ATC221010: Report of the Portfolio Committee on Higher Education, Science and Innovation in Respect of the Enquiry into the Appointment Process of Professor P Mbati as the Vice-Chancellor of the Sefako Makgatho University and Related Matters, Dated 30 September 2022

Higher Education, Science and Innovation

Report of the Portfolio Committee on Higher Education, Science and Innovation in Respect of the Enquiry into the Appointment Process of Professor P Mbati as the Vice-Chancellor of the Sefako Makgatho University and Related Matters, Dated 30 September 2022

1. INTRODUCTION

The Portfolio Committee on Higher Education, Science and Innovation (the Committee), having enquired into the appointment process of Professor P Mbati (Prof Mbati) as the Vice-Chancellor (VC) of the Sefako Makgatho University (SMU) and related matters, reports as follows:

1.1. On 2 June 2020, the Committee resolved to convene an oversight enquiry to enquire into the appointment of Prof Mbati as the VC of SMU and related matters.

1.2. The resolution followed the receipt of a complaint by the Higher Education Transformation Network (HETN) submitted through the Office of the then Committee Chairperson, Mr Philly Mapulane. The complaint levelled several allegations against Prof Mbati and SMU, including that the recruitment process that resulted in the appointment of Prof Mbati was flawed and subjective; Prof Mbati did not possess the qualities of honesty and integrity and was accordingly not fit and proper for the role of the VC as required by the Higher Education Act, 1997 (Act No. 101 of 1997) and his appointment was not in line with the objectives set by the National Development Plan (NDP) Vision 2030.

Further allegations raised by the complainant will be detailed under paragraph 3 on the summary of evidence, witness statements and oral evidence.

2. BACKGROUND AND METHODOLOGY

2.1. Background

(2) “The National Assembly must provide for mechanisms-

(a) to ensure that all executive organs of state in the national sphere of government are accountable to it; and

(b) to maintain oversight of-

(i) the exercise of national executive authority, including the implementation of legislation; and

(ii) any organ of state.”

56 “The National Assembly or any of its committees may –

Summon any person to appear before it to give evidence on oath or affirmation, or to produce documents;
Require any person or institution to report to it;
Compel, in terms of national legislation or the rules and orders, any person or institution to comply with a summons or requirement in terms of paragraph (a) or (b); and
Receive petitions, representations or submissions from any interested persons or institutions.”

2.2. Terms of Reference

2.2.3 The following provides greater detail on the matters considered in each part of the Enquiry.

PART A

(a) The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects.

On 29 October 2019, the Committee received a briefing from the DHET on governance and management at public universities in the country. The DHET noted concerns in respect of infrastructure governance at UNIVEN, during Prof Mbati’s tenure as VC. The Committee resolved that the DHET submits a detailed report on infrastructure challenges at UNIVEN. The report, dated 09 November 2019, was duly submitted to the Committee. Supplementary information from the DHET regarding infrastructure development projects at UNIVEN was submitted to the Committee, on request, in May 2020.

The Committee intended to enquire, inter alia, into whether, during the period 2008-2018, there was any mismanagement, irregularities, undue enrichment, corruption, or undue influence in the procurement and management of infrastructure projects as alleged. The Committee further enquired into other allegations of mismanagement that it had received.

This part of the Enquiry was aimed at determining to what extent UNIVEN implemented, relevant and applicable legislation, its sexual harassment policy, whether the policy adequately protects the rights of complainants and whether the Minister of Higher Education and Training (“the Minister”) implemented the recommendations of the CGE (in its Investigative Report on the allegations of sexual harassment).

The Committee further considered allegations relating to the excessive use of external service providers and legal consultants by UNIVEN and whether this constituted irregular, fruitless and wasteful expenditure and/or a violation of applicable financial management prescripts.

PART B

(d) To determine whether SMU complied with applicable prescripts in the appointment of Prof Mbati as the Vice-Chancellor.

The Committee considered the recruitment process followed in order to determine whether the process was legally sound.

2.3. Methodology

2.3.1. Procedure prior to the commencement of the Enquiry

2.3.1.1. The Committee wrote to the then Speaker of the National Assembly (NA), Ms TR Modise, informing her of its resolution to conduct the Enquiry. It requested support from the Office of the Speaker in invoking section 14(2) of the Powers, Privileges, and Immunities of Parliaments and Provincial Legislatures Act, 2004 (Act No. 4 of 2004) (“Powers Act”) to issue summons against witnesses that may not willingly agree to appear before it when invited to do so.

2.3.1.3. The Committee adopted an initial Terms of Reference, which were subsequently revised to accommodate concerns raised by the legal representatives of Parliament, Prof Mbati and UNIVEN.

in terms of section 14(2)(b) of the Powers Act. Both witnesses were informed that the Committee had commenced with the process to issue summons and the two were afforded further opportunity to avail themselves voluntarily. The witnesses yielded and the summonsing process was suspended. Mr Thekisho accepted the invitation, but later on the process withdrew from giving oral testimony.

2.3.1.6. In adhering to the principle of natural justice and fairness, the Committee invited Prof Mbati to be present at the proceedings, which he accepted. In addition, the proceedings were publicly broadcasted.

2.3.2. Procedure during the commencement of the Enquiry

2.3.2.1. The Committee Chairpersons presided over the Enquiry and the process of questioning was member-led with all members given the opportunity to pose questions or make remarks.

2.3.2.2. The Committee conducted the Enquiry in compliance with the requirements of fairness and in accordance with the provisions of sections 56, 58 and 59 of the Constitution and the relevant rules of the NA. It agreed to adopt an interactive approach, whereby the relevant institutions and witnesses orally presented their sworn statements and members posed questions and comments in relation to the statements. This afforded all members an opportunity to pose their questions and comments, as there was no evidence leader. Witnesses were allowed to submit further responses or additional information in cases where they could not provide evidence / respond to certain questions or comments from members. The aim throughout the Enquiry was to ensure that the enquiry does not become a quasi-judicial process, but rather an exercise of oversight only in accordance with applicable prescripts.

2.3.2.3. The Committee conducted the Enquiry in an open and transparent manner in accordance with section 59(1) (b) of the Constitution, which compels the NA to conduct its business in an open manner, and hold its sittings and those of its committees in public. The Enquiry was streamed live on the Parliamentary YouTube channel and other platforms utilised by Parliament to disseminate information on its meetings. No entity or individual was denied access to the information that was publicly presented before the Enquiry and any person was free to approach the Committee with any evidence or information related to the Enquiry.

2.3.2.4. All witnesses were requested to take an oath or affirmation in accordance section 16 of the Powers Act read with the contents of rule 168 of the NA Rules. The witnesses were informed of the parameters of the Enquiry and instructed not to remark on or discuss the merits of the sexual harassment complaint or the dismissal of Prof Phendla in their response to the Committee as these fell outside the scope of the Enquiry due to the principle of separation of powers.

2.3.2.5. The witnesses were informed that the Committee was not a judicial tribunal or court of law, and proceedings would be undertaken in accordance with Rules of the NA. No witness or third party was allowed to cross-examine any other witness or their statements/evidence. However, any person could provide additional information to the Committee to refute or substantiate any point made by any witness.

2.3.2.6. Regarding the doctrine of separation of powers and the purpose of parliamentary oversight, the Committee resolved not to permit any evidence in relation to the merits of the allegation of sexual harassment or the lawfulness of the dismissal of Prof Phendla from UNIVEN. The Committee was mindful of and respected the pronouncements made in this regard by the respective competent authorities, including the court of law, which pronounced that Prof Phendla’s dismissal on charges of misconduct was procedurally and substantively fair, and that her allegations of sexual harassment had no merit.

2.4. Committee membership

The multiparty membership of the Committee comprised of the following members: Ms N Mkhatshwa (ANC), Mr W Letsie (ANC), Ms J Mananiso (ANC), Mr B Yabo (ANC), Ms C King (DA), Dr A Lotriet (DA), Ms N Tarabella-Marchesi* (DA), Mr S Tambo (EFF), Mr M Nxumalo (IFP) and Dr W Boshoff (FFP).

The Committee Enquiry was chaired by Mr M Mapulane (currently a Cabinet Member) from February to May 2021, and thereafter by Ms N Mkhatshwa, MP who took over as the Committee Chairperson from August 2021.

2.5. Witnesses

2.5.1. The Committee invited the DHET to present on infrastructure projects at UNIVEN. Other witnesses provided written statements. The DHET was represented by the Director-General, Mr Gwebinkundla Qonde, who is no longer in the employ of the Department and Dr Thandi Lewin, Acting Deputy Director-General (DDG) University Education at the time.

The following witnesses were invited to give oral evidence pursuant to their written statements:

Part A of the Enquiry: University of Venda:

Mr Juneas Lekgetha: Chairperson of UNIVEN Council;
Ms Jamela Robertson: Chief Executive Officer (CEO) of the CGE;
Mr Lavery Modise: Former mediator, appointed by UNIVEN, in the sexual harassment case lodged by Prof Phendla against Prof Mbati;
Mr Serobi Maja: Former UNIVEN Council Chairperson;
Ms Mabusela: Former UNIVEN Council Chairperson;
Dr Reginald Legoabe: Chairperson of HETN;
Dr Clarence Tshitereke: Former Director in the Office of the VC (Prof Mbati), UNIVEN;
Mr Tshililo Manenzhe: Former Director Human Resources, UNIVEN;
Mr Victor Modiba: Former Student Representative Council (SRC) Leader, UNIVEN;
Mr Khuliso Nemadzivhanani: Former Registrar, UNIVEN;
Mr Balanganani Makhado: Former Administrative Officer, UNIVEN;
Prof Peter Mbati: Former VC and Principal, UNIVEN;
Dr Bernard Nthambeleni: Current VC and Principal of UNIVEN;
Mr Kennedy Maimela: Former Chairperson of the Council Committee on Human Resources at UNIVEN;
Ms Noluthando Gillian Pendu: Former UNIVEN Higher Education Management Information System (HEMIS) Officer; and
Advocate Edward Lambani: Current Registrar (he did not submit a statement, but requested to respond to some questions as the former Director of UNIVEN Legal Services).

There were other witnesses who submitted written statements but, for various reasons, did not present oral evidence during Part A of the Enquiry. They are:

Mr Lucky Thekisho: Chairperson of the Federation for Education and Social Justice Africa (FESJA);
Prof Xikombiso Mbhenyane: Former Deputy Vice-Chancellor (DVC) Teaching and Learning, UNIVEN;
Mr Alfred Mutoti: Former Chairperson of the National Education, Health and Allied Workers Union (NEHAWU), UNIVEN;
Mr Lindelani Cibi, Former UNIVEN graduate and the Director of Andany Investments (Pty) Ltd; and
Prof Thidziambi Phendla, Former Dean at UNIVEN. The Committee resolved not to hear oral evidence from Prof Phendla as her submission dealt with the merits of the sexual harassment matter and the lawfulness of her dismissal from UNIVEN. These matters were not the focus of the Enquiry and the Committee will accordingly not make any findings on Prof Phendla’s statement.

Part B of the Enquiry: SMU:

Ms Maria Rambauli: SMU Council Chairperson;
Prof Olalekan Ayo-Yusuf: SMU Deputy Vice-Chancellor, Chairperson of Senate;
Prof Sphiwe Madiba: Acting Chairperson of the SMU Institutional Forum (IF);
Dr Jeffery Mabelebele: Current SMU Registrar;
Prof Chris De Beer: Former VC and Principal of SMU;
Ms Genevieve Michel and Mr Jimmy Wayland: Directors of Academic Partners;
Mr Terry Tselane: Executive Chairperson of Institute of Election Management; Services in Africa (IEMSA); and
Ms Itumeleng Ndlozi: Executive Head: Public Sector Division at Ince (Pty) Ltd.

2.6. Documentation

2.6.1. The Committee requested and considered written statements and relevant attachments from all the witnesses that appeared before it. All witnesses duly complied.

2.6.1.1. UNIVEN was requested to submit the following documents:

Council minutes, where the matter of Prof Phendla’s alleged sexual harassment were considered;
Council minutes where infrastructure management, allegations of financial misconduct or mismanagement was considered;
Reports on infrastructure management;
Supply chain management policies;
Sexual harassment policy;
Breakdown of legal costs;
Minutes of bid evaluation and bid adjudication committees; and
Any other documents relevant to the Enquiry.

The Committee requested additional information from UNIVEN as and when the need arose from oral testimony or consideration of documentary evidence. The Committee received the last documentary evidence from UNIVEN and Damelin/ Educor on 17 November 2021 and 18 November 2021, respectively.

2.6.1.2. SMU submitted all documentation relevant to the appointment of the VC which included:

Report of the Selection Panel on the appointment of the VC;
Policies and procedures – Appointment of the VC;
Advertisement of the VC position, agenda of the Selection Panel shortlisting meeting;
Applications, CVs and background checks of the candidates;
Recommendations on the suitability of the shortlisted candidates for the position of the VCs;
Agenda of the Selection Panel interview meetings; and
All disclosure documents related to allegations of the sexual harassment against Prof Mbati.

The Committee requested and received from the SMU Council additional information to clarify certain statements made during the oral testimonies on 09 July 2021.

After the Committee concluded its evidence gathering and hearings, it received submissions from whistle-blowers levelling serious allegations that Prof Mbati and certain officials of the SMU (who were also members of the interview panel for the VC position) colluded to secure Prof Mbati’s appointment as the SMU VC. It is not clear why these submissions were not provided with earlier complaints or during the enquiry proceedings as the Committee’s processes have been open even at the stage of preparing the draft report. The Committee resolved to refer the matter to the SMU Council for further investigation as the allegations only reached the Committee when it had already concluded its hearings. The Committee had learned that the SMU Council had put in place processes of investigating the allegations internally, and has received correspondence pertaining to the outcome of the internal investigation.

The Committee has been advised that based on the outcome of the investigative report, Council resolved that there was no merit in the allegations levelled against Prof Mbati. This was particularly in light of the fact that the deponents of the two affidavits that formed the basis of the whistle-blowers report denounced the affidavits as falsified. The Council was of the view that the allegations levelled against the Registrar Dr Mabelebele were false and had no merit. The Council further resolved that disciplinary action must be taken against the employee(s) whose actions had brought the name of the University into disrepute.

3. SUMMARY OF THE WITNESS STATEMENTS

Below is a summary of the witness statements and not the analysis of the statements as submitted to the Committee. This summary is not intended to be a reflection of the Committee’s position on any matter, nor should it be seen as the Committee agreeing with any information contained below. An analysis of the evidence and findings of the Committee in that regard can be found in Section 4 below.

3.1. Part A: University of Venda

3.1.1. Mr Juneas Lekgetha: Current Chairperson of UNIVEN Council

3.1.1.1. The manner in which the Council of UNIVEN processed a sexual harassment complaint against Prof Mbati by Prof Phendla

Mr Lekgetha’ s statement dealt with the manner in which the UNIVEN Council dealt with the sexual harassment complaint lodged by Prof Phendla. He further provided a supplementary statement addressing specific questions that the Committee posed to him.

Mr Lekgetha stated that the UNIVEN Council duly considered the sexual harassment matter. Upon receipt of Prof Phendla’s complaint, the Council appointed Mr Lavery Modise (mediator) to mediate the matter between Prof Phendla and Prof Mbati but this resulted in a dead-end. Mr Lekgetha noted that by that time Prof Phendla had reported the matter to the CGE and also opened a criminal case of rape against Prof Mbati at Littleton Police Station.

The Director of Public Prosecutions found that there was no basis to charge and prosecute (nolle prosequi) Prof Mbati for rape. The CGE had considered the matter and made findings against UNIVEN. UNIVEN subsequently took the CGE report on review with a view to setting it aside. However, the matter was settled by way of a Consent Judgement, which directed UNIVEN to comply with Clause 5.2.1 of its Policy on Sexual Harassment.

A second mediation report was procured by Council from Mr Modise. Council sought legal opinion on the content of the report from Mike Mashego Attorneys. The legal opinion advised that there was no basis to charge Prof Mbati on allegations of sexual harassment, as the relationship between Prof Mbati and Prof Phendla was consensual.

At a meeting of 05 July 2016, the Council resolved that in view of the second Modise report and the legal opinion, there was no basis to pursue the matter against Prof Mbati since it appears he was cleared of the allegations of sexual harassment.

The Council thus resolved that since the matter was already before the Labour Court, Council had to allow the courts to make a final determination and that no further intervention by the Council was necessary.

3.1.1.2. The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

Mr Lekgetha stated that Council does not have records of allegations against Prof Mbati relating to mismanagement of UNIVEN, his failure to properly manage infrastructure projects and the commission of any acts of financial misconduct and/or abusing his position for personal gain. However, he noted that Council was aware of allegations or weaknesses, raised by the external audit report and had appointed a company to investigate the alleged maladministration relating to procurement processes for ten infrastructure projects.

He further informed the Committee that the forensic report found that the Deputy Vice-Chancellor (DVC): Dr Jannie Zaaiman; Head of Supply Chain Management (SCM): Mr Richard Ramupudu and Facilities Director: Mr Hulisani Nesane must be held accountable for non-compliance with the SCM policy. However, disciplinary action could not be taken against these officials as they were no longer employees of UNIVEN and the disciplinary Code for staff members was no longer applicable to them. It was also not possible to open criminal or civil cases against them as they were only found to have breached the Supply Chain Management (SCM) policy with no element of criminality. The matter was thus closed. The services of the implicated service providers were terminated. The forensic report does not implicate Prof Mbati in respect of mismanagement, improper management of infrastructure projects, acts of misconduct or abusing his power for personal gain.

3.1.2. Ms Jamela Robertson: Chief Executive Officer (CEO) of the CGE

Ms Jamela Robertson, the newly appointed Chief Executive Officer (CEO) of the CGE read the statement, which was submitted by Ms Merissa Van Niekerk, the former Acting Chief Executive Officer: CGE.

The statement noted that on 11 of May 2012 the CGE received a complaint of sexual harassment against Prof Mbati by Prof Phendla who also noted that she was subsequently dismissed. After having received all the necessary details from the Complainant, the CGE wrote letters to Prof Mbati and UNIVEN Council dated 14 and 18 of June 2012, respectively. The CGE’s officials also visited UNIVEN and interviewed certain employees who were allegedly in possession of information that could assist the investigation. Prof Mbati was also interviewed.

The statement noted that both parties were given a reasonable time to submit their responses. In his response, Prof Mbati denied having a sexual relationship with the Complainant. The CGE concluded its investigations and issued an investigative report with findings and recommendations on 04 December 2014.

The statement further noted that the report found that the failure of UNIVEN’s Council and Management to take further steps as per its Policy on Sexual Harassment, after the collapse of the mediation process, was in direct contravention of UNIVEN’s Policy on Sexual Harassment. Subsequent to that, Prof Mbati and UNIVEN lodged an application in the High Court of South Africa, Gauteng Local Division (case number 2015/07394) to review and set aside the report issued by the CGE. The application was heard on 30 May 2016. A settlement agreement was reached between the parties in terms of which it was agreed that the CGE would excise certain portions of its 4 December 2014 report.

For the sake of completeness, the Committee feels it necessary to summarise the content of the excised parts. The Enquiry did not yield any reasonable explanation as to why the Parties agreed to settle and excise portions of the report. The following paragraphs refer to the report and indicate the content and whether it was excised in terms of the settlement agreement.

Paragraph 1 - Introduction to the matter. This paragraph is not excised.
Paragraph 2- sets out the parties and provides their legal standing. This paragraph is excised.
Paragraph 3-detailed the nature and background of the matter, including the charges, faced by Prof Phendla. This paragraph is excised.
Paragraph 4- Outlines applicable constitutional provisions and international protocols that assisted the CGE to form a preliminary assessment on the sexual harassment complaint and the gender discrimination allegations. It was not excised.
Paragraph 5- Sets out the steps that the CGE followed. This paragraph is excised.
Paragraph 6- Sets out the legal framework that guided the CGE’s investigation. This paragraph is excised.
Paragraph 7- Sets out provisions of the Sexual Harassment Policy of UNIVEN. It is excised.
Paragraph 8- Captured the findings of the CGE. It is excised.
Paragraph 9 – Contains the CGE’s recommendations and is not excised. These recommendations include the yet unfulfilled directive for UNIVEN to comply with clause 5.2 of the Sexual Harassment Policy.

UNIVEN was directed by the Court to call for a report as contemplated in paragraph 5.2.1 of the University’s Sexual Harassment Policy within 30 days of the Court order.

The statement notes that UNIVEN refused to provide the CGE and Prof Phendla with a copy of Modise’s Second Report. Due to this persistent refusal, on 19 October 2016, the CGE instituted legal proceedings against UNIVEN and Mr Modise requesting the court to direct them to furnish the CGE and Prof Phendla with a copy of Modise’s Second Report. After initially opposing the application, on 23 November 2016, UNIVEN furnished the CGE and Prof Phendla with a copy of Modise’s Second Report. The CGE withdrew its application and UNIVEN tendered the CGE’s costs in the amount of R34 045.31. Effectively, sub-clause 5.2.3. of the court order left it to the HR Director to decide if there was a prima facie case before the matter can proceed further to a full enquiry.

The CGE statement alludes to a letter that was sent to Prof Phendla by Bowman’s Attorneys (representing UNIVEN) dated 08 December 2016. UNIVEN proposed a settlement and offered to pay Prof Phendla an amount of R1 300 000.00. It further offered to change the reasons for her dismissal from misconduct to mutual separation, and to give her a positive reference provided that she withdraws the Labour Court matter and any other applications instituted against UNIVEN and that she refrains from making comments to the media/third parties about the matter and the details of the settlement proposal. The statement noted further that a meeting was held on 03 of February 2017, with Prof Phendla, CGE legal team, Madikizela-Nyati Attorneys and Len Dekker Attorneys to discuss the settlement offer with Prof Phendla. The settlement, in the view of the parties involved, was reasonable and Prof Phendla agreed to accept the offer. However, Bowman’s Attorneys subsequently addressed correspondence withdrawing the offer.

The CGE statement noted that to ensure compliance with its recommendations, the CGE notified the Minister about the report, findings and its recommendations. The CGE requested further engagements with the Minister on the work undertaken by it in relation to institutions of higher education.

The CGE also requested UNIVEN to comply with Clause 5.2 of its sexual harassment policy[1]. The CGE further assisted UNIVEN to amend its sexual harassment policy to bring it in line with the Code of Good Practice of 2005. The CGE undertook to include UNIVEN as part of its investigative hearings on Gender Transformation in tertiary institutions. The CGE further undertook to conduct a sexual harassment workshop which subsequently took place. The statement also noted that UNIVEN’s 2015 sexual harassment policy was due for a review in September 2020, and the CGE was to make inputs during the review process.

3.1.3. Mr Lavery Modise: Former Mediator in the sexual harassment case lodged by Prof Phendla against Prof Mbati appointed by UNIVEN

Mr Modise indicated that in or around 2011, he was appointed by UNIVEN, in his capacity as a practicing attorney, to mediate a sexual harassment complaint lodged by Prof Phendla against Prof Mbati. The mediation process is provided for in the Sexual Harassment Policy of UNIVEN. After he had interviewed Professors Phendla and Mbati, the dispute remained unresolved and he submitted a report (First Mediation Report in 2011) recording the non-resolution of the dispute. He recommended that UNIVEN invokes the next step provided by the Policy, which includes conducting an investigation and taking a written statement from the alleged offender, which outcome may lead to a disciplinary hearing. He noted that it was not clear to him whether UNIVEN had conducted an investigation arising from Prof Phendla’s complaint.

Mr Modise said that months later, he received a Court order directing him to prepare a report containing his findings arising from the mediation process. A second mediation report was thereafter prepared, dated 24 June 2016. He said that he found, based on his interviews with Professors Phendla and Mbati as well as documentary evidence provided by Prof Phendla, that the parties had a consensual sexual relationship.

The Court order arose from an application brought by Prof Mbati and UNIVEN to have certain adverse recommendations and/or findings contained in the CGE’s report expunged. Shortly afterwards, Mr Modise was served with an application (in the Venda High Court) to review and set aside his Second Report. He filed an explanatory affidavit to assist the Court in considering the matter and arranged for a correspondent in Venda to file in Court. He was not certain whether the affidavit was before the Court when it made the order to review and set aside the Second Report. To the best of his recollection, Prof Phendla did not oppose the application due to a lack of funds.

3.1.4. Mr Maja: Former UNIVEN Council Chairperson from 2014 to 2019 and joined UNIVEN Council in 2009 as the Chairperson of Finance Committee

3.1.4.1. The manner in which the Council of UNIVEN processed a sexual harassment complaint against Prof Mbati by Prof Phendla

Mr Maja indicated that Prof Phendla was facing charges of corruption and subjected to disciplinary processes, following the findings of the Deloitte forensic investigation. During the disciplinary process, Prof Phendla submitted a grievance of sexual harassment to the Chairperson of Council, Ms Shirley Mabusela, alleging that she was sexually harassed by Prof Mbati. On 05 October 2011, the Chairperson of Council (Ms Mabusela), convened an Executive Committee (EXCO) meeting to consider Prof Phendla’s grievance. EXCO resolved on 05 October 2011 to abide by the University grievance procedures and policy on sexual harassment and agreed that labour experts be procured. Accordingly, Mr Lavery Modise was appointed to mediate the dispute.

On 04 November 2011, it was noted in the EXCO meeting that the disciplinary hearing of Prof Phendla was finalised by way of dismissal. On 01 April 2015, Mr Maja responded to the Minister’s letter assuring his office that the Council would do everything within its power to ensure that the matter was fairly and transparently dealt with. Subsequently, he instituted a Task Team to look into the matter. The Task Team advised that the matter was before the court and it was not appropriate for the Council to constitute another forum to consider the matter prior to the ruling of the court.

