Flaws in VUT council members' attack against Blade
This emerged from the latest salvo in the institution's year-long governance battle.
Responding on Nzimande's behalf to legal action five former members of the now-disbanded Vaal University of Technology (VUT) council launched last month, director general Gwebinkundla Qonde argued that the five failed to bring their application as a matter of urgency. In turn, this meant that the term of the administrator Nzimande appointed in July last year to govern VUT would long have expired by the time the matter would ever be heard in court.
This is just one of several flaws that make the challenge the five former members mounted against Nzimande problematic, Qonde's answering affidavit filed in the North Gauteng High Court last week said.
“Since the application is being pursued in the ordinary course – and not as an urgent application – it will take months before the matter will be set down by the registrar of this court,” Qonde’s affidavit said.
The five want the administrator’s appointment to be declared "unlawful and invalid", the Mail & Guardian reported in February. Nzimande appointed Patrick Fitzgerald, formerly a professor at Witwatersrand University, to the position.
In their founding affidavit, signed by long-serving council member Samuel Doki Mahlasela, the applicants argued processes under which Fitzgerald was appointed were legally flawed.
At the centre of this argument are the findings of an assessor Nzimande hired to investigate affairs of the university in February last year.
Muzi Sikhakhane, the assessor, found that the council was implicated in financial mismanagement that was rife in VUT and it was "incapable of providing strategic leadership". He recommended its immediate dissolution and the appointment of an administrator.
But the applicants have always maintained Sikhakhane’s final report was biased. They argued the report did not reflect some of their key submissions, a claim Sikhakhane denied.
Fitzgerald’s tenure expires on April 16. Nzimande has an option to extend it for another 15 months after the date.
Parts of Fitzgerald’s duties allocated to him by Nzimande include assembling a council with new members. The terms of reference for his appointment in July 2012 stated that he has to “ensure the institution has an effective functional council by the appointment of new council members … ”
Fitzgerald also went on to suspend VUT’s vice-chancellor Irene Moutlana to pave way for an internal investigation over allegations of corruption council members levelled against her. Moutlana is now challenging her suspension in the both the Labour and High Courts, according to Qonde’s affidavit.
The department denies in its court papers Nzimande disbanded VUT’s council, claiming he merely allocated its powers to the Fitzgerald for the duration of his appointment.
“ … The minister has not taken a decision to dissolve the council. What was decided was to appoint the administrator who, during the limited period of his appointment would undertake various functions, including taking over authority of the council,” Qonde’s affidavit said.
The affidavit further argues that the application is legally flawed by not citing the university as a respondent. VUT “has a material interest” in the matter because it will be affected by its outcomes, it said.
It is also an irregularity that other members of the disbanded council are not co-applicants or respondents, Qonde’s affidavit stated. “They too, have a material interest in the proceedings, which cannot continue in the absence of their being joined.”
The applicants or their lawyer could not be reached for comment.