The council of the University of South Africa (Unisa) has succeeded in obtaining an urgent order setting aside Higher Education, Science and Innovation Minister Blade Nzimande’s appointment of an administrator.
The Pretoria High Court on Wednesday found that Nzimande’s decision – through a notice published in the Government Gazette on October 27 announcing an administrator for the university – was in breach of previous court orders and unlawful.
This is the third successful application obtained by the council and executive management to stop Nzimande from taking any action regarding the recommendations of the report by independent assessor, Dr Themba Mosia, who found corruption and maladministration at the 150-year-old open distance e-learning varsity.
In the notice, Nzimande announced that the administrator will take over the role, powers, functions and duties of the university council for a period of 24 months.
The administrator was also tasked with taking over the role of the executive management of the university.
The administrator would also “initiate an independent external investigation [a forensic audit] into the range of financial control weaknesses and financial irregularities identified in the [independent assessor’s] report as a matter of urgency”.
“Further where criminal activity is evident, full legal processes must follow, so that there is visible consequence management for illicit practice,” reads the notice.
In accordance with the notice, the current members of executive management would be allowed to serve out their current terms.
In a statement issued on Wednesday following the court decision, the university’s council welcomed the ruling of the court.
The court ruled that the minister’s decision was in breach of the order granted on August 24 by judge Leicester Adams and unlawful.
“The minister must immediately retract the Government Gazette number 49582 Vol 700 dated 27 October 2023,” reads the order.
“The parties are granted leave to approach the Deputy Judge President of the Gauteng high court for a date and time for consideration of the issue of contempt.”
University spokesperson Tommy Huma said the university believes that the court decision was sound and correct given that the matter pertaining to the review of the independent assessor’s report was still before the court and yet to be concluded.
“The management of the university once again appeals to staff and students not to let these developments in court defocus them from the task of ensuring that the academic project forges ahead unabated,” said Huma in the statement.
“Management also re-emphasises the point that it is not fighting the minister, but merely exercising its responsibility towards the institution, its stakeholders and the public at large by preventing an unnecessary disruption of the execution of its missional mandate.”
On Friday, while the university was hosting its last day of spring graduations, Nzimande announced the appointment of former University of Johannesburg vice-chancellor, professor Ihron Rensburg, as the administrator.
In the judgment contained in the order which Sunday World has seen, acting judge Andre le Grange makes reference to two orders granted by the same court in relation to Nzimande’s intention to place the university under administration.
On October 4, Adams found that the minister was in contempt of a court order granted by judge Harshila Kooverjie on August 24 barring him from taking any decision regarding the independent assessor’s report until the matter has been heard by the court.
“Everyone is back in court,” said Le Grange in his judgment, “as the minister has now gone beyond a notice of intention to act, and factually acted [admittingly] contra to the aforesaid paragraph, in appointing an administrator pursuant to the report.
“The minister, however, claims that the aforesaid paragraph was a mere ‘undertaking’ and not an ‘operative order’ wherefore it can be and was disregarded by the minister.
“Considering this deference [forget for a moment whether the ‘undertaking’ is an order or not] this court could not but wonder if we have reached a state in our democracy where a minister’s [a public litigant, who has a much higher duty to represent the law and uphold the constitutional principles] word and undertaking means nothing,” said Le Grange.
Click here to see judgment: Court Order Judgment_01_11_2023