Outa concerned about new higher education minister

Civil action organisation Organisation Undoing Tax Abuse (Outa) is urging the new Minister of Higher Education Buti Manamela to take urgent action on corruption in the Sector Education and Training Authorities (Setas).

Wayne Duvenage, CEO of Outa, said the new minister has a huge task ahead, as the Setas are mired in dysfunction, but Outa is concerned that he is too strongly linked to the old guard and the dysfunction and corruption in the department and its entities.

“While minister Manamela brings years of experience to the role, having served as a deputy minister in various portfolios since 2014, his long-standing presence within the higher education department raises serious concerns about continuity rather than change.

“Given his proximity to the dysfunction and corruption that plagued the department of higher education and its entities – particularly the Setas – for more than a decade, his appointment is not a welcome development for those demanding real reform and accountability.”

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Outa on second deputy minister

On Monday, President Cyril Ramaphosa also appointed Dr Nomusa Dube-Ncube as deputy minister of higher education and training. Duvenage said Outa did not expect the president to appoint a second deputy minister, as Mimmy Gondwe is already in place as the deputy.

“Over several years, Outa, exposed deep-rooted maladministration, governance failures and corruption at multiple Setas and at the National Student Financial Aid Scheme (NSFAS). While there have been some positive developments, such as the appointments of Dr Karen Stander as NSFAS chair and Waseem Carrim as CEO, the Setas remain mired in dysfunction, with little sign of meaningful intervention.”

He pointed out that despite repeated adverse findings and qualified audits from the auditor-general, the leadership at entities like the Insurance Seta, Construction Education and Training Authority, Services Seta, Education, Training and Development Practices Seta and Media, Information and Communication Technologies Seta remained intact.

“Executives implicated in mismanagement continue to draw large salaries and bonuses, while the essential mission of developing skills and improving employability is undermined. The Setas cost business taxpayers R21 billion a year, but do not deliver value for money.

“Outa urges minister Manamela to demonstrate a break from the past by acting swiftly and decisively to restore integrity and oversight across the Seta environment. This must begin with the urgent appointment of new Seta board chairs who are ethical, independent and free from political interference to ensure that executive management is properly held to account.”

He said Outa will write to Manamela to request an urgent meeting to share the substantial evidence and insights Outa gathered over the years on systemic corruption within the Setas.

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Outa wins against former NSFAS chair

Meanwhile the high court found last week that Outa did not have to give the former National Student Financial Aid Scheme chair a right of reply to the organisation’s report on corruption at the entity.

The Johannesburg High Court backed Outa over publication of its NSFAS report, ruling that former NSFAS chair Ernest Khosa did not have a right to pre-publication comment before Outa published a report implicating him in corruption.

“A person implicated in acts of corruption in a report published by a private actor does not have the right to a hearing prior to publication,” the court said. The dispute revolved around a report and statement Outa published about NSFAS and Khosa in early 2024, implicating him in corruption with NSFAS suppliers. Khosa resigned a few months later.

Advocate Stefanie Fick, executive director at Outa’s accountability division, said Khosa wanted the court to order Outa to remove the report from its website and order that he be given an opportunity to respond to the allegations, that the report only be republished once this was completed to his satisfaction and that the republished report contain an accurate record of his responses to each allegation.

However, Outa refused to remove the report, but offered to hear Khosa’s version and update the report accordingly, but Khosa declined. Khosa argued that he had a right to respond to the allegations before Outa released the report but the court found that no such legal obligation exists, especially for private actors acting in the public interest.

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Judgment means organisations like Outa can expose wrongdoing without right of reply

Fick said the legal significance of this judgment lies in its clarification of the rights and obligations of private actors, such as Outa, when publishing reports implicating individuals in alleged wrongdoing.

“This judgment reaffirms our constitutional right to expose maladministration and corruption without facing undue procedural barriers. Khosa’s attempt to silence public interest reporting under the guise of procedural fairness was rightly dismissed by the court.”

Acting Judge GA Fourie found:

• Khosa had no right to a pre-publication notice because there is no requirement in law for Outa to notify individuals before publishing allegations in a public interest report;
• Outa, as a private entity, does not exercise public powers or perform public functions. Its investigations and publications are not binding and do not carry statutory authority. This distinction is critical in determining the scope of procedural obligations owed by private entities;
• The right to dignity and reputation does not override the constitutional protection of free speech, especially when allegations serve the public good;
• The appropriate legal avenue for challenging potentially defamatory content is through defamation proceedings, not through pre-publication interdicts; and
• Constitutional rights do not extend horizontally to impose obligations on private entities like Outa in the way Khosa claimed.

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Judgment protects civil society organisations to expose corruption

Fick said this judgment reinforces the principle that private actors are not bound by the same procedural obligations as public entities.  “It also protects the ability of civil society organisations to expose corruption without undue interference, while preserving the common-law remedies available to individuals who feel aggrieved by such publications.

“Khosa did not complain that the Outa report was defamatory or deal with the veracity of the allegations against him. He did not even include the report in his founding papers. This gives rise to concerns that the intention was to prevent or delay publication of the report, or distort it, which should be avoided.

“The judge said ‘the impact on the ability of whistle-blowers and other private actors to expose corruption would be significant’. The court dismissed the application with costs, noting that although the matter raised novel legal questions, there was no basis for granting the relief Khosa sought.”