The Council noted that the CGE conducted its investigation and made findings against the University. The CGE report was taken on review by UNIVEN. The Council further noted that the legal representatives of the CGE requested an adjournment and approached UNIVEN representatives with a settlement proposal. Both UNIVEN and the CGE agreed that certain parts of the report be removed and UNIVEN would implement the Modise mediation report. This was made an order of the court. The Modise report was vague and there was a need for Modise to provide more clarity in the report.

On 24 June 2016, a second report was submitted by Mr Modise, which indicated that Prof Phendla and Prof Mbati had a consensual sexual relationship and that there was no sexual harassment. The Council sought an external legal opinion which advised that UNIVEN could not charge Prof Mbati for sexual harassment. The Council resolved to close the matter and allow the court processes to be completed.

Mr Maja was of the view that the Council dealt with the allegation of sexual harassment fairly and transparently and no further intervention was required after the matter served before the South African Police Service (SAPS), CGE, Labour Court and Labour Appeal Court. The Committee noted the inconsistencies found in the oral evidence of Mr Maja as well as what written evidence revealed.

3.1.4.2. The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

Mr Maja’s statement noted that during 2016, external auditors raised issues with procurement processes. SAB&T was appointed to conduct forensic investigations and found a breach of procurement policies by some staff members. The forensic report did not reveal any wrongdoing on the part of Prof Mbati and no allegation was brought to the Council's attention relating to Prof Mbati's failure to manage infrastructure projects, or that he committed acts of financial misconduct or that he otherwise abused his position for personal gain. The Council dealt with the matter as best it could and no further intervention was required from it.

3.1.5. Ms Shirley Mabusela: Former UNIVEN Council Chairperson from 2009 to 2014 and former ordinary Council Member from 2014 to 2019

3.1.5.1.

Ms Mabusela noted in her statement that during 2010 the Council received several allegations of corruption against certain individuals as reported by the National Education, Health and Allied Workers’ Union (NEHAWU) branch at UNIVEN. Since the Council viewed these allegations in a serious light, management was instructed to investigate and take appropriate action. Forensic auditors, Deloitte, were appointed to investigate the allegations. The VC (Prof Mbati) received a high-level forensic report which implicated two senior managers, with a recommendation that disciplinary procedures be instituted against them namely, Prof Phendla, Dean School of Education and Mr Nemadzivhanani, the University Registrar. The two senior managers were subsequently suspended pending the outcome of disciplinary procedures.

Following the forensic report, Prof Phendla was subjected to a disciplinary process. She was found guilty and summarily dismissed by the VC on 1 November 2011. Prof Phendla exercised her right to internally appeal against the sanction of dismissal, and the appeal was dismissed. Prof Phendla had, towards the conclusion of the disciplinary process against her, submitted a grievance that contained several allegations, including that of sexual harassment against Prof Peter Mbati. In response, EXCO appointed Maserumule Attorneys to investigate these allegations in line with the University’s Policy on Sexual Harassment. Because the policy provides for an informal mediation process first, Maserumule Attorneys suggested that Council should approach an experienced mediator in the person of Lavery Modise.

Ms Mabusela noted that Prof Phendla had also reported the matter against the VC to the South African Police Service (SAPS). EXCO then took a decision to wait for the police investigation and the courts to make a ruling before proceeding any further. EXCO also noted that Modise’s mediation report stated that the mediation had reached a deadlock. She further stated that the Director of Public Prosecutions declined to prosecute Prof Mbati on the charge of rape.

At this time Prof Phendla had reported the matter to the CGE, following which Ms Mabusela received an email from the CGE requesting her to provide a response. She duly responded and also reported the CGE request to the EXCO. The Minister was also informed about the status of the matter. The CGE completed its investigation and published the report, which the University decided to review on the basis that the its response to the CGE was not considered in that report. The CGE matter was resolved by a way of settlement, in terms of which certain provisions in the report were expunged. The University was directed to comply with its sexual harassment policy by pursuing Modise’s mediation report.

Ms Mabusela noted that the Council requested Mr. Modise to provide a detailed mediation report and the finding thereof was that there was no sexual harassment, and that Prof Phendla and Prof Mbati had a consensual sexual relationship. Upon receipt of the second Modise report, the Council sought legal opinion from Mike Mashego who advised that given that Modise’s report cleared Prof Mbati there would be no basis to pursue a disciplinary process. In dealing with the allegations against Prof Mbati, the Council considered the decision of the Director Public Prosecutions to decline to prosecute Prof Mbati; the Modise mediation reports and Mike Mashego’s legal opinion as well as the court’s ruling in the Labour Appeals Court, which all cleared Prof Mbati of sexual harassment. After consideration of same, the Council resolved to close the matter.

In light of Ms Mabusela’s evidence the Committee noted the difficulty it confronted and which remained unclarified, as to why the Council failed to take speedy action when the matter was reported. Such action should have been taken prior to the dismissal of Prof Phendla rather than relying on and waiting for decisions taken by external bodies. It therefore appears that the Council did not feel the need to ensure that a harassment claim be resolved speedily and fairly.

The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

Ms Mabusela noted that during her tenure as the Chairperson of Council and ordinary member of Council, it had not received any allegations relating to Prof Mbati’s mismanagement of infrastructure projects, or that he committed acts of misconduct or abused his position for personal gain. The only allegations which came to the attention of Council emanated from audit findings as a result of which SAB&T was appointed to conduct a forensic investigation. The forensic investigation was not directed at Prof Mbati and the investigation report never mentioned Prof Mbati as one of the identified staff members who were to be disciplined.

3.1.6. Mr Tshililo Manenzhe: Former Director Human Resources UNIVEN

3.1.6.1. The manner in which the Council of UNIVEN processed a sexual harassment complaint against Prof Mbati by Prof Phendla

Mr Manenzhe noted that instead of taking appropriate action against the VC who wasted a lot of UNIVEN money on litigation to defend himself, the Council failed to take action against the VC in terms of its own Policy on Sexual Harassment. In accordance with the Policy, the Council should have instituted disciplinary proceedings against the VC, 10 days after receipt of the mediator's report. In his view, the failure of the Council to follow its own policies and procedures was a gross injustice to Professor Phendla, who in a country where sexual harassment in the workplace is rife, was both the victim of sexual harassment and also lost her job apparently because of this conflict between her and the former VC of the University.

The Committee has taken note that Mr Manenzhe is the author of the draft Sexual Harassment Policy approved by UNIVEN in 27 November 2009, which should have been reviewed after three years. The University failed to review the policy and the Enquiry received no reasonable explanation in this regard.

3.1.6.2. The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

Mr Manenzhe alluded that Prof Mbati contributed to the mismanagement of UNIVEN in as far as he failed to properly manage infrastructure projects. He stated that it was public knowledge that various infrastructure projects were not finished due to mismanagement of funds. This had resulted in contractors making requests for variations for additional funds as the initial tender amounts had huge shortfalls. These contractors were awarded tenders notwithstanding the advice of project managers.

Mr Manenzhe said he was reliably informed that there was a building on campus that was constructed without compliance with environmental and built environment requirements, which Professor Mbati sanctioned. Prof Mbati failed to inform the Council about this anomaly. He further alleged that Prof Mbati committed acts of financial misconduct and abused his position for personal gain. He stated that Prof Mbati used consultants to influence decisions to reach a desired or intended outcome. In legal matters, he used Bowman and Gilfillan Attorneys at exorbitant costs to defend cases that UNIVEN, on the face of it, had no prospect of winning.

Mr Manenzhe’s considered view was that the Committee would not have the complete picture of the extent of mismanagement and the abuse of position by Prof Mbati if it does not take into account the Labour Court cases mentioned in his submission which UNIVEN lost and the concomitant costs which were incurred as a result. He said it should be noted that all these were driven by self-interests in order to settle personal scores. He said in this context the legal costs would include, among others, the costs for the University attorneys, namely, Bowman and Gilfillan and the legal costs of their counterparts as well as monies paid in respect of area salaries and benefits.Mr Manenzhe said it will be in the interest of social justice that public funds lost be recovered from Prof Mbati. He indicated that the audit trail of relevant transactions can be obtained from the University records.

3.1.7. Dr Clarence Tshitereke: Former Director in the Office of the VC (Prof Mbati), UNIVEN

3.1.7.1. The manner in which the Council of UNIVEN processed a sexual harassment complaint against Prof Mbati by Prof Phendla

Dr Tshitereke stated that it was clear to him, based on the report of Modise that HR would proceed with the implementation of clause 5.2 of the University's Sexual Harassment Policy in line with the CGE recommendation. He said that the matter, however, remained unresolved for more than three years after Prof Phendla was dismissed (November 2011 - January 2015). Dr Tshitereke further noted that he learnt from Prof Mbati that a financial settlement with Prof Phendla was initially proposed during mediation. However, the proposal would have to be approved by the Council, since the settlement amount exceeded Prof Mbati’s approval threshold. This was never pursued further. The University failed to implement section 5.2 of its Sexual Harassment Policy. His view was that if implemented, Prof Mbati would have been formally charged for misconduct and a disciplinary process would have been instituted against him. Dr Tshitereke further noted that Prof Mbati used University funds to pursue various defences against the sexual harassment accusation. The University and its Council incurred legal costs, which were actually personal costs.

3.1.7.2. The alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

In respect of the above allegation, Dr Tshitereke states that an audit report on infrastructure projects for period 01 June 2013 - 31 July 2014 showed infrastructure management gaps including procedures for contract management not being in place, services rendered in the absence of signed service-level agreements, commencement of work before contracts were signed, weaknesses relating to contract variation orders monitoring not in place, the University Legal Advisor not involved in contract management, and Contractor management duties and responsibilities not defined. He noted that a final report submitted to the Chairperson of the Audit Committee of the Council by external auditors, on 12 June 2015, confirmed Supply Chain Management Policy inadequacies and Variation Order Approvals of as much as 42.76 per cent of the original contract price without the necessary mandates.

Dr Tshitereke further noted that there were poor or non-existent controls in the infrastructure construction value chain. The total amount of money already spent that the Council was requested to approve was R24, 226,592.99. Further, there were additional projects undertaken and paid without the necessary Council approval. These projects were signed by the Director of Facilities Management – who did not have the delegated authority in terms of the approved delegation of authority of UNIVEN. The total amount of irregular/unauthorised expenditure for which management sought Joint Bid Adjudication and Finance Committee approval was R30,161,982.19. He said the management of construction projects was poor, chaotic and wasteful.

Dr Tshitereke further stated that on 22 October 2015 – three months after completing his probation- Prof Mbati presented him with a conditional deployment offer to leave the VC’s Office and be appointed a Senior Lecture in the School of Human and Social Sciences. He rejected the offer. Subsequently, on 18 April 2016 Prof Mbati pushed the joint structures of UNIVEN to delete his portfolio from the Office of the VC and Principal. He said that he was charged for writing to the Chairperson of the Audit Committee raising concerns regarding infrastructure construction project irregularities. While he was charged, his case was not heard. Instead, the University offered a settlement – which he was forced to take.

3.1.8. Mr Victor Modiba: Former Student Representative Council (SRC) Leader, UNIVEN

Mr Modiba made submission on behalf of the former UNIVEN Student Representative Council members who served in their different SRC portfolios from 2009 to 2016. In respect of the allegation of mismanagement by Prof Mbati, Mr Modiba noted that until 2008 UNIVEN had six residences which accommodated only 20 per cent of its student population. Roughly, 80% of students hopelessly sought accommodation from unscrupulous land barons who exploited them. UNIVEN had few lecture halls, most of which were makeshift structures, a small computer lab with less than 20 computers and dedicated to only third year students. It also had a postgraduate computer lab with less than 30 computers and Information and Communication Technology (ICT) computer lab. First and second year students did not have access to computer labs. Classrooms were overcrowded.

He stated that Prof P. Mbati joined UNIVEN in 2008 while it operated under the above conditions. From 2008 until his departure in 2017, UNIVEN rapidly transformed into what he called “a jewel of the Limpopo Province”, with its surrounding communities beginning to feel and sense its impact as an institution of higher learning of note. There was a massive infrastructural investment in student accommodation and lecture halls, faculty buildings, offices and equipment. He emphasised that UNIVEN immediately and rapidly transformed in structure and outlook. Given this transformation, he was of the view that since UNIVEN’s establishment in 1982, the year 2010 marked the first time the University’s communities invested in its support.

Mr Modiba noted that Prof Mbati’s arrival at UNIVEN saw the procurement of a fleet of vehicles that included mini buses, four 74 seater buses, and one which is specifically tailored to students with disabilities. Transport was availed for nursing students when they go to various clinics and hospitals around Vhembe District for practicals. The purchase of the transport fleet contributed to the employment of drivers. The University also employed residential wardens.

Mr Modiba noted that UNIVEN has many computer laboratories, with all eight (8) schools having their own computer labs. WIFI facilities were installed to facilitate internet connectivity. He noted that Prof Mbati turned UNIVEN into a state of the art rural based comprehensive University. Prof Mbati’s administration had sourced funds and built a female residence and other residences over the years.Prof Mbati had worked hard to impress upon the SRC to stop the annual fresher’s ball and channel the funds to better use. It was under the leadership of Prof Mbati that UNIVEN rebranded itself and publicly bragged of its financial stability and sustainability. Prof Mbati has made UNIVEN the institution of choice.

Mr Modiba submitted that the attacks on Prof Mbati are xenophobic as he was a naturalized citizen and when comparing the work, he has done at UNIVEN compared to his predecessors, it talks for itself. He pointed to the increased research outputs that the University reported shortly after Prof Mbati’s arrival. He argued that Prof Mbati was attacked because he is black. Mr Modiba noted that the allegation of sexual harassment against Prof Mbati were dealt with by relevant institutions and subsequently dismissed.

3.1.9. Mr Khuliso Nemadzivhanani: Former Registrar, UNIVEN

Mr Nemadzivhanani did not provide information relating to the manner in which the UNIVEN Council processed the sexual harassment complaint as he did not have personal knowledge of the matter. He also did not provide information on Prof Mbati’s alleged failure to properly manage infrastructure projects. With regard to the allegation of committing acts of financial misconduct and mismanagement, Mr Nemadzivhanani noted that he was dismissed in December 2011 for his role in the irregular appointment of Clean Shop, as contained in the findings of the Deloitte forensic report. He lodged an internal appeal and the Internal Appeals Committee, chaired by Ms Faith Muthambi, processed the appeal, which resulted in his reinstatement. The Report of the Appeals Committee was disowned by two members at an EXCO Council meeting, and another report was written by these two members, confirming the disciplinary hearing finding of dismissal. He noted that Prof Mbati rejected this award and decided to review the award with the Labour Court. The Labour Court in 2017 dismissed the award of the Vice-Chancellor (CCMA). He successfully appealed it at the Labour Appeal Court in February 2020. By this time, Prof Mbati had left UNIVEN. He reported that UNIVEN Council attempted to settle in 2015. The agreement arrived at was for some financial compensation and reinstatement to another position with the retention of salary and benefits. He noted that it is his considered opinion that Prof Mbati went to great lengths to get rid of him and in that process public funds were not spared. He stated that he has a reasonable suspicion that millions of rands were spent on pursuing baseless and malicious charges against staff and that an investigation of expenditure on disciplinary cases like his would uncover huge fruitless expenditure.

3.1.10. Mr Balanganani Makhado: Former Administrative Officer, UNIVEN

Mr Makhado alleged that Prof Mbati appointed some former Council members to work at the Administration, namely Dr L Kone and Dr N Nthambeleni. Other allegations made include the over-utilisation of consultants to perform work that should ordinarily be done by directors; pioneering the demise of the internal audit unit and the University Foundation by creating a parallel structure called the UNIVEN Income Generating Committee, which failed to sustain itself and was subject to allegations of corruption. Further allegations levelled by Mr Makhado include that Prof Mbati decentralised fundraising to schools and selected people who should visit corporate to make representation instead of the Foundation Office; mismanagement of UNIVEN infrastructure development program, which led to a large number of incomplete projects; audit findings included amongst others, payment which exceeded the original contract price; weakness on supplier database, deviation from the Supply Chain Management (SCM) process, performance evaluation of suppliers, a database of prohibited suppliers and investment reconciliation not performed. Mr Makhado noted that Prof Mbati unleashed students to challenge staff he did not like.

3.1.11. Prof Mbati: Former UNIVEN Vice-Chancellor and current VC at SMU

Prof Mbati commenced his submission by stating the parameters of his response to the Enquiry’s Terms of Reference and that he would not dwell on the sexual harassment issues which are matters that were processed and finalised by the courts. He referred to a court application lodged by the HETN challenging his appointment at the SMU, and that the matter is still before the courts and therefore sub-judice.

He also raised concerns with the process of the Enquiry noting biasness and irregularities. He noted the previous pronouncements by the Chairperson of the Committee, where the Chairperson had publicly pronounced him guilty and also questioned his appointment at SMU. Additionally, he noted that this violated the legal principle of audi alteram partem and immensely violated his dignity and human rights as the Chairperson made these assertions without hearing his side of the story. Prof Mbati also submitted that the Chairperson had chosen to rely on the version of a few disgruntled former employees who were dismissed from the University for misconduct, out of more than 20 000 people in the UNIVEN Community.

Prof Mbati further noted that despite the undertaking not to consider the merits of the sexual harassment allegations, the Chairperson had put questions to the witnesses, which dealt with matters that have been ventilated and pronounced by the courts. He noted that the Chairperson was clearly the evidence leader in this Enquiry (the prosecutor) and will be the judge at the end of the Enquiry. Prof Mbati argued that witnesses were not treated the same. During questioning, witnesses that appeared to support the narrative against Prof Mbati were treated with leniency, while the ones who seemed to oppose it, like Mr Modiba and Advocate Nemukula, were treated unfairly and ridiculed by the Chairperson.

Prof Mbati’s statement responds to the allegations made against him both and also provided supporting documents. He denied all the allegations levelled against him. In an attempt to avoid repetition of information, a summary of Prof Mbati’s statement will not be discussed here as most of the content is used in the observation and key findings.

Pursuant to Prof Mbati’s oral testimony on 05 March 2021, Ms Pendu, the former UNIVEN Higher Education Management Information System (HEMIS) Officer submitted a dispute to the Enquiry on 11 May 2021. In the submission, Ms Pendu disputes the statement made by Prof Mbati that she was dismissed for forging a certificate. In further disputing what she called a lie by Prof Mbati, she levelled further allegations. On 17 August 2021, Ms Pendu appeared before the Enquiry to give oral testimony. In line with the audi alteram partem principle of natural justice, the Committee requested Prof Mbati to respond in writing to the dispute and further allegations made by Ms Pendu.

Prof Mbati claims in his response, dated 07 September 2021, that the Committee’s request to him to respond to the dispute and allegations levelled against him by Ms Pendu was an “ambush” tactic, of the Committee and in particular its Chairperson Mapulane, of putting questions to him without prior written request for response to those questions. He indicated that this was unfair and prejudicial to him, and out of kilt with justice and fairness. He further claims that it appears to be a long standing tactic from the Committee in its predetermined efforts to make adverse findings against him.

3.1.12. Dr Nthambeleni: UNIVEN VC

Dr Nthambeleni submitted a statement to the Committee in which he responded to the allegations that he is one of the two UNIVEN Council members that were close to Prof Mbati and were appointed to occupy administrative positions at the University. The statement did not provide a response to the question put to Dr Nthambeleni on the allegation, but raised clarity seeking questions to the Committee. He asked for clarity on the following:

What constitutes a ‘close’ relationship and what is the basis of such an allegation?
Which period I am alleged to having had a ‘close’ relationship with Prof Mbati?
Which administrative position am I alleged to having occupied and at which institution?
When was I appointed into this administrative position and by whom?
Why is my alleged ‘close’ relationships with Prof Mbati and my alleged occupation of an administrative position viewed in a serious light by the Portfolio Committee?

Dr Nthambeleni further stated that the Committee should provide answers to the above questions to allow him to prepare a response before his appearance before the Enquiry. In terms of the Committee’s intention to engage him on the concerns raised through the University’s legal representatives on or around September 2020, Dr Nthambeleni stated that he is of the view that such concerns relate to points of law. Accordingly, given that he is not a legal expert, he is not equipped to engage the Committee meaningfully on matters of a legal nature and to do so, would cause prejudice to both the University and him.

Dr Nthambeleni submitted two supplementary statements on 13 May 2021 and 17 September 2021 responding to specific questions that the Committee had requested him to respond to. Dr Nthambeleni noted in his statement of 17 September 2021 that he requested the Committee to furnish him with questions so that he could prepare himself. He said he received a letter from the Secretariat on 11 May 2021 requesting him to submit to the Committee the report of the Task Team that was appointed by Council to investigate the decision to review the CGE report, including the minutes of 10 April 2015. He noted that he provided the requested minutes of 10 April 2015 and further reported to the Committee that after an extensive search he could not find the report of the Task Team. He said during the session of the Enquiry he was ambushed with questions which the Committee expected him to answer without having been provided questions and afforded time to prepare himself on the issues raised.

Dr Nthambeleni further noted that the situation degenerated to a point where the Committee and the then Chairperson made derogatory remarks aimed at tarnishing his dignity and the VC and Principal of UNIVEN as a whole. He states that he was shamefully and shockingly dismissed from the meeting without an opportunity to present his views regarding insults and false accusations made against him. He could not respond to the allegation because his microphone was muted and was denied the right to respond, contrary to the values espoused in the common law principle of audi alteram partem rule. His view is that he was undeservedly harassed and humiliated by the Committee and that the attacks were unwarranted, and the Committee should self-correct and publicly retract derogatory and disparaging insults made against his person and in his role as the UNIVEN VC and Principal.

Dr Nthambeleni welcomed the opportunity given to him by the Committee to respond to the questions as raised in the questionnaire.

The responses to the questions will form part of the observations and findings.

3.1.13. Mr K Maimela: Former Chairperson of UNIVEN Council Committee on Human Resource

The Committee invited Mr Maimela to respond to certain questions that other witnesses, in particular, the former University Council Chairpersons and the current VC could not answer. Mr Maimela was invited in his capacity as both former Chairperson of the Council Committee on HR and a member of the Task Team appointed by Council to investigate issues relating to the application of the judicial review of the CGE investigative report.

Mr Maimela confirmed that he was a Council member, the Chairperson of the Committee on HR and a member of the Task Team appointed by the Council. He detailed in the statement that on 10 April 2015, the Task Team reported back and advised EXCO that the Chair of the Council had on 30 January 2015 written to members of the UNIVEN Council raising concerns on the legality of the CGE report, and that should the CGE refuse to revisit its investigation, the University would take all necessary steps to ensure that the report is subjected to a judicial review. The Chair of the Council, Mr Serobi Maja, subsequently authorized the management to institute review proceedings.

The Task Team recommended that the review application of the CGE report should be allowed to take its course and that Council should await the outcome before deciding on an appropriate course of action.

In relation to the allegation that Prof Mbati utilised the University resources to defend himself, Mr Maimela noted that the then Director of Legal Services, Adv. Lambani, provided a detailed breakdown of the legal costs to the University Council which was subsequently ratified by Council confirming that there was no evidence of misuse of University resources.

The statement further notes that on 17 April 2015, Council ratified the Task Team recommendations as per paragraph 3.1 to 3.3. Mr Maimela also stated that the decision to subject the CGE report to court for judicial review was ratified by Council on 17 April 2015.

3.1.14. Ms N Pendu: Former Higher Education Management Information System (HEMIS) Officer UNIVEN

Ms Pendu is a former UNIVEN HEMIS Officer who, after following the proceedings of the Enquiry, submitted a letter to the Committee, in which she disputed the evidence given by Prof Mbati.

Her statement commences with a background regarding her appointment at UNIVEN. She noted that in 2008, UNIVEN advertised the position of HEMIS Officer, which she applied for. At the time, she worked at the University of Fort Hare (UFH) and could not accept the offer for personal reasons. In March 2009, she received a call from Mr Nemadzivhanani, the former UNIVEN Registrar, who informed her that UNIVEN would be advertising for the HEMIS Officer position and encouraged her to re-apply. Ms Pendu applied and in her CV indicated that she held a Diploma in Practical Bookkeeping but could not get a copy of her certificate.

She was interviewed on 13 July 2009 and was later appointed to the post. She noted that her appointment was not based on her qualifications but on the skills she possessed as affirmed by Prof Mbati and the former Director of HR, Mr Manenzhe.

In relation to charges against her, the statement notes that in 2015, she learnt from the then Registrar that Prof Mbati had asked the internal auditor to investigate her because she had fraudulently been appointed. Despite being accused of not having a matric certificate (which she had misplaced), she was able to submit a copy together with her University of South Africa (UNISA) academic record. She also heard rumours that UNIVEN was losing money because she was submitting incorrect data to the DHET. She was later interviewed by the internal auditor, and cleared of wrongdoing, and had supporting evidence to prove that.

Ms Pendu indicated that Prof Mbati appointed Price Water House Coopers (PwC) to investigate the safety of the HEMIS system and data. Prof Mbati was unhappy with the report and appointed SAB&T to investigate her office. The report did not find any wrongdoing from her side. Prof Mbati allegedly instructed the auditor to write what he wanted, and the last report had some differences compared to the first one and led to her being charged for fraud and her subsequent dismissal. She challenged the dismissal in the CCMA and won the case.

