Professor Tawana Kupe. File photo
Over the past two weeks, members of the higher education community in South Africa have been speculating about the true reasons behind the abrupt resignation of vice-chancellor Prof. Tawana Kupe from the University of Pretoria (UP).
This news initially came as a shock to many, as Kupe had been widely lauded for his leadership, and his publicly stated desire to have more time to work on “two major book publications” was just not convincing.
Marvin Charles at News24 has been at the forefront of reporting this story. On 14 June 2023, he reported that Kupe’s resignation was bound up in complications associated with an independent probe into allegations of sexual harassment at UP.
Allegations against Kupe first publicly surfaced in September 2022, yet a UP spokesperson was also more recently quoted by Charles as declaring that “no evidence was found to support the allegations of wrongdoing at the university”.
Charles’ story captured key pieces of a larger puzzle, but it also raised further questions, since it appeared that Kupe had resigned despite having been officially cleared.
More reports have confirmed that similar allegations of misconduct have been made against Kupe in the past. News24 has revealed that Kupe was found guilty of sexual harassment in 2016 at the University of Witwatersrand (Wits) — not UP — and issued with a final warning following an internal disciplinary proceeding.
Kupe’s conduct at Wits was described by an anonymous informant as “classic sexual harassment — grooming, commenting on his victims’ hair, their clothes, leaving apples on their desks, asking them out on dates”.
This was not sexual assault, but it was definitely serious enough for a guilty finding. Gender-based harms can take many different forms, and in higher education settings this often involves senior male academics abusing women whom they have power over.
What is in a name?
These disclosures have brought into focus our central question in this article, which is whether and on what terms universities in South Africa have an ethical and legal obligation to publicly disclose the outcomes of internal disciplinary proceedings involving gender-based harms.
Before we continue, we need to clarify what we are not doing here. Our question is not whether or not Kupe should have disclosed his past proceedings at Wits to UP. We also do not expect the members of the disciplinary panel, or other directly involved parties, to have disclosed information about Kupe’s case. Having sat on similar disciplinary panels at Wits, we both know from personal experience that their internal deliberations are confidential for good reasons. Complainants rarely want to read about their worst moments in the media.
Our chief focus is whether or not public universities such as Wits should make an institutional decision to publish material facts — and not the sometimes gory particulars — when staff or students are found guilty of serious offences in disciplinary proceedings.
This reference to material facts is worth highlighting. In any conversation about public naming, it is essential to ensure that any disclosure of the outcomes of disciplinary proceedings is limited to the name of the individual found guilty, and an anonymised and de-identified summary of their key offences. Complainants and witnesses should not be named.
Disciplinary panels at universities are not the same as criminal proceedings. They are established via university policies, and thus have their own procedures regarding evidence, offences, and burden of proof. In most cases, the strongest available sanction involves the dismissal of staff and the expulsion of students. These are not light sanctions, but they are not of the same magnitude as potential sanctions in criminal litigation via the court system.
Gender equity, ‘sex pests’ and Wits University
There has been a great deal of discussion about the design of both panels and policies at Wits over the last decade. The key starting point is an article published in September 2012 by Vuvuzela, the Wits student newspaper.
The article was entitled “Professor asked students for sex”, and it led to intense scrutiny of Wits policies and procedures, with student activists and journalists forcing management to confront systemic problems. ‘Sex pests’ at Wits became front-page news. Four academics were eventually subject to disciplinary proceedings. Their names were Rupert Taylor, Tsepo wa Mamatu, Last Moyo and Lord Mawuko-Yevugah. Three academics were dismissed. A fourth resigned before a finding could be made.
This list suggests that Wits has a history of regularly disclosing key details about academics fired for gender-based harms. This is not the case.
All four individuals were named in the press prior before disciplinary proceedings began, so the question of naming boiled down to confirming information that was already public.
Even then, the official Wits statement that was issued when wa Mamatu and Moyo were fired only reported that two lecturers had been terminated. They were not mentioned by name.
This official reluctance to name also extended to a lack of clarity regarding exactly what they were fired for. Wits drafted a report setting out the reasons for their dismissal but did not circulate it.
