Higher education minister Blade Nzimande is adamant the legal challenges by Unisa’s council and vice-chancellor Prof Puleng LenkaBula to prevent him from appointing an administrator are “premature”.
The council and LenkaBula launched separate urgent applications in the North Gauteng high court seeking to interdict Nzimande from placing the institution under administration.
The two applications, and a third by former Unisa registrar Prof Mothata Steward to declare that the council was no longer “properly constituted”, are expected to be heard on September 7.
Judge Leicester Adams on August 24 ordered Nzimande not to act on independent assessor Prof Themba Mosia’s recommendations until the applications brought by the council and LenkaBula were finalised.
Mosia had recommended in a report on March 31 that the institution be placed under administration
The other applicants cited in LenkaBula’s application included the chair of the senate, which is herself, the management committee of Unisa, council chair James Maboa and Unisa.
Nzimande, who is opposing the legal action instituted by the council and LenkaBula, stated in court documents dated August 30 that the decision he contemplates taking is “authorised” by the Higher Education Act, which empowers him to appoint an administrator.
“The appointment of an administrator affects the council and not the vice-chancellor and senate. As a result, the two applicants do not have a standing to institute both the interim interdict application and the review proceedings.”
He said the Unisa management committee that “seeks to institute proceedings in its own name does not exist” because the act does not make provision for such an entity.
“Both applications are premature because the second respondent (Mosia) has not made a final decision but recommendations. I also have not taken a final decision.”
The state attorneys’ office proposed to the legal representatives representing the council and LenkaBula on August 22 that their urgent applications be removed from the roll.
It also proposed that the council make representations by or before Monday on Nzimande’s plan to place the university under administration.
He will then take his decision and give reasons for it within five days of receiving the council’s representations.
The council would then be free to take a decision and act on Nzimande’s decision within 10 days of it being taken.
But Nzimande stated in court papers that the proposal had been rejected by the council and LenkaBula, which was “unreasonable and irrational”.
“We are at the stage where council has to make representations to me before I take a final decision.
“The taking of a final decision will not interfere with any of their rights. Even if it does, they will not suffer irreparable harm.
“They have an adequate alternative relief in the form of the review proceedings that they can institute after I have made a final decision.”
He said he had not yet taken a final decision on the appointment of an administrator and has “kept an open mind in this regard”.
“The applicants [council and LenkaBula] have no right to prevent me from taking a final decision. They do have a right to challenge my final decision. Until then, their challenge is premature.”
He confirmed in court documents that up until August 30 the council had not made representations to him about the action he was contemplating.
He wrote to Maboa on August 4 informing him he was satisfied that Mosia’s report “reveals financial and other maladministration of a serious nature”.
He told Maboa the report revealed that the appointment of an administrator would be in the best interests of Unisa and of higher education in an open and democratic society.
Nzimande gave Maboa until Monday to respond.
Meanwhile, in the court papers, Nzimande stated: “The placing of the university under administration is authorised by the act. It is for a short period and intended to turn the university around.
“The council should make representations to me to show me that it is not necessary to appoint an administrator. Furthermore, I will give the council full reasons for any decision that I will take.”
He said it will have an opportunity “to scrutinise and challenge the decision if it so wishes”.
“These two applications have no merit whatsoever,” Nzimande stated.
Maboa stated previously in court documents that Nzimande wants to implement Mosia’s recommendations, “which will entail dissolving the council”.
Maboa also lodged another application on July 31 to review and set aside Mosia’s report.
“It is abundantly clear that the decision to appoint an administrator is a fait accompli because he addressed correspondence to the vice-chancellor’s attorneys on August 11, indicating he is unable to wait for the review proceedings.”
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