In relation to the reasons for her dismissal, the statement noted that she was the Branch Secretary of NEHAWU, and the majority of Prof Mbati’s victims were shop-stewards and those who were vocal about wrongdoings at UNIVEN. She reported that her dismissal was not different from others because those who disagreed with Prof Mbati got into trouble. With respect to the behaviour of Prof Mbati, the statement alleges that he was a bully, manipulative and ruthless, and would push for something to be done though he knew it was wrong. By way of example, she indicated that Prof Mbati forced her colleague to add a colleague to the list of graduates for his PhD on the eve of the graduation ceremony in 2013, although he had not corrected his thesis. She further indicated that he acted selectively and differently when he had to institute disciplinary hearings against those loyal to him and those he disliked.

In conclusion, the statement refutes the testimony by Prof Mbati in relation to the events, which led to her dismissal.

3.1.15. Mr N Mutoti: Former NEHAWU Branch Chairperson UNIVEN

Mr Mutoti submitted a written statement to the Committee to give evidence in respect of the developments which took place at UNIVEN during Prof Mbati’s two terms of office as the Vice-Chancellor and Principal. His statement noted that he had been an employee of UNIVEN since 1986 to date and since 1991 was the Chairperson of the Service Staff Committee, Chairperson of NEHAWU, and member of the Council. By virtue of having been a member of the Council and also serving in different structures within UNIVEN, he knew many things and how it grew to its current level. Mr Mutoti stated that UNIVEN had grown to an amazing level during the Chairpersonship of Ms Mabusela and Mr Maja, and the developments during their terms were commended by different Ministers from DHET, and the leadership of other institutions.

In relation to the developments under Prof Mbati as the VC of UNIVEN, the statement notes that Prof Mbati addressed the UNIVEN community as a candidate VC and he did well as he was answering all questions from the floor, and the majority of the UNIVEN community were convinced that he was the one to be appointed. His leadership style was based on the rules within the institution and also guided by the Constitution of the country. His door was open for the leadership of the employees, and there were many other things that employees achieved through negotiations during his two terms.

He said UNIVEN grew to a very high level such that some universities were shocked. On several occasions, UNIVEN had been mentioned as an example of what transformation and development meant by different Ministers who visited the institution during Prof Mbati’s two terms of office. During the insourcing/outsourcing period, this matter was peacefully negotiated whereby 334 private company employees were safely insourced at the university under UIGC. The transformation in terms of driving UNIVEN in the right direction in relation to teaching courses, relevant to the job market was on course. Tremendous development in student residences occurred during his term of office. The Adult Basic Education and Training (ABET) classes were started during his term of office whereby all ABET learners were given computers which were meant to educationally develop the service staff category.

The statement notes that Prof Mbati’s life was threatened and there were allegations laid against him by different non-professional and professional institutions, including former UNIVEN employees who were dismissed after being found guilty by the relevant committees that dealt with such matters.

3.1.16. Mr L Cibi: Former UNIVEN Graduate and Director of Andany Investments (Pty) Ltd

Mr Cibi submitted a written statement to the Committee with reference to the infrastructure development projects at UNIVEN during the tenure of Prof Mbati, and reference to himself and his company. The statement commences with a background about himself as a former full time student of UNIVEN who experienced appalling living conditions at UNIVEN’s residences. As an entrepreneur, he used his corporate knowledge to go back to his community and re-invest, with a particular focus to help alleviate the student accommodation backlog at UNIVEN where student murders, rapes and muggings were a daily occurrence due to poor accommodation.

The statement noted that Andany Holdings developed a business model to address the backlog on student accommodation as a national response. With this model, the company saw an opportunity to partner with UNIVEN to address its infrastructure backlog. The company identified a few drivers that were required from UNIVEN to make the proposal feasible, namely:

The partnership would have to exist within a structure that is governed by the Companies Act, 2008 (Act No. 71 of 2008) and falls outside of the Public Finance Management Act, 1999 (PFMA) requirements of a tender process or any other related process. In this instance, UNIVEN already had a company that was 100% owned by it called the University Income Generation Centre (UIGC).
Secondly, the entity that would be owned by UNIVEN must have equity and be able to financially contribute to the transaction.
Thirdly, Andany Holdings needed to partner with a company with technical and project management skills in order to deliver the building projects.
Fourthly, Andany Holdings needed to raise funding from various financial institutions.
Lastly, the DG of DHET did not seem to understand that the company’s proposal would not need to go out on tender as the company that it partnered with being UIGC was governed by the Companies Act, 2008.

Accordingly, Andany Holdings opted to partner with UIGC as opposed to UNIVEN itself. UNIVEN was a shareholder in UIGC and the company was governed by a shareholder’s agreement not government or DHET policy. UIGC was a company that UNIVEN invested into with the aim of making profit from whichever business activities that the UIGC independently invested in. Similar to any commercial transaction, UIGC approached UNIVEN as their shareholder to get permission to utilize its vacant land within the campus to build student accommodation, a hotel and shopping centre for the UNIVEN community. The UIGC’s motivation was that UNIVEN’s under-utilised land, therefore, development could turn its dormant land into a cash generating asset.

The statement notes that the current model of UNIVEN and other universities where they issue tenders to private developers, has no financial benefit for the institution besides that students would have accommodation.

The statement provided a detailed report on how Andany Holdings ended up partnering with UIGC. The company approached Dr Mudau, CEO of UIGC with the proposal to bring in R2.5 billion worth of funding for the development of facilities. Mr Cibi was invited to present his company’s proposal to the UIGC board. The proposal was approved and a memorandum of understanding (MOU) was entered into. The company was advised by the CEO of UIGC that the next step would be to present its proposal to the UNIVEN Council approval. Dr Mudau subsequently presented the UIGC Board resolution to the UNIVEN Council and it was approved. The project entailed building a 5 000 student-bed accommodation facility, 150 bed hotel facility, a 4 000 square metres mini-shopping centre and apartments for lecturers. This mega development was going to be possible without UNIVEN contributing any money but merely allowing its owned company access to build on University land. The UNIVEN Council approved and issued a letter to UIGC in support of the land being made available.

The statement notes that Andany Holdings received a copy of the land availability letter for the infrastructure development project. The company proceeded to invest money to build studies and financial models to raise funds and the Public Investment Corporation (PIC) showed support by engaging in discussions for the investment of R2.5 billion for the subject to UNIVEN getting ministerial approval for the access to the land. The process of getting ministerial approval has never been finalised. The company was never served with a letter of cancellation of the project by the UNIVEN Council and was awaiting the approval of the Minister to proceed with the development. Mr Cibi personally contacted the Director-General (DG) of DHET and they met in Centurion to explain the project. The DG promised to look into the proposal, however, has not yet responded.

In relation to the allegation that Prof Mbati was a shareholder or Director of Andany Holdings, Mr Cibi stated the company approached Prof Mbati after his term as VC ended to become a Director and he declined the offer. Therefore, the narrative that Prof Mbati was a shareholder of Andany Investments and Black Capital was mischievous and an aim to discredit him and cast aspersion on sound business initiatives of Andany Holdings. The Companies Intellectual Property Commission (CIPC) disclosure proved that Prof Mbati has never been part of Andany Holdings or associated companies.

The statement concludes by requesting the leadership of the DHET and the Committee to afford Andany Holdings an opportunity to present its business model. The statement also encourages the Committee and DHET to engage with public and private companies that have solutions to resolve the lack of student accommodation in rural communities.

3.1.17. Mr L Thekisho: Chairperson Foundation for Education & Social Justice Africa (FESJA)

Mr Thekisho submitted a written statement on behalf of FESJA in relation to the fitness of Prof Mbati to lead a higher education institution.

The statement noted that FESJA was aware of a spirited misinformation campaign to cast aspersions on the person of Prof Mbati following his appointment as VC of SMU. It noted that FESJA was further aware that those behind the toxic narrative, and those who have submitted false allegations against Prof Mbati were individuals who were dismissed from UNIVEN for gross misconduct after due disciplinary processes. FEJSA dismissed the adverse narrative championed by who were dismissed from the employ of UNIVEN for the following reasons:

After Prof Phendla had been implicated in a forensic report for corruption, she falsely accused Prof Mbati of sexual harassment, arguing that she had been dismissed on account of denying Mbati sexual favours and not because of corrupt activities.
NEHAWU at UNIVEN demanded that Prof Mbati probe allegations of corruption being perpetrated by senior officials within UNIVEN and Prof Mbati instituted a forensic investigation on that basis.
Based on the strength of a Deloitte Forensic report, Prof Phendla was charged with corruption and tender irregularities by UNIVEN and subsequently dismissed following a due disciplinary process.
Prof Phendla, as part of her strategy to embarrass Prof Mbati for having signed her dismissal letter, approached multiple bodies within a short time to lodge complaint of sexual harassment, namely, the South African Police Service (SAPS), Labour Court and CGE.
Despite exhausting all legal avenues available to her, Prof Phendla further approached the office of the Minister, and other high offices to further lay claim to her allegations of sexual harassment.
Prof Mbati had subjected himself to all legal processes available to him in defence of the allegations by Prof Phendla, and was cleared by the Office of the Public Prosecutor, Labour Court and the UNIVEN Council.

The statement notes that it was incorrect to state that during Prof Mbati’s tenure at UNIVEN, six infrastructure projects with the original cost amounting to R238 million were found abandoned in the July 2017 visit by the DHET. From the investigative reports by Sizwe Ntsaluba Gobodo (SNG) and SAB&T, there was no wrong doing on the part of Prof Mbati. The reasons pointed in the SNG and SAB&T audit reports showed that contractors had failed to deliver on their agreed performance and UNIVEN took appropriate corrective action against them.

Following the end of Prof Mbati’s term as VC, he was approached by Mr Cibi to consider working for one of his companies, however, Prof Mbati declined the offer. The DG of DHET should have conducted a company search which would show that Prof Mbati was not a Director in any of Mr Cibi’s companies. The awarding of a contract to Mr Cibi for infrastructure projects was approved by the Board of UIGC and UNIVEN Council ratified the decision. The matter of UIGC seeking approval from DHET was not within Prof Mbati’s purview as VC but a matter for the CEO and Chairperson of the UIGC.

The statement notes that the allegation by the DG and the Chairperson of the Committee that Prof Mbati was a Director of Andany Holdings was incorrect. The allegations about the UIGC not informing DHET about the infrastructure projects were adequately explained by the CEO of UIGC and evidence of engagement between Andany Holdings and the DG was given in Mr Cibi’s submission. The evidence of the Minister being informed of the projects to be undertaken by Andany Holdings at UNIVEN was provided by Mr Cibi.

The statement concluded that Prof Mbati diligently served the disadvantaged community of UNIVEN for 10 years from 2008 – 2018 and during this period, was never subjected to an investigation by Council or any other organ of state for wrong doing. Instead, during his tenure, Prof Mbati transformed UNIVEN from an unstable, neglected and poor institution into an outstanding University with state of the art infrastructure, high research outputs, excellent pass rates and highly sought after students. FESJA was aware that some former senior UNIVEN employees that were dismissed following due process were mobilising other employees who were dismissed during Prof Mbati’s tenure as VC to submit grievances to the Committee alleging that he targeted a particular group of employees and that he was therefore not fit to be appointed as VC at SMU. FESJA was also aware that because Prof Mbati adopted a zero-tolerance approach against corruption at UNIVEN, he became a target of smear campaigns perpetuated by individuals that have been dismissed from UNIVEN. He further endured death threats and staged burglaries at his Pretoria home. The threats were reported to the police.

3.1.18. Department of Higher Education and Training

The Department made a presentation to the Committee on infrastructure management at the UNIVEN during the tenure of Prof Mbati.

3.2. Part B: Sefako Makgatho University

3.2.1. Ms Maria Rambauli: Chairperson of the SMU Council

3.2.1.1. Process followed by Council in appointing Prof Mbati

Ms Rambauli in her statement noted that the University Council was guided by the Higher Education Act, 1997, the Institutional Statute of the Sefako Makgatho Health Sciences University, 2016 and applicable institutional rules pertaining to the appointment of a Vice-Chancellor. The Policy and Procedure: Appointment of the Vice-Chancellor prescribed a specific procedure to be followed for an appointment of a VC. The salient features of the requirements of the recruitment procedure are as follows:

When a VC vacancy arises, the Executive Director: Human Resources, must place an advertisement in the national and international press;
The members of the Institutional Forum, the Senate, and the Council are invited to submit nominations to the Executive Director;
The Selection Panel (SP) shall convene a meeting as soon as possible after the closing date for applications and nominations, in accordance with the time frame for the implementation and finalisation of the appointment process approved by the Chairperson of Council. The SP shall consider all the candidates for appointment in accordance with the requirements for the position;
The SP shall compile a short list of possible candidates with a view to inviting the short-listed candidates to address a joint meeting of the Council, Senate and the Institutional Forum;
A candidate will be deemed to be suitable for appointment by the Senate or the Institutional Forum if 50% plus 1 (one) of the members of the relevant body present vote in favour of his or her suitability. Voting will be conducted by means of a closed ballot under the supervision of the Registrar;
A Selection Panel interviews the candidates and after the interviews, the SP makes a substantiated recommendation to Council regarding the suitability for appointment of the candidates, taking into account the report from the Senate and Institutional Forum;
Council must be convened as soon as possible to decide on the appointment of the VC using the SP report (inclusive of its recommendations) as a basis for its deliberation;
If the Selection Panel report is accepted after deliberation, Council members vote for the appointment of the VC via secret ballot. The position of VC will be offered to the candidate who enjoys the support of the majority of Council members present at the meeting; and
The Executive Director: Human Resources, in consultation with the Chairperson of the Council, is responsible for setting a time frame with a view to the implementation and finalisation of the appointment process.

Ms Rambauli indicated that the appointment of Prof Mbati as the VC was in accordance with the Policy. She provided a summary of the process to appoint Prof Mbati as follows:

The former VC, Prof De Beer submitted his resignation letter to Council in April 2019, and it was mutually agreed that he would leave SMU at the end of December 2019. Council immediately set in motion the recruitment process to ensure that there would be a smooth handover and no vacuum in leadership.
The position was advertised externally in the Sunday Times newspaper, and internally placed on the SMU website, on 28 April 2019 with a closing date of 17 May 2019. This included an invitation to Senate, Institutional Forum and the Council to nominate individuals for the position. The initial shortlisting took place on 12 June 2019, and none of the applicants met the requirements. The Council took a decision to appoint a recruitment agency to re-advertise the position and engage in a head-hunting process.
The former VC’s departure on 2 September 2019 made the need to appoint a new VC more urgent. Since then, an acting VC had been steering the managerial and administrative responsibilities of the position.
The SP convened on 13 November 2019 to shortlist and one (1) candidate was shortlisted. The SP requested the recruitment agency to continue with the head-hunting process in order to increase the pool of candidates. The SP re-convened on 13 February 2020 and three (3) more candidates were short listed. This resulted in the overall shortlisting of four (4) candidates, with one (1) candidate from the previous round.
The four shortlisted candidates were invited to deliver a presentation before the joint sitting of Council, Senate, and Institutional Forum (IF) on 11 March 2020. However, only three candidates presented to the joint meeting because one of the candidates withdrew from the process. After the presentations, Senate and IF convened separately to vote on the suitability of the candidates in a closed ballot and the results were to be presented to the SP as per clause 2.2.3.2 and 2.2.3.6 of the procedure respectively. Interviews were to be held on 18 March 2020, however on account of the COVID-19 pandemic, the interviews had to be postponed, and were instead held virtually on 16 April 2020.
Eight (8) questions were posed to each candidate, and the SP could follow-up on any of the questions for further clarity. All candidates confirmed that the process was fair, and they were treated fairly. The SP included all constituencies as articulated by the policy, including two (2) highly experienced current Vice-Chancellors, namely Prof Mokgalong (University of Limpopo) and Dr Mabizela (Rhodes University).
In terms of the SMU regulation on the appointment of the Vice Chancellor, clause 2.2.4.6 states as follows: After the interviews with the candidates, the members of the SP must make a substantiated recommendation to Council regarding the suitability for appointment of the candidates. The members of the SP must cast their votes by way of closed ballot. Should the SP be of the opinion that more than one candidate is suitable for appointment in accordance with the advertised requirements these candidates may be rated in order of preference. If the votes are tied between two candidates, the Chairperson in all instances casts the deciding vote. After voting, the Chairperson of the SP announces the results of the ballot to the SP.
Prior to voting in a closed ballot, the SP had a comprehensive discussion on each candidate. The SP deliberated on the appointability of all three (3) candidates and indicated their preferences in terms of how these candidates presented themselves before the SP. The SP was also presented with the voting results of both the Senate and Institutional Forum, following the candidates’ presentations to the joint sitting; this were duly noted and considered. Due to the COVID-19 national lockdown and the subsequent online interviews, the services of an external service provider were procured to administer the closed ballot process. The SP members voted by means of a closed ballot and ranked the candidates in order of their preferences. The results were collated and released to the SP. The SP accepted the results as correct.
The overall recommendation of the SP was that two of the candidates were appointable, namely Prof Angina Parekh and Prof Peter Mbati, but had different strengths to contribute to the position. Following the deliberations and voting results, the Selection Panel unanimously recommended a preferred candidate for the position of Vice-Chancellor, being Prof Mbati.
In terms of clause 2.2.4.6 the members of the SP must make a substantiated recommendation to Council regarding the suitability for appointment of the candidates. Such a document outlining the process undertaken by the SP and their recommendation served before SMU Council meeting on 24 April 2020. The SP’s report was circulated to the Council members prior to the Council meeting on 24 April 2020, when SMU Council was scheduled to deliberate and vote on who to appoint as the new Vice Chancellor.

At its meeting held on 24 April 2020, the Council, in accordance with the Policy, reviewed and confirmed the processes and procedures that had been followed and considered all the nominations and applications received. The Council took note of the results of the voting by the Senate and IF on the suitability for appointment of the candidates on the shortlist, and decided whether to appoint a candidate or not.

The SMU Council members by way of secret ballot, voted on the matter, where the majority voted to appoint Prof Mbati. Subsequently, the SMU Council mandated a team, consisting of the Chairperson and Deputy Chairperson of the Council, and the Chairperson of the Human Resources Committee of Council, to finalise the formulation of the offer to the successful candidate. An offer was accordingly made to Prof Mbati, who accepted it with a starting date of 1 June 2020.

In relation to disclosure of candidates’ previous employment history, the University made use of a recruitment agency’s services in the recruitment process. The agency conducts background checks on candidates. Prof Mbati had disclosed the sexual harassment allegations to the recruitment agency and such disclosure formed part of the report that served at the SP meeting held on 16 April 2020. Prof Mbati also disclosed the sexual harassment allegation to the SP. He contended that he was cleared of the sexual harassment claims by the Labour Court. In light of the Labour Court clearing Prof Mbati of the sexual harassment allegation, the issue was no longer legitimate or a rational ground to disqualify him for the VC position.

In relation to the SMU Council members’ knowledge of the sexual harassment allegations levelled against Prof Mbati, the Council members were aware of the allegations given that this information formed part of the SP report. The disclosure in the SP report and Labour Court judgment cleared Prof Mbati and according to that report there was no sexual harassment cloud hanging over his head. Thus, the issue was not deliberated at length during the SMU Council meeting on 24 April 2020.

With respect to the support from the SMU Council members in the appointment of Prof Mbati, the decision on the appointment of the VC is conducted through a secret ballot vote by Council members, and the candidate that receives the majority votes is appointed. Council members voted and their votes were tallied and audited by Nexia SAB&T auditors. Prof Mbati received the majority of votes.

In as far as it relates to the previous unsuccessful application of Prof Mbati for a Director position at SMU, he could not be considered for the position given that the sexual harassment allegation levelled against him was at that stage pending. In relation to poor infrastructure at UNIVEN, the SMU Council was not aware of the DHET report on this matter.

3.2.2. Prof O Ayo-Yusuf: Former Chairperson of Senate

3.2.2.1. Whether Senate members were aware of the allegations of sexual harassment levelled against Prof Mbati

Prof Ayo-Yusuf noted in his statement that all the Senate members received an email dated, 6 March 2020, from the Office of the Registrar inviting them to a special meeting of the Senate scheduled for 11 March 2020. The invitation emphasised that in terms of the Policy and Procedures for the Appointment of the Vice-Chancellor, paragraph 2.2.2.1 and 2.3.2.3, the Senate is required to meet with a view to consider the suitability of candidates for appointment to the Selection Panel (SP) and Council. Subsequently, on 8 March 2020, the Senate members received another email from the Office of the Registrar notifying members about the agenda of the special meeting of the Senate. Prof Ayo-Yusuf further noted that there was no mention made nor was there any documentation included with the letter of intent of CV of Prof Mbati in relation to any allegation of sexual harassment.

Prof Ayo-Yusuf indicated that the special Senate meeting was convened shortly after the completion of a series of presentations by three candidates to a joint sitting of SMU Council, Senate and IF. In his capacity as Chair of the Senate he introduced the consideration of the shortlisted candidates and recommendation to the SP and council on their suitability for appointment. In accordance with the procedure, the Senate members were to apply their minds and indicate by vote their recommendation on the suitability of each of the three candidates presented to them. In light of the fact that Senate did not have any documentation on allegations related to sexual harassment as at the time the suitability for the appointments were considered, it was a reasonable assumption that Senate members were not aware of an allegation of sexual harassment levelled against Prof Mbati.

In relation to poor infrastructure governance at UNIVEN, Senate members were not aware of this information, it was not contained in the report that was distributed to the Senate, which was used as part of the appointment process.

3.2.3. Prof S Madiba: Former Acting Chairperson of the Institutional Forum (IF)

3.2.3.1. Whether the IF members were aware of the allegations of sexual harassment levelled against Prof Mbati

Prof Madiba noted in her statement that the members of the Institutional Forum were not informed about the allegations of sexual harassment levelled against Prof Mbati when the shortlisted candidates were invited to deliver a presentation before the joint sitting of the SMU Council, Senate, and Institutional Forum (IF), on Wednesday, 11 March 2020.

In relation to the sexual harassment allegations and whether IF members were aware of them and if that would have influenced their voting, the statement indicates that the members of the IF would have deliberated extensively on the matter. However, voting on the suitability of candidates for appointment was conducted by means of a closed ballot, under the supervision of the Registrar as stipulated in the Higher Education Act, 1997.

3.2.3.2. Poor infrastructure governance at the University of Venda and whether IF members were aware of the DHET report on poor infrastructure at UNIVEN

Prof Madiba noted that the members of the IF were not aware of the report when the shortlisted candidates delivered a presentation before the joint sitting of the Council, Senate and IF, on 11 March 2020. The matter did not inform deliberations of the IF on the suitability of shortlisted candidates. Moreover, members of the IF would have deliberated extensively on the matter before voting, if they had information regarding the DHET’s report on poor infrastructure governance at UNIVEN.

3.2.4. Prof C De Beer: Former Vice-Chancellor SMU

Prof C De Beer was invited by the Committee to give testimony in his capacity as a former VC of SMU and account pertaining to the application of Prof Mbati for the position of Director: Institutional Advancement at SMU.

He noted in his statement that he had requested the Registrar of SMU to provide access to the institution’s records in respect of Prof Mbati’s application to the Director: Institutional Advancement position. However, the Registrar indicated that the records of the proceedings of the shortlisting and interviewing committee had been misplaced and that he needed to refer to the SMU Council response to the Committee on this matter. The SMU Council’s response indicated that Prof Mbati did apply for the position of Director: Institutional Advancement and Internationalisation at SMU. In terms of the institution’s rules, the appointment of Directors falls under the responsibility of the Vice-Chancellor, therefore, the Council was not involved in the appointment process for this position. From the information gathered by the SMU Council, Prof Mbati was interviewed during June 2017, and at the time, the Labour Court had not yet pronounced on the sexual harassment allegations against him, and a decision was taken at management level not to appoint him. The position was later re-advertised and filled in 2018.

Prof De Beer concurred with the response of the SMU Council on this matter, and indicated that it would have been inappropriate for Prof Mbati to be appointed in the position due to the unresolved sexual harassment allegations levelled against him. He further noted that taking into account the challenges the higher education sector faces with regard to sexual harassment and certain permutations, as a manifestation of gender-based violence (GBV), allegations of sexual harassment in general, and in particular by those in positions of authority, must be seen as a serious impediment, if not a disqualification to functioning effectively within the higher education environment. Secondly, even in instances of such allegations addressed through mediation or any other appropriate procedure, the powerful impact of perceptions pertaining to sexual harassment and the associated mistrust mostly continues to be present in the affected community, especially in an extremely vulnerable student and staff environment such as the SMU.

3.2.5. Ms G Michel: Director Assessments & Client Relations Academic Partners

Academic Partners is the recruitment agency appointed by SMU to assist with the head hunting / recruitment of the VC. The organisation was invited to give evidence pertaining to the process followed in the appointment of the Vice-Chancellor of SMU.

Ms Michel gave evidence on behalf of the Agency and gave a breakdown of the recruitment process that was executed. The process commenced with the initial request for quotation from the Executive Director of Human Resources at SMU on 25 April 20219. On 17 July 2019, the Executive Director of HR requested for sign off. On 25 July 2019, the Document of Understanding was finalised and signed-off by SMU. The ResearchGate digital advertisement went live on 29 July 2019, and on 11 August 2019, the database and networking search commenced.

The adverts also appeared in the weekend print media from 16 – 18 August 2019. On 18 August 2019, Academic Partners approached candidates that were interested in the position. Three candidates responded positively to Academic Partners. To enhance the search effort, Academic Partners elicited the help of Prof A Crouch and Prof F Petersen.

