Date: 10/11/2003
Source: Ministry of Education
Title: Asmal: Response to report on UDW
RESPONSE OF THE MINISTER OF EDUCATION, PROF KADER ASMAL, TO THE REPORT OF THE INDEPENDENT ASSESSOR, DR BONGANI KHUMALO, ON THE UNIVERSITY OF DURBAN-WESTVILLE, Pretoria, Monday 10 November 2003
1. I have considered the report on the University of Durban-Westville (UDW) prepared by the Independent Assessor, Dr Bongani Khumalo, which was handed to me on Saturday, 1 November 2003, and which I presented to the Council of the University on Monday, 3 November 2003. I have also considered the responses that I have received on the report from a range of individuals and constituencies (listed in the Appendix), as well as the report that I received on the preparations for the merger between UDW and the University of Natal from two members of the merger Reference Group, Prof Patrick Fitzgerald and Dr Khotso Mokhele, who visited and met with the two institutions at my request on Thursday, 6 November 2003.
2. However, before I outline my decision I would like to focus on the process and findings of the Independent Assessor's report, which provide the backdrop for my decision.
3. I would like to state at the outset that at every stage careful attention has been paid to due process and I am not aware of any objections that were raised in relation to procedural issues. In this regard, I would like to highlight the following:
* I consulted the Council, through its Executive Committee, prior to appointing the Independent Assessor as required by the Higher Education Act.
* The fact that Dr Khumalo was a member of the Reference Group monitoring the merger of UDW and the University of Natal does not negate his independence in relation to his appointment as Independent Assessor. Dr Khumalo only attended one meeting of the Reference Group with the two institutions and the focus of the meeting was merger-related and not on the governance and management issues, which is the subject of his report. Furthermore, Dr Khumalo withdrew from his membership of the UDW/University of Natal Reference Group on his appointment as Independent Assessor. This was communicated to UDW by Dr Khumalo.
* An investigation undertaken by an Independent Assessor is not the same as a procedure in a court of law. It does not and indeed cannot meet the strict requirements of a judicial inquiry in terms of the scope and depth of investigation, the use of evidence, the calling of witnesses and the right of cross examination and so forth. The Independent Assessor can at best, in the limited time available and based on the available material and access to the affected parties, assess whether circumstances have arisen in the higher education institution, which impact on good governance and management and which, if not rectified, would be detrimental to the public interest. In this context, the findings and conclusions of the Independent Assessor must be evaluated taking into account the effort and reasonable care taken in consulting with a cross section of the affected parties and in assessing the available material. The fact that not every individual affected by the investigation is interviewed or every document read does not in itself invalidate the findings and conclusions reached. I have no doubt that Dr Khumalo's report meets this standard.
* Dr Khumalo received the cooperation of the University management during the course of his investigation. Members of the management, including the Vice-Chancellor, helped to facilitate the logistical arrangements for the investigation and, along with Council members (including the Chairperson of the Council) made themselves available for interview by the Independent Assessor.
4. I have full confidence in the integrity and impartiality of Dr Khumalo. He is a well-respected public figure, businessman and community leader. The attempts to impugn his integrity and to suggest that he is biased must be treated with the contempt that it deserves. In this regard I am perturbed that there is an apparent smear campaign against Dr Khumalo. This is crass and rank opportunism and must be condemned in the strongest possible terms.
5. I have considered and accept without reservation the Independent Assessor's report, its findings, recommendations and conclusions in general and the key findings in particular, namely that (i) the Council is unable to effectively discharge its responsibilities because it is divided; and (ii) that the executive management of UDW has ignored due process, including ignoring its accountability to Council. Indeed, in this regard:
* I have, to date, not seen any convincing and conclusive refutation of the key findings and conclusions reached by the Independent Assessor.
* My meeting with the Council on Monday, 3 November, to discuss its response to the Independent Assessor's report confirmed the Independent Assessor's conclusion that the Council is unable to discharge its responsibility because it is divided. There was little or no attempt to refute the findings and conclusions of the Independent Assessor's report. Instead, those opposed to the outcome of the report essentially focused their attention on discrediting the integrity of the Independent Assessor's report, as well as the integrity of the members of Council who support the report. The virulence and intensity of the attacks reserved for these Council members went well beyond the bounds of decency.
