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By Getrude Makhafola

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MPs slam secret agreement with ex-UCT VC Phakeng, call panel ‘waste of time’

MPs say the probe is futile after both Phakeng and Ngonyama left UCT.

Members of Parliament have questioned the need for the University of Cape Town’s (UCT) independent panel, whose terms of reference were later amended, and criticised the secret golden handshake signed with former vice-chancellor Professor Mamokgethi Phakeng.

The investigative panel is headed by former Supreme Court of Appeal president, Judge Lex Mpati, and includes Judge Azhar Cachalia, Dr Bernadette Johnson and Dr Trish Hanekom.

‘Findings can’t affect Phakeng’

The probe was initially based on Phakeng and ex-council chairperson Babalwa Ngonyama’s tenure at UCT and whether the two misled the council regarding the sudden departure of deputy vice-chancellor for learning and teaching, Professor Lis Lange, last year.

But on Wednesday council deputy chairperson Malcolm Campbell told the higher education portfolio committee that the panel’s terms of reference were changed following a legal opinion cautioning possible litigation should the panel make findings against Phakeng.

This was in lieu of the non-disclosure agreement reached with Phakeng. The former vice-chancellor was also concerned about possible reputational harm to her caused by the university.

“We decided that the terms of reference needed to be reviewed and remove the need for the panel to make any findings against the vice-chancellor that could have legal implications.

“Apart from the matter surrounding Lange’s departure, the terms of reference were broadened to include general governance matters.

“She was concerned that the council could make statements that could cause her reputational damage, and the council acceded to that. Her exit was amicable.”

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According to Campbell, the panel requested an extension before tabling the report.

He added that any secret agreement is waivered when it comes to the ongoing probe.

“A number of individuals have left having signed non-disclosure agreements [NDAs]. One of the requirements from the panel is that an NDA will be waived when people give evidence so that they can fully share their experiences.

“I believe that the vice-chancellor has appeared before the panel and I believe that she was able to defend herself against whatever claims or allegations made against her.”

Panel ‘a waste of resources’

Committee chairperson, ANC MP Nompendulo Mkhatshwa said non-disclosure agreements at public institutions were “problematic”.

“They are done in secret although public funds are used. I think what becomes clear here is that we don’t understand the work of the panel.

“What is it trying to achieve? You say resources are limited but you are using them on the panel? I don’t know what we are trying to achieve, I get a sense that it is the non-disclosure agreement that put us in this position.”

Democratic Alliance (DA) MP Karabo Khakhau said she would like to know why the terms of reference were changed.

“Did the institution have something to hide? Or was the thinking behind the panel poor that there was no foresight on engaging in something that won’t lead you anywhere?

“It’s a waste of money and our time because where are we going with this? Also, why deem someone a problem for the university and then give them padkos [referring to Phakeng’s golden handshake]?” she asked the UCT bosses.

ANC MP Tebogo Letsie asked the UCT management to submit minutes of council meetings and legal opinions that led them to establish the panel.

“I am asking for all these because I am still confused as to why the ex-VC, council chairperson and her council left,” he said.

UCT governance crisis

As for Ngonyama, the panel rejected the conditions she insisted on before she could give her evidence.

The interim report released by the panel in May made scathing findings against Ngonyama, indicating that her continued presence as council chairperson posed a “serious risk to the university” and urged council take steps to remove her.

Ngonyama subsequently resigned, before promptly approaching the courts to challenge the interim report.

Asked what led to the council changing its initial support for Phakeng and Ngonyama, Campbell said the 6 October 2022 meeting which decided on whether to launch a probe was the turning point.

The senate and council had previously voted in favour of ex-VC’s and the chairperson’s second term. There was a high level of respect for both of them.

“But the situation changed quite drastically after the October 6 meeting, where a lot of questions were raised and there was a change in terms of support that they both enjoyed.

“I must point out their resignations were not because of council outcomes. They made the decisions without any pressure to do so.”

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The tense October meeting was marred by disagreements and objections and ran into midnight. The council was split on whether to appoint a retired judge or allow an internal investigation to ensue.

Council deputy chairperson Pheladi Gwangwa was asked to cast a deciding vote in the deadlock, and she opted for an internal probe. But concerns were raised about a possible conflict of interest in the processes, said Campbell.

He didn’t elaborate on the conflict of interest.

A motion of confidence was subsequently passed in March, which saw Gwangwa removed and replaced by Campbell.

ANC MP Brandon Pillay asked Campbell why the panel proceeded with its work when the two people it was concerned about had left.

“This is a futile exercise. What are you going to do to a VC that has already left? This costs money and time. You are on an R300m deficit, we should be hearing about your plans to improve UCT finances.”

Phakeng awaits full report

UCT, rated as the top university in Africa, was thrown into the spotlight following allegations against Phakeng and Ngonyama.

The two reportedly told the senate that Lange’s departure was voluntary and based on personal reasons.

However, Lange’s “explosive” letter was read out during a heated senate meeting on 30 September, in which she laid into Phakeng and Ngonyama, saying the two forced her out of her position.

Phakeng left UCT in February.

Online news outlet GroundUp reported that her social media manager in May said Phakeng’s distrust in the panel was vindicated when she discovered the interim report through the media.

“She made it explicitly clear in the past that she harboured no trust in the panel, and this unfortunate revelation serves to confirm her suspicions and previous assertions that the leaking of confidential documents is a central part of the university’s governance crisis.

“Nkosi said that Phakeng has since read the report and “it is apparent that her testimony had not yet been considered at the time of the interim report’s release.”

Her comment will be publicised after the release of the full report, he added.

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