Committee Report on SMU Vice Chancellor Inquiry: deliberations

Higher Education, Science and Technology

10 December 2021
Chairperson: Ms N Mkhatshwa (ANC)
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Meeting Summary

Tabled Committee Reports

The Committee met to consider its Draft Report on the Committee Inquiry to look into various matters at the University of Venda and Sefako Makgatho University dealing with a sexual harassment case, appointment of Vice Chancellor and abandoned infrastructure projects.

The Committee Researcher briefed the Committee on its observations and findings:
- The University of Venda Council misdirected itself from its policies, especially the sexual harassment policy;
- Challenges in the sexual harassment case were created due to gaps in the policy on how to handle cases that the level of Vice Chancellor;
- Prof Mbati was allowed to take the CGE report on review without a Council meeting and approval;
- The irregular appointment of Ms Phendu as HEMIS Officer was engineered by Prof Mbati. He exercised influence to advertise the position without the requisite qualifications although she possessed the skills;
- Ms Phendu did not have the requisite qualification and was not honest about this.
- Prof Mbati was not a director at Black Capital as previously alleged by the Department of Higher Education and Training (DHET);
- There was no evidence that the Sefako Makgatho University recruitment process of Prof Mbati as Vice Chancellor was flawed or done hastily.

Parliament's Constitutional and Legal Services Office (CLSO) discussed the powers of a parliamentary inquiry and the legal advice it had provided.

The African National Congress made a submission on the recommendations it wanted included in the Committee Report. The FF Plus and the Democratic Alliance requested time to go through the Report before submitting inputs and recommendations. The Economic Freedom Fighters supported the preliminary report.

The Report was adopted as a preliminary draft report until all parties had submitted their inputs and Parliament's Constitutional and Legal Services Office had ensured the recommendations were legally sound.

Meeting report

The Chairperson said the Report was finally completed and the research team would give a briefing.

Committee Report on SMU Vice Chancellor Inquiry
Ms Mamphago Modiba, Committee Content Advisor, said that putting together the report was a long process and today was the last part of the process. There were so many eyes that went into looking at and reviewing the report. In the analysis of the information and all the documentation presented before the Committee, the team was able to analyse and arrive at some observations that the Committee would engage on and it proposed some recommendations for consideration.

She commenced with the sexual harassment case lodged by Prof Thidziambi Phendla against former University of Venda Vice Chancellor, Prof Peter Mbati and the manner in which the University of Venda handled this matter. Working with evidence presented to the Committee, it was clear that the University of Venda’s Council misdirected itself based on its policies, especially the sexual harassment policy.

• After receiving the mediation report in 2011 which was inconclusive, Univen put it aside instead of implementing a process, saying it was waiting for the outcome of external processes in order to move forward. The policy did not provide for the internal process to wait for the external process to be concluded. This was one of the failures identified.

• It was noted that Prof Phendla was dismissed two days before the mediation report was submitted to Council. As a result, Prof Phendla was no longer covered by Univen policies and could not be provided psycho-social support. The Human Resources unit could not call for the Vice Chancellor's submission. There were also inconsistencies in the submissions that were made – it was said that Human Resources was supposed to take action but the HR Director said that it was not within its purview because the Vice Chancellor was accountable to Council. Throughout this process, these challenges were created by gaps in the sexual harassment policy because it did not clearly provide for cases that involved the Vice Chancellor. In some cases Univen officials said that the policy is only applicable to employees, which would cover the Vice Chancellor, but there is no clear process. The former Chairperson of Council's Human Resources Committee said that these challenges were noted when they were confronted with the case but they did not amend the sexual harassment policy until recently. This matter commenced in 2011 and only now in 2021 was the policy addressed.

• It was irregular for former Univen Council Chairperson Maja to authorise the Vice Chancellor to refer the Commission for Gender Equality Report for judicial review without a Council resolution. Although Mr Maja wrote to Council members there was not any formal process for the Council to consider the Report. There was a provision to call for a special meeting but it was not done. We also analysed that Prof Mbati was conflicted in the matter but Council did not look at the matter of conflict of interest and allowed him to challenge the Report and set it aside.

