The Committee convened in a virtual meeting with the Parliamentary Legal Services and the Content Advisor to receive briefings on the preliminary report on the appointment of Prof Peter Mbati as Vice-Chancellor of the Sefako Makgatho University. The presentation covered the summary of the witnesses' written comments and representations, the proposed issues for consideration and general observations. Six witnesses had submitted their comments within the set timeframe.
Members resolved to study the report further and consider the responses and the comments submitted by witnesses after being privy to the recommendations of the Committee. The Parliamentary Legal Services assured Members that this process was part of the oversight work of the Committee. If anyone were to take the report on judicial review, they would be doing so because they either felt or believed that the process was not fair to them. As far as the Committee’s views or recommendations were concerned, it was simply exercising its oversight responsibility. It assured Members that if this process were taken on review, it would stand the test of time because it was conducted per relevant legislation and had remained so until the end.
The Chairperson announced that the Committee would receive a briefing from the research and legal team of Parliament concerning the responses that witnesses submitted in Prof Mbati's case (Vice-Chancellor of the Sefako Makgatho University). Various witnesses had responded and others had not. The objective was to receive the briefing and later conceptualise the matter and ascertain whether there would be a process to invite more witnesses again, conclude the process, or amend the report. In certain parts of the report, the Committee was perceived to be harsh in how it had articulated itself about the matter. This may have also resulted from its objectivity about the matter. There was a concern that the Committee would not be consistent in articulating itself in certain parts of the report.
Briefing by Content Advisor
Ms Mamphago Modiba, Committee Content Advisor, took the Members through the presentation, which covered the summary of the witnesses' written comments/representations, proposed issues for consideration and general observations.
On 11 February 2022, the Committee had considered and adopted a preliminary enquiry report.
As per the terms of reference, the Committee had resolved to send the report to all witnesses. This allowed the affected persons to make representations on the preliminary findings and recommendations in line with the audi alteram partem principle of natural justice. The secretariat sent the report to the witnesses on 15 February, and they were requested to submit their written comments by 17 March.
Six witnesses submitted their comments within the set timeframe. The University of Venda (Univen) and Sefako Makgatho University (SMU) Councils requested extensions for their submissions to 21 and 28 March. The SMU Council indicated that the Executive Committee (EXCO) of Council was due to meet to consider the response. The requests for extensions were granted, and their written representations were later submitted.
The presentation further covered a summary of the written comments and presentations. These included submissions from Ms Jamela Robertson, Chief Executive Officer (CEO) of the Commission for Gender Equality; Prof Chris de Beer, former Vice-Chancellor (VC) of SMU; Dr Clarence Tshitereke, former Director, Office of the former Univen VC; Ms Genevieve Michel: Head of Assessments, Academic Partners; Prof Peter Mbati, former Univen VC; and Dr Reginald Legoabe, Chairperson: Higher Education Transformation Network (HETN).
It further detailed the responses of the SMU and Univen Councils. The latter disagreed that it had failed to implement the sexual harassment policy. The Council noted that it had complied with the court order of 30 May 2016 and the Commission for Gender Equality (CGE) report. The University undertook to review the sexual harassment policy as recommended in paragraph 5.1.2. and, on the appointment of Ms Noluthando Pendu as the Higher Education Management Information System (HEMIS) Officer, steps were taken to address some of the recommendations while the Council undertook to implement them. The Council noted that the Committee had heard through witness testimony that the University was not aware of the qualification issues concerning Ms Pendu's appointment. Upon learning about these actions, the University took swift action against her.
There were also proposed issues for consideration by the Committee. These included “untested allegations.” There were contentions that the Committee had not tested some allegations that were presented before it. However, the Committee had neglected investigating by calling witnesses to appear before it to give oral testimony of their written statements. Therefore, the credibility of the witnesses and their evidence was questionable. The Committee had accepted and arrived at some conclusions without testing and requesting evidence to support the allegations. The Committee had neglected to interrogate the new submissions about irregularities in the appointment process of Prof Mbati and had chosen to refer the matter to the SMU Council for investigation and reporting.
Secondly, there was a misunderstanding by Mr Thekiso regarding the invitation to appear as a witness. According to their assessment, his withdrawal to appear before the Committee as a witness could have arisen from a misunderstanding that he was called to testify on SMU related matters, when his submission was focused on UNIVEN. The Committee still scheduled testimonies related to UNIVEN even during the Part B process. For example, Mr Lekgetha and Dr Nthambeleni also testified during Part B. Based on the above, would the Committee be open to reopening the oral hearings for certain specific witnesses, especially those not called to appear before it?
There was further clarity required concerning a number of matters. There were also further unsubstantiated claims on the side of the Committee.
Some of the general observations made included:
Neither of the parties, Prof Mbati nor Dr Legoabe, was happy with some of the findings and recommendations of the report.
Prof Mbati claimed that the Committee appeared to side with the witnesses who were hostile towards him and used a soft approach when making observations against them even in areas where it was clear that there was a malicious intention to bring his name into disrepute. On the other hand, the Committee used strongly worded comments when describing incongruence against him.