6. I have also considered the view expressed by a number of Council members, including the Chairperson, that the Council is not dysfunctional. The key issue in my view is not whether the Council is functional or dysfunctional, but whether it is able to discharge its legal and fiduciary responsibilities. In this respect the Independent Assessor has found the Council wanting.
7. The Independent Assessor's finding in respect of the role of Council and its inability to discharge its functions is further confirmed by the current legal challenge to review and set aside the Independent Assessor's report. The High Court papers filed indicate that the application is sought by two applicants, namely, the University of Durban-Westville and Dr Saths Cooper.
7.1 This begs the question: "who is the University?" In terms of the Higher Education Act, the University is a juristic entity represented by the Council, which is the governing body of the institution. The initiation of legal action by the University can only be undertaken by the Council or its Executive Committee, unless the Council has specifically delegated such power to the Vice-Chancellor. There is no evidence to indicate that the current legal action was authorised by the Council or its Executive Committee and nor is there is evidence to suggest that the Council has delegated this power to the Vice-Chancellor.
7.2 Indeed, it is my understanding that the Chairperson of Council has confirmed that the action was initiated by the executive management of UDW on the basis of delegated authority. However, there is no evidence that this delegated authority exists. This is furthermore confirmed by a number of submissions that I have received, which indicate that at a Senate meeting on Thursday, 6 November 2003, the executive management conceded that the legal action was not approved by the Council.
8. In addition, the only evidence of the involvement of Council members in the legal action is the submission on the Independent Assessor's report, the covering letter to which indicates that it was made by certain members of Council. These same members have "empowered" the Vice-Chancellor to take the necessary steps to set aside the Independent Assessor's report. This submission has the support of 13 of the 26 members of the Council. It should be noted that neither the Chairperson nor the Deputy Chairperson of Council are signatories to the submission and only 5 of the 13 signatories are external members of Council.
8.1 The covering letter goes on to state that "given the brief time allowed for the submissions, it was not possible to convene a meeting of the Council". I would have thought that given the importance of the matters at hand, the Council would have convened a special meeting to develop a Council response to the Independent Assessor's report. The fact that this was not done is an indictment of the Council.
9. It is clear from the above that the solution proposed by the Independent Assessor is the only logical conclusion that can be reached given the circumstances. However, it is my responsibility to assess the viability of the proposed solution, in particular, its efficacy in taking UDW into the new institution. It is against this background and taking into account the need for stability, as well as the submissions that I have received, which suggest an institution that is deeply divided in its assessment of the governance and management problems that beset it, including the recommendations of the Independent Assessor, that I have decided not to implement the recommendations. I must emphasise that this is not because I disagree with the recommendations. On the contrary, I would like to repeat that it is my view that the recommendations flow logically from the findings and conclusions of the report.
10. I do not believe that the prevailing climate at UDW is conducive to enabling an administrator to make a meaningful contribution. The divisions that bedevil the University cannot be resolved by the appointment of an administrator given the short time left prior to the planned merger of UDW and the University of Natal on 1 January 2004. In practical terms, given that the information at my disposal suggests that the University closes on 12 December 2003, which I find extraordinary in the circumstances, and ceases to exist on 31 December 2003, it would not be possible for an administrator to familiarise himself or herself with the workings of the University and to put in place measures to rectify the shortcomings identified by the Independent Assessor. In this regard, I have specifically taken into account the fact that:
* The Council is not likely to have more than one meeting in time available.
* The contract of the Vice-Chancellor comes to an end at the end of December 2003.
11. I also do not believe that it would be in the best interest of higher education in the region in general and of the affected institutions in particular, to postpone the merger. The preparations for the merger are well advanced and, while there are outstanding issues that need resolution, these are not insurmountable. This is confirmed by the Reference Group, consisting of Prof Patrick Fitzgerald and Dr Khotso Mokhele, who met with UDW and the University of Natal on Thursday, 6 November 2003, at my request, following a suggestion at my meeting with the Council last Monday that there was a need for the Reference Group to assess the state of progress in relation to the merger. I am convinced that the merger must go ahead as planned.