On 26 August – 9 October 2019, candidates who met the criteria were assessed by the Academic Partners. On 7 October 2019, all round one (1) candidates attended the Activity-Based Assessment and Confirmation (ABAC) and fit interview. On 13 November 2019, the presentation to the Selection Committee of potential candidates was made. The Selection Committee was disappointed with the candidates presented. They requested further candidates to be sourced with a specific focus on female candidates. On 14 November 2019, further search approaches were made in agreement with the SMU Executive Director of HR. On 2 February 2020, all the intended round 2 candidates attended ABAC and Fit Interviews with the exception of two candidates. These two candidates were identified just prior to making the immanent presentation to the Selection Committee, requiring Academic Partners to still confirm their suitability. They were ABAC assessed shortly thereafter and found to meet the assessment criteria.

On 13 February 2020, round two (2) presentation of potential candidates was made to the Selection Committee and four candidates were shortlisted, two males and two females. On 21 February 2020 regret letters were sent to candidates that did not make any of the three rounds of shortlisting.

On 11 March 2020, the shortlisted candidates made presentations in person before the Joint-Meeting of Council, Senate and Institutional Forum. On 16 April 2020, the candidates were interviewed by the Selection Committee through digital platform. Around 28 April 2020, the SMU Executive Director of HR informed candidates about their outcome on the interview. On 5 May 2020, regret letters were sent to candidates that did not make it during the interviews, and on 20 May 2020, the final approval of Prof Mbati’s appointment was implemented. On 1 June 2020, Prof Mbati took office.

3.2.6. Dr R Legoabe: Chairperson Higher Education Transformation Network (HETN)

Dr Legoabe, the Chairperson of the HETN gave oral evidence of the statement that the Network submitted to the Committee. He indicated that he and the Network’s Board were caught by surprise when, on the evening of 8 May 2020, a member of the HETN alerted them to the media statement issued on 7 May 2020 by the Chairperson of the SMU Council announcing the appointment of Prof Mbati as the new VC of SMU amidst a Covid-19 Level 5 lockdown announced by the President. Upon learning of the appointment, the HETN promptly directed a letter of concern to the Chairperson of the SMU Council, Ms Rambauli on 11 May 2020, to kindly request the Council to reconsider the appointment or alternatively furnish it with a written undertaking that the appointment would be held in abeyance pending a formal independent inquiry or investigation. On 11 May 2020, the HETN further directed a Promotion of Access to Information Act (PAIA) request to the SMU Council requesting to be furnished with the records and CVs of all candidates who applied for the VC post.

Dr Legoabe submitted that the request by the HETN to be furnished with records in terms of the PAIA Act was rejected by the SMU Council without any lawful basis. Upon failing to elicit any cooperation from the SMU Council, the HETN was left with no further option but to direct a letter of complaint to the Committee and to institute legal proceedings in the High Court, Gauteng Division for urgent interdictory relief to stop the SMU Council from proceeding with the appointment and compelling it to furnish the HETN with the requested records. The HETN also resolved on 19 May 2020 to institute an urgent review application in terms of Section 6 of Promotion of Administrative Justice ACT, 2000 (Act 3 of 2000) and Section 33 of the Constitution. The objective of the application to the High Court was to interdict the SMU Council from proceeding with its unlawful appointment and also to set it aside.

The matter was set down for hearing on 26 May 2020 on the urgent roll when the SMU attorneys and Prof Mbati’s attorneys delivered the requested records which were originally denied on 25 May 2020. As a result of the SMU Council’ last minute submission of the requested records, the HETN’s attorneys were compelled to remove the HETN’s urgent application. It was only through a strong legal action by the HETN that the SMU Council handed over the requested records.

Dr Legoabe noted that the recruitment process that resulted in the appointment of Prof Mbati was flawed and subjective. Prof Mbati did not possess the qualities of honesty and integrity and was accordingly not fit and proper for the role of VC as demanded by the Higher Education Act of 1997 and Section 195 of the Constitution. Moreover, his appointment was not in line with objectives set by the National Development Plan (NDP) Vision 2030.

In relation to the allegation pertaining to the appointment of Prof Mbati, which took place in non-compliance with the National State of Disaster level 5 lockdown, Dr Legoabe noted that

the appointment of Prof Mbati was unlawful and took place in blatant non-compliance with superior legislation in the form of the declaration of a National State of Disaster Level 5 Lockdown declared by the State President on the 15th March 2020 in terms of Section 3 of the Disaster Management Act 57 of 2002 due to the global COVID 19 pandemic. Additionally, he noted that on the 25th March 2020, the Minister of Cooperative Governance and Traditional Affairs, Minister Nkosazana Dlamini-Zuma further published a set of further regulations under Section 3 of the Disaster Management Act 57 of 2002 declaring Lockdown Level 5 and restrictions on the movement of goods and persons with effect from 26th March 2020 until 16th April 2020.

Dr Legoabe submitted that the recruitment process was not conducted in line with the internal rules and regulations from the Institutional Statues of SMU. He alleged that the SMU Council failed to comply with the provision of paragraph 2.2.5.7 of its own Institutional Statue and failed to conduct voting amongst the three selected candidates for VC by close ballot. The SMU Council opted to deviate from its regulations by using Skype, an unsecure electronic platform for voting by the Council members. The use of Skype for this activity was not in line with the SMU Statutes and there was no urgency nor any reasonable rationale for such deviation. The SMU Council irregularly allowed a suspended official to participate in the Council activities and it was also warned of its irregular proceedings by internal stakeholders of the University. Nonetheless, the SMU Council wilfully proceeded to ignore the pleas, warnings and concerns from its internal stakeholders and proceeded to constitute irregular online meeting to appoint the new VC. The appointment process followed by the SMU Council was hastily conducted without any proper interviews of candidates during a period of COVID-19 lockdown. There was no urgency justifying the deviation from the prescribed HRM policies by the SMU Council.

Dr Legoabe submitted that the appointment of Prof Mbati was contrary to the ethos of the Employment Equity Act and the NDP 2030. During his tenure as the VC of UNIVEN, a nefarious policy of Internationalisation was implemented on a wholesale basis at UNIVEN thus undermining the strategic objectives of the NDP. This resulted in the ranks of a taxpayer funded South African institute such as UNIVEN being composed of an overwhelming non-South African staff complement in non-compliance with the strategic objectives of the NDP. This was contrary to the ethos of the NDP and Employment Equity Act of 1998 which emphasize that black and female South African teaching and learning staff should receive priority in the workplace. Additionally, Prof Mbati did not fall under the category of designated persons in terms of Section 2(b) of the Employment Equity Act 55 of 1998 since he is a Kenyan citizen who was naturalised as a South African citizen post-1994. The SMU Council had accordingly failed to comply with the Employment Equity Act of 1998 in its recruitment and selection criteria.

Dr Legoabe submitted that Prof Mbati did not possess the qualities of honesty and integrity and was accordingly not fit and proper for the role of VC as demanded by Section 195 of the Constitution and the Higher Education Act, 1997. This was based on alleged procurement misrepresentations; pending criminal investigation of forgery fraud and corruption; allegations of improper influence; alleged salary inflation and alleged vexatious abuse of University resources in wasteful litigation.

In relation to the alleged procurement misrepresentations, prior to exiting UNIVEN in January 2018, Prof Mbati had appointed a private infrastructure project management company named Andany Holding (Pty) Ltd to implement the University’s infrastructure projects. UNIVEN under the leadership of Prof Mbati intended to spend R70 million on a staff entertainment centre, R45 million on a multipurpose hall for graduation and R15 million on a new administration building. This was despite the fact that there were several abandoned infrastructure projects at UNIVEN. According to information given to the HETN, the Director of Andany Holdings was the son of PA to Prof Mbati.

In relation to a pending criminal investigation of forgery fraud and corruption against Prof Mbati, the HETN received signed affidavits from a whistle-blower in respect of the charges. The case was lodged on 24 July 2015 by whistle-blower at the Thohoyandou Police Station under CAS No 61/08/2015. On the basis of the signed affidavits and supporting records filed by the whistle-blower, the case of forgery was also brought to the attention of the Senior Advocate of the Directorate of Public Prosecutions. According to the signed affidavits by the whistle-blower, the case of fraud and corruption was subsequently referred to the National Prosecution Authority (NPA).

Dr Legoabe stated that Prof Mbati had been accused of improper influence and bribery by Mr Modise, an admitted attorney. Despite the affidavit of Mr Modise being in the public domain, Prof Mbati had failed to rebut the allegations by Mr Modise. On the alleged salary inflation, Mr P Govender, journalist of the Sunday Times, published three newspaper articles on 10, 17 and 24 September 2017 alleging irregularities with regard to Prof Mbati’s salary of R3.9 million per annum at UNIVEN. In relation to the vexatious abuse of University resources in wasteful personal litigation, at a Special Council meeting of UNIVEN in September 2017, a report showed that approximately R18 million of the University budget was utilised by Prof Mbati to fight legal battles and pay legal costs and expenses to defend himself against Prof Phendla’s sexual harassment case.

3.2.7. Dr J Mabelebele: Registrar SMU

Dr Mabelebele was invited by the Committee to give a response to the following questions raised by the Committee:

That Senate and the Institutional Forum (IF) were not provided with Prof Mbati’s sexual harassment disclosure records and they voted on the shortlisted candidates with no knowledge of the disclosure.
That the Chairperson of Council was not aware if Senate and IF were not provided with the disclosure records, which were in the agenda packs distributed to Council and the SP.

In relation to the first question, Dr Mabelebele confirmed that the Senate and IF were not provided with Prof Mbati’s sexual harassment disclosure records and they voted on the shortlisted candidates with no knowledge of the disclosure records. He also confirmed that the agenda packs of Senate and IF included only the advertisement for the position; Policy and Procedures: Appointment of Vice-Chancellor; Application letters and CVs of the four shortlisted candidates as per paragraph 2.2.3.2 of the Policy and Procedures for the appointment of Vice-Chancellor.

With regard to the second question, Dr Mabelebele indicated that he could not confirm or deny if the Chairperson of SMU Council was aware if Senate and IF were provided with the disclosure records. The disclosure records were part of the Council SP meeting pack of 16 April 2020. For this reason, it would probably not have been possible, for those records to be part of the Senate and IF meetings of 11 March 2020. The Chairperson of SMU Council could not have been aware of this information since she was not a member of Senate or IF and as the Chairperson of the SP, she could have probably seen or gained exposure to the disclosure records at the meeting of the SP on 16 April 2020.

3.3. Preliminary Draft Enquiry Report

3.3.1. The Committee considered and adopted a preliminary report on 11 February 2022. As per the Terms of Reference, the Committee agreed to send a copy of the preliminary report to all witnesses who appeared before the Committee and any other persons who submitted written statements. The preliminary report was sent to the witnesses on 15 February 2022 and they were requested to submit their written comments by 17 March 2022.

3.3.2. The Committee received written comments/representations from six (6) witnesses within the allocated time-frame. The SMU and UNIVEN Councils requested submission extensions to 21 March and 28 March 2022, respectively. Both the Councils’ requests were granted and the written comments/representations were eventually submitted.

3.3.3. The Committee met on 20 May 2022 to consider the witness’ written comments/representation on the preliminary Enquiry Report and amended the Report as it determined necessary.

4. OBSERVATIONS AND KEY FINDINGS

The Committee, having enquired into the appointment process of Prof Mbati as the VC of the SMU and related matters makes the following key observations and findings:

Part A: University of Venda

4.1. The manner in which the Council of UNIVEN processed the sexual harassment complaint against Prof Mbati by Prof Phendla, the former employee of UNIVEN

that when Prof Phendla was employed at UNIVEN she filed a complaint of sexual harassment with the Council against Prof Mbati. It is also not disputed that, at the time of the complaint, UNIVEN had in place a policy dealing with sexual harassment. Despite this, it is clear from the evidence presented that the responsible structures failed to adhere to the Policy.

The Employment Equity Act, 1998 (Act No. 55 of 1998) in section 4 stipulates that this Act is applicable to all employees and employers. That indicates that UNIVEN or SMU are not excluded from the application and binding effects of this Act to them. Sections 5 and 6 of the Employment Equity Act provides for the elimination and prohibition of unfair discrimination which is inclusive of harassment. The EEA does not define harassment so the Committee is mindful that all forms including sexual harassment are covered. Section 5 of the EEA enjoins every employer to take steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any employment policy or practice. Section 6(3) of the Employment Equity Act provides that harassment of an employee is a form of unfair discrimination and is prohibited on any one or more combination of grounds of unfair discrimination as listed in subsection (1). Amongst many, this Act is one legislation that the Committee considered in forming views after hearing evidence on how the sexual harassment complaint against the Vice Chancellor was handled by the UNIVEN Council.

The following is an outline of the shortcomings in the processing of the sexual harassment complaint and in the content of the Policy:

4.1.1.1. The leadership of the UNIVEN Council and management testified that the Council did not act because it was awaiting the outcome of external structures that were also dealing with the complaint. This included the South African Police Service (SAPS), the National Prosecuting Authority (NPA), the Commission for Conciliation, Mediation and Arbitration (CCMA), the CGE and the Labour Court, despite that none of the University policies provided for the suspension of internal processes in the event that a matter at hand is reported to external institutions.

4.1.1.2. The former Chairperson of the Council HR Committee, Mr Maimela, informed the Enquiry that the first Lavery Modise Report was overtaken by events. On 1 November 2011, Prof Phendla was dismissed and the Mediation Report was issued and submitted to Council on 3 November 2011, which was two days after Prof Phendla’s dismissal. By virtue of her dismissal, Prof Phendla could no longer exercise her rights as she was no longer covered by the University policies. Consequently, Prof Phendla sought external remedies to deal with her sexual harassment complaint. This information demonstrates complacency in the handling of the matter by UNIVEN.

4.1.1.3. Similar sentiment was shared by Mr Manenzhe, the HR Director who said Prof Phendla was already dismissed and the institutional policies no longer covered her. He indicated that UNIVEN could not provide psychosocial support or address psychological impacts that the Complainant may have experienced because of the alleged harassment. Additionally, in his response to the Enquiry, Dr Nthambeleni, the current Vice-Chancellor, noted that Mr Modise’s inconclusive report was received after Prof Phendla was dismissed for misconduct and she had opened a criminal case. Consequently, EXCO resolved not to engage itself on the matter. Prof Phendla had also referred her complaint to the CGE. EXCO could not have acted in a matter that was sub judice. Herein, the Committee noted that it was not referred to any Directive or rule which prohibits the University or its Council from acting on matters that are being heard by courts, as implied by the current VC when he made reference to the sub judice principle.

4.1.1.4. On the contrary, evidence shows that the Policy does not provide for a matter to be held in abeyance pending the outcome of any external structure nor would such an approach be correct in any case as it leaves the Complainant with little support or recourse. It should also be noted that at the time the Council received the Modise Report, dated 3 November 2011, which concluded that mediation was not successful, the matter was not under judicial consideration at that time. In any event, the Committee is of the view that dismissal of the Complainant is not sufficient cause to abandon a complaint as serious as this one. Such alleged conduct may, have continued negative impact placing other persons at t risk. Rather, the evidence strongly suggests that the UNIVEN Council deliberately failed to ensure that the Policy was properly and fully implemented. In particular provisions 5.2, 5.2.1, 5.2.2 and 5.2.3 of the Sexual Harassment Policy were not complied with, except for the procurement of a mediation report. The mentioned provisions of the Sexual Harassment Policy require the following:

The Human Resource Department shall:

(a) Call for a report from the mediator, where mediation was attempted;

(b) Request the alleged offender to respond in writing to the allegations made against him/her and submit same in line with the Disciplinary Procedure Manual; and

Of further concern to the Committee, is the fact that two mediation reports and legal opinions were called for while the procedure is very clear. The procedure was flouted by the UNIVEN Council and its HR Department.

4.1.1.5. Equally, the UNIVEN Council failed to exercise oversight over the Human Resources Department to ensure that HRD correctly implemented the Policy. On the contrary, it took UNIVEN Council more than four-years to procure a second mediation report and it did so only after it was compelled by the High Court and the involvement of the CGE.

The Committee has various concerns emanating from questions that were not answered satisfactorily. Of particular concern is the rationale and effect of the second mediation report, secondly the findings or recommendation of the second mediation report came after the Complainant had already left, rendering the report somewhat futile. In light of the UNIVEN Sexual Harassment Policy, the second mediation report requirement is not covered. Having observed that, the Committee remains unclear, despite further responses by the VC whether the review process corrected this anomaly.

The Committee considered various judgements which were similar and could assist the Committee to benchmark the best forward in assisting institutions of higher learning, in general, where sexual harassment policies are either absent or not properly implemented.

In V v Passenger Rail Agency of South Africa (PRASA) and Others (P60/2018) [2020] ZALCPE 6, referring to section 60 of the EEA, the Labour Court said, that what is required first is an allegation of discrimination (sexual harassment) being brought to the attention of the employer. The employer is thereafter obligated to consult all relevant parties and must take the necessary steps. Steps must be taken to eliminate the alleged conduct, disciplinary steps in itself does not lead to the elimination of the conduct. Where an employer has adopted a code of sexual harassment, the employer must adhere to that code.The obligations of an employer are to root out sexual harassment, protect and assist victims of sexual harassment.

Obligations required to meet in order to eradicate sexual harassment

EEA obliges employers to provide a safe working environment which includes eradicating sexual harassment.
Employers must take steps to eliminate unfair discrimination in any employment policy or practice. Specifically, to UNIVEN, by not being clear on how to handle VC’s indiscretion in this regard does not amount to meeting this obligation.
In advance employers are expected to take steps and be pro-active in the elimination and prevention of sexual harassment with other unfair discriminations.
Employer must support the employee including determining means that will minimise psychological trauma that sexual harassment victims as employees may suffer.
Employers must root out sexual harassment in line with sections 2,3,5, 6 and 50(2) read with section 60 of the EEA as the basis for these obligations.

In PE v Dr Beyers Naude Local Municipality[2],the court noted that it appeared that the Municipality had failed to ensure that the mentioned obligations to eradicate sexual harassment and provide employees with a safe working environment in the Piliso judgment. The court voiced itself in the following terms to attempt to address their concern in light of how that sexual harassment case was handled: “it is hard to see how the Municipal Council took its duties and responsibility regarding the sexual harassment complaint, seriously.”

In this case the court noted that the Municipal Council and the complainant became victims of a civil wrong.Guided by the judgment in PE v Dr Beyers Naude Local Municipality, the Committee holds the view that it remains the prerogative of Prof Phendla to have taken her complaint anywhere the law permits seeing that the University had dismissed her without addressing the sexual harassment allegation by 1 November 2011, the date when she got dismissed.

4.1.1.6. The Committee noted that in early 2014 the HR policies of the University, which should include that of Sexual Harassment, were said to be under review. However, it appears that no changes were made to the Sexual Harassment Policy.

4.1.1.7. A reasonable person, in the view of the Committee, would conclude, based on the above events, that the timing of the dismissal of Prof Phendla appears to be calculated. There is no evidence of the action taken by the Council to implement Clause 5.2 of the Policy prior to the dismissal of the complainant and it appears that there was a concerted effort to frustrate every internal or external route that Prof Phendla could have taken to seek a resolution to her complaint.

4.1.1.8. The Committee noted that the Council, under the leadership of Ms Mabusela and Mr Maja respectively, had not exercised its duty of care and did not act in good faith when it failed to implement the Policy thereby leaving the Complainant with no internal remedies to deal with her complaint.

4.1.1.9. The Committee noted with grave concern the apparent disregard shown by the former Council Chairpersons, Mr Maja and Ms Mabusela, in relation to the issue of sexual harassment when it trivialized the complaint by referring to it as a “saga” and “a counter act to the disciplinary process”, respectively, based on the timing of the complaint. These comments are concerning, especially in light of the current scourge of gender-based violence and femicide (GBV&F) in the country. The timing of a complaint should be irrelevant and the focus should rather always be on assessing the veracity of a complaint and addressing it appropriately.

4.1.1.10. The Committee was unable to confirm the claim made by the former UNIVEN Council Chairpersons, Ms Mabusela and Mr Maja, relating to the appointment of Maserumule Attorneys. The University failed to avail to the Committee sufficient evidence relating to when and how Maserumule Attorneys was appointed, including the terms of reference for the appointment. This points to poor record keeping by the UNIVEN and raises concerns about a lack of sound financial and records management.

4.1.2. Gaps in the Policy on Sexual Harassment No change of the whole section

4.1.2.1. The Policy does not provide for a separate procedure in the case where the complaint is against the VC, who is the head of the institution or any other senior decision-maker. The Committee accepts that the VC occupies a unique position of being the link between all stakeholders, including governing structures in the University (e.g. the Council, faculties and their deans, students’ union representatives), students and employees across all ranks. Nonetheless, the Policy failed to provide for a mechanism where the person accused of sexual harassment is the same person who exercises a degree of control over the complainant and persons charged with processing the complaint. UNIVEN acted unlawfully and disregarded the principle of legality in the manner in which it handled the complaint of sexual harassment.

4.1.2.2. The Committee noted the gaps in the Policy as it pertains to procedures for processing allegations of sexual harassment by a person occupying the office of the VC. It was reported by Mr Manenzhe that the Policy applies to staff members only and the VC who is the CEO of the institution and the Deputy Vice-Chancellors are not subject to this policy. Hence the Director of Human Resource was not able to charge the VC. It was argued that the VC is employed by and reports to the Council. Therefore, the Council is responsible for oversight of the VC. This view however, fails to address why nothing was done to address the lacuna and why Council nevertheless acted on certain parts of the Policy if indeed it is not applicable.

4.1.2.3. Mr Maimela, the Chairperson of the Council HR Committee, conceded that the Policy was inadequate and has gaps. He indicated that the gaps became evident when the UNIVEN Council dealt the with the sexual harassment complaint against the VC. He stated that the HR Committee, upon identifying the inadequacies in the Policy, recommended that the Policy be reviewed. However, more than a decade since the matter started and at the time of Enquiry these gaps were not addressed. A reasonable person would assume that the matter would serve as a catalyst for urgent review of the Policy to ensure that processes were clarified. This failure to act speaks to a disregard for the relevant laws, rights of victims of sexual harassment and is regarded by the Committee as a dereliction of duty and lack of care on the part of UNIVEN executives and Council.

4.1.2.4. The current VC also indicated that when he assumed office as the VC and Principal of UNIVEN in 2019, he noted that there was a lacuna in the Policy in that it did not provide for a clear procedure to address sexual harassment complaints against the VC and Principal. Similarly, the existing University Disciplinary Code and Procedures for staff members do not provide for the disciplinary process for the VC and Principal. He reported that he has appointed a committee to champion the review of all institutional policies. The Policy on Sexual Harassment and Disciplinary Procedure Manuals are amongst the policies that are receiving the necessary urgent attention. The draft reviewed Policy on Sexual Harassment, the Disciplinary Procedure and other policies were meant to serve on the November 2021 Council meeting for consideration and approval.

4.1.2.5. The Committee noted further that UNIVEN does not have a policy on workplace relationships or relationship between staff and students. Such policies are useful to capture the professional and ethical responsibilities of consenting adults so as to minimise and deal with the risk of favouritism, bias and conflicts of interest.

4.1.3. Referral of the Commission for Gender Equality Report for judicial review without the authorisation of the Council and the failure to implement consequence management

4.1.3.1. Prof Mbati, the UNIVEN Council and UNIVEN lodged an application in the High Court of South Africa to review and set aside the CGE Investigative Report, issued on 4 December 2014. The following is an outline of the process and its shortcomings:

4.1.3.2. Subsequent to the conclusion of the investigation into the alleged sexual harassment complaint by the CGE, an Investigative Report with findings and recommendations was furnished to Prof Mbati, Vice-Chancellor and Principal (first respondent) and the UNIVEN (third respondent).

4.1.3.3. According to the letter of the former Council Chairperson Mr Maja to the Council members, the CGE report made adverse findings and recommendations therein, which required that legal advice be sought from the University’s legal representatives, Bowman Gilfillan. Subsequent processes undertaken by the University’s legal representatives, include a letter addressed to the CGE raising concerns about the report and asking specific questions on the findings and recommendations. In the main, the concerns were that the investigative report appeared to be one-sided and the conclusions contained therein have been reached without considering all the evidence relating to this matter. It was noted that the CGE pronounced on issues it had no authority to pronounce or make findings on.

4.1.3.4. Informed by the legal advice from University’s legal representatives, on 30 January 2015, Mr Maja, in his capacity as the Interim Chairperson of Council, wrote a letter to the UNIVEN Council members informing them of the CGE report and the gaps that were identified following the legal opinion, and that should the CGE refuse to revisit its investigation, UNIVEN will take all necessary steps to ensure that the investigative report will be subjected to a judicial review.

4.1.3.5. Subsequent to his letter, Mr Maja authorised the Vice-Chancellor and Principal, Prof Mbati to lodge an application to review and set aside the CGE Investigative report, despite the Council members having not engaged or inputted on the letter. Mr Maja, took a very serious decision with major financial implications to authorise the VC to join the University in the review of the CGE without the resolution of the UNIVEN Council.

4.1.3.6. Evidence presented before the Enquiry contradicts claims by the former UNIVEN Council Chairperson, Mr Maja and the current Chairperson Mr Lekgetha, that the decision to review the CGE report was a Council decision.

4.1.3.7. A paragraph (not numbered) in the minutes of the Committee Council of External members, dated 17 April 2015, noted as follows:

“EXCO raised concern as to who gave VC and Principal the authority to enjoin the University as the applicant for the review since members do not recall a decision to that effect by EXCO…”

The Council approved the recommendation of the EXCO to follow the recommendation of the Task team led by Mr Mashego and Mr Maimela to await the outcomes of the CGE report review by the court before deciding on the appropriate course of action. The UNIVEN Council also approved that the review process should not be withdrawn. The UNIVEN Council ratified the review of the CGE report decision after the effect as well as the Task Team request to advise it on the appropriate course of action in respect of the referral of the CGE review to court without its approval appears to be clean up means after the effect.