The then Head of Employee Relations, Elaine Milton, declared that: “Under no circumstance can I release the details of the report, it is completely confidential and would be a breach of policy to release it”. There is enough public information available in media stories to have a broad sense of what their offences were, but Wits does not appear to have published a definitive report on this matter.
The 2012/2013 sex pest scandal triggered major reforms at Wits. New policies and procedures were introduced, including policies on Sexual Harassment and Rape (2013), Declarations of Interests (2014/2021) Disciplinary Procedures for Gender Related Misconduct (2015), Sexual and Romantic Relationships (2016), and Sexual and Gender-Related Misconduct (2021).
These policies also paved the way for a new model of disciplinary proceedings, which were designed to minimise the secondary victimisation that complainants can face during disciplinary proceedings while still ensuring that respondents get a fair hearing.
A new specialised office was established in 2014, the Gender Equity Office (the GEO, formerly the Sexual Harassment Office), together with a new Gender Equity Advisory Committee (GEAC, formerly the Sexual Harassment Advisory Committee).
These reforms were indebted to a series of recommendations made in a 2013 independent report into allegations of sexual harassment at the University of the Witwatersrand. Establishing a single independent office, the GEO, with a direct reporting line to the vice-chancellor, was the most important innovation to emerge from this scandal.
The 2013 investigative report also made a brief yet telling reference to further allegations of gender-based harms at the very top of the university. The key excerpt (6.2.1) reads as follows:
the Committee [of Inquiry] received reports that a very senior member of management, accused of sexual harassment, used their influence in the University to encourage other staff members and student representatives to coerce the complainant (a student) to retract the complaint and not to take the matter any further. The complainant felt pressured to do so, and to date has not taken the matter forward.
This brings us back to our core question: should a decision have been taken to name this “senior member of management” at this juncture? During the 2012/2013 sex pest scandal, there was a great deal of speculation at Wits about which members of academic staff might be named by student reporters as having abused their female students or colleagues.
While only four members of staff were eventually subject to disciplinary panels, there were undoubtedly other male academics who were anxious that they might also be subject to similar allegations.
This presents universities such as Wits with a dilemma. They are well aware that cases of misconduct which go through disciplinary panels are likely to be the tip of a larger iceberg, yet at the same time, there are compelling legal and ethical reasons why allegations of misconduct should not be taken at face value. Until they are properly tested in a fair process, they have to be treated as allegations.
The presumption that a person is innocent until proven guilty is firmly entrenched in law. It is immensely frustrating to read about senior figures abusing their power to evade accountability, but it is also very challenging to make a case if a complainant refuses to proceed formally. The person referenced in the 2013 report should not have been named. We do not like where this particular story ends, but naming was not a better option.
Naming all respondents found guilty via disciplinary panels?
Public universities such as Wits are on a much stronger legal and ethical footing when it comes to naming respondents found guilty via disciplinary panels. This is exactly the scenario the university faced when Kupe was found guilty in 2016. There is, however, one further complication. It has been reported that Kupe was found guilty yet not fired, and was instead issued with a final warning. This makes it challenging to make an external determination whether naming was merited since the particulars of the case are not public.
A final warning is usually indicative of serious but not fatal transgressions. It is commonly applied in cases where the panel is hopeful that some form of rehabilitation is feasible.
This hope may well have been misplaced on this occasion, taking into account Kupe’s seniority, but it is not hard to contemplate a scenario where it might have been decided that it was not in the interests of justice to publicly name Kupe in a context where a decision was also made not to proceed with termination.
Without knowing more about the specifics, it is hard to say what should have been done.
There are also counter-arguments that can be made for naming as well. In August 2020, Kupe, then vice-chancellor at UP, published an article that declared that “We must all help end the pandemic of gender-based violence”, and lauded the work of the #SpeakOutUP campaign in helping to “break the silence”.
Kupe put his name to this piece despite having been found guilty of the very behaviour he was now calling others to take action against. This kind of hypocrisy is only one of many consequences which follow from not publicly naming.
That being said, we do not believe that Wits gave serious consideration to naming Kupe in 2016. This is because Wits has an established policy of not naming respondents found guilty in disciplinaries. Not saying anything publicly about Kupe was par for the course.