12. In the light of my decision not to appoint an administrator and given my view that the merger should not be postponed, I am asking the Council to implement specific directives that I believe would be in the best interests of UDW and the new merged institution. In this regard, I am requesting the Council to ensure that:
* It instructs the Vice-Chancellor to reinstate the discussions and merger-related processes with the University of Natal, which I understand from the Reference Group have been halted, despite the public statements by the Vice-Chancellor that these are well advanced, with a view to resolving the outstanding matters and enabling a smooth transition to the establishment of a new institution on 1 January 2004.
* It clarifies the nature and basis of the contract entered into between the Vice-Chancellor and the Deputy Vice-Chancellor, Prof LJ Nicholas, regarding the latter's appointment and its implications for the merged institution.
* Any contractual agreements relating to personnel must be approved, as under the Memorandum of Agreement, between UDW and the University of Natal.
* The findings of the PriceWaterhouseCoopers forensic audit report, which was completed in September 2003, are reviewed and revisited with a view to taking the necessary steps to put in place measures to rectify the shortcomings and weaknesses identified in the report.
* The disciplinary proceedings against Profs Singh and Pillay are finalised.
* The allegations of wire-tapping and/or the interception of electronic communication, as well as compliance with revenue regulations and company law in relation to the security company employed by UDW to review its security arrangements are referred to the South African Police Service for investigation.
13. I would like to urge the Council to seize this last opportunity to restore confidence in co-operative governance at UDW, and to discharge its functions, including its fiduciary responsibilities, in an accountable manner. I hope that all members of Council are able to put aside their differences and to work together to ensure that sound and co-operative governance is secured in the period leading to the merger. In this regard, I want to make a special appeal to those members of Council who have had to withstand severe and often personal attacks to continue to contribute to the work of the Council.
In the event that it is not possible for the Council to address and/or finalise any of the identified issues, these would be referred to the interim council of the merged institution for finalisation.
Finally, I would like to re-iterate that the merger of UDW and the University of Natal would proceed as planned on 1 January 2004. In this regard, I would like to indicate the following:
The name of the new institution is: the University of KwaZulu-Natal. In arriving at the name I have taken into account the fact that the "University of KwaZulu-Natal" was the preferred name identified in the public process initiated jointly by the two institutions.
The address of the new institution is: University Rd, Chiltern Hills, Westville.
The members of the interim council are:
Chairperson: Dr Vincent Maphai (appointed by the Minister of Education)
UDW Nominations: Dr N Magau
UN Nominations: Mr A Rogoff
UDW Nominations: Mr SV Chetty
UN Nominations: Mr M Mia
UDW Nominations: Mr T Ngwenya
UN Nominations: Ms P Ntombela-Nzimande
UDW Nominations: Mr GJ Thula
UN Nominations: Mr N Theunissen
I would like to emphasise that the decision that I have taken requires the Council to act boldly and decisively and in the best interests of UDW and the new institution. It requires that the differences that have bedevilled the Council should be set aside and every effort should be made to ensure that there is proper and recognisable closure of the matters at hand before the establishment of the new institution on 1 January 2004.
17. In concluding, I would like to thank Dr Bongani Khumalo for his dedication and professionalism. His selfless contribution to public life is in the best tradition of civic duty and worthy of emulation.
