By Mawande AmaShabalala
Mawande@sundayworld.co.za
Higher education and training minister Buti Manamela is facing a fresh probe from the office of the public protector for alleged breach of the executive ethics code and abuse of power in his appointment of an administrator at the National Student Financial Aid Scheme (NSFAS).
The appointment of Professor Hlengani Mathebula as the administrator has sparked controversy and is currently under judicial review, with a judgement reserved following a
hearing at the Pretoria High Court this week.
Now a complainant named Siyanda Mayana has approached public protector Adv Kholeka Gcaleka’s office seeking her intervention on the matter.
Mayana, in his complaint, argues that Manamela should be investigated because he put
NSFAS under administration without properly documenting the decision-making process, not following the required legal steps, and acting in a way that shows poor management,
misuse of power, and a violation of the executive ethics code.
He also wants Gcaleka to determine whether Manamela’s conduct constitutes improper conduct under the Constitution and the code; if it does, he requests that Gcaleka make findings declaring the appointment unlawful, irrational, and reviewable, including setting it aside. He is adamant that Manamela is yet to produce a lawful record of the decision-making process that informed the appointment of the administrator.
And in Mayana’s view, this lack of transparency renders the decision opaque, unreviewable “at face value” and susceptible to the inference of arbitrariness.
Furthermore, he charges that Manamela did not follow mandatory consultation requirements prescribed by the applicable statutory framework and that if there was any consultation, it was done only in a perfunctory and unlawful manner.
Regarding the importance of consultations, Mayana states that he is supported by a precedent from a 2020 Labour Court ruling in the Construction Education and Training Authority, which set aside a ministerial decision to place the Ceta under administration due to the minister’s failure to comply with the consultation requirements.
“The appointment [of the NSFAS administrator] was made for a purpose that the statutory power was not designed to serve, constituting an irrational exercise of executive authority.”
“The NSFAS board (accounting authority) was stripped of its lawful powers without lawful justification, in violation of the constitutional and statutory protections afforded to it, and therefore contrary to the interests of the public.”
Mayana continues that he believes Manamela abused his power because his decision to appoint an administrator to NSFAS adversely affects the rights of the beneficiaries of the state-owned student funding scheme and the public.
According to the complainant, the minister contravened parts of the executive ethics code, which prohibits members of the cabinet from acting in a way that is inconsistent with their position.
“The minister’s position as a member of the Cabinet entrusted with the administration of higher education and training requires him to exercise executive power within the confines of the law and in accordance with the statutory frameworks governing institutions under his portfolio.
“By appointing an administrator to NSFAS without following the lawful process, without producing a decision-making record, and in disregard of mandatory preconditions, the Minister acted in a manner that is wholly inconsistent with the responsibilities and obligations of his office. This constitutes a breach of clause 2.3(c) of the Code.”
He goes on to allege that Manamela also breached clause 2.3(d) of the code, which prohibits members of the national executive from taking decisions that improperly benefit another person.
In this case, he argues that Manamela’s decision improperly benefits the administrator – Mathebula – or associated interests.
The EFF’s court application “alleges that similar appointments in the Seta sector were made to individuals aligned with the ANC and SACP in order to facilitate patronage networks and election fundraising”.
“The same concern applies to the NSFAS administrator appointment, which was made without transparency and without a lawful basis.”
Sunday World has confirmed the receipt of the complaint from the Public Protector, which states that the complaint is being “assessed” to determine whether Gcaleka has the authority and jurisdiction to investigate it.
Manamela’s spokesperson Matshepo Seedat said they cannot comment on a Public Protector complaint that is in the assessment stage as it has not reached the minister’s desk.
- By Mawande AmaShabalala Mawande@sundayworld.co.za Higher education and training minister Buti Manamela is facing a fresh probe from the office of the public protector for alleged breach of the executive ethics code and abuse of power in his appointment of an administrator at the National Student Financial Aid Scheme (NSFAS).
- The appointment of Professor Hlengani Mathebula as the administrator has sparked controversy and is currently under judicial review, with a judgement reserved following a hearing at the Pretoria High Court this week.
- Now a complainant named Siyanda Mayana has approached public protector Adv Kholeka Gcaleka’s office seeking her intervention on the matter.
- Mayana, in his complaint, argues that Manamela should be investigated because he put NSFAS under administration without properly documenting the decision-making process, not following the required legal steps, and acting in a way that shows poor management, misuse of power, and a violation of the executive ethics code.
- He also wants Gcaleka to determine whether Manamela’s conduct constitutes improper conduct under the Constitution and the code; if it does, he requests that Gcaleka make findings declaring the appointment unlawful, irrational, and reviewable, including setting it aside.