The case for naming is strongest in cases where staff have been fired or students have been expelled for perpetrating gender-based harm. This does not happen every week, but it has happened enough over the last decade for a clear pattern to emerge. Wits does not want to name.
We cannot reach a firm conclusion regarding the Kupe case in 2016, but our bottom line more broadly is that not everyone who has been found guilty via internal disciplinary proceedings should be publicly named. Not all forms of gender-based harm have the same status.
Disciplinary panels at Wits sometimes determine that respondents who have been found guilty must attend mandatory gender-sensitivity training or other remedial sanctions. The case for naming is weaker when it comes to these kinds of cases. In our estimation, public naming should be reserved for the most serious cases of gender-based harm.
It is time to name respondents who have been fired or expelled following disciplinary proceedings
South African law does not prevent universities such as Wits from naming under the circumstances we have described in this article. The most commonly cited objection to naming is a potential defamation claim, but the case here is extraordinarily weak.
The truth is an absolute defence in defamation cases. Any public disclosure of the names of guilty respondents and their offences involves reporting the material facts of the outcomes of a disciplinary proceeding. You cannot win a defamation case if all that has been publicly disclosed is the truth and there is supporting evidence to back up the position taken.
Respondents may well object to having been found guilty, but it is much harder for them to object to the public disclosure of the fact that there was a panel that made a finding of guilt. There is a strong case to be made that Wits has a legal right to name respondents, but has nonetheless made an independent decision not to take this crucially important step.
This should also be true for all higher education institutions in South Africa. There is no legal impediment under current national legislation which prevents this step from being taken.
Another common argument is that complainants do not want their abusers to be named. This might be true on some occasions, but it cannot be taken as a blanket statement of fact. In our experience, there are numerous occasions where complainants are keen to have complainants and their offences named, and it is universities that take this potential option off the table.
We know of multiple cases where respondents are not sure whether or not they can even talk about their own cases in public, which is a damning testament to the veil of secrecy surrounding these issues. Most complainants are not asked about their personal position on naming because a separate institutional decision has already been taken to close this door.
It is likely that a majority of complainants would walk through this door if it was introduced as a genuine option, and especially if provisions regarding safeguarding their identities were properly established and explained. There is justice in enabling survivors of gender-based harm to speak truth to power; a position that is increasingly echoed by the courts in recent cases. A much better course would be to make naming a standard practice and to depart from this policy only in situations where complainants voice their opposition to this step.
We prefer this approach because we believe that there is a compelling case to be made that disclosure of names and offences is in the public interest (which is also a further defence against hypothetical defamation claims).
This is especially true for a country like South Africa with elevated levels of gender-based harm. The most significant consideration here is the substantial risk of individuals re-offending.
Staff who have been fired for gender-based harms routinely go on to secure jobs at other universities. Students who have been expelled can register elsewhere. They are entirely within their rights to pursue new opportunities, but there are also going to be cases where serial offenders end up perpetrating new harms in new locations.
Universities in South Africa have both a legal right and an ethical obligation to inform the public about the conduct of individuals whom they have been fired or expelled, yet they have decided not to. This makes it easier for them to perpetuate similar harms elsewhere. Naming respondents found guilty of gender-based harms is integral to the duty of care which universities owe to members of the higher education community as a whole.
One revealing example of these issues involves the case of Prof. Mtendeweka Mhango, former Deputy Head of the Wits School of Law.
Mhango is reported to have been found guilty of sexual harassment in 2017 following an internal disciplinary panel. This outcome was widely reported, including by 702 Radio and Eye Witness News (EWN), but the then vice-chancellor, Prof. Adam Habib, once again refused to name Mhango or speak in any detail about why he had been fired.
The legal question of whether to name was discussed at the time in an article by Shandukani Mulaudzi, which concluded that “the silence must stop”. As part of the article, Mulaudzi quoted EWN editor-in-chief, Katy Katopodis, who initially refrained from naming Mhango but then made an editorial decision to disclose once the disciplinary proceedings had concluded since EWN could then “argue truth and public interest”. Mhango is currently employed as a Professor of Law at the University of Limpopo.