4.1.3.8. When confronted with the evidence, Mr Lekgetha conceded that the EXCO and the UNIVEN Council had not authorised the application to review the CGE report. The two structures ratified the decision ex post facto to take ownership of the decision after the fact. He also stated that the Task Team had not produced a report when tasked with investigating and advising the Council on the appropriate course of action in respect of the referral of the CGE report for court review without its approval.

4.1.3.9. Mr Maja authorised the VC, who was cited as the first applicant in the review application, and personally conflicted in the matter, as he was at the centre of the CGE investigation, to join the University in the court review of the CGE report. Prof Mbati was recused from all the UNIVEN Council meetings that processed the sexual harassment complaint against him because of the principle of conflict of interest. Notwithstanding that he was not privy to the discussions on the matter, the legal advisors of UNIVEN advised him to sign and depose an affidavit on behalf of the Council and the University in the review application. The Committee noted that UNIVEN Council was not able to explain how this alarming action was allowed.

4.1.3.10. When the Enquiry put the question to Prof Mbati regarding the reasons why he deposed an affidavit on behalf of the UNIVEN Council and the University, he stated that he was under the impression that there was a Council resolution to that effect, because the instruction came from the legal advisors. The UNIVEN legal advisors prepared and presented the affidavit to him to sign.

4.1.3.11. The Enquiry noted that despite knowing that he was conflicted in the matter before the CGE, Prof Mbati deposed to the affidavit, which the Committee views as a conflict of interest. This conduct casts doubt on Prof Mbati’s character and the apparent failure of the University to adequately deal with conflicts of interest. The duty of care expected of persons holding such positions demand that they do not taint processes in this manner.

4.1.3.12. The legal advisors of UNIVEN failed to advise Mr Maja that authorising the VC to join the proceedings for the review of the CGE Report without a resolution of the Council was irregular.

4.1.3.13. Paragraph 33 of the University of Venda Institutional Statute, 2011, provides for the convening of extraordinary meetings of Council as follows:

An extraordinary meeting of council may be convened by the Chairperson at any time if he or she deems it necessary, and must convene such meeting at the written request of at least nine members if-

(a) the purpose of the meeting is stated in such a request;

(b) no business other than that stated in the request is dealt with at the meeting;

(c) at least ten days-notice of such meeting must be given.

4.1.3.14. According to the UNIVEN Institutional Statute, Mr Maja had the power to convene an urgent meeting upon receiving advice from the legal advisors of the University, which identified several concerns regarding the CGE report.

4.1.3.15. There was an opportunity to request for the convening of an extraordinary meeting upon noting that the CGE did not agree to revisit its investigation after the letter from Bowman Gilfillan to the CGE. Furthermore, the same provision could be invoked, immediately after receipt of the report that Prof Phendla be dismissed in November 2011 in order for the UNIVEN Council to take a resolution on how to handle the complaint when Prof Phendla was no longer an employee of UNIVEN or whether it could be concluded prior to her dismissal.

4.1.3.16. Mr Maja, misdirected himself against the policy by taking decisions on behalf of the UNIVEN Council without it having considered and resolved on the CGE report findings and recommendations, and the letter from Mr Maja.

4.1.3.17. From the EXCO minutes of 07 April 2017, paragraph 10.13 (g), EXCO took an issue with Mr Ramano, the Chairperson of the UNIVEN Foundation who wrote a letter to the Chairperson of Council, Mr Maja in his personal capacity. The minutes further states the following: “one would have expected such a letter to be a resolution of the Foundation, and not an individual. This further raised the question of whether the other external board members shared his reservations.” EXCO was concerned that Mr Ramano wrote a letter to Mr Maja without the authorisation by the Board Members. Mr Maja did the same thing of undermining the importance of a Council resolution and took a decision individually on the CGE Report, wherein the Council resolution was obtained after the fact.

4.1.3.18. When the Committee put questions to Mr Maja to provide reasons for reviewing the CGE Investigative report, he indicated that the report was one-sided and Prof Mbati had not been interviewed. When presented with the evidence from the CGE’s investigator that Prof Mbati was indeed interviewed in his office at the University, Mr Maja resolutely stood by his claim that there was no interview. It also appeared that he did not remember that he had written a letter to the UNIVEN Council informing them of the CGE report, the concerns raised by the legal representatives and the threat to subject the report to judicial review in the event that the CGE failed to revisit its investigation. This raises the following concerns:

4.1.4. Task-Team to look into the referral of the CGE report for a judicial review

4.1.4.1. EXCO appointed a Task Team comprised of the Chairperson of the Appeals Committee, Mr M.L Mashego, and the Chairperson of the Human Resources Committee, Mr K.K Maimela, to look into issues relating to the application of the judicial review of the CGE investigative report to court.

4.1.4.2. Mr Maimela noted in his statement that after scrutinizing information provided to it, in the main the letter of UNIVEN Council’s Chairperson Mr Maja, dated 30 January 2015, the Task Team recommended that the review application of the CGE report be allowed to take its course and that Council should await the outcome before deciding on an appropriate course of action.

4.1.4.3. The Task Team was to further investigate the authorisation of the Vice-Chancellor and Principal to join the University as an applicant in the review and advise Council on the appropriate course of action in respect of the referral of the CGE report for review without the Council’s approval.

4.1.4.4. During the Enquiry, it was revealed that Mr M.L. Mashego, who was the convener of the Task Team, passed on. Mr Maimela informed the Enquiry that EXCO,chaired by Mr Maja, did not appoint a new member of the Task Team to continue the work as mandated by the EXCO. This failure to appoint a replacement member aborted the investigation. The Committee noted that it was not provided with a sufficient response to the question of whether the person named Mashego, who prepared the legal opinion, which found there was a consensual relationship between Prof Phendla and Prof Mbati and concluded that therefore there was no legal need to pursue the matter further, is the same Mashego who served as a Council member that was chosen to lead the Task Team.

4.1.4.5. Mr Maja authorised the VC to join the University in the application for the judicial review of the CGE report without the UNIVEN Council resolution. Mr Maja’s failure to ensure that the Task Team was capacitated to perform its function appears to have worked in his favour. Without an investigation, findings of the Task Team written down presented space for lack of consequence management and therefore could not be implemented against Mr Maja.

4.1.4.6. Mr Maimela told the Committee that there were no timeframes given to the Task Team to investigate the referral of the CGE report for judicial review without the Council approval. He noted that the Task Team had not had meetings and he relied on Mr Mashego who was the convener of the Team to provide guidance. This presents an untenable scenario where the UNIVEN Council established a Task Team with no scope or terms of reference to guide its functioning and report back.

4.1.4.7. Those who transgressed the processes of the UNIVEN Council could not be held accountable because there was no investigation and the Council had not followed up on its own resolution. The conduct outlined herein show complacency, incompetence and lack of due diligence expected from persons holding directorship positions as would be the case with any Council or Board members.

4.1.5. Failure by the UNIVEN Council to oppose the application by Prof Mbati to review and set aside the second mediation Report by Mr Lavery Modise in totality.

4.1.5.1. The Committee noted that the UNIVEN Council accepted the findings of the Second Lavery Modise (Mediation Report) and Mashego reports’, which found that:

(b) there was therefore no basis for the Complainant’s complaint that Prof Mbati sexually harassed her; and

However, despite accepting the above, the UNIVEN Council failed to oppose the application by Prof Mbati to review and set aside the report of Mr Modise later on, upon the involvement of the CGE and its findings.

4.1.5.2. Prof Mbati admitted in his written submission and reminded the Enquiry several times that the Mediation Report was set aside, and declared null and void and to no effect by the High Court.

4.1.5.3. This null and void Mediation Report’s findings is the same reports used by the UNIVEN Council to take a decision to exonerate Prof Mbati from the sexual harassment allegations of 2011. Consequently, the UNIVEN Council decision to exonerate Prof Mbati based on the second Mediation Report should have also been declared null and void. This also leaves the Committee unsettled and unclear on the intention and deliberations of the UNIVEN Council as well as Prof Mbati, when he was the UNIVEN VC.

4.1.5.4. Prof Mbati did not apply to Court to remove and excise from the Council minutes those parts that referred to the consensual relationship between him and Prof Phendla because at the time of the review of the Mediation Report and the Labour Court matter of Prof Phendla’s unfair dismissal was still pending. He could not challenge the Council decision of his exoneration not knowing what the outcome of Labour Court would be.

4.1.5.5. What remains unanswered is why Prof Mbati did not challenge the decision of the UNIVEN Council and the basis of this decision, if he had found the report wanting. The review and setting aside of the Modise report by the High Court automatically nullify the decision of the UNIVEN Council to clear Prof Mbati based on the Mediation Report.

4.1.5.6. UNIVEN Council appointed the mediator to mediate in the sexual harassment complaint between Prof Phendla and Prof Mbati in accordance with the University’s Sexual Harassment Policy. The valid conclusion herein means that the report issued from this process is owned by the Council, which is the accounting authority of the University unless rejected and reviewed and set aside in a court of law. The Council had spent University funds to procure Mr Modise to mediate the dispute and issue a report. The decision by the UNIVEN Council to exonerate Prof Mbati from the sexual harassment complaint was informed by the findings of the Mediation Report. It therefore follows that if the Mediation Report falls away, so should any decision made based on that nullified mediation report.

4.1.5.7. Noticeably, the UNIVEN Council took a “hands-off” approach by not defending the review and setting aside of the mediation report it used to take a serious decision to exonerate Prof Mbati from the sexual harassment allegations against him. A reasonable person, in the view of the Committee, would have either opposed the setting aside of the Mediation Report or alternatively rescind its decision to exonerate Prof Mbati based on the Mediation Report after the Report was set aside.

4.1.5.8. During the court review processes, Mr Maja argued that the review of the Mediation Report was a personal matter in which it was for Prof Mbati to refute the conclusion that there was a consensual relationship between him and Prof Phendla. Mr Modise also proffered an explanation stating that as an experienced mediator he would not oppose a review application but abide by the decision of the court. However, furthering the concerning areas on the evidence of Mr Maja, as the Chairperson of the UNIVEN Council at this time, Mr Maja presided over the processing of the advice of the Task Team and Mashego Attorneys’ legal opinion, which advised that there was a consensual relationship, therefore, there was no sexual harassment and further advised that the matter be closed. The Council approved the recommendations of the Task Team and closed the matter.

4.1.5.9. It is surprising that Mr Maja believed that the review was a personal matter of Prof Mbati, hence he said there was no purpose in defending the report against the review. When it was pointed out to him that the decision of the Council to close the sexual harassment complaint was based on the findings of the Modise report, he conceded, and stated that in hindsight the UNIVEN Council should have defended the Mediation Report.

4.1.5.10. The Committee noted that the decision to defend the review of the CGE Report but not the setting aside of the Mediation Report was a serious error on the part of the UNIVEN Council. Furthermore, the former UNIVEN Council Chairpersons’ selective approach, increases concerns. Ultimately, the Committee concludes that a decision was taken outside of the Council structures to review the CGE Report without any sound basis.

4.1.5.11. The actions of the Council appear to conveniently favour Prof Mbati to the detriment of the Complainant and UNIVEN to the extent that the Council failed to implement its own policy and did nothing to establish if there was a prima facie case of misconduct against Prof Mbati that warranted further action.

4.1.6. Proposed financial settlement after sexual harassment allegations

4.1.6.1. The Committee noted that a settlement offer of R1,3 million was proposed to Prof Phendla by UNIVEN after she referred her matter to the Labour Court. UNIVEN is on record stating that the proposed settlement letter could not be traced from its archives or from Bowman’s Attorneys who were handling the matter. The Committee however, is in possession of a copy of the proposed settlement letter from Bowman Gilfillan, dated 8 December 2016. This again casts doubt on UNIVEN’s record keeping.

4.1.6.2. The Committee noted with grave concern that a financial settlement was proposed to the Complainant without the authorisation of the Council and long after the matter was purportedly closed. This points to a total disregard of the Council authority by senior officials of the UNIVEN. That a decision with such serious financial implications could be taken without the Council’s approval, raises concerns that the UNIVEN Council did not exercise proper oversight. It is also inexplicable why UNIVEN would offer a settlement in a matter where, it appears from the evidence, it was confident that it had followed all the correct disciplinary steps in the dismissal of Prof Phendla. Furthermore, it is equally concerning that the settlement appears to have been abandoned. The Committee did not receive a satisfactory explanation from UNIVEN as to why an offer was made (including legal basis for such offer) and why it was withdrawn. This leaves the Committee with untested statements that the offer was withdrawn as Prof Mbati did not have the necessary delegation to approve the amount. The Committee noted that Prof Mbati disputed this. If such an allegation was however proved true it would raise serious ethical concerns due to issues of conflict of interest.

4.1.6.3. The Committee records Prof Mbati’s assertion that he was never involved in any settlement and welcomes his acknowledgement that any such participation would have been a conflict of interest on his part, considering that as the Accounting Officer he had signed their letters of dismissal. However, the Committee is of the view that if Prof Mbati was alert to the conflict of interest in 2016 when the settlement with Prof Phendla was initiated, he should have acknowledged the same when doing the court reviews on the CGE report on behalf of the University.

4.1.7. Alleged utilisation of university resources by Prof Mbati to defend himself against the sexual harassment complaint.

4.1.7.1. The Committee noted the allegation that Prof Mbati used UNIVEN resources to defend himself against the complaint by Prof Phendla. One witness noted that repetitive calls were made during the Human Resources Committee to table legal fees paid to Bowman Gilfillan, because of suspicions that public funds had been used to pay for Prof Mbati’s defence. Reportedly, the legal fees were never tabled and therefore not subjected to scrutiny.

4.1.7.2. The Council minutes, dated 23 June 2017, attest to the claim that a concern was raised, in particular on Management’s reluctance to furnish it with the breakdown oflegal costs for the period 2010 to 2017. Mr Ndou, a Council member, requested to be put on record that he was not taking kindly to Management’s deliberate decision to delay the submission of the report for over eighteen months (18).

4.1.7.3. Evidence presented by both Mr Lekgetha and Mr Maimela states that, the then Legal Director of legal Services, Advocate Lambani, prepared a report which detailed a breakdown of legal costs. A document (attachment JL5) titled: Report on legal costs by Bowman Gilfillan for the period 2011 to 2017 as requested by EXCO, dated 11 September 2017 was furnished to the Committee. The total amount paid to Bowman Gilfillan between 2010 to 2017 amounted to R18 415 827,74. This total amount includes fees for general advices (R3 168 887,69: 2011 to 2017), opinions/investigations (R2 531 664,84: 2012 to 2017) and cases handled (R12 715 275,21: 2012 – 2017).

4.1.7.4. Mr Lekgetha noted in his supplementary statement that legal fees contained in Advocate Lambani’s report is inclusive of Counsels’ costs as briefed by Bowmans in line with the UNIVEN’s instructions from time to time. Both Mr Lekgetha and Mr Maimela informed the Enquiry that Prof Mbati did not utilise University resources to defend himself against the alleged sexual harassment complaint.

4.1.7.5. Mr Maimela stated that the detailed breakdown of the legal costs was presented to the University Council and, subsequently ratified by the Council confirming that there was no evidence of misuse of University resources on 17 April 2017.

4.1.7.6. Contrary to Mr Maimela’s claim that the UNIVEN Council ratified the report confirming that there was no misuse of university resources on 17 April 2017, documentary evidence in the form of the Report on legal costs by Bowman Gilfillan for the period 2011 to 2017 as requested by EXCO shows that EXCO requested the Report on 08 September 2017. Adv. Lambani prepared and both he and Prof Mbati signed this report on 11 September 2017. Based on the above sequence of events, the date of ratification of the Report and confirmation that there was no misuse of university resources as claimed by Mr Maimela is disputed and in sharp contrast to his evidence.

4.1.7.7. Notwithstanding the contradiction in terms of the date of ratification and confirmation of the Report on legal costs, the Committee was not placed in a position to make a determination since it was not presented with the necessary evidence to enable it to make a finding on whether or not Prof Mbati misused UNIVEN resources in his defence against the sexual harassment allegations. The Committee was only given a general report on legal fees as an expense that Univen incurred during that reported period.

4.1.7.8. Documentary evidence revealed that UNIVEN expenditure on legal costs between the 2010 to 2020 academic years amounts to R109 589 185,25. Of this amount, R59 066 375,52 was incurred between 2010 to 2017, during Prof Mbati’s tenure. Another interesting observation is that legal costs increased significantly from R4 457 861,43 in 2010 to R14 227 536,27 in 2014. Allegedly, the increased legal costs were incurred in defending the unfair dismissals of staff and the dependency on external legal consultants. The Committee is concerned that during the tenure of Prof Mbati there was a substantial increase in legal costs.

The response of the current Vice-Chancellor in respect of using external legal consultants

4.2.1. Numerous threats to litigate and not attend the Committee proceedings were filed at different stages of the Enquiry to different structures of Parliament. In light of such continued threats, UNIVEN was requested to present the policy guiding the use of internal and external legal resources. The current VC noted that the responsibility for procuring legal services rests with UNIVEN Legal Services and averred that the internal legal advisers decide on processes in respect of legal representation. There appears to be a lack of directive or policy on how legal matters are handled. The Committee observes that there was a lack of record keeping in respect of instructions and details of the alleged settlement offer made to Prof Phendla and there was no clear explanation of where the instruction to threaten the processes of the Committee emanated from.

4.3. Alleged acts of financial misconduct and overutilization of consultants

4.3.1. The Committee noted allegations by certain witnesses that during Prof Mbati’s tenure there was overutilization of consultants, which costs the UNIVEN large sums of money. It was also alleged that in some cases, consultants were irregularly appointed to do work that should ordinarily be done by officials. The witnesses mentioned theirregular appointment of Virtual Contracts, a consulting company owned by Dr Tim Hutton. It was alleged that Dr Hutton’s company was appointed to draft HR reports for submissions that Prof Mbati wanted to table at the HR Committee of Council for approval without involving the HR Director.

4.3.2. Documentary evidence submitted by UNIVEN revealed that Virtual Contracts was appointed in line with SCM process. The tender documents (Annexure PCH 4) were furnished to the Committee, which proved that three companies (Marang Human Capital Solutions, Virtual Contracts and Vari Consulting) submitted tender documents for the for the Human Resources Consultant Tender No. HRC 01/04/2010, including letter of intent (Annexure PCH 5) and Virtual Contract agreements (Annexure PCH 6). Mr Manenzhe could not provide supporting evidence to the contrary.

4.4. Alleged attempt to change the 2011’s Institutional Statute

4.4.1. The Committee noted that the allegation that Prof Mbati attempted to change the UNIVEN’s 2011 Statute to allow him to serve a third term was unsubstantiated. On the contrary paragraph 9(1) of the 2011 Statute (the amended Statute, 2017) provides that “The vice-chancellor may only serve the third term under exceptional circumstances at the discretion of council”. Accordingly, there was no need for Prof Mbati to change the Statute as it already provided for the possibility of a third term.

4.5. Alleged abuse of subsistence and travel allowance

4.5.1. It was alleged that the UNIVEN allocated more funds than required for subsistence and travel (“S&T) allowances. The allowances were allegedly abused by senior staff whose approvals for travel were done by themselves in some cases. The Enquiry heard that during a salary negotiation in 2016, the leader of the negotiating team called for management’s S&T expenditure records. Upon viewing the documents, the negotiating leader indicated that management was abusing this allocation, as the 2016 mid-year expenditure (actual expenditure) showed that the VC had already spent R966 000 and members of the senior management had spent R2,7 million. Similar allegationswere advanced by Mr Ramano, the former Chairperson of the UNIVEN Foundation, as contained in the HETN statement.

4.5.2. Prof Mbati denied the allegation and provided evidence to support his claim. The 2016 audited financial statements recorded that Prof Mbati received an amount of R3,922 million. Of this, R3,648 million was salary, R120 000 was benefits (which according to Prof Mbati included S&T and performance bonus and other benefits) and R154 000 for allowances. He stated that these figures were audited by the UNIVEN’s external auditors, and signed off by the Director of Finance and Audit Risk Committee of the Council.

4.5.3. The Committee noted inconsistencies in terms of the initial evidence presented by both the University and Prof Mbati on November 2020 and 17 November 2021, respectively. Documentary evidence submitted by UNIVEN on the VC’s allowance contradicts the above and particularly Prof Mbati’s claim that the R120 000 included S&T allowances. A document (PCH 7) furnished to the Committee on the 2016 on spending by Prof Mbati for S&T allowances, dated 18 November 2020, reflects an amount of R1,017 million as expenditure on the VC’s S&T allowances alone.

4.5.5. The University, in its comments on the draft preliminary Enquiry Report, dated 28 March 2022, stated that the Committee’s findings, in particular 4.5.1 – 4.5.5.5 were based on the incorrect facts, particularly the record it submitted PCH 7, which included calculations of the S&T allowance paid to Prof Mbati from 2010 to 2016. The University submitted new documentation to that effect.

4.5.6. According to the new evidence as contained in annexure PLR 11, titled S&T claims for Prof Peter Mbati for 2016 academic year, spread sheet and annual performance report, Prof Mbati was paid a total of R160 687,37. The University further noted that the amount is consistent with the figure that appear in the UNIVEN’s Annual Performance Report (APR) for 2016. The University further noted a difference in the figure as presented in PLR 12 (2016 APR) and the spreadsheet which amounts to R6 000,00. It noted that the reason for the difference could be because the APR omitted a few expenditures, however, the information in the spreadsheet reflects all expenditures of Prof Mbati’s S&T allowances for the 2016 financial year.

4.5.7. The Committee noted with concern the evidence submitted through responses and the reasons advanced by the University and Prof Mbati on the inconsistencies in the evidence initially presented by both parties on the S&T allowance paid to Prof Mbati in 2016.

Authorisation memos for the former VC’s 2016 trips and delegation of authority in that regard

4.6.1. The Committee requested authorisation memos for trips undertaken by Prof Mbati in 2016. The current VC indicated that there were no records of same. It was noted the current VC’s Secretary who also served during Prof Mbati’s tenure as the VC for UNIVEN confirmed that there were email approvals from the then Chairperson of the Council, Mr Serobi Maja, for Prof Mbati’s international trips. However, she indicated that the UNIVEN’s Microsoft Outlook Server is failing to retrieve email correspondence from the past five years. This lack of proper record keeping system is deeply concerning and hampers the ability of the Committee to consider the matter fully.

4.6.2. UNIVEN reported that although it has a Policy on Delegation of Authority, the document does not address issues of approval of the Vice-Chancellor and Principal travelling but this matter was currently being addressed by the relevant governance structures.

4.6.3 Various other instances thus remain unverified, including the lack of providing trip approvals. Various unverified matters justify that such matters be handed over to the government forensic investigative authorities with the necessary capabilities.

4.7. Alleged use of overseas trips to ingratiate certain members of the Council

4.7.1. Mr Manenzhe alleged that Prof Mbati did not hesitate to use UNIVEN resources to ingratiate certain members of the Council with the intention of making them sympathetic to him, in the event that the Council deals with matters involving him. He alleged that Prof Mbati misused UNIVEN resources to fund a trip to the United States of America (USA) for Ms Mabusela and her husband.

4.7.2. Ms Mabusela denied the allegation that her husband accompanied her to the USA. This was corroborated by Prof Mbati who provided a list of the trips undertaken with council members. No evidence was presented to substantiate Mr Manenzhe’s allegation.

4.8. Alleged failure to take action against Mr Dzaga

4.8.1. Mr Manenzhe alleged Prof Mbati was reluctant to take disciplinary steps against Mr Dzaga (Director: Communications and Marketing) for allegedly assaulting and verbally abusing Ms Manenzhe. He said Prof Mbati protected Mr Dzaga as he was part of his inner circle. He noted that Prof Mbati appointed a legal practitioner who recommended mediation between Mr Manenzhe and Mr Dzaga, which Mr Manenzhe refused. He further alleged that that the legal practitioner wrote a report without his involvement and was paid R45 000 for the report. Ms Pendu similarly alleged that Prof Mbati failed to charge Mr Dzaga for allegedly assaulting Mr Manenzhe.

4.8.2. Documentary evidence presented in the form of a report titled: Disciplinary hearing at the University of Venda in the matter between University of Venda (Complainant) and Takalani Victor Dzaga (Accused employee), disprove that Prof Mbati failed to institute disciplinary cation against Mr Dzaga. On 4 May 2016, the day of the incident, Mr Manenzhe reported it to Dr Zaaiman, the DVC: Operations.

4.8.3. The matter came to Prof Mbati’s attention in August 2017, and by that time Dr Zaaiman had left UNIVEN. Mr Manenzhe approached the Legal Services Directorate enquiring about the progress regarding his complaint. The complaint was not brought to the attention of the Legal Services Directorate until Mr Manenzhe enquired about progress.

4.8.4. Prof Mbati did not deny that he supported the holding of a mediation process to address the dispute. He noted that mediation failed because of Mr Manenzhe’s stubbornness and desire to inflict reputational harm to Dr Dzaga. Subsequent to the failed mediation, Mr Dzaga was charged and subjected to a disciplinary hearing.

4.8.5. On 29 august 2017, the VC called Mr Dzaga to account. On 10 October 2017 the Director of Legal Services Directorate wrote a letter to Mr Dzaga asking him to appear before a Task Team to share more light on the incidents. Subsequently, Prof Mbati procured Adv Maake to conduct an investigation into the allegations and upon receiving a report from Adv Maake, Mr Dzaga was called to account. In November 2017, Mr Dzaga was subjected to a disciplinary process, and was found not guilty. Evidence presented at the disciplinary hearings by witnesses and video footage disproved the reported allegations.

