Probe into SMU vice-chancellor put on ice

The portfolio committee on higher education’s planned inquiry into the appointment of the vice-chancellor of Sefako Makgatho Health Sciences University (SMU) has been stopped in its tracks.

In a sitting on June 2, a day after Professor Peter Mbati reported for duty in his new position as the vice-chancellor of SMU, the committee’s chairperson, Philly Mapulane, “expressed outrage” that Mbati  was appointed despite the fact that he had sexual harassment allegations “hanging over his head”. 

Mapulane said that the committee would conduct a preliminary inquiry into the appointment. Mbati assumed his duties at the institution — which was formerly known as Medunsa — on June 1. Before joining SMU, Mbati was the deputy vice-chancellor at Botho University in Botswana. 

The allegations of sexual harassment stem from the time when Mbati was the vice-chancellor of the University of Venda (Univen), where he served two terms from 2008 to 2018 before moving to Botswana.

“Perhaps the committee should establish a preliminary inquiry into these allegations because they remained there. The very same perpetrator gets to be appointed again in a powerful position at SMU … The university council [appointed] a person with such serious allegations attached to their name. The committee will make it public that it will follow up on this,” said Mapulane in the June 2 sitting. 

However, records show that the sexual harassment allegations, dating back to 2011, were investigated by Mbati’s previous employer, Univen, through a mediator. The outcome of the investigation was found to be null and void by the Thohoyandou high court. The university council later cleared the vice-chancellor.

The sexual harassment case was also reported to the police. However, the National Prosecuting Authority did not see reasonable prospects for a successful prosecution.

Back in Parliament, on July 17, the committee sat to map a way forward for the inquiry and also to ensure it understood the National Assembly rules before it could begin.

During that sitting, the committee’s content adviser, Mamphago Modiba, said that, according to the constitutional provisions and the National Assembly rules, the committee was empowered to hold an inquiry into Mbati’s appointment. 

Mapulane also told the sitting that he had received a letter from the speaker of Parliament, Thandi Modise, stating that, based on the legal framework of the House and a legal opinion, it was not necessary for her to give permission, because the committee was empowered to conduct an oversight inquiry.

From this, it appeared that the committee had covered all its bases and could proceed with the inquiry.

However, last Monday the committee received lawyers’ letters from Mbati and Univen threatening an urgent interdict to stop the inquiry from proceeding. Mapulane announced this to the committee last Tuesday at a sitting that was supposed to be the first of three days in preparation for a week-long inquiry.

Mapulane said both letters raised an issue that the matter of the allegations against Mbati had already been dealt with in court and the “committee cannot venture into that space”, as well as the fact that Mbati, Univen  and other affected parties could not participate in the inquiry. 

Mapulane said the committee had responded to the lawyers’ letters, explaining that the purpose of the inquiry was not to undermine the processes that have already taken place in court. It merely wanted to conduct oversight and ensure that all the processes and policies in appointing Mbati were properly implemented. 

He added that Mbati and the University of Venda were not going to be called, but appeared on the programme because the inquiry related to the former vice-chancellor and the institution. However, he said that the committee would want Mbati and the university to attend the inquiry later to respond to the issues that would have been raised.

However, after meeting with Parliament’s legal services, Mapulane said it had been decided that the inquiry would be put on hold “for now” until the legal issues were dealt with. 

He added that “things were proceeding smoothly with Prof Mbati and the university” until the committee received the lawyers’ letters. 

A statement by SMU six days after Parliament announced its intentions to conduct an inquiry into Mbati suggested that the vice-chancellor was ready to participate in the inquiry. 

In the June 8 statement, SMU said, although it had not received official communication from the portfolio committee about the inquiry, it was ready to avail itself should it be called to appear. It added that Mbati was also “eager and ready” to co-operate with the committee and would “appear in person”, if required. 

Mbati told the Mail & Guardian this week that he was ready to “clear his name” if the process were conducted in the manner it was initially intended to be — which entailed reviewing documents that had been submitted to the committee, and asking him and his former employer questions — but was not willing to be part of it were it seeking  to act as a “criminal court”. 

“If you want to review a case, the way they are doing, you go to court; you do not create a kangaroo court. That is why I decided I was not going to subject myself to a process that is unconstitutional, unlawful, unfair and an abuse of power,” he said. 

Mbati said his lawyers were in the process of seeking an urgent review in the high court on the committee’s decision to conduct an inquiry as intended.

How the sexual-misconduct claims were previously investigated

The allegations of sexual misconduct against Professor Peter Mbati date back to 2011. Dr Diane Parker — the acting deputy director for university education at the department of higher education — told Parliament’s portfolio committee she received a letter from Mbati in November 2011 alerting her to the allegations levelled against him by Professor Thidziambi Phendla, who was the dean of the school of education at the University of Venda (Univen). 

Parker told Parliament last month that the letter described allegations of sexual misconduct that emerged during a forensic investigation, which had found that Phendla had used her position of power on the university council to ensure that a cleaning contract had been given to a certain company by flouting Univen’s tender regulations. 

The university instituted a disciplinary hearing against her and, during that inquiry, Phendla alleged that she had been sexually harassed by Mbati. She also laid a charge with the police. Parker said in the presentation to Parliament that Mbati had denied the charge in a police statement. 

In November 2011, according to Parker, Phendla was dismissed by the university for tender irregularities. This was before she had referred her sexual abuse allegations to the council, which had appointed a mediator, but the outcomes of that process “were apparently inconclusive”. 

The matter was also taken to the Commission for Gender Equality. According to Parker, in 2015, Mbati’s office sent a copy of the report to the department. The commission had made recommendations to Higher Education and Training Minister Blade Nzimande, asking him to take any steps deemed appropriate to resolve the matter. 

Parker said that, on receipt of the report, Nzimande had written to the then chairperson of the Univen council “requesting the council to deal once and for all with these allegations, by transparently and fairly applying the university rules and laws of the country”. The chairperson assured Nzimande that “the council would do everything in its power to ensure that the matter is fairly and transparently dealt”. 

In 2016 the allegations of sexual misconduct against Mbati were taken to court; according to Parker, the department learned through media reports that the National Prosecuting Authority had found that there were no reasonable prospects for a successful prosecution and did not prosecute Mbati. 

In the same year, the Johannesburg high court ordered the Commission for Gender Equality to excise certain findings from its report. Parker said Univen’s council cleared Mbati of the allegations in July 2016.