Setting the record straight
This EWN example might lead some people to conclude that universities do not need to name respondents because they are already being publicly named by journalists. This is a completely untenable position.
One of the things which #FeesMustFall protests revealed is that journalists are keen to cover universities such as Wits and the University of Cape Town, but typically have limited interest in reporting on many other universities.
If universities pass the buck to journalists, there are invariably going to be cases that journalists miss. This is true even of higher profile universities. Students at Wits who are expelled rarely make the papers, which is why our article has so much more to say about staff than students.
There may also have been dismissed staff who escaped media notice (this can also include cases where staff resign at the last minute out of fear of being fired before disciplinary proceedings have concluded, but that is a story for another day). All the cases highlighted in this article are cases that already have a public footprint, and can therefore be discussed using available media reports and other public documents. There are undoubtedly other cases that have taken place for which there is currently no public record.
It is also a mistake to rely upon journalists to get the material facts of these kinds of cases right. Disciplinary panels concerned with gender-based harms are confidential for very good reasons.
Only the members of the panel, the participants, and GEO representatives should have access to crucial pieces of information. Journalists can sometimes access information about disciplinary proceedings, but they rarely get the complete picture, and their sources may not provide a full and balanced picture. Not all information reported by journalists about disciplinary cases is going to be entirely accurate.
The veil of confidentiality also creates opportunities for respondents and their allies to minimise and excuse their behaviour. A good example of this recurring theme is the case of Tshepo wa Mamatu, who was reported to have “sexually assaulted and violated former and current students during rehearsals, auditions and off campus over a period of six years.”
When this behaviour was reported on by the Sunday Times in 2013, the Wits branch of the ANC Youth League issued a statement that declared that the allegations were “false and malicious, and they are designed to dent what would otherwise have been a shining black star in academic and drama circles”, and that “a conspiracy [was] driving these allegations”.
This is a very common response. Academic staff who face disciplinary proceedings for gender-based harms routinely fall back on conspiratorial claims which attempt to blame “rogue feminists”, or “the white cabal”, for their circumstances.
This strategy is especially attractive in situations where respondents do not have much of a defence to offer on other grounds, so they instead fall back on the Steve Bannon strategy: flood the zone with shit.
Conspiracy theories can also pave the way for an inversion of roles: perpetrators become victims and victims become perpetrators. Respondents and their allies construct a counter-narrative where it is actually the person who has been accused of perpetrating gender-based harms, and thus subject to disciplinary proceedings, who is the “true victim”.
Disciplinary panels are supposed to cut through these competing claims about who is right or wrong and reach a definitive conclusion about the key facts of the case on a balance of probabilities. When a panel determines that a member of staff should be fired, or that a student should be expelled, it does so on the basis of the careful consideration of available evidence and witness testimony.
This can sometimes be an exhausting and time-consuming process. No one who takes their job as a panelist seriously is going to come to a decision about sanctions lightly. Once a finding has been made, allegations are no longer allegations. They are taken as having been proven.
Except it does not always work that way. Conspiratorial claims and counter-narratives can sometimes have a long shelf life. In some cases, they can persist for years after disciplinary panels have come to an end and a finding of guilt has been made.
Not naming perpetrators and their offences once a guilty finding has been made makes it easier for conspiracies to thrive. The absence of a clear and authoritative public statement by universities regarding who was fired and why is a recipe for rumour and uncertainty.
There are numerous academic staff in various corners of Wits who remain uncertain about exactly why one of their immediate colleagues was fired. They will have probably read media reports about specific cases, but these media reports do not always provide an adequate picture. They also do not have the same status as official university statements which inform all members of the university community about key events (this is not the same as a short press release for external consumption). Having universities publicly name respondents and their offences can play an essential role in setting the record straight.
The system works sometimes
Disciplinary cases require huge amounts of expertise, resources and emotional energy. A careful and thorough investigation can be very time-consuming, and usually requires very difficult conversations about intimate and difficult subjects. Putting an investigative report together requires challenging conversations about testimony, evidence and culpability. The disciplinary proceedings themselves are emotionally taxing for everyone involved. The final decision of the panel comes at the end of months, and sometimes even years, of labour.
