Eastern Cape Premier Oscar Mabuyane has successfully prevented the Special Investigating Unit (SIU) from Investigating allegations that he participated in a fraudulent scheme that resulted in undeserving students being awarded tertiary qualifications at the University of Fort Hare (UFH).
Mabuyane took the SIU to court when it broadened a presidential proclamation to investigate academic qualifications fraud at the university based in Alice.
The premier, who is also the ANC chairperson in the province, took the matter to court after feeling concerned that President Cyril Ramaphosa had overstepped his presidential bounds when he signed the proclamation.
However, Mabuyane dropped Ramaphosa as a respondent and dealt strictly with the SIU and UFH. Bhisho High Court presiding officer Judge Thandi Norman handed her Part A judgement this morning following a heated hearing in the same court last week.
“The Special Investigating Unit is interdicted from enforcing Proclamation 84 of 2022, published in the Government Gazette on 5 August 2022. In so far as the SIU has taken steps or intends to take steps that are directed at the applicant, pending the determination of Part B. Each party is to bear its own costs,” ruled Judge Norman.
During the hearing of Mabuyane’s application last week, his legal representative, Advocate Thembeka Ngcukaitobi, told the court that there was no case that should be investigated against his client, in terms of the proclamation.
Ngcukaitobi said his client’s application to do a Masters’ programme at UFH was approved by the university senate, which is the highest decision-making body at the institution.
He explained that Mabuyane was being vilified for benefitting from a Recognition of Prior Learning process that also included community engagement.
“At the time the proclamation was published, the allegations about the Masters’ programme had already swelled; they were already a matter of public concern, but the president deliberately decided to exclude any investigation into the Masters’ programme,” said Ngcukaitobi.
UFH lawyers had argued that they had electronic evidence implicating Mabuyane in the fraudulent scheme.
Before he dropped Ramaphosa as a respondent, Mabuyane’s court application indicated that he obtained a Bachelor of Commerce at Fort Hare in 2003.
“At the behest of the SIU, the president issued the proclamation mandating the SIU to investigate allegations of maladministration and impropriety at Fort Hare. The SIU has started the investigation [and] I have come to understand that I’m implicated.
“The president made an error in law by failing to understand the ambit of his powers and his discretion under the SIU Act. Under the SIU Act, the president cannot authorise the SIU to investigate academic issues and affairs of a university,” said Mabuyane.
The premier argued that the High Education Act provided mechanisms to activate investigations into the affairs of universities.
“The Minister of Higher Education, Science and Technology and the Council on Higher Education initiate and oversee the investigations. The president’s error distorted the nature of the powers conferred on the president in the SIU Act,” he said.
Mabuyane added that Ramaphosa acted irrationally as the police and the Hawks unit were better suited to investigating the kind of allegations levelled against him.
“The president acted irrationally, arbitrarily, and for an unauthorised purpose. There is no rational connection between the decision to include Fort Hare’s academic affairs in the investigation and the purpose of the SIU Act. The proclamation is invalid on the grounds of vagueness and, therefore, unconstitutional,” Mabuyane wrote in his founding affidavit.
However, today’s court victory does not absolve Mabuyane from the matter entirely. The court is yet to hear Part B of the application on a date yet to be set.
SIU spokesperson Kaizer Kyanyago said they were not in a position to comment as they were still studying the judgement.
Last week, the SIU rejected claims that it was equipped to probe allegations of corruption, fraud and irregularities relating to the admission into and the awarding of degrees at the University of Fort Hare.
“The SIU sets the record straight and refutes any assertion that it is not up to the job or not equipped to investigate as stated by some publicly. The SIU confirms that it is mandated by law and more than equipped and has the required skills, experience, and capacity to investigate the allegations received. The SIU has been fulfilling its mandate for more than 26 years,” Kganyago said.
“The SIU is also investigating allegations of corruption in four tenders at the University. These include contracts for cleaning and gardening services, the leasing of student accommodation tender, the appointment of a service provider for the maintenance and repair of air conditioning systems, and collusion between officials of the University and service providers.”
Kganyago added that the investigation at the University of Fort Hare had “proceeded well thus far and uncovered evidence” that is “currently being assessed for the purposes of informing the findings and actions to be taken”.
“The SIU is mindful that the proclamation and some aspects of the investigation have been challenged in the High Court and the matter is pending at court. However, due to the assertions covered in the media having the effect of misleading the public, the SIU was left with no option but to set the public record straight,” Kganyago added at the time.
Mabuyane did not respond to questions about how he felt following his victory.
UFH Vice-Chancellor Professor Sakhela Buhlungu has been vocal about the matter, which is believed to have been one of the reasons behind an attempt on his life earlier this year. He was not immediately available for comment.