• The court ordered CGE to excise sections of its report but the recommendations still remained. One of the court directives called for a second mediator’s report and based on that report it exonerated Prof Mbati on the basis that there was a consensual relationship between Prof Phendla and Prof Mbati. However, later on Prof Mabti went back to court to review the mediator’s report to set it aside in totality. There was the failure by Council to oppose the court application by Prof Mbati to review and set aside the second mediator’s report. When the Committee put this matter to the former Council Chairperson, there was an admission that in hindsight there was fault on the Council’s side.

• Most of the time matters were happening without the knowledge or the resolution of Council and one of those was the proposed financial settlement.

• There was the matter of Ms Phendu employed in the Univen position of Higher Education Management Information System (HEMIS) Officer. This position was first advertised in 2008 and in 2009 for the second time. Prof Mbati wrote to the HR Director recommending that the position be advertised as soon as possible and the requirement be crafted in a manner that it did not clearly state the skills. It was crafted in a manner that Ms Phendu had the skills but not the qualification for the position. After the correspondence between the HR Director and the VC, Ms Phendu was employed despite not submitting her qualifications. She claimed to have the qualification and the university did not verify this qualification. In her statement, she said on the day of shortlisting for the position, she received a call from the Registrar saying her application was nowhere to be found and asked her to resubmit. She lied to the university as well as to the Committee about her qualifications. We wrote to Damelin national office to obtain her qualification confirmation as she did not even provide the name of the Damelin campus. Damelin wrote to the relevant campus and the campus confirmed that she only did a short learning course and did not pass it; hence, she was not given a certificate. It was not a diploma qualification.

• On infrastructure development, the Department made allegations against Prof Mbati citing he was the director of Black Capital. We caution that the Department should not make such allegations without following due process because Prof Mbati was not a director of such a company. The Department did not implement consequence management on the University when it failed to obtain the Minister’s approval for infrastructure development of more than R2 billion.

• On the appointment of Prof Mbati as the Vice Chancellor of Sefako Makgatho Health Science University (SMU), the evidence provided to the Committee and oral testimony showed that there is no evidence to support the recruitment process by the institution was flawed or done hastily. The recruitment process took over 12 months and that was not hasty. We also did not find evidence that the virtual platform voting system used was not secret as alleged by the Higher Education Transformation Network. There were gaps in the Vice Chancellor appointment policy as disclosure information on any matter by a candidate was not provided to the Senate to consider before Senate members vote on the suitability of the candidate. In terms of the disclosure, Prof Mbati did disclose the sexual harassment matter but not the entire case. There were documents missing that were critical and should have been submitted to SMU. He also did not submit the Council minutes where he was exonerated on the basis of the mediation report findings that he had a consensual relationship and there was no prima facie evidence supporting the sexual harassment claim.

Parliamentary Legal Advisor input
Ms Fatima Ebrahim, Parliamentary Legal Advisor, commented on the inquiry process. The Committee was bound by the Constitution to conduct oversight. With that said, oversight is not intended to be a judicial process – the oversight function of Parliament is not intended to be a judicial function. The role is not to determine if a person is guilty or not. There are no legislative powers to remove a person from a position or penalise anyone. Our rules do outline that a Committee can conduct inquiries for the purpose of oversight. The rules do not specify the manner in which an inquiry must unfold but Parliament's Constitutional and Legal Services Office (CLSO) advised from the beginning that the Committee adopt terms of reference. We also advised that before the adoption of the Final Committee Report, all affected parties must have an opportunity to comment. It was unfortunate that some of the affected parties did not.

The draft report is balanced, it analyses the facts that were made available to the Committee and makes several recommendations about the Higher Education sector. The inquiry was not about any one individual but whether there were gaps in the way the SMU and Univen conducted certain business and how these can be resolved for the betterment of other institutions. This has certainly been achieved. This report, once adopted, will be the first of many processes – it will require additional oversight going forward and amendments to the law. The proposed amendments are included in the report.

Even if the Committee Report is adopted today, it was not the final report that can be put before the National Assembly.

Discussion
The Chairperson thanked the research team for the hard work put into this Report. It was a long and difficult process.

The Chairperson asked if witnesses were allowed to circulate the report when it was shared with them for their engagement.

Ms Ebrahim replied that it was already indicated that this was a draft report. Once it is adopted there would be no reason not to share it.