APPENDIX
List of Responses
Council members:
* Dr Namane Magau (Chairperson)
* Mr K Govender
* Mr I Naidoo
* Mr Roy Stuart
* Mr Pat Mkhize
* Mr Thami Ngwenya
* Mr S V Chetty
* Some members of Council (via Hofmeyr, Herbstein and Gihwala)
* Finance Committee of Council
University Management:
* Professor L Nicholas (Deputy Vice-Chancellor)
* Prof KS Satyapal
* Deans Committee
Staff Associations:
* Combined Staff Association of the University of Durban-Westville
* Executive Committee of the Academic Staff Association
* African Forum
Other:
* Professor Anand Singh (suspended member of Council)
* Professor Kanthan Pillay (suspended Executive of Director Finance)
Issued by: Ministry of Education
10 November 2003
Source: Ministry of Education
Title: Asmal: Response to report on UDW
RESPONSE OF THE MINISTER OF EDUCATION, PROF KADER ASMAL, TO THE REPORT OF THE INDEPENDENT ASSESSOR, DR BONGANI KHUMALO, ON THE UNIVERSITY OF DURBAN-WESTVILLE, Pretoria, Monday 10 November 2003
1. I have considered the report on the University of Durban-Westville (UDW) prepared by the Independent Assessor, Dr Bongani Khumalo, which was handed to me on Saturday, 1 November 2003, and which I presented to the Council of the University on Monday, 3 November 2003. I have also considered the responses that I have received on the report from a range of individuals and constituencies (listed in the Appendix), as well as the report that I received on the preparations for the merger between UDW and the University of Natal from two members of the merger Reference Group, Prof Patrick Fitzgerald and Dr Khotso Mokhele, who visited and met with the two institutions at my request on Thursday, 6 November 2003.
2. However, before I outline my decision I would like to focus on the process and findings of the Independent Assessor's report, which provide the backdrop for my decision.
3. I would like to state at the outset that at every stage careful attention has been paid to due process and I am not aware of any objections that were raised in relation to procedural issues. In this regard, I would like to highlight the following:
* I consulted the Council, through its Executive Committee, prior to appointing the Independent Assessor as required by the Higher Education Act.
* The fact that Dr Khumalo was a member of the Reference Group monitoring the merger of UDW and the University of Natal does not negate his independence in relation to his appointment as Independent Assessor. Dr Khumalo only attended one meeting of the Reference Group with the two institutions and the focus of the meeting was merger-related and not on the governance and management issues, which is the subject of his report. Furthermore, Dr Khumalo withdrew from his membership of the UDW/University of Natal Reference Group on his appointment as Independent Assessor. This was communicated to UDW by Dr Khumalo.
* An investigation undertaken by an Independent Assessor is not the same as a procedure in a court of law. It does not and indeed cannot meet the strict requirements of a judicial inquiry in terms of the scope and depth of investigation, the use of evidence, the calling of witnesses and the right of cross examination and so forth. The Independent Assessor can at best, in the limited time available and based on the available material and access to the affected parties, assess whether circumstances have arisen in the higher education institution, which impact on good governance and management and which, if not rectified, would be detrimental to the public interest. In this context, the findings and conclusions of the Independent Assessor must be evaluated taking into account the effort and reasonable care taken in consulting with a cross section of the affected parties and in assessing the available material. The fact that not every individual affected by the investigation is interviewed or every document read does not in itself invalidate the findings and conclusions reached. I have no doubt that Dr Khumalo's report meets this standard.
* Dr Khumalo received the cooperation of the University management during the course of his investigation. Members of the management, including the Vice-Chancellor, helped to facilitate the logistical arrangements for the investigation and, along with Council members (including the Chairperson of the Council) made themselves available for interview by the Independent Assessor.
4. I have full confidence in the integrity and impartiality of Dr Khumalo. He is a well-respected public figure, businessman and community leader. The attempts to impugn his integrity and to suggest that he is biased must be treated with the contempt that it deserves. In this regard I am perturbed that there is an apparent smear campaign against Dr Khumalo. This is crass and rank opportunism and must be condemned in the strongest possible terms.
5. I have considered and accept without reservation the Independent Assessor's report, its findings, recommendations and conclusions in general and the key findings in particular, namely that (i) the Council is unable to effectively discharge its responsibilities because it is divided; and (ii) that the executive management of UDW has ignored due process, including ignoring its accountability to Council. Indeed, in this regard:
* I have, to date, not seen any convincing and conclusive refutation of the key findings and conclusions reached by the Independent Assessor.
* My meeting with the Council on Monday, 3 November, to discuss its response to the Independent Assessor's report confirmed the Independent Assessor's conclusion that the Council is unable to discharge its responsibility because it is divided. There was little or no attempt to refute the findings and conclusions of the Independent Assessor's report. Instead, those opposed to the outcome of the report essentially focused their attention on discrediting the integrity of the Independent Assessor's report, as well as the integrity of the members of Council who support the report. The virulence and intensity of the attacks reserved for these Council members went well beyond the bounds of decency.