4.8.6. The Committee noted the undue delays by the UNIVEN to attend to the reported complaint by Mr Manenzhe. The matter was reported in May 2016, but processes commenced only 15-months later. However, the delays cannot be attributed to Prof Mbati. Evidence presented shows that both Prof Mbati and the University’s Legal Services Directorate swiftly took action to attend to the reported case once they were made aware of same.

4.9. Performance Bonus of Prof Mbati

4.9.1. During his tenure, Prof Mbati was paid performance bonuses every year since the inception of such bonuses.

4.9.2. Prof Mbati denied the allegation that he received a bonus irrespective of whether he had performed or not. He stated that performance management of the VC and other members of the executive management followed a very strict yet transparent process. Notwithstanding that the evidence presented spoke to the rigorous process of assessment, it is concerning that in the view of the infrastructure management failures, Prof Mbati nevertheless received a performance bonus.

4.10. The appointment of some former Council members to work in management

4.10.1. Mr Makhado alleged that former members of the Council who were close to Prof Mbati were appointed to occupy administrative positions. Mr Makhado mentioned the names of Dr L Kone and the current VC, Dr Nthambeleni, who were alleged to have served on Council when the positions were discussed and approved.

4.10.2. UNIVEN does not have a policy to preclude those who are serving on the Council from applying for the advertised positions. Prof Mbati denied the allegation that the two Council members were appointed because they were close to him. Dr Nthambeleni also denied that that Prof Mbati played a role in his appointment. The witness did not submit evidence to substantiate the allegation and it is therefore dismissed.

4.11. Unleashing students to challenge staff he did not like

4.11.1. Mr Makhado alleged that Prof Mbati “unleashed” students to challenge staff members he did not like or who shared a different view with his.

4.11.2. Prof Mbati denied the allegation. The witness did not submit evidence to substantiate the allegation.

4.12. Using security to spy on some members of the Council, including certain staff members

4.12.1. Prof Mbati denied the allegation that Mr Nemadzivhanani and Mr Manenzhe were spied upon. He testified that when the Deloitte Forensic investigation was initiated into corrupt practices at UNIVEN he became a target of intimidation, abuse, and suffered death threats. The threats and intimidations were detailed in the submission to the EXCO, titled: “Intimidation tactics and smear campaign against the Vice-Chancellor & Principal.”

The document noted that according to the evidence submitted there appears to have been a concerted effort by some individuals to portray both Prof Mbati and senior managers who worked closely with him in a negative light.

The University procured a private investigator, Swartberg Intelligence Support Services to investigate the reported incidents. The report of the investigator, dated 20 February 2012 was submitted, and subsequently presented to the SAPS for further investigation and a docket was opened.

4.12.2. The witnesses did not submit evidence to sustain the allegations. However, the Committee is of the view that all reports on matters reported for investigation by SAPS and prosecution to the National Prosecuting Authority be reported upon to Parliament.

4.13. Alleged abuse of UNIVEN Work Study Programme to benefit non-South African students to the detriment of South African students

4.13.1. Documentary evidence in the form of the Report on Investigation into Post-Graduate Student Grievances (“the Balintulo Report”)found that there was abuse of the Work Study Programme in terms of time sheets, accommodation and extended registration period for non-south African students.

4.13.2. The investigation found irrefutable evidence to prove the allegation of abuse of time sheets by non-South African students, and also found that some students submitted signed sheets for work that was not purportedly carried out on behalf of the UNIVEN at the time when they still in their country of origin. It concluded that some international lecturers either connived with international students to defraud the system or simply behaved indifferently towards the abuse of the system by international students. Evidence presented before the Commission also corroborated the allegation that students were renting their rooms, but this was not limited to international students.

4.13.3. The Committee noted that though the allegations were corroborated, there is no evidence that proves that Prof Mbati was complicit. On the contrary, when the allegations came to his attention, Prof Mbati appointed the Commission to investigate. However, the widespread abuse does suggest that there was inadequate monitoring and evaluation of the work-study programme. Proper monitoring would have ensured an early detection of the abuse of the Programme and would have allowed for corrective and preventative measures to be put in place.

4.14. Selective and discriminatory re-appointment of retired non-South African academia as emeritus Professors or contract Professors

4.14.1. The HETN alleged that there were discriminatory workplace policies at UNIVEN from 2012 to 2018. The HETN alleged that non-South Africans employees were, upon retirement, exclusively re-appointed as Emeritus Professors for a period of 2 – 5 years. It further stated that there are Emeritus Professors given expensive salary packages and other benefits without a formal recruitment process or advertisements, shortlisting or interviews taking place contrary to the UNIVEN’s recruitment policies.

4.14.2. The Institutional Statute of the University of Venda provides for the appointment of Emeritus Professors. Clause 5 (1) of the Statute provides the following:

“The Council may, on the recommendation of the senate and subject to the statute, bestow the status of emeritus Professor on retired Professors of the university with such rights and privileged as may be determined by the senate.”

Clause 5(4) states that “Persons who retire from the university having served as vice-chancellor or as deputy vice-chancellor or persons who retire after five (5) years of service as full Professors, may be appointed as emeritus Professors of the university.”

Clause 5(5) states further: “Such appointments does not take place automatically but follows a recommendation to senate from the school board concerned, and is based on a significant contribution made in respect of academic and administration leadership.”

4.14.2.1. The Committee noted that legal prescripts allow for the appointment of retired Professors of the University as emeritus Professors, provided they are recommended by the school board to senate and have made a significant contribution to the University in terms of academic and administration leadership. Documentary evidence in the form of a memorandum from Prof Phendla to Vice-Chancellor: Prof Mbati dated 21 August 2009 supporting Prof Bayona’s application for the position of Prof Emeritus, confirms the process as outlined in the Statute.

4.14.2.2. From the evidence presented, it is clear that the appointment of emeritus Professors does not follow the normal university recruitment process.

4.14.2.3. Accordingly, there is no evidence to support that Prof Mbati participated in the recommendation and subsequent appointment processes of emeritus Professors.

4.15. Alleged payment of R6 million for the land that UNIVEN occupied

4.15.1. Dr Legoabe reported that Mr Ramano, the Chairperson of the UNIVEN Foundation, in his letter to Mr Maja, dated 19 Aril 2016 stated that there were rumours that UNIVEN agreed to pay R6 million for the land that it currently occupies. The allegation was denied by the University Council and there was no further evidence presented to support it.

4.16. Funds donated to the UNIVEN Foundation were not properly accounted for (Council minutes)

4.16.1. Prof Mbati denies the allegation by the HETN that funding amounting to R3 million received by UNIVEN for the development of an engineering programme was not properly accounted for.

4.16.2 All evidence presented to the Committee shows that the programme was being developed as undertaken. Accordingly, the allegation is unsubstantiated.

4.17. Alleged pending criminal cases against Prof Mbati

4.17.1. Prof Mbati denies the allegation by Dr Legoabe that there are pending criminal cases against him. Prof Mbati submitted a report from the Serious Crime Corruption Investigating Directorate for Priority Crime Investigation in Polokwane, dated 17 February 2021, titled “Polokwane Enquiry 04/09/16, corruption/PFMA in connection with investigation related to University of Venda.” The report states that there are no reasonable grounds to believe that the offences as mentioned above were committed by officials of UNIVEN and/or private individuals (service provider and its directors) where the payments were agreed upon and made, where the various tender processes were not followed, therefore the matter is regarded as finalized.

4.17.2. Dr Legoabe submitted a letter from Captain M Ramoroka: Group Commander: Public Sector Serious Corruption Investigation, Limpopo Province DPCI SCI Enquiry 03/05/2021, dated 11 May 2021 which indicated that the dockets in respect of case numbers 384/7/2016 and 61/08/2015 were referred to the SCCU (presumably the Complex Commercial Crime Component Office) in Pretoria who had in turn referred it to the Deputy Director of Public Prosecutions in Polokwane.

4.17.3. The Committee noted the following:

4.17.3.1. Prof Mbati’s response related to only one case, Cas 04/09/2016, while there appears to be two other cases, Cas 61/08/2015 and Cas 384/7/2016.

4.17.3.2. The evidence before the Committee does not confirm or refute that there are pending criminal cases against Prof Mbati in his capacity as the VC of the UNIVEN. However, there are contradictory letters received where the latest points out that a section 205 of the Criminal Procedure Act, 1977 (Act 51 of 1977) (CPA) evidence is being pursued. Section 205 of the CPA provides for the obtaining of evidence to allege offence by all judicial officers, dependent on the jurisdiction where the matter should be tried. According to section 205 of the CPA a judge, regional court magistrate or magistrate may take evidence as to alleged offence. The Committee noted that this provision require the Director of Public Prosecutions and public prosecutors with the assistance of the courts to obtain and examine relevant information of any person likely to give material or relevant information as to any alleged offence, regardless whether it is known who the person that committed the offence. Hence the Committee is considering the best possible matter to address this issue with related structures and the relevant committees of Parliament.

4.17.3.3. The Committee noted the poor coordination between Hawks units in Thohoyandou and Polokwane where it appears that there is no follow-up on matters referred to Polokwane for further investigation.

4.18. Alleged non-implementation of the recommendations of the Balintulo Commission, which Prof Mbati instituted after South African students complained about being discriminated against; and that Prof Mbati charged Prof Mafunisa for inciting students, but was later reinstated after he won the case.

4.18.1. Prof Mbati denied the allegation levelled against him by Ms Pendu of the non-implementation of the Balintulo Commission Report. He stated that the issues raised in the Report could not have been addressed overnight as UNIVEN had already registered students. To address the recommendations of discrimination as per the Commission Report, it had to be done gradually as informed by the rate of graduation and new intakes.

4.18.2. Prof Mbati further denied that that Prof Mafunisa’ disciplinary processes emanated from students’ complaints or the recommendations of the Balintulo Commission. He stated that Prof Mafunisa was charged for insubordination and the matter was resolved through a mediation process.

4.18.3. Documentary evidence in the form of the Final Report of the mediation process of the dispute between Prof John Mafunisa and Prof Armstrong Kadyamatimba, dated 14 March 2017, affirms the statement by Prof Mbati.

4.19. Perennial contracts to Cornerstone

4.19.1. The HETN alleged that UNIVEN has repeatedly awarded contracts to a company called Cornerstone without following tender processes. The HETN further alleged that in 2014, UNIVEN awarded a contract for the ICT SMART Campus to a company alleged to be Microsoft SA without following tender processes for an undisclosed amount estimated to be as much as R75 million. They further alleged that the contract was awarded after some UNIVEN staff members had a meeting with the representatives of the company.

4.19.2. Prof Mbati denied the allegations, noting that the procurement of goods and services was done according to the UNIVEN’s supply chain management processes. Neither the internal audit, external audit or the University legal department flagged impropriety in the appointment of Cornerstone. If this had been the case, those implicated would have been required to account. The HETN did not provide evidence to substantiate the allegations.

4.20. Alleged withdrawal of the Deloitte Report that was used to charge and dismiss Prof Phendla

4.20.1. The HETN alleged that the Deloitte and Touche forensic report used to charge and dismiss Prof Phendla was retracted.

4.20.2. The Committee addressed a correspondence to Deloitte and Touche to ascertain the status of the report and was informed in writing on 18 June 2021, that the report in the possession of the Committee is the final report issued by Deloitte and it was not subsequently withdrawn or amended as alleged.

4.21. Ms Pendu’s dispute on the assertions by Prof Mbati that she forged a certificate in Practical Bookkeeping

4.21.1. Subsequent to Prof Mbati’s testimony on 5 March 2021, the Committee received a letter of dispute from Ms Pendu, the former UNIVEN HEMIS Officer. Ms Pendu disputed the reasons advanced by Prof Mbati for her dismissal. She indicated that the assertions that she forged a qualification certificate was a lie. In further disputing the reasons for her dismissal, Ms Pendu levelled several allegations against Prof Mbati.

Ms Pendu’s application for the position of HEMIS Officer

Based on evidence presented, the Committee noted the following:

4.22.1. The University advertised the Higher Education Management Information System (HEMIS) Officer post explicitly indicating that the position required a relevant degree or diploma as well as experience in current research methods and technique for data analysis.

4.22.2. Ms Pendu was allegedly requested to apply.

4.22.3. Ms Pendu’s CV included reference to a Diploma in Practical Bookkeeping (from Damelin College) and a National Diploma: Public Relations (Technikon South Africa) giving the impression that these qualifications had already been acquired.

4.23. The role of the HR Department

4.23.1. The HR Department misdirected itself against the institutional policy by ignoring its own set requirements in the advert and shortlisted Ms Pendu without confirming that the diplomas referred to was completed. It has been ascertained that not all of Ms Pendu’s qualifications were submitted as per the directive and policies of the institution.

4.23.2. Notwithstanding the non-submission of the copies of the qualifications, the HR Department proceeded with the appointment subject to a probationary period of 12 months and the submission of original academic certificates.

4.23.3. The review of HEMIS data in 2017 and human capacity at the HEMIS Department happened after the fact despite UNIVEN possessing sufficient resources to verify qualifications.

4.23.4. It is concerning that an institution of higher learning could appoint a person in a senior position without verifying their qualifications.

4.23.5. In order to establish the facts, the Committee contacted Damelin to ascertain the status of Ms Pendu’s qualifications. Damelin duly responded on 18 November 2021. The details of the response are addressed later.

4.23.6. Prof Mbati noted in his response to Ms Pendu statement dated, 07 September 2021, that the position of HEMIS Officer is equivalent to Senior Managers within the institution, and it would have been irresponsible for the institution to hire someone without qualifications. The HR Department acted irresponsibly by considering the application and as appointing the incumbent without verifying her qualifications. Further opportunities to verify the qualifications after the probationary period of 12 months and during the 2014 skills and qualifications audit were missed.

4.23.7. Ms Pendu failed to comply with the appointment conditions and this appears to have been overlooked by HR until July 2017.

4.23.8. The lapse of 7-years without any action to verify Ms Pendu’s qualifications or ensure that she complies with her appointment conditions shows an unwillingness on the part of HR and VC to take action. UNIVEN Management cannot claim ignorance and shift blame on this crucial revealed fact. The HR confirmed the appointment following the probationary period and subsequent non-compliance with the appointment conditions.

4.23.9. It appears that the University management and HR Department adopted a hands-off approach to Ms Pendu, despite being aware of the fact that she failed to produce a proof of her academic qualifications.

4.24. Prof Mbati’s allegation that Ms Pendu forged a qualification certificate

4.24.1. Prof Mbati initially testified that Ms Pendu forged her certificate. In his response to Ms Pendu’s statement, dated 07 September 2021, Prof Mbati conceded that Ms Pendu did not forge a certificate, but rathermisrepresented her qualifications and therefore committed fraud, which called for both a disciplinary process and criminal action.

4.24.2. Prof Mbati did not take ownership of his claims that Ms Pendu forged her certificate. He contended that the Committee ambushed him with the question on why Ms Pendu was dismissed and he did not have the full recollection but was coerced into providing a response.

4.24.3. This claim of ambush is not supported by the facts. All written statements were made available to Prof Mbati and access to the recordings of the Enquiry to date. As such he ought to have been fully aware of the allegation made by Mr Manenzhe regarding the appointment and dismissal of Ms Pendu.

4.24.4. The Committee rejects the unfortunate claim that the questions it posed to witnesses was a deliberate strategy to justify a predetermined outcome. The Committee is confident that it has provided everyone with a fair opportunity to answer questions on statements and supporting documentation that was provided to both witnesses and the Committee.

4.25. Alleged role and influence of Prof Mbati in the appointment of Ms Pendu

4.25.1. The former HR Director, Mr Manenzhe alleged that Prof Mbati insisted that they appoint Ms Pendu despite her not having the requisite qualifications. Similarly, Ms Pendu in collaborated the evidence of Mr Manenzhe. She testified before the Enquiry that Prof Mbati played a central role in her appointment and she was assured by both Prof Mbati and Mr Manenzhe that she was appointed based on the skills she possessed and not on her qualifications. Ms Pendu supplemented her evidence with an email correspondence from Prof Mbati.

4.25.2. Notwithstanding that Mr Manenzhe blamed Prof Mbati for Ms Pendu’s appointment, he undermined his own role in the process. Mr Manenzhe, as the custodian of the HR policies failed to protect the HR Department from the alleged undue influence by Prof Mbati. At the very least, on the facts available, he failed to exercise his fiduciary duties.

4.25.3. Prof Mbati in his response to Ms Pendu’s statement to the Enquiry, dated 07 September 2021 did not deny the authenticity of the email dated 18 August 2008 as submitted to the Enquiry by Ms Pendu. Prof Mbati confirmed that he did recommend that the position be re-advertised and that the requirements be crafted to accommodate potential candidates that may not have the full relevant qualification spectrum, but would have the requisite experience and skills in order to increase the pool of applicants, as this wasa scarce skills position. Prof Mbati denied having recommended that the specific incumbent should not possess any qualification at all or that applicants without qualifications should list qualifications in the CV, which they did not have.

4.25.4. After Prof Mbati perused all documentation relating to the interview and subsequent proposal to appoint Ms Pendu it must have been apparent that Ms Pendu had the relevant skills but no qualifications. However, Prof Mbati maintained the view that she be appointed regardless of the lack of qualification but on the basis of the skill set she possessed, since such skills were scarce and critical. Notwithstanding that Ms Pendu did not have the requisite qualifications, she was nevertheless appointed by UNIVEN.

4.25.5. The failure by the institution to get an HEMIS Officer in the first round of applications in 2008, and the urgency to establish the Office, on speculation as no explanation was rendered to the Committee, may have led Prof Mbati to make a recommendation to consider those without requisite qualifications but possessing relevant skill.

4.25.6. The Committee is therefore of the view that Prof Mbati was indirectly involved in the facilitation of Ms Pendu’s appointment.

4.25.7. It further appears that the HR Department was influenced by the recommendation from Prof Mbati to consider persons who may not have the necessary qualifications but who possess the required skills. The email from Prof Mbati to Mr Mugwedi, which was also copied to Mr Manenzhe: HR Director and the Registrar, dated 18 August 2008, states the following: “I have perused all documentation relating to the interview and subsequent proposal to appoint Ms. NG Pendu. I have also noted the technicalities that have prevented the appointment of Ms. Pendu despite the skills she possesses within the context of a HEMIS officer.

I recommend that the position is immediately re-advertised and that the requirements in terms of qualifications are stated in such a manner that you accommodate potential candidates that may not have the requisite qualification but who have the necessary skills.”

This could explain why Ms Pendu’s lack of qualifications was overlooked.

4.25.8. The former HR Director, Mr Manenzhe testified that he was directed by Prof Mbati to prepare charges against Ms Pendu, which he refused, indicating to Prof Mbati that he was the one who insisted on her appointment initially.

4.25.9. From Ms Pendu’s statement, the former Registrar, Mr Nemadzivhanani seemed to have gone to extra lengths to ensure that she applied for the position. It is alleged that when Ms Pendu’s application could not be located on the day of the selection, Mr Nemadzivhanani allegedly called her to confirm whether she submitted an application and requested her to resend the application to Mr Manenzhe’s email, which she did.

4.25.10. The fact that no action was taken against Ms Pendu when she failed to comply with the contractual condition to present original copies of her claimed qualifications cement the view that there was biasness and leniency in her favour.

4.25.11. Ms Pendu denied forging a certificate and argued that there is a difference between misrepresentation and forgery. This statement is an admission of guilt that she misrepresented her qualifications. This amounts to serious misconduct that should have been dealt with by UNIVEN swiftly had it completed the necessary due diligence.

4.25.12. The Committee observes the probative value parallel in the circumstances of Ms Pendu’s dismissal and Prof Phendla’s dismissal where it appears that UNIVEN failed to deal with misconduct timeously and ignored certain matters until it was convenient for UNIVEN. These parallels include amongst others the following

(a) In respect of Ms Pendu the use and call for a HEMIS Review report

(b) In respect of Prof Phendla, the call for the Deloitte and Touche Report on allegations of corruption that occurred prior to employment of Prof Phendla as the Dean of Education but when she was a UNIVEN Council Member

(c) The stakeholders mentioned as instigators for the call of such reports but not the responsible oversight holders of these positions

(d) the length of lapsed timeframes prior to action being taken to address the misconducts attributed to the two individuals and

(e) the reasons both believed were justification for processes utilised leading to their dismissals and or;

(f) allegations of victimisation originating from Prof Mbati and somehow involvement.

4.26. Ms Pendu’s dismissal

4.26.1. Ms Pendu alleged that her dismissal was because of the role she played as the NEHAWU Branch Secretary and because of being vocal against things that were happening at UNIVEN.

4.26.2. The questions that remain unclear are:

Whether HR Department knew about the misrepresentation of Ms Pendu, but shielded her by not taking action, but later used the same information facts to dismiss Ms Pendu?
Whether the HR Department’s unwillingness to act against Ms Pendu was indeed influenced by Prof Mbati’s email, dated August 18, 2008 to Mr Mugwedi and Mr Manenzhe, which recommended that the job requirements of the HEMIS Officer be crafted in a manner that accommodates potential candidates that may not have the requisite qualification but who have the necessary skills?
On all persons involved in this, whether such conduct does not amount to unethical conduct.

4.26.3. Despite the remaining uncertainties, the above cannot absolve Ms Pendu from misconduct or misrepresentation. These uncertainties merely to highlight that the timing of her dismissal is suspicious and supports the testimony that she may have been targeted and victimised. There was sufficient opportunity to discipline Ms Pendu between 2009 and June 2017 as she continued to be evasive and not comply with her appointment conditions.

4.26.4. During her testimony, Ms Pendu stated that she completed her Diploma in Practical Bookkeeping in 1993 but was not in possession of her certificate which she struggled to get a copy of the certificate from Damelin College.

4.26.5. Subsequent to that, the Committee wrote to Ms Pendu informing her that it wished to verify with Damelin college whether she obtained her Bookkeeping qualification. The Committee requested her identity number, name of the courses, the year of study and the Damelin campus from which she graduated.

4.26.6. In her response, Ms Pendu stated that she does not know the Ciskei identity number that she used when registering for her studies. She did not provide the Damelin Campus details and the courses she studied and passed.

4.26.7. Evidence as contained in the Report of the Chairperson of disciplinary hearing on the matter of the UNIVEN (employer) and Ms Pendu (employee), Ms Pendu conceded during the disciplinary hearing that she had registered for the Diploma in Practical Bookkeeping at that time but she did not complete it, even to date (at the time of the hearing), and that the mention of the Diploma was never meant to defraud UNIVEN.

4.26.8. Ms Pendu informed the Enquiry that she resigned because she was tired of the treatment she received from UNIVEN.

4.26.9. Ms Pendu tendered her resignation on 27 October 2017 and the facts suggest that at this date she was fully aware that hat she would not be able to furnish the HR Department with the copy of a Diploma in Practical Bookkeeping as she had never qualified and this would lead to a disciplinary process and dismissal.

4.26.10. Due to her failure to furnish the HR Department with a copy of her claimed Diploma in Practical Bookkeeping, Ms Pendu was charged, subjected to a disciplinary hearing and dismissed. Documentary evidence details a process undertaken by the University during the disciplinary process and there is no evidence to suggest any irregularity in terms of implementing the policy.

4.26.11. Both Mr Manenzhe and Ms Pendu alleged that she won the CCMA case of unfair dismissal. However, documentary evidence in the form of the CCMA settlement in the dispute between NEHAWU also Pendu N.G (applicant) and the UNIVEN (respondent), dated 09 July 2018 does not support the assertion. According to the CCMA settlement, the parties agreed on a monetary settlement, where the applicant would be paid an amount of R73 651,67, which according to the University was her outstanding one-month salary of December 2017. Ms Pendu was still an employee of the University until the termination date of 31 December 2017. The University is of the view that a settlement agreement was in its best interest and cost saving on its part.

4.26.12. The Committee obtained information from Educor (the company who took ownership of Damelin in 2000), which confirmed that Ms Pendu did not complete her Diploma in Practical Bookkeeping nor has she completed a six-month practical bookkeeping certificate as per her testimony to the Committee. The course registered by Ms Pendu was a short-learning programme of 28 hours, which is not a qualification. It was further confirmed that the College had communicated to her that she did not meet the requirements for the Short Learning Programme (SLP) course.

In conclusion, Ms Pendu misled the Committee in respect of her qualifications.

4.27. Alleged failure of UNIVEN management to implement sound financial and supply chain management processes and to properly manage the institution, including various infrastructure projects

4.27.1. Evidence presented to the Committee from witnesses, including the Department of Higher Education and Training, reports issued by external auditors in 2014, June 2015 audit findings and the 2016 forensic investigation by Nexia SAB&T corroborate the allegations that there were serious gaps and shortcomings in the management of infrastructure development projects. This is evidenced by the reported multiple infrastructure governance failures. For example, procedures for contract management and time determinants or timeframes were not in place, building construction services were rendered in the absence of service-level agreements, there were weaknesses in relation to variation orders due to a lack of defined corporate governance and plans to ameliorate or prevent risks and negative consequences, and a lack of or absence of no budget monitoring. The above identified weaknesses led to the failure of various projects to be delivered on time and within budget.