The Chairperson asked Members for engagement. The Committee would adopt a report that speaks to how the inquiry went and its recommendations. The report would be proof read in December and Members could continue sending their recommendations to amend the report. It would assist the process if Members submit in writing recommendations in a manner that reflect what transpired during the inquiry. Before the Report was circulated to the affected parties, it must be refined to the last detail.

Ms D Mahlatsi (ANC) submitted that some of the ANC Members were not part of the Committee at the time of the Inquiry. We will make a formal submission but for purposes of record in this meeting we will allow Mr Letsie to make the submission from the ANC component of the Committee.

Ms J Mananiso (ANC) supported Ms Mahlatsi.

ANC submission on the SMU Vice Chancellor Inquiry
Mr Letsie presented the ANC submission on the Report. On Part A (Univen) of the inquiry, we agree that there must be an apology by the current Council on how it handled the sexual harassment case and that apology must be extended to the Committee. It must be sent to Prof Phendla and published on the website. There must also be an appropriate compensation to be determined by Council on how the university treated Prof Phendla on the serious matter of sexual harassment – it could be a three or six month salary. It also recommended to DHET to bar Council members who fail in their fiduciary duties. Some of these council members may be council members in other institutions. Within three months of adoption of this Report by the National Assembly, DHET must develop regulations on Council members who breach their fiduciary duties. The sexual harassment policy must be explicit in dealing with sexual harassment matters at a senior level. DHET must ensure that across the board the sexual harassment policy is explicit on how sexual harassment matters are handled. Policy development must include participation of all stakeholders within the three months.

Timeframes must be included in all investigations and the three months accountability must apply after the National Assembly adoption of the Committee Report. The recommendations should be extended to DHET to ensure that the discipline of the Vice Chancellor is conducted. DHET should assess the current state of accounting officers in the Post-School Education and Training (PSET) sector.

The Council should take responsibility to conduct oversight on management in its implementation of an institution’s policies. It should benchmark with other institutions on workplace relationships. Our recommendations are quiet on workplace employee/employer relationships. Some workplace relationships in may not be consensual relationships. DHET must look into this.

The ANC recommended DHET introduce a systemic process for an adequate sexual harassment policy and disciplinary hearing procedures across the board.

We ask DHET to ensure there is a skills audit in all universities to check all university employees. It must provide the name of the employee, the advert of the position applied for and the employee’s CV. Three months is too short a turnaround time for this but we can all discuss the appropriate timeframe.

We recommend that a systematic mechanism needs to be developed to track resolutions and decisions and report such to Parliament within two months of the adoption of the Report by the National Assembly.

The Department must ensure that all institutions verify qualifications with the South African Qualifications Authority (SAQA). DHET should develop a policy that propels all institutions in the sector to utilise SAQA.

The ANC agrees that Univen should institute an investigation on the appointment of Ms Phendu and ensure consequence management of officials who aided her appointment. Feedback must also be provided on the implementation of consequence management.

DHET must not only blacklist the companies that abandoned the infrastructure projects, we must blacklist the directors of those companies. DHET must conduct thorough research on all abandoned projects in the sector. It should also collaborate with the Department of Basic Education. We cannot have companies abandoning projects and getting more projects from other departments. This should be done within three months.

The sexual harassment policy must be explicit about the disqualification of candidates if the candidate fails to disclose or inadequately discloses a sexual harassment case.

Discussion
Mr S Tambo (EFF) said the EFF welcomed and noted the Report and it agreed with the content of the Report and the recommendations.

Dr W Boshoff (FF+) said that the FF Plus would need time to process the report content and then make recommendations.

Ms N Marchesi (DA) said that she would also need time to digest the content of the report and any inputs or suggestions would be made at a later stage.

The Chairperson thanked the Members for the work that was completed. She agreed that Members must be given time to make further recommendations. This report would be adopted as a preliminary report.

The legal team would need time to consider the additions made to ensure that the recommendations were legally sound. Any sort of adoption at this stage would have to be provisional until the recommendations or amendments were made.

The report was adopted as a preliminary report.

Committee Report on Commission for Gender Equality Follow-Up Hearings on Gender Transformation at Tertiary Institutions 2019/20
This was adopted by the Committee.

Meeting ended.
 

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