/ 17 August 2012

Bunking Blade bust

Spear Blade: The minister chose to march rather than attend a meeting on the future of the Central University of Technology.
Spear Blade: The minister chose to march rather than attend a meeting on the future of the Central University of Technology.

Higher Education Minister Blade Nzimande chose to march on the Goodman Gallery in May to denounce Brett Murray's The Spear painting rather than attend a critical meeting on the future of the Central University of Technology (CUT).

This emerged during the Bloem­fontein High Court case that was concluded this week when Judge Johann Daffue ruled that Nzimande's appointment of an administrator to run the university was unlawful.

"One does not need a sledgehammer to kill a mosquito," Daffue said about the appointment, which Nzimande gazetted in June.

The extent to which Nzimande had delegated critical decisions to department director general Gwebinkundla Qonde rather than applying himself to the lengthy saga was a running question in papers submitted to the court.

The May meeting from which Nzimande absented himself to march on the gallery, sending Qonde to meet the university council instead, was particularly important. It was the council's opportunity to respond to the assessor's report Nzimande had commissioned and on the basis of which he decided an administrator should take over the functions of both the council and vice-chancellor Thandwa Mthembu.

But Nzimande's "other considerable commitments and pressures" prevented his attending this meeting, according to Qonde's affidavit.

Not so, said council chairperson Sylvan Seane's stinging reply: "This suggestion is actively misleading. He [Qonde] would know that, as a matter of notoriety, the minister on May 28 was not engaged on his ministerial duties, but led a party-political march on the Goodman Gallery."

Drastic action
Daffue's judgment also raised the question of how carefully Nzimande considered the "drastic" action of placing the university under administration. Some of the minister's actions "may be indicative of either a preconceived opinion or his rubberstamping of someone else's decision", Daffue ruled.

However, "it is not necessary to base my judgment" on the "rubberstamping" possibility, Daffue wrote. "In my view, he [Nzimande] prejudged the issue", and in so doing failed to meet the requirements the Higher Education Act, which stipulates a minister must meet to take over the governance and executive management functions of a university.

Daffue stressed how little attention the minister and his department had given to the university's detailed rebuttal of the assessor's report. There were many more than 1 000 pages from university in reply to the report, which itself followed, and largely supported, allegations of maladministration and fraud made in an anonymous letter to the minister 18 months ago.

"The reasonable decision-maker would have expected clear evidence of financial or other maladministration of a serious nature and/or serious undermining of the effective functioning of CUT before a drastic decision" such as appointing an administrator was taken, but "no such proof was placed before the minister", Daffue found.

"I would have expected the minister to deal with these allegations and documentary proof provided prior to making his decision [to appoint an administrator] or at the very least in his opposition of the council's application [to have his gazetted decision set aside]."

Reserves have trebled, not decreased
By contrast, the university's response to the assessor's report was "impressive", he wrote. A key example concerned the university's finances: its "reserves have trebled recently [and] not decreased as alleged" and it had "received clean audits for several years in a row".

Yet "neither in coming to his [Nzimande's] conclusion, nor in any of the affidavits before me, were the factual averments made on behalf of CUT challenged", Daffue said.

Mthembu said the judgment was "a wake-up call to universities, academics and intellectuals to go back to the basics of pursuing truth" rather than to "succumb to a culture of authority".

It is "unacceptable that in an open and democratic era, the minister had simply accepted the assessor's recommendations and felt no obligation to provide his own reasons". "The culture of authority that the minister seeks to employ in the university sector is at odds with the post-1994 dispensation," Mthembu said.

It is the fourth university Nzi­mande has put under administration since he joined the Cabinet in 2009.

Ministerial spokesperson Vuyelwa Qinga said the ministry was "still studying the judgment to identify the consequences and impact it has on the powers and duties of the minister in the appointment of an administrator".

Concerning Qonde's role, she said: "The judge found [he] was duly delegated by the minister to consult with the CUT council and the minister followed the correct procedure as required by the Higher Education Act, 1997."

About the Goodman Gallery march, she said: "The minister was unfortunately engaged in other commitments."