Dr Legoabe also alleged that the Committee used a soft approach when dealing with Prof Mbati and questioned some of the conclusions arrived at by the Committee.
Both Prof Mbati and Dr Legoabe threatened to subject the report to judicial review if the Committee did not review certain observations and recommendations.
Academic Partners noted that the report on the matter of the appointment of Prof Mbati was well balanced.
SMU agreed with all the recommendations in the report and undertook to implement them.
Univen objected to the findings on how the Council handled the sexual harassment complaint of Prof Phendla and noted that given the evidence submitted, there was no basis for the Council to make a written apology to Prof Phendla.
Univen did not object to the findings on infrastructure development mismanagement, including the recommendations. The University noted it had already implemented some of the recommendations and undertook action on the remaining ones.
The Chairperson commented that under 3.2, there was a suggestion from Members that the Committee consider reopening the interview process for those who had not appeared before the Committee. Could they have guidance from the research unit or legal services on whether there was usually a time set aside for such?
In 3.3, it was outlined that both the institutions and law firm did not have the financial settlement letter the institution offered to Prof Phendla. Was there any indication of whether Prof Phendla did have this particular letter?
Under 3.1, it could be said that some of the Committee's observations or allegations had not been tested. There were also areas where its views were questioned, but it appreciated that there could have been a misunderstanding by those who read the document. Could it have an indication that what it had said as the Committee had been tested?
Ms J Mananiso (ANC) appreciated the legal team for the work done. It was important that they consider the inputs given to them by the witnesses. She suggested that the Committee acknowledge and receive the report for now and carefully consider the comments and recommendations made by the witnesses. Secondly, on reopening the process for submissions, was it possible for the Committee to reopen the process for witnesses? If some witnesses who came before the Committee misled Parliament, the might of the law must be enforced to take its course. Lastly, the Committee could confidently say that it had been fair in this process, and this could be inferred based on the comments made by Prof Mbati and Dr Legoabe.
The Chairperson agreed with Ms Mananiso to allow the Members to go back and carefully consider the witnesses' recommendations and their comments. She also agreed that the comments made by Prof Mbati and Dr Legoabe confirmed the objectivity of this process on the side of the Committee.
Ms D Mahlatsi (ANC) echoed the same sentiments to go back and consider these comments. Given the current situation, how would they navigate this space from a legal perspective? They also appreciated that not all the recommendations had been challenged, which was indicative of the Committee's work. How would they move from where they were now?
The Chairperson sought something in writing about the possibility of this report being taken on judicial review, and they would want to know how that would play out in the end. She required this to be in writing from legal services.
Ms Modiba said both Univen and SMU had met the deadline for submitting their responses. She also confirmed that she was in possession of the settlement letter given to Prof Phendla. She had the letter in front of her. This raised an interesting aspect to the matter. Some information had come with the submissions, where reconsideration was necessary, and the Committee might have to reconsider. The issue of the SMU and the findings were based on the information they had received from the University, but Prof Mbati had provided different information. This had been resolved between the Committee and Prof Mbati because he could see that the Committee had made some recommendations based on the information presented to it. Univen accepted the findings on the infrastructure projects issues, but Prof Mbati did not want to accept them. Where they needed to amend, they would amend when credible information came in.
Ms Phumelele Ngema, Parliamentary Legal Advisor, referred to the process and said this must rely on the fact that this was an oversight exercise, as indicated before, as opposed to legislative functions of Parliament. If it were the latter, under the Promotion of Administrative Justice Act (PAJA), then there would be no question about the possible judicial review because the Act was clear that those functions of Parliament were excluded from such review until the President had declared the Act. Judicial review could occur on this process if any of the parties believed that there were shortcomings. One would see what the basis would be to take it there. The process in its entirety was lawful and procedurally correct.
Secondly, they had to ensure fairness and justice. Once the Committee was approaching the finality of its report, it could provide an opportunity for the witnesses to have sight of the report and make any comments or contributions they believe may be incorrect. Even with that option, the only witnesses that had come forward were the ones who were personally implicated. The responses were for the witnesses to comment before the Committee concluded this process.
The Committee must decide on the witnesses that could not be part of giving oral evidence, and some of the witnesses had issues with the Committee on that, so it must decide whether it wanted to reopen the process. If it did, justice must also prevail, but the Committee must also consider the finality of its work.
This was an oversight function. An oversight function did not end. The Committee had substantially looked at and assessed all the information and evidence that had been presented to it. Members should now study the report and provide their input. This was going to be the report of the Committee. Legal Services would continue to assess incoming information or evidence from witnesses.
Her advice on what should happen now was for Members to go and study the reports and give any input, whether it was on language, substance or content, because this exercise was the Committee's exercise. Legal Services were only assisting the Committee, and no evidence leader would then take full responsibility for the report -- it was going to be the report of the Committee. However, they would still assist the Committee and re-look at certain parts of the evidence.
The Chairperson said that she would consult with the rest of the Members on the timeframes.
The Committee considered and adopted its outstanding minutes.
The meeting was adjourned.
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