4.27.2. The Committee noted that the 2016 forensic investigation report into procurement processes followed in respect of 10 infrastructure projects (conducted by Nexia SAB&T) recorded that the investigating team was not supplied with standard supply chain management (SCM) documents, including bid specifications, minutes of meetings, details of variation orders, deliberations of the bid adjudication committee and service level agreements. The fact that these basic compliance documents could not be provided indicates that the SCM function at UNIVEN was severely and wholly inadequate. This points to a lack of oversight by Prof Mbati in his capacity as VC and Accounting Officer in ensuring that the SCM function complied with the law, and in particular, the Constitutional requirements for fair, competitive, cost-effective, equitable and transparent SCM processes. In fact, the report recommends that there be a “complete overhaul of the University’s SCM policy” thus further illustrating the serious shortcomings in the SCM function.

4.27.3. The Committee noted that there was inadequate capacity within UNIVEN to oversee infrastructure development projects. Prior to the forensic investigation by Nexia SAB&T, there were inadequate efforts to address those areas where inefficiencies were already identified by the involved staff.

4.27.4. There is no evidence that any form of design, bid and build with construction management systems and consequence management or involvement of industry specific expert was implemented against the DVC Operations and those responsible for oversight over infrastructure projects. This appears to be so, even after the time some inefficiencies were noted, as the inefficiencies identified as early as 2014 and the failure to resolve audit findings of 2015, resulted in a repeat of adverse findings in 2016. Notwithstanding that the Nexia SAB&T forensic report did not make any recommendations against the former VC, it is important to note that, the VC as the accounting officer’s failure to timeously act against those responsible for poor infrastructure management, must be attributed to him as a failure to perform his duties. Prof Mbati appears to have neglected his oversight responsibility and failed to perform by not putting into place proper governance structures and adequate internal controls. This lack of governance or strategic leadership on the part of the VC contributed to the mismanagement and failures of infrastructure projects. As a way of example on some failures:

Prof Mbati was instructed through the resolution of the Council meeting of 15 September 2017 to ensure that there was a consequence management in respect of contractors who abandoned infrastructure projects.
Notwithstanding that Prof Mbati denies the observation by the Committee and listed in his comments on the preliminary Enquiry Report interventions that were implemented during his tenure, in particular before the forensic investigation were inadequate, as the Sizwe Ntsaluba Gobodo project had found many weaknesses in the management of infrastructure, including weak internal controls. The Sizwe Ntsaluba Gobodo review conducted in 2015 on the projects awarded in the 2014 financial year revealed that the role of the project managers in the construction projects was not monitored as a result the majority of the projects were either late or behind the schedule. Additionally, the assessment of the operational structures such as the Finance and Operations as well as skills audit have not been performed to determine the best fit for the University in line with its strategic direction. This has resulted in significant internal control deficiencies identified in contract management, planning and budgeting process, supply chain management and cash flow management. The Committee reiterates that the VC who is also the CEO of the University should have been held accountable for the lack of oversight over those who were tasked with these functions.

4.27.5. The Committee heard allegations that infrastructure development projects were awarded to bidders who were told to tender at lower amounts in order for them to be awarded the tenders even though they would not be able to finish the projects. Although no evidence was presented to substantiate this allegation, the Council minutes of 21 April 2017, reveal that the Council commented on the problem of under budgeting for the projects and noted that this should be resolved as it impacts on the completion time for projects. The Council’s concern regarding under-budgeting for projects shows that bidders may have tendered at lower amounts to be awarded contracts.

4.27.6. Mr Manenzhe alleged during the Enquiry that there was corruption, as envelopes of money changed hands. Evidence to support the allegation was not submitted. Other than oral and in the written statement evidence in this regard, the allegation remains unsubstantiated since no collaboration was received.

4.27.7. In light of the responses received by the Committee upon the opportunity to the witnesses, UNIVEN Council responded pointing out that with an exception of one, namely the male residence, all outstanding projects have been completed. The University reports that there was additional scope on the projects with less budget and following further grant funding from the Department of Higher Education and Training, and those projects (refurbishment of empty shell in Life Sciences building, Agriculture Farm renewal project, student residence (320 and 314 beds for female and male, respectively with amenities: 4 Warden’s flats); Phase Two School of Education, (4 classrooms, 3 lecture halls); Development Bank of Southern Africa (DBSA) Female Residence are now complete. The only outstanding project is in relation to the DBSA Male Residence; however, the project is now almost complete and occupation by UNIVEN students would take place from May 2022.

4.28. Prof Mbati’s alleged directorship in Black Capital

4.28.1. It was alleged by the DHET that Prof Mbati is the Director of Black Capital, which is a subsidiary of Andany Investments (PTY) Ltd. Evidence provided by both Prof Mbati, Mr Cibi and Mr Thekisho, on the CIPC person disclosures refutes this allegation and the DHET was unable to provide any supporting evidence for this bold allegation. It is thus very concerning that the DHET would make public such a serious allegation without evidence to support it.

4.28.2. The Committee noted that the former Department of Higher Education and Training’s Director-General (DG), Mr Qonde met with Mr Cibi to try to ascertain why there was a lack of support for the accommodation projects. Furthermore, Mr Cibi requested the DG to help to speedily resolve the matter. The conduct of Mr Cibi amounts to attempting to influence the decision of the Department in his favour and such is unethical and unlawful behaviour. Similarly, it is irregular for the DG of the Department to meet private persons who are interested in conducting business with the institution, as this may lead to unethical behaviour.

4.28.3. The Committee noted that the University Council neither informed the Department of the intended developments nor acquired the necessary ministerial approval when it entered into an agreement through its investment company, UNIVEN Innovative Growth Company (UICG) for infrastructure development for estimated costs of R2,3 billion.

4.28.6. The Committee noted that there was poor governance and no consequence management implemented by either the DHET or the Minister against the UNIVEN Council for transgressing the legal requirements in this regard.

4.29. Prof Mbati’s leadership style and his fitness to hold office

4.29.1. The Committee enquired from the witnesses, in particular, former employees, former and current Council members and the current VC of UNIVEN about the leadership style of Prof Mbati. Most witnesses described Prof Mbati as a visionary leader, with a strategic leadership potential and innovative ideas, and had a way of making people buy into the vision and mission of the institution. Ms Mabusela, the former Council Chairperson indicated that Prof Mbati was fit to hold office. He had many areas of excellence, notwithstanding some areas of shortfalls.

Notwithstanding that most of the witnesses, acknowledged that Prof Mbati was a visionary leader, some indicated that he did not take kindly to a dissenting view from his own. It was noted that those who had a different opinion from the one Prof Mbati held, became his enemies and he would do everything in his power, including using the University resources to remove them.

Mr Nemadzivhanani said the following:

“Prof Mbati felt that the difference of opinion was an attack on himself. A leader should see the opposition of ideas as opposition between mind to mind, and not a person to person.”

Dr Tshitereke said, “Prof Mbati was ruthless, equally reckless and incompetent. He runs away, and does not want to confront issues, and he will always blame it on others and find a convenient displacement.”

Prof Mbati refuted how those he termed “a coalition of the wounded” described his leadership, reiterating that the entire sample to whom the former Committee Chairperson put this question are individuals who were dismissed from the University following due processes laid down by the University Policy, in line with the disciplinary code and laws of this country. Additionally, Prof Mbati indicated that they are naturally angry with him, bitter and vengeful and it was no surprise that they did not have any kind words to say about him. In his witness statement, dated 5 March 2021, Prof Mbati detailed a list of awards that were bestowed to him in recognition of his leadership.

4.29.2. It was clear from evidence presented that Prof Mbati had steered the University of Venda to greater heights in terms of its core mandate, which is teaching and learning, research and community engagement. UNIVEN had increased its partnerships (local, regional, continental and international) and donor funding for student bursaries, infrastructure development and other crucial projects such as the development of engineering programmes supported through the Domba Trust donation. Donor funding does not come automatically, it requires a dedicated effort in writing funding proposals and presentations.

4.29.3. Evidence shows that there was an exponential growth in infrastructure during the era of Prof Mbati as the VC of the UNIVEN. The expansion of infrastructure was to address the shortage of student accommodation, teaching and learning facilities and many other critical projects to enable the University to become a comprehensive institution to offer career-oriented qualifications and new engineering-related programmes. The University’s own infrastructure spending increased exponentially from R4,07 million in 2008 to R103,0 million in 2015. Similarly, infrastructure development spending from the DHET Grant increased significantly from R77,45 million in 2008 to R518,3 million. The University received the third stream funding support from the Sector Education and Training Authorities (SETAs) amounting to R130,21 million over eight years, as per the UNIVEN presentation made to Parliament’s Portfolio Committee on Higher Education and Training, on 28 March 2017.

4.29.4. Prof De Beer, the former Vice-Chancellor of the SMU told the Enquiry that SMU was in the process of establishing a new department of Institutional Advancement and Internationalisation and Prof Mbati was one of the applicants. Notwithstanding that the Prof Mbati was not appointed for the Director position in the new department at the SMU, given the cloud of sexual harassment allegation at the time, Prof De Beer said the following about Prof Mbati:

“Prof Mbati has quite a long career in the higher education sector and he did a lot of networking and through this he raised a lot money of third stream funding for UNIVEN and for that he was the strong contender”

4.29.5. The Committee is of the view that despite the unsavoury experiences that some witnesses, especially the former UNIVEN employees had alleged to have had with Prof Mbati, it cannot be disputed that Prof Mbati has made a significant contribution to the positive growth of UNIVEN, and therefore the developmental agenda of South Africa.

4.29.6. Evidence presented to the Committee supports the sentiments that Prof Mbati as the Accounting Officer and the Chief Executive Officer of the UNIVEN did not take responsibility for the failed infrastructure development projects. Evidence suggest that completion of abandoned infrastructure projects took shape even way after the institution of this Enquiry, to which time Prof Mbati had already left UNIVEN. In view of the Committee, Prof Mbati failed to exercise oversight over those who were tasked with the responsibility to oversee the implementation of infrastructure development projects.

4.29.8. Prof Mbati refused to take responsibility for appointing Ms Pendu to the HEMIS Officer position despite the existence of an email record recommending that officials re-advertise the HEMIS Officer position and craft the requirements in a manner that accommodate potential candidates that may not have the requisite qualifications but who have the necessary skills. In addition, is the fact that he perused the previous year recruitment documentation of Ms Pendu prior to the re-advertisement of the HEMIS Officer position in 2009.

4.29.9. These two observations do suggest Prof Mbati as a leader is capable of displacing responsibility upon convenience and questions his ethical standing. The Committee therefore questions his ethical standing and remains doubtful of his fitness to hold office as a VC of any higher education institution.

4.29.10 In conclusion, the Committee is doubtful whether to conclude that Prof Mbati is fit to hold office as the VC of any higher education institution. The Committee therefore will recommend that the Minister conduct an investigation in accordance with relevant legislation and present a report to Parliament in six months from the date of the release and approval of this report on the leadership and performance of Prof Mbati at SMU. The Committee cautions and emphasises that persons in positions of financial leadership must ensure that public funds are vigorously protected and that good governance (including proper record keeping) is established and promoted at the highest levels.

4.30. Character of some witnesses

4.30.1. The Committee further records with discord that certain people were grouped and termed by some witnesses as “the pack of the wounded,” “disgruntled and hostile former employees” and “useless”. Name calling and shaming is unprofessional and should be desisted from in favour of facts. The Committee records that another witness failed to fully co-operate and went as far as to refuse to respond to questions outside the invitation letter. Such statements speak to the hostility that the Committee had to endure during the Enquiry. The Committee is however, satisfied that it managed these challenges in a manner that is without reproach.

4.30.2. The Committee records sentiments expressed by Prof Mbati that witnesses were not treated the same, in particular the allegation that during questioning, witnesses that seemed to oppose the narrative against him, like Mr Modiba and Advocate Nemukula, were unfairly treated and ridiculed by the former Chairperson, Mr Mapulane.

The Committee is of the view that Prof Mbati fails to acknowledge that the Committee, in an attempt to ensure that the process was beyond reproach, also accommodated witnesses that appeared to support his narrative. When Ms Mabusela experienced connectivity challenges, the Committee Secretariat offered her an alternative by requesting a nearby institution of higher learning or college to offer an office space for her. Ms Mabusela declined the offer and said she would not risk going outside her home during the COVID-19 pandemic. The Committee noted her concern and requested Parliamentary ICT to assist her in solving the connectivity challenges she was experiencing. They discovered that the issue was not connectivity, but her laptop microphone. Ms Mabusela was advised to get headphones, which she did and that resolved her challenges.

A similar offer was extended to Mr Maja upon finding out that he did not have connectivity at his home. The Committee put processes in place to provide him data, or procure a shuttle service to transport him to a TVET campus in Polokwane where he would be able to freely continue his testimony. The Committee found an alternative location for Mr Manenzhe who also struggled with connectivity. Engagements were made with a TVET college campus near his area to offer an office space for the duration of his oral testimony and he accepted.

Allegations that the Committee went all out to accommodate Mr Manenzhe are baseless. Advocate Nemukula was located in an office where other officials of the University were printing copies and the sound of the machine and the movement of people behind him were disturbing the proceedings of the Enquiry.

Part B: Sefako Makgatho University

4.31. The alleged flawed and subjective recruitment process that resulted in the appointment of Prof Mbati

4.31.1. The HETN alleged that the recruitment process by the SMU Council for the Vice- Chancellor position was hastily conducted without any proper interviews of candidates during a period of COVID-19 lockdown when the University should have been suspended.

4.31.2. The SMU Council and Academic Partners furnished the Committee with documentary evidence of the process followed. The Committee also received oral testimonies from various witnesses. Having analysed the submitted documentation and oral testimonies of witnesses, the Committee provides the following outline of the process followed and its findings.

4.31.2.1. Section 1 of the Higher Education Act, 1997 as amended, defines the principal as a chief executive and accounting officer of a public higher institution, and includes a vice-chancellor and rector. Section 30 of this Act states that: “The Principal of a public higher education institution is responsible for the management and administration of the public higher education institution.”

4.31.2.2. Paragraph 11 of the Statute of the Sefako Makgatho University Health Sciences University, 2016, provides the following:

(1) When the post of the Vice-Chancellor becomes vacant, the advertising of the post, the invitation for nominations of and applications by candidates, the search for suitable candidates, the applicable criteria for the short-listing of candidates and the interviewing and appointment process take place in the manner determined by the Council and the Rules of the University, subject to section 31(1) of the Act.

4.31.2.3. Paragraph 2.1.1 (2.1.1.1) of the SMU Policy and Procedures: Appointment of the Vice-Chancellor provides the following:

“When a vacancy arises, the Executive Director: Human Resources, acting on the instructions of the Council or a delegated Committee of the Council, must place and advertisement in the national and international press. The vacancy must also be advertised on the Sefako Makgatho Health Sciences University website. In addition to the customary exposition of the duties and responsibilities of the Vice-Chancellor and the requirements for appointment to the position, the advertisement should also contain and exposition of the required documentation and a reference to the applicable Appointment Regulation and Procedure.

4.31.3. The Committee makes the following observations:

4.31.3.1. The SMU Council complied with the legislation provision, especially its Institutional Statute, which states that when the post of VC becomes vacant, it should be advertised. The former VC’s tendering of resignation letter to the Council meant that the position of the VC would be vacant when the incumbent leaves at the agreed termination date with the Council, which was end December 2019. Consequently, the Council at its special meeting held on 9 April 2019, took a correct decision to immediately put processes in place to recruit a new VC.

4.31.3.2. The recruitment process to fill the position of the VC, across the public higher education sector, ideally should be concluded prior to the departure of the incumbent so as to ensure that there is no leadership vacuum.

4.31.4. It is important to provide a brief background of the SMU.

4.31.4.1. The University was established in May 2014, and had incorporated the MEDUNSA Campus of the University of Limpopo with effect from January 2015. The University was governed by an Interim Council, which was appointed to facilitate the unbundling process from the University of Limpopo and ensure the development of the new Statute of the University. The University also had an interim executive management, including the VC. The appointments of the Council together with executive management were made from June 2017.

4.31.4.2. The University though established in 2014, had gone through a painful past, with the merger of the MEDUNSA with the University of Limpopo, establishing MEDUNSA as the Campus of the University of Limpopo in 2005. The MEDUNSA Campus was demerged from the University of Limpopo in 2014. Both processes of the merger and demerger were difficult and traumatic to those involved, especially staff members. During the oversight visit of the Portfolio Committee on Higher Education and Training in August 2017, a representative of the NEHAWU said the following:

“The merger of the MEDUNSA Campus with the University of Limpopo did not benefit students, and the staff of the MEDUNSA Campus and the unbundling process compounded the situation.”

A representative of SAPTU expressed the following sentiments:

“The merger process of the MEDUNSA Campus into the University of Limpopo (UL) in 2005 and its demerger thereafter had been traumatic to most of the staff members. The challenges that arose from the merger and de-merger of the University included: high staff turnover; infrastructure and capacity building neglect; unfair suspension of senior staff in executive positions and non-renewal of their contracts; low staff morale and student protests.”

4.31.4.3. In terms of the timelines of the filling of the VC position, evidence shows that the recruitment process was not conducted hastily as alleged by the HETN. Upon the resolution of Council at its special meeting of 9 April 2019, a recruitment process of appointing a new VC was put in place, to ensure a seamless transition There was a mutual agreement between the former VC and the Council that he would leave the University at the end of December 2019, which would give the institution eight (8) months to appoint a new VC. However, an unexpected departure by the former VC on 2 September 2019, four months earlier than agreed, made the filling of the VC position more urgent. Nonetheless, the recruitment process was already underway for over four (4) months, from 28 April to August 2019 and in fact took more than 12 months to complete.

4.31.4.4. To demonstrate the seriousness of the concerns around the stability of the SMU, the former VC only served 3 years and three months of his five-year term. One of the possible candidates approached by the Academic Partners, declined to apply for the VC position stating that SMU is not an attractive option as it is unstable. Therefore, ensuring stability at the executive management level was crucial for the effective functioning of the institution, given that the VC of the University is ex officio the chief executive and accounting officer of the institutions as contemplated by the Higher Education Act and the Institutional Statute. The Principal is responsible for the day to day management and administration of the institution. The Committee is of the view that the Council’s urgency in filling the position to ensure that stability was restored at the institution was necessary and in the best interest of SMU.

4.32. The appointment process of the Academic Partners

4.32.1. According to documentary evidence submitted to the Committee, Academic Partners was appointed by the University’s Interim Management Committee in 2015, a few months after the establishment of the SMU. Reportedly, from the Minutes of the Interim Management Committee in 2015, the company was appointed to assist with handling of responses for filling of the positions on the management structure of the University.

4.32.2. It was also reported that the Academic Partners specializes in placing Executive Management and Academic Professionals and have a demonstrated track record with many academic institutions in South Africa. The Agency was used by the SMU for many years too assist in the recruitment of key positions, including in the appointment of Senior Management employees, since demerger. The Agency was also used for the recruitment of the former VC who took office on 1 June 2017.

4.32.3. The records in the possession of the Committee show that the Agency has successfully facilitated the placement of seven VCs at South African public higher education institutions between 2005 and 2019, four Deputy VCs, two Vice-Rectors, Four Deans and four Directors.

4.32.4. Evidence provided does not point to any irregularities in the appointment of the Academic Partners. Furthermore, it is clear that Academic Partners has extensive experience in facilitating the placements of executive management and other senior management positions in the higher education sector.

4.33. Alleged non-compliance with paragraph 2.2.5.7 of the Policy and Procedures: Appointment of the Vice-Chancellor

4.33.1. Alleged non-compliance by the SMU Council with paragraph 2.2.5.7 of the Policy and Procedures: Appointment of the Vice-Chancellor by not ensuring that voting for the recommended candidates takes place by means of a closed ballot. Instead, the voting process was conducted through Skype, an unsecure electronic platform that offers no secrecy, privacy and confidentiality of voting by Council members. It is therefore alleged that the Council conducted the impugned administrative action unlawfully and has deviated from the official processes in the midst of a Level 5 lockdown.

4.33.2. The Committee noted that the SMU Council denied the allegation by the HETN in relation to the voting process. Evidence demonstrated that the Council did not conduct its voting through a Skype platform as alleged. The Council voting was conducted virtually through the Black Board programme and external auditors, Nexia SAB&T supervised the voting process as provided for in terms of the paragraph 2.2.5.7 of the Policy and Procedures: Appointment of the Vice-Chancellor.

4.33.3. In terms of the voting process by the SP, the University further appointed a service provider, the Institute of Election Management Services in Africa (IEMSA), to provide a system that allowed for closed virtual ballot voting. IEMSA demonstrated to the Committee how the system worked from login and ranking candidates to the automatic generation of the voting report in comma-separated values (CSV) files in Excel format. It is critical to note that the system demonstration was not live because it was reported that after every process, the system is taken down to protect data.

4.33.4. In terms of security and quality assurance of the voting process, IEMSA indicated that the system uses data encryption techniques during transmission and when data is not in use. It was further noted that encryption plays an important role in the event of hacking, the hackers will not be able to use the encrypted data. In ensuring the up to date cyber security, IEMSA indicated that it conducts system penetration tests regularly to ensure that the system is not left vulnerable. They further indicated that the platform is very transparent and provides for a full audit trail and log (s) that record all actions taken by a client in date and time sequence. Additionally, the platform is able to detect any action taken to temper with it.

4.33.5. The Committee therefore, did not find any evidence to support the allegation that the systems used for voting by both the Council members and the SP were insecure and did not provide for a closed ballot. Evidence presented contradicts the allegation that a Skype platform was used for voting and further supports that the SMU has followed the Policy and Procedures: Appointment of the Vice-Chancellor in its voting processes.

4.33.6. The Policy and Procedures: Appointment of the Vice-Chancellor does not provide that the voting process by the Council members should only be done physically. It should be noted that South Africa like all countries of the world was facing an unprecedented time with the COVID-19 pandemic and it cannot be expected that business which can be done virtually should be placed on hold.

4.33.7. The SP Shortlisting meeting- Vice-Chancellor, minutes of 13 February 2020, shows that hybrid meetings of the SP in relation to the recruitment process commenced long before the announcement of a lockdown. The Council Chairperson indicated in her written response to the Committee this was because some of the SP members, particularly external experts and members of Council based in Cape Town, had so requested. The Committee noted that there was never a concern raised with the hybrid meetings of the SP and the virtual voting process. The University used hybrid meetings before COVID-19, however, there was no discontent raised by stakeholders. Institutions of higher learning, which utilise technology to save costs in respect of travel and other expenses associated with hosting of meetings should be commended.

4.34. Disclosure of the alleged sexual harassment complaint against Prof Mbati

4.34.1. The SMU Council Chairperson indicated that the policy requires disclosures by the applicants. Academic Partners explained that disclosures required that candidates sign consent forms and submit relevant documentation. They further stated that they conduct background checks on all candidates. Both the SMU Council Chairperson and Academic Partners confirmed that Prof Mbati had disclosed the sexual harassment allegations. Academic Partners indicated that it had conducted reference checks, and one of the referees raised the sexual harassment matters and also stated that Prof Mbati was cleared of the allegations.

4.34.2. The Committee enquired about the documents that Prof Mbati submitted to the Academic Partners and was informed that the following records were provided:

(a) Appendix 1: Deloitte Final Report, 8 November 2010

(b) Appendix 2: Labour Court Judgement Phendla

(d) Appendix 4: Phendla Judgement on Application for Leave to Appeal

(e) Appendix 5: Phendla Labour Court Ruling

(f) Appendix 6: Apology of the City Press

(g) Appendix 7: Signed Brief Statement on Newspaper articles on sexual harassment.

4.34.3. According to the Report, it was noted that Academic Partners submitted to SMU full reports (zip file) on 31 October 2019 in readiness for the Shortlisting Meeting on 13 November 2019. Included in the file submitted were the above mentioned disclosure documents. The Report further says, Academic Partners made the presentation on 13 November 2019. However, special reports (disclosure records) were not reflected on the PowerPoint presentation as they had been forwarded electronically. Being common knowledge, there was ensuing discussion around the charges and his subsequent vindication.

The Council Chairperson and Academic Partners further reported that Prof Mbati disclosed the sexual harassment allegation to the SP during the interview process. This is fully supported by the transcript of the interview.

The Committee noted the following:

4.34.3.1 It is evidently clear from the list of disclosed documents, as presented in a written form and during the oral testimony, that Prof Mbati had not made a full document disclosure to Academic Partners in so far as, the following critical records were not submitted:

(a) Mr Lavery Modise’s Mediation Reports of 2011 and 2016;

(b) High Court Judgement on the Review of the CGE Report and the CGE amended Report;

(c) the UNIVEN Council Exco minutes of the meeting where a report from the Task Team on the Second Mediation Report and a Legal Opinion from Mr Mashego were considered and the subsequent exoneration of Prof Mbati; and

(d) the High Court Judgment on the Review of Mr Lavery Modise’s Reports.

4.34.3.2. The Committee noted that Prof Mbati, after disclosing the sexual harassment allegations to the SP during the interview, offered to provide all the supporting documents to the SMU, namely, the report from Deloitte, the letter of the Council hearing and the letters from the labour courts of South Africa to substantiate his response to the SP. This is the same list of documents Prof Mbati has submitted to Academic Partners as disclosure records. Notably, the mentioned documents excluded the Mediator’s Reports, the CGE Report and the High Court judgement on the review of the CGE Report, minutes of the Exco of the UNIVEN Council where a decision to exonerate him and close the matter was taken, and the High Court judgement on the review and setting aside of the Mediator’s Report.

4.34.3.2. Academic Partners made a presentation of the shortlisted candidates to Executive Director: HR and the SP on 10 – 17 October 2019 and 13 November 2019, respectively, without access and consideration of the above mentioned documents.

4.34.3.3. The Committee noted that Prof Mbati disclosed to the SP during his interview that the Council of UNIVEN investigated the sexual harassment allegations in terms of its policies; and that he was cleared by the Council based on the reports that they have received. It would be critical to restate here the basis on which Prof Mbati was exonerated by the UNIVEN Council.