6. I have also considered the view expressed by a number of Council members, including the Chairperson, that the Council is not dysfunctional. The key issue in my view is not whether the Council is functional or dysfunctional, but whether it is able to discharge its legal and fiduciary responsibilities. In this respect the Independent Assessor has found the Council wanting.
7. The Independent Assessor's finding in respect of the role of Council and its inability to discharge its functions is further confirmed by the current legal challenge to review and set aside the Independent Assessor's report. The High Court papers filed indicate that the application is sought by two applicants, namely, the University of Durban-Westville and Dr Saths Cooper.
7.1 This begs the question: "who is the University?" In terms of the Higher Education Act, the University is a juristic entity represented by the Council, which is the governing body of the institution. The initiation of legal action by the University can only be undertaken by the Council or its Executive Committee, unless the Council has specifically delegated such power to the Vice-Chancellor. There is no evidence to indicate that the current legal action was authorised by the Council or its Executive Committee and nor is there is evidence to suggest that the Council has delegated this power to the Vice-Chancellor.
7.2 Indeed, it is my understanding that the Chairperson of Council has confirmed that the action was initiated by the executive management of UDW on the basis of delegated authority. However, there is no evidence that this delegated authority exists. This is furthermore confirmed by a number of submissions that I have received, which indicate that at a Senate meeting on Thursday, 6 November 2003, the executive management conceded that the legal action was not approved by the Council.
8. In addition, the only evidence of the involvement of Council members in the legal action is the submission on the Independent Assessor's report, the covering letter to which indicates that it was made by certain members of Council. These same members have "empowered" the Vice-Chancellor to take the necessary steps to set aside the Independent Assessor's report. This submission has the support of 13 of the 26 members of the Council. It should be noted that neither the Chairperson nor the Deputy Chairperson of Council are signatories to the submission and only 5 of the 13 signatories are external members of Council.
8.1 The covering letter goes on to state that "given the brief time allowed for the submissions, it was not possible to convene a meeting of the Council". I would have thought that given the importance of the matters at hand, the Council would have convened a special meeting to develop a Council response to the Independent Assessor's report. The fact that this was not done is an indictment of the Council.
9. It is clear from the above that the solution proposed by the Independent Assessor is the only logical conclusion that can be reached given the circumstances. However, it is my responsibility to assess the viability of the proposed solution, in particular, its efficacy in taking UDW into the new institution. It is against this background and taking into account the need for stability, as well as the submissions that I have received, which suggest an institution that is deeply divided in its assessment of the governance and management problems that beset it, including the recommendations of the Independent Assessor, that I have decided not to implement the recommendations. I must emphasise that this is not because I disagree with the recommendations. On the contrary, I would like to repeat that it is my view that the recommendations flow logically from the findings and conclusions of the report.
10. I do not believe that the prevailing climate at UDW is conducive to enabling an administrator to make a meaningful contribution. The divisions that bedevil the University cannot be resolved by the appointment of an administrator given the short time left prior to the planned merger of UDW and the University of Natal on 1 January 2004. In practical terms, given that the information at my disposal suggests that the University closes on 12 December 2003, which I find extraordinary in the circumstances, and ceases to exist on 31 December 2003, it would not be possible for an administrator to familiarise himself or herself with the workings of the University and to put in place measures to rectify the shortcomings identified by the Independent Assessor. In this regard, I have specifically taken into account the fact that:
* The Council is not likely to have more than one meeting in time available.
* The contract of the Vice-Chancellor comes to an end at the end of December 2003.
11. I also do not believe that it would be in the best interest of higher education in the region in general and of the affected institutions in particular, to postpone the merger. The preparations for the merger are well advanced and, while there are outstanding issues that need resolution, these are not insurmountable. This is confirmed by the Reference Group, consisting of Prof Patrick Fitzgerald and Dr Khotso Mokhele, who met with UDW and the University of Natal on Thursday, 6 November 2003, at my request, following a suggestion at my meeting with the Council last Monday that there was a need for the Reference Group to assess the state of progress in relation to the merger. I am convinced that the merger must go ahead as planned.
