council Chairperson misled the Committee.

Dr Legoabe replied that she was economical with the truth. They bluntly refused to comply with the law.

Mr Letsie said that HETN also alleged that they suspended the director of procurement who was the Institutional Forum chairperson from participating in Council activities including the Vice Chancellor appointment.

Dr Legoabe replied that on 30 July 2019, according to a letter at our disposal, the director was lawfully placed under suspension for misconduct. We were furnished a suspension extension letter issued by the Registrar. The suspension was extended but yet a letter from the Registrar was issued to allow the suspended director to be the Institutional Forum chairperson.

Ms J Mananiso (ANC) asked if HETN has had any conflict with Prof Mbati when they worked together.

Dr Legoabe replied that he has never worked with Prof Mbati. His engagement with him was based on the sexual harassment matter. When the engagement on this was ongoing, part of the frivolous litigation HETN was subjected to was Prof Mbati attempting to interdict HETN using public funds of the institution in 2017 due to our advocacy work in support of Prof Phendla. The professor who was an Univen employee laid criminal charges and the investigation was still ongoing.

Ms Mananiso said during his appearance at this inquiry on 19 February 2021, Dr Legoabe alleged that a Deloitte forensic report – that was used to charge and dismiss Prof Phendla – was later retracted. Can he provide supporting evidence for this allegation within seven days?

Dr Legoabe replied that the evidence was provided but he will provide correspondence from Deloitte basically disowning the very same report used to charge and dismiss Prof Phendla. The Committee can be furnished with that correspondence.

Ms Mananiso referred to the alleged pending fraud case against Prof Mbati. The evidence provided by Prof Mbati to the Committee proved that there was no case against him personally. Does he have any evidence contrary to that?

Dr Legoabe replied that in his engagements with the whistleblower on the letter provided by Prof Mbati,  it transpired that this letter was issued by a Colonel Lesufi who was in fact retiring from the Hawks in Limpopo. The current status is that the investigation was still ongoing. We requested the whistleblower to provide the evidence, which they did and this evidence will be shared with the Committee.

Mr Letsie said that the very same report that was disowned by Deloitte was utilised by the recruitment agency as proof of his exoneration by the Council.

Dr Legoabe replied that that is true. There were so many representations that have taken place and if one were a third party, being presented with this record, it would motivate a different view. From his perspective it is unfortunate that Prof Phendla could not litigate as rigorously as she should have done but could not do so due to the imbalance of resources. She was litigating against a party who was armed with state resources. HETN has since taken a decision with its limited resources as an NGO to assist Prof Phendla to appeal the matter in the Constitutional Court.

Mr Letsie as Acting Chairperson gave Dr Legoabe an opportunity to give closing remarks.

Dr Legoabe said that it was not by choice HETN submitted the complaint to the Committee but after so many attempts to request the information we were left with no choice. Had the requested information been furnished, things would not have gotten this far. There seems to be a failure to appreciate the constitutional implications of responsibilities and vice chancellors are not above constitutional oversight in the country. Hopefully, such challenges within the sector will change and improve. HETN will support Prof Phendla at the highest court of the land to bring justice to this matter.

The Acting Chairperson thanked the witness. He commented on the behaviour of Dr Nthambeleni, which was unacceptable and that the Committee would follow up on it.

The meeting was adjourned.