“The UNIVEN Council accepted the findings of the Second Lavery Modise (Mediation Report) and Mashego’s reports, which found that:

(a) the Complainant and Prof Mbati had a consensual relationship;

(b) there was therefore no basis for the Complainant’s complaint that Prof Mbati sexually harassed her; and

4.34.3.4. However, Prof Mbati failed to disclose to the Selection Panel that he had reviewed and set aside in totality the Mediation Report that the UNIVEN Council used as the basis to clear him of the sexual harassment allegations. The review and the setting aside of the Mediation Report nullifies the decision taken by the UNIVEN Council to exonerate Prof Mbati based on the findings of that Report.

4.34.3.5. Prof Mbati did not disclose that the UNIVEN Council failed to implement its Policy on Sexual Harassment after the failed 2011 mediation process that reached a stalemate between Prof Phendla and Prof Mbati. The Council only implemented the Policy partially, around 2016 after it was forced by the order of court.

4.34.3.6. Additionally, the Committee noted that Prof Mbati did not refer to the review of the CGE Report during the interview, and his role in deposing the affidavit despite there being no Council resolution permitting same. It therefore, appears that Prof Mbati conveniently disclosed only the records that supported the narrative of his exoneration.

4.34.3.7. The Committee further noted that a report by Adv. EC Labuschagne SC, titled Appointment of Vice Chancellor: Legal Opinion on various related issues, paragraph 9(9.1), dated 11 June 2020 state the following:

“Prof Mbati disclosed the sexual harassment complaint both to the Recruitment Agency as well as to the Selection Panel. In respect of the disclosures to the Selection Panel I have perused a transcript of the proceedings which took place on 16 April 2020. Prof Mbati disclosed all the processes in the Labour Court and before the Press Ombudsman. It is in the Labour Court proceedings that the issue was finally disposed of. The CGE report was not expressly referred to in his interview with the Selection Panel. However, being exonerated by the UNIVEN Council covers the same topic.”

Sub-paragraph (9.2) “The fact that he did not expressly mention the Commission on Gender Equality may be because it too became the subject of a Court order. However, the challenge to the CGE report was by the University and not by Prof Mbati himself.”

It is very puzzling that Prof Mbati chose to make a selective disclosure to the Academic Partners and the Selection Panel.

4.34.3.8. It appears that the full disclosure documentation submitted to the Committee as part of the attachment of the Report Adv. EC Labuschagne SC, titled Appointment of Vice Chancellor: Legal Opinion on various related issues, was provided after a letter by the Council to Prof Mbati, dated 5 June 2020, requesting him to respond to the allegations levelled against him in the media and by this Committee.

4.35. Verification of disclosed information

4.35.1. The Committee enquired on whether the SMU Council independently verifies the disclosed information. During her appearance before the Enquiry, the SMU Council Chairperson indicated that Academic Partners conducted the background checks. Subsequent to the SP receiving the disclosed information, the University obtained legal opinion from an external legal firm to provide an opinion on the information submitted. The Committee enquired from the SMU Registrar Dr Mabelebele, on whether Council appointed an external legal advisor to independently verify disclosed information provided by the candidates. Dr Mabelebele indicated that he did not recall any appointment of an external legal advisor to validate the disclosure records submitted to the Selection Panel. He said he only recalled the appointment of a law firm to assess the extent to which the appointment process was procedural and the report of that process was shared with the Committee.

4.35.2. In order to get clarity on the appointment of the external legal advisor appointed to verify the disclosure records, the Committee requested additional information on the verification of disclosures. In a written response to the Committee by Ms Rambauli, the SMU Council Chairperson, dated 06 July 2021, the following was noted:

“Before the disclosures could be tabled at the relevant meeting of the SP or even Council, the expectation is that the correctness or otherwise of disclosures made should be verified and validated by the Agency in line with its brief. In terms of the Policy, Human Resources Department verifies the authenticity of the qualifications presented. There was no independent report received to verify the disclosures made by Prof Mbati related to the sexual harassment allegations other than the one from Recruitment Agency, and the Court judgement received, which effectively exonerated Prof Mbati from sexual harassment allegations.”

4.35.3. The Committee noted that the SMU Council Chairperson indicated in her written response to a request by the Committee for clarification that her reference to the verification of the disclosures was in relation to the legal opinion received by the Council from a Senior Counsel after the appointment of Prof Mbati. This was subsequent to concerns raised in the media and public discourse, including from the Committee itself, relating to the appointment process of Prof Mbati as the VC of SMU.

4.35.5. The Committee further noted with great concern that SMU does not conduct an independent verification of disclosures, especially where serious allegations have been levelled against the candidate. Accepting a report from a recruitment agency as presented, without seeking a forensic report prior the candidate being interviewed may pose a risk in the event that the agency has missed important information, and evidence resurfaces later that there was concealment or relevant information was excluded for whatever reason, as appeared to be the case in this matter.

4.35.6. When the Committee asked Academic Partners whether they verify information submitted by the candidates, especially in light of the non-submission of the amended CGE Report and documentation related to the subsequent processing of the High Court ruling by the UNIVEN Council, Ms Michel indicated that Prof Mbati had mentioned it, but in her view he had submitted all the documents and was cleared. However, when the Committee probed whether Ms Michel had knowledge of the recommendations of the CGE Report and the Court Ruling, she said she was uncertain what the CGE investigation was about.

4.35.7.1. It is clear from the above that Academic Partners relied on what was provided to them by Prof Mbati, in the form of the seven documents, mainly outcomes of the Labour Court judgements to the exclusion of the CGE Report, the High Court Ruling on the review of the CGE report, documentation related to the processing of the court instruction and the subsequent High Court judgment on the review of the Mediator’s Reports. The Committee noted that Academic Partners did not do due diligence by verifying information provided to them by the two former UNIVEN Council Chairpersons regarding the clearing of Prof Mbati as well as information mentioned to them on the CGE Report in order to corroborate information. Importantly, Academic Partners reported that their investigator could not pick up that there was a CGE Investigative Report, and their approach focused only on the fact that Prof Mbati was exonerated by the UNIVEN Council rather than the process thereof. It is concerning that these crucial documents were not voluntarily and without censor, fully submitted as part of the disclosure records by the applicant.

4.35.7. 2. Academic Partners and the SMU Council appear to believe that the sexual harassment complaint was dealt with adequately. However, the Committee identified areas of unfairness and deficiencies which the current UNIVEN Chairperson, Mr Lekgetha acknowledged that in hindsight could have been better handled.

4.36. Access to the disclosure documents by the Council, Selection Panel, Senate and the Institutional Forum

4.36.1. The Committee noted that Prof Mbati’s disclosure documents were made available to the Selection Panel and the SMU Council. However, the Senate and the Institutional Forum (IF) were not furnished with the disclosure documents.

The Committee further noted the following:

4.36.2. Clause 2.2.3.2 of the Policy and Procedures: Appointment of the Vice-Chancellor stipulates that the “Senate and Institutional Forum must, after all the short-listed candidates have addressed a joint meeting of the Council, the Senate and the Institutional Forum on a topic or topics as determined by the Selection Panel (SP) with due regard to the advertised requirements for appointment, through separate meetings make a pronouncement on the suitability for appointment of each of the short listed candidates. The full curricula vitarum of the candidates and their declarations of intent must be made available to the members of the respective meetings before the voting is conducted.”

4.36.3. The SMU Policy and Procedures for the Appointment of the Vice-Chancellor in its current form does not provide for the disclosure documents of candidates to be made available to the Senate and IF. This despite the two structures being required to make a pronouncement on the suitability for appointment of each of the shortlisted candidates.

4.36.4. Notwithstanding that clause 2.2.3.2 of the Policy and Procedures Appointment of the Vice-Chancellor was adhered to regarding documentation (CV of the candidates and their declarations of intent) that is to be furnished to the Senate and IF, the Committee noted that in order to make a pronouncement on whether a candidate is suitable or not, the basis should not only be on meeting the academic requirements, which the Senate is well poised to judge, but in totality, including the character of the candidate, especially for the appointment of a position as senior as vice-chancellor.

4.36.5. The Chairperson of the SMU Council indicated that she was not aware that the Senate and IF were not furnished with the disclosure documents to consider and pronounce on the suitability of the candidate for appointment. She stated that the process was managed by the University Registrar.

4.36.6. The University Registrar admitted before the Enquiry that the Policy and Procedures: Appointment of the Vice-Chancellor in its current form requires that only a minimal set of documents be furnished to the Senate and the IF in order to pronounce on the suitability of the shortlisted candidates to proceed to the interview stage.

4.36.7. The Council Chairperson, the Senate and the IF agreed that Prof Mbati’s alleged sexual harassment disclosure documentation was material to the decision-making processes by the two structures. However, they were not sure whether the disclosed information would have influenced the decision making and or voting by the Senate and the IF. The Council Chairperson further alluded that transparency, regardless of whether it is negative or positive is necessary to allow people to make an informed decision.

4.36.8. The role of the Senate and IF is crucial in advising the Council on the appointment of the Vice-Chancellor. Notwithstanding that Prof Mbati was cleared of the alleged sexual harassment by the Labour Court, his full disclosure documents should have been availed to the two structures to consider and make a pronouncement on Prof Mbati’s suitability.

4.37. Allegation that the SMU Council irregularly allowed a suspended official to participate in the Council activities

5. RECOMMENDATIONS

The Committee, having enquired into the appointment process of Prof Mbati as the Vice-Chancellor of the SMU and related matters, recommends as follows:

Part A: University of Venda

5.1. The manner in which the Council of UNIVEN processed the sexual harassment complaint by Prof Phendla

5.1.1. In light of the evidence by the leadership of the UNIVEN Council, Mr Lekgetha, Mr Maja and Ms Mabusela it is clear that the Council and the Human Resource Department failed to implement the UNIVEN’s Sexual Harassment Policy, to the detriment of the Complainant. The Council and the UNIVEN’s HR Department should issue a written apology to Prof Phendla which should be published on its website.

5.1.2. The UNIVEN Council and management must commit to implementing University policies without fear or favour and ensure that the Council and staff are adequately trained in respect of the content and application of policies. Additionally, the Sexual Harassment Policy must be amended to explicitly deal with the processing of complaints against senior management by the Council HR Committee. This policy review process must include the participation of all stakeholders including staff and students. The Council must provide a progress report to the Committee within 3 months of the adoption of the Enquiry Report by the National Assembly clearly outlining the process undertaken to develop the policy further.

5.1.3. The Committee recommends that, the UNIVEN Council must, within three (3) months of the adoption of the Enquiry Report by the National Assembly, institute an investigation into the authorisation of the proposed settlement letter to ascertain whether there were any officials who acted without the necessary delegated authority in law to bind the University and if so, to take the necessary disciplinary action against such officials.The report of the investigation should be submitted to Parliament within three months from the date the investigation is instituted.

5.1.4. The Committee noted that a disciplinary process against a Vice-Chancellor is a sensitive issue and requires clear disciplinary processes to ensure that the balance of power in such processes does not favour any party over another. The Committee recommends that the Institutional Statute of the University of Venda be amended to include disciplinary processes in cases where the Vice-Chancellor contravenes or disregards the institution’s directives or policies. The implementation manual of these processes should be detailed in internal policies. As an example, the Committee noted that the Institutional Statute of the Tshwane University of Technology (TUT) provides for the discipline of the Vice-Chancellor. Paragraph 57 of the Statute of TUT provides that the Vice-Chancellor is subject to the staff disciplinary code and procedures as determined and approved by the Council. Furthermore, the Minister must ensure that the discipline of the VCs is determined by the Institutional Statutes and disciplinary policies and manuals are aligned to the Statutes. The Committee further recommends that disciplinary policies, procedures and manuals of the PSET entities are clear on the disciplinary processes of the accounting officers and senior managers. The Minister should report progress to the Committee.

5.1.5. UNIVEN has reportedly commenced with the review of the existing Policy on Sexual Harassment and Disciplinary Procedure Manuals to address the identified gaps. Management should monitor this process to ensure that the review process is finalised and the draft review policies are considered and approved as undertaken. The Committee recommends that UNIVEN adopts an appropriate policy on work-place relationships to limit potential conflicts of interest. Furthermore, it recommends that UNIVEN adopts clear guidelines on conflicts of interest which set out when a decision-maker must recuse him or herself from involvement in the processing of a matter in which they are conflicted. UNIVEN Council should strengthen its oversight function and account on the implementation of the policy by management. UNIVEN must report within three months of the adoption of this Report by the National Assembly, and thereafter at dates determined by the Committee, on the progress made in this regard.

5.1.6. The Committee recommends that UNIVEN, in collaboration with the CGE, strengthen its processes for dealing with cases of alleged sexual harassment or assault to ensure that complainants are provided with adequate support to raise their complaints in an environment that protects the dignity, privacy and right to equity of complainants in the workplace.

5.1.7. The Committee further recommends that a guideline or policy directive be formulated by UNIVEN on how victims of sexual harassment will be supported during and after the reporting processes of the harassment.

5.2. Appointment of Ms Pendu as HEMIS Officer

5.2.1. Ms Pendu seems to not comprehend the seriousness of her action on misrepresentation of qualifications. Ms Pendu committed an act of dishonesty by misrepresenting her CV to secure an appointment to a position that she was not qualified for. She unduly benefitted from earning a salary and benefits, which she was not entitled to. The Committee noted with concern that other UNIVEN officials may have served as accomplices in the committal of this fraudulent act; and recommends that consequence management should be meted against those who enabled this irregularity to continue for almost eight years.

5.2.2. The Committee will provide a copy of this Report to the Mangosuthu University of Technology (MUT) where Ms Pendu is currently appointed, to ensure that her appointment was not based on a misrepresentation. This referral should be accounted for by the MUT within three months of the adoption of the Enquiry Report by the National Assembly.

5.2.3. Ms Pendu made a serious allegation relating to Prof Mbati instructing officials to include in the graduation list those students who had not met the requirements to graduate.

5.2.4. While Prof Mbati denied the aforementioned allegations, the Committee views these allegations of maladministration regarding registration and graduation of postgraduate students as serious. The Committee recommends that the UNIVEN Council institute an investigation into these matters within three months of the adoption of the Enquiry Report by the National Assembly and submit a report to Parliament for consideration.

5.2.5. The University should submit to Parliament a progress report on the implementation of the recommendations of the HEMIS review within three months of the adoption of the Enquiry report by the National Assembly.

5.2.6. The Council should ensure that resolutions of its committees are implemented, monitored and reported back with feedback and record finality on tasks given to committees. Moreover, the Council should develop a systemic mechanism to track resolutions and decisions and report to the Committee within two months of the adoption of the Enquiry Report by the National Assembly.

5.2.8. The Department should ensure that all public institutions of higher learning conduct skills audits of all staff members to assess whether they had the requisite qualifications as per the job adverts. The Department should report to Parliament within six months of the adoption of the Enquiry Report by the National Assembly.

5.2.9. The UNIVEN Council and management must implement university policies non-selectively to ensure the Council, Management and the HR Department do not misdirect themselves against institutional policies as evidenced in the handling of the complaint of Prof Phendla and in the matter of Ms Pendu.

5.2.10. Consequence management where there are transgressions against institutional policies should be implemented without fear or favour of who the transgressor is. Additionally, UNIVEN should have thoroughly defined implications of different transgressions as part of consequence management to ensure consistent application of sanctions taking context into consideration.

5.3.1. The Committee recommends that the Minister ensures that appropriate prescripts are put in place to regulate infrastructure development processes within institutions of higher learning and that these prescripts are adhered to. This should include ongoing high level oversight by the DHET. Furthermore, there should be consequence management against the Councils and university management who transgress legal provisions, such as the UNIVEN Council which failed to acquire ministerial approval for infrastructure development estimated at R2.3 billion.

5.3.2. In light of the multiple infrastructure development projects that have been abandoned in many universities, the Committee recommends that the DHET, in collaboration with Universities South Africa, should institute a process to ensure that the offending contractors are reported to the National Treasury for purposes of blacklisting.

5.3.3. In this regard, the Committee noted that The Prevention and Combatting of Corrupt Activities Act, 2004 (Act No.12 of 2004) prescribes that the National Treasury must establish and maintain a register of tender defaulters. This applies to companies which have been convicted of engaging in corrupt activities in respect of tenders. Furthermore, Treasury Regulation 16A9.1(c) prescribes that Accounting Officers must check the National Treasury’s list of restricted suppliers before awarding any contract. This register includes directors or businesses barred from doing business with the State. The data is compiled in terms of the procedures contained in the SCM Office practice note No. 5 of 2006 issued by the National Treasury on 9 October 2006. In terms of these instructions an accounting officer is empowered to restrict companies or persons from doing business with the State (for maximum of 10 years) if they obtained preference points fraudulently or failed to perform on a contract.

5.3.3.1. The Committee recommends that steps must be taken by institutions of higher learning to utilize the legal prescripts available to restrict suppliers, if applicable, and to ensure that the SCM system has measures in place to ensure that restricted suppliers and tender defaulters are not appointed. Furthermore, tender processes must take into consideration previous work done.

5.3.4. The UNIVEN Council and management should ensure that internal control measures are put in place within three months of the adoption of the Enquiry Report by the National Assembly to ensure that the inefficiencies identified in the audit and forensic reports are addressed,implemented and monitored to prevent the recurrence of such inefficiencies.

5.3.5. A list of all abandoned and incomplete projects at UNIVEN as at December 2021 with a detailed account on the reasons for abandonment and a plan and time-frames to complete such projects must be submitted to the Committee by no later than three months of the adoption of the Enquiry Report by the National Assembly. The Committee had received a report from the University in this regard. The infrastructure projects have been completed, except one DBSA Male Residence, which is reported to be almost complete. The Committee intends conducting an inspection in loco.

Part B: Sefako Makgatho University

5.4. Recommendations to the Minister

In light of the evidence presented and section 42 and Chapter 6 of Higher Education Act, 1997 (Act No. 101 of 1997) as amended, the Committee recommends

5.4.1. That an appointment of assessors working in consultation with UNIVEN and SMU Councils be considered and the Minister must conduct an investigation and report to Parliament in exercising the general responsibility over higher learning institutions with regards to the fitness of Prof Mbati.

5.4.1.1. In line with section 42 of the Higher Education Act, the Minister probes on the fitness of Prof Mbati as the VC at SMU against the evidence of his tenure at UNIVEN together with the manner he is heading SMU and to report to the Committee within six months from the date of approval of the final report by the NA.

5.4.2. Inadequate disclosure of the sexual harassment complaint related-records

5.4.2.1. Notwithstanding that Prof Mbati had disclosed the sexual harassment allegations to Academic Partners and the SP, some critical documents which ought to have formed part of the disclosure were not provided. Prof Mbati, in the view of the Committee should have made a full disclosure of all records pertaining to the sexual harassment matter, regardless of whether the disclosure was negative or positive in order for structures to make informed decisions in recommending him as a suitable candidate. The Committee is concerned that there is no clarity on the disclosure documents needed for recruitment processes and what would constitute full disclosure. The Committee accepts that Prof Mbati discharged his onus of disclosure, however, the concern is that the University policy has gaps.

5.4.2.2. The SMU recruitment policy should therefore be amended to also include guidance on what full disclosure entails and provide for the disqualification of candidates who do not adhere.

5.4.2.3. All recruitment agencies should be instructed to conduct their own independent verification of the disclosed information to ensure full and proper disclosure in recruitment processes. This should form part of the terms of reference when procuring recruitment agencies in the future.

5.4.2.4. In light of Academic Partners being a private organisation, it is recommended that a need to strengthen its investigating unit to enhance its in-depth investigation, with the inclusion of methodology that unearths cases of inappropriate conduct.

5.4.2.5. There is a gap in the SMU Policy and Procedures: Appointment of the Vice-Chancellor. Whilst it is crucial for the candidates to disclose any other matter that may influence their appointability to a position, structures like the Senate and Institutional Forum are disadvantaged because according to the policy, they are furnished only with a minimal set of documents. SMU should take steps to review this Policy to ensure that all structures are fully appraised with all information necessary to fully assess the suitability of candidates applying for posts.

5.4.3. A new submission by whistle-blowers on allegations of irregularities in the appointment process of Prof Mbati

5.4.3.1. The Committee noted continued submissions by whistle-blowers levelling serious allegations against Prof Mbati and certain officials of SMU pertaining to their alleged irregular involvement in the appointment process of Prof Mbati as the VC of SMU. The Committee notes that the SMU Council has instituted an investigation into the allegations and noting the receipt of correspondence regarding the findings following the investigation.

5.4.3.2. Notwithstanding the above, the Committee recommends that an independent investigation be conducted into the allegations. The Committee is deeply concerned about allegations of fraud by the purported deponents to the affidavit.

In light of the contradictory information received and the shroud of uncertainty surrounding this particular aspect, the Committee is uncertain as to whether there is any merit in the allegations referred to above or there are misrepresentations.

The Committee, therefore requests that a charge of fraud be brought by SMU against those who falsified the withdrawn statements where it must be reported that fraud was committed so that the South African Police Services (SAPS)can interrogate the veracity of the charges, and all parties involved in order to investigate the matter fully and report to the committee as to their findings. SMU must report to the Committee and give the case numbers immediately once the matters are reported to the SAPS.

5.4.4. General recommendations

5.4.4.1. Submission of the Enquiry recommendations implementation progress reports

5.4.4.1.1. The Councils of UNIVEN and SMU should submit to Parliament quarterly progress reports on the implementation of the recommendations of this Report, after its adoption by the National Assembly.

5.4.5. Misleading evidence/ Perjury or inconclusive evidence or material calling for further investigation

5.4.5.1. Section 17 (2) (e) of the Powers Act provides that a person who wilfully furnishes a house or committee with information, or makes a statement before it, which is false or misleading commits an offense and is liable to a fine or to imprisonment for a period not exceeding two years or to both the fine and imprisonment.

Any witness who gave contradictory or misleading evidence before the Enquiry must be investigated by Parliamentfor possible breaches of the Act.

5.4.5.2. The Committee will, within three months of the adoption of this Report by the National Assembly, identify persons who wilfully misled the Enquiry or provided false testimony for purposes of further action.

5.4.5.3 It is further necessitated that the Committee conducts an inspection in loco at the UNIVEN to observe all the completed mentioned projects. This require approvals that may delay finalisation and release of the report to the National Assembly, so in line with Rules of the National Assembly and section 55(2)(b) of the Constitution, such process will be engaged and reported later on as oversight, the Portfolio Committee on Higher Education, Science and Innovation must conduct progressively within available resources and approvals.

5.4.5. Contradictory evidence

5.4.6. Requirement for a principal to be fit and proper

5.4.5.1. The HETN largely based their complaint to the Committee on the fact that Prof Mbati was not, in their view, a fit and proper person to hold public office. The Committee noted that the Higher Education Act, 1997 does not include a fit and proper requirement.

5.4.5.2. The Committee noted that fit and proper requirements appear in other legislation which deals with the appointment of persons to public office. By way of example, the term is used in section 24(2)(c) of the Legal Practice Act, 2014 (Act No. 28 of 2014) in the context of admissions of attorneys, so that only persons who are “fit and proper” should be admitted to the High Court. In the seminal case of South Africa v Jiba and others 2017, Judge Legodi described a fit and proper person as someone possessing integrity, objectivity, dignity, capacity for hard work, respect for legal order and a sense of equality or fairness.

5.4.5.3. The Committee is of the view that the Higher Education Act should include fit and proper requirements. The Committee accordingly requests the DHET to provide a report on whether it is in the interests of the sector that such a requirement be included and how best to achieve this if the DHET so agrees. Such report should be provided to the Committee within 6 months of the date of this report being adopted by the National Assembly.

5.4.6. Attempts to obstruct the process of the Committee

5.4.6.1. Parliament derives its oversight mandate from the Constitution. It is unfortunate that in the exercise of this legal mandate, the Committee faced resistance from public officials and institutions. This included an unwillingness from some persons to co-operate with the Committee, attempts to legally challenge the process and a general mistrust. The Committee is and always has been committed to using its oversight powers to hold public officials accountable and importantly, to improve good governance and processes in the sector. This is for the benefit of all South Africans. The Committee calls on those individuals who, through their conduct, attempted to obstruct the Committee in its work to introspect and consider seriously their duties as public officials.

All witness statements are available from the Committee Secretary upon request.

Report to be considered.

5.2 In cases of mediation where the mediator is unable to resolve the complaint within ten (10) working days, the complainant may lodge a written complaint with the Human Resources Department as early as possible.

Emphasis-The Human Resources Department shall:

5.2.1 Call for a report from the mediator, where mediation was attempted;

5.2.2 Request the alleged offender to respond in writing to the allegations made against him/her and submit same in line with the Disciplinary Procedure Manual;

5.2.3 If there is a prima facie case of misconduct the Director Human Resources will assist the relevant Head of Department to draft a charge sheet in terms of the Disciplinary Procedure Manual

[2] And Another (828/2011) [2021] 2 All SA 839 (ECG) especially at paragraph 52 of this judgment.

Documents

ATC221010: Report of the Portfolio Committee on Higher Education, Science and Innovation in Respect of the Enquiry into the Appointment Process of Professor P Mbati as the Vice-Chancellor

ATC221010: Report of the Portfolio Committee on Higher Education, Science and Innovation in Respect of the Enquiry into the Appointment Process of Professor P Mbati as the Vice-Chancellor of the Sefako Makgatho University and Related Matters, Dated 30 September 2022

Higher Education, Science and Innovation

2.2. Terms of Reference

Documents

What's wrong with this page?