12. In the light of my decision not to appoint an administrator and given my view that the merger should not be postponed, I am asking the Council to implement specific directives that I believe would be in the best interests of UDW and the new merged institution. In this regard, I am requesting the Council to ensure that:
* It instructs the Vice-Chancellor to reinstate the discussions and merger-related processes with the University of Natal, which I understand from the Reference Group have been halted, despite the public statements by the Vice-Chancellor that these are well advanced, with a view to resolving the outstanding matters and enabling a smooth transition to the establishment of a new institution on 1 January 2004.
* It clarifies the nature and basis of the contract entered into between the Vice-Chancellor and the Deputy Vice-Chancellor, Prof LJ Nicholas, regarding the latter's appointment and its implications for the merged institution.
* Any contractual agreements relating to personnel must be approved, as under the Memorandum of Agreement, between UDW and the University of Natal.
* The findings of the PriceWaterhouseCoopers forensic audit report, which was completed in September 2003, are reviewed and revisited with a view to taking the necessary steps to put in place measures to rectify the shortcomings and weaknesses identified in the report.
* The disciplinary proceedings against Profs Singh and Pillay are finalised.
* The allegations of wire-tapping and/or the interception of electronic communication, as well as compliance with revenue regulations and company law in relation to the security company employed by UDW to review its security arrangements are referred to the South African Police Service for investigation.
13. I would like to urge the Council to seize this last opportunity to restore confidence in co-operative governance at UDW, and to discharge its functions, including its fiduciary responsibilities, in an accountable manner. I hope that all members of Council are able to put aside their differences and to work together to ensure that sound and co-operative governance is secured in the period leading to the merger. In this regard, I want to make a special appeal to those members of Council who have had to withstand severe and often personal attacks to continue to contribute to the work of the Council.
In the event that it is not possible for the Council to address and/or finalise any of the identified issues, these would be referred to the interim council of the merged institution for finalisation.
Finally, I would like to re-iterate that the merger of UDW and the University of Natal would proceed as planned on 1 January 2004. In this regard, I would like to indicate the following:
The name of the new institution is: the University of KwaZulu-Natal. In arriving at the name I have taken into account the fact that the "University of KwaZulu-Natal" was the preferred name identified in the public process initiated jointly by the two institutions.
The address of the new institution is: University Rd, Chiltern Hills, Westville.
The members of the interim council are:
Chairperson: Dr Vincent Maphai (appointed by the Minister of Education)
UDW Nominations: Dr N Magau
UN Nominations: Mr A Rogoff
UDW Nominations: Mr SV Chetty
UN Nominations: Mr M Mia
UDW Nominations: Mr T Ngwenya
UN Nominations: Ms P Ntombela-Nzimande
UDW Nominations: Mr GJ Thula
UN Nominations: Mr N Theunissen
I would like to emphasise that the decision that I have taken requires the Council to act boldly and decisively and in the best interests of UDW and the new institution. It requires that the differences that have bedevilled the Council should be set aside and every effort should be made to ensure that there is proper and recognisable closure of the matters at hand before the establishment of the new institution on 1 January 2004.
17. In concluding, I would like to thank Dr Bongani Khumalo for his dedication and professionalism. His selfless contribution to public life is in the best tradition of civic duty and worthy of emulation.
APPENDIX
List of Responses
Council members:
* Dr Namane Magau (Chairperson)
* Mr K Govender
* Mr I Naidoo
* Mr Roy Stuart
* Mr Pat Mkhize
* Mr Thami Ngwenya
* Mr S V Chetty
* Some members of Council (via Hofmeyr, Herbstein and Gihwala)
* Finance Committee of Council
University Management:
* Professor L Nicholas (Deputy Vice-Chancellor)
* Prof KS Satyapal
* Deans Committee
Staff Associations:
* Combined Staff Association of the University of Durban-Westville
* Executive Committee of the Academic Staff Association
* African Forum
Other:
* Professor Anand Singh (suspended member of Council)
* Professor Kanthan Pillay (suspended Executive of Director Finance)
Issued by: Ministry of Education
10 November 2003
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