Imagine doing all this demanding work and not telling anyone about the final outcome. Yet in most universities in South Africa this is not even a discussion. Not naming has been the default setting for so long that the case for naming versus not naming is not seriously debated. This is an odd position to end up with, since it is actually in the interests of South African universities to publicly name respondents found guilty of serious offences.
South African universities have been consistently criticised for not doing enough to combat gender-based harm on campus. University administrators would be able to respond to their critics more effectively if they were prepared to proactively disclose that they had successfully initiated proceedings that had actually resulted in respondents being removed from campus.
Universities do not want to name respondents because they are worried that doing so means admitting there was a problem. This gets things backward. Not naming perpetrators risks reinforcing existing impressions that they are not doing enough to actually fix the problem.
One of the biggest challenges when it comes to gender-based harm is impunity.
Harassment and assault occur time and time again without meaningful sanctions. This has knock-on effects when it comes to reporting, since individuals who have come to harm are unlikely to report their experiences if they do not believe that there are effective remedies available (and they fear secondary victimisation from a system that cannot handle complaints).
When universities fail to publicly disclose the outcomes of disciplinary panels which dealt with serious cases of gender-based harm, they play into existing patterns of mistrust and suspicion. If staff and students do not know about cases where respondents were successfully sanctioned, they are less likely to trust universities to handle their own cases if and when they arise.
There have been many times when naming would be in the interest of the university involved, yet a decision has still been made to say as little as possible. One notable recent example is the case of Prof. Fethi Ahmed, former Head of the School of Geography, Archeology and Environmental Studies at Wits. The case began with a series of complaints of gender bullying that were lodged between 2016 – 2017, which led to a disciplinary panel where it was determined that Ahmed had engaged in “systemic gender-based bullying of seven complainants in the course and scope of his employment.”
A decision was therefore made to fire Ahmed, who then appealed twice, first internally, and then later to the CCMA. The internal appeal was considered by former Constitutional Court judges, Yvonne Mokgoro and Zak Yacoob, who upheld the original decision. In May 2022, the integrity of the original Wits proceedings was upheld at the CCMA (the arbitration award can be found here), which ruled (244) that Ahmed’s “conduct amounted to workplace bullying that had a profound impact on the complaints, psychologically and emotionally, and damaged the interpersonal relationships in the School”.
This is a landmark case that is likely to have a significant impact on labour law and future labour disputes. Its most important outcomes relate to the gendered dimensions of workplace bullying, which has been identified and classified as a specific form of harm that involves a pattern of abusive behaviour on the basis of gender. It took roughly six years for this case to unfold.
Throughout this time, the policies and procedures of Wits University were scrutinised and tested to an extraordinary degree. Thousands of hours and millions of rand in staff time were spent defending this case. It took tremendous willpower and endurance from complainants and witnesses to take it forward. The result was a comprehensive endorsement of Wits policies and procedures regarding gender-based harms.
This is the kind of outcome that one might expect Wits to shout to the heavens since it is a watershed gender-bullying decision that has been upheld twice over, first by former Constitutional Court judges and then more recently at the CCMA. Yet, to date, the university has tried its best to say as little about it as possible.
Sometimes the system might actually work, but universities in South Africa remain reluctant to talk about even successful cases.
- It is time to chart a different course.
- It is time to lift the veil of secrecy once disciplinary proceedings have concluded.
- It is time to name perpetrators of gender-based harm who have been fired or expelled.
- It is time to set the record straight by being transparent about the material facts of the case.
Prof. Joel Quirk is the co-chair of the Gender Equity Advisory Committee at the University of the Witwatersrand. He has been a member of the committee since 2013. Joel’s most recent work is Research as More Than Extraction Knowledge Production and Gender-Based Violence in African Societies. He is writing in a private capacity.
Karmini Pillay is the co-chair of the Gender Equity Advisory Committee at the University of the Witwatersrand. She has been a member of the committee since 2018, and has been a trainer in the CCMA’s Labour Dispute Resolution Programme at the Mandela Institute since 2015. She writes in a private capacity.