Eastern Cape Premier Oscar Mabuyane has asked the high court to exclude him from the Special Investigating Unit’s (SIU’s) probe into the goings-on at the beleaguered Fort Hare University, saying that it was part of a plot to politically embarrass him.

He wants the investigation stopped, pending a judicial review of the legality of the proclamation that was signed by Cyril Ramaphosa in 2022. This proclamation, Mabuyane claimed in court papers, was unconstitutional as far as it pertained to him, and should be revised and set aside.

His counsel, Tembeka Ngcukaitobi SC, argued that the SIU had no power to investigate Mabuyane. Mabuyane emphasised that he supported the probe but not so far as to include him. He said he had offered his full cooperation to the SIU.

Mabuyane is on the SIU’s radar because it is alleged that he was registered for a master’s degree in Public Administration at Fort Hare University without having completed an Honours degree. Further allegations, as set out in court papers, include that his research proposal was done by postgraduate students with very little input from Mabuyane. He was later deregistered from the programme.

‘Malicious plan’

Mabuyane had initially brought an interdict that would have halted the entire probe into maladministration at Fort Hare, but then filed papers amending this relief to include aspects of the investigation that only pertain to him.

“I have considered the scope of the relief which I seek, although the primary legal argument remains that the Proclamation is unconstitutional, I have been advised to narrow the scope of the relief. That is because I also support an investigation into corruption and maladministration at the university.

“The essence of my objection is that the Proclamation has never envisaged that I would now turn out to be the subject of the investigation. The reasons why this has become the case are not apparent to me, but there seems to be a malicious plan to cause me grave embarrassment,” Mabuyane stated in an affidavit before the court.

“The only way I came to be the focal point of this investigation is the deliberate stratagem of the SIU to make this whole matter about me,” he added.

The Eastern Cape High Court, sitting in Bhisho, will rule on Mabuyane’s application next week.

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Mabuyane pointed out that the scope of the SIU was the honours programme and that he had never claimed to have an honours degree. He added that he was deregistered from the master’s programme. 

“There are no allegations that I was awarded an honours degree. The allegation is that I was registered in the master’s programme. It is not under investigation,” he said.

“The SIU cannot invent its own terms of reference,” he continued.

“The SIU and the Vice-Chancellor of Fort Hare have tended to drive the investigation against me through the media, where stories are planted and reported in sensationalist and false terms. I have not taken issue with this because I recognise that I am a senior politician. But even as I state this, there must be limits to the vilification in this regard.

“In good faith have I sought to engage with the SIU about its investigation. I have specifically indicated that I offer my full cooperation. I repeat the tender herein. Despite my express indication of my intention to cooperate, the SIU has treated me as if I am a recalcitrant witness evading investigation, when the truth is the opposite.

“The SIU has demonstrated particular antipathy towards me. It has sought to invoke draconian tactics and unfairly oppressive measures against me with no justification whatsoever. The SIU’s conduct betrays an abuse of power by the SIU, an ulterior purpose and a patent attempt to use the investigation to cause me political embarrassment,” he said. 

“I am in full support of an investigation into maladministration. As an alumnus of the university, I am deeply concerned about allegations that question the institution’s credibility. This application is not intended to detract the university from fighting against maladministration. The sole aim is to ensure compliance with the rule of law. I have always offered my cooperation with the SIU, had it not been for their desire to humiliate me, which has led to this application.”

President opposes

The application was opposed by Ramaphosa, the SIU and Fort Hare University.

In his affidavit, Ramaphosa argued that Mabuyane’s application should be dismissed for lack of urgency. He further complained that he had very little time to prepare an affidavit to oppose Mabuyane’s legal action. 

“I have literally only one night available to me,” Ramaphosa said.

Before Mabuyane amended his court papers to limit his application’s scope, Ramaphosa stated in his affidavit that many of the issues being investigated at Fort Hare had “nothing to do with him”, adding that Mabuyane was seeking “extraordinarily wide relief”.

“[Mabuyane] acts in his own interest and at no point claimed to be acting in any representative capacity. It ought to have been evident at the very outset that he lacked the locus standi to interdict the entire investigation even over matters which, on his own version, had nothing to do with him,” Ramaphosa stated.

He continued that the investigation “has been ongoing for many months”.

“I should not have been dragged into this urgent application let alone on an extremely urgent basis,” Ramaphosa continued. 

“At best there are merely unsubstantiated factual statements … [referring to Mabuyane’s first founding affidavit] in which the applicant complains that the SIU has extensive powers of investigation including search and seizure.” 

Ramaphosa questioned Mabuyane’s “vague and unsubstantiated allegations” against him and said he could not understand whether the premier was accusing him or the SIU of acting in bad faith.

“I acted in a bona fide and lawful manner. In accordance with the information and recommendations that were placed before me, in accordance with the powers given to me in the SIU Act and in accordance with the Constitution.

“I point out further that I had no information before me to suggest that [Mabuyane] would be involved in any such investigation, when I authorised such investigation and when I signed the related proclamation,” Ramaphosa said.

He explained that he had received a recommendation from the Minister of Justice and Correctional Services, Ronald Lamola, on 24 June 2022 and that this was the basis on which the presidential proclamation setting out the scope of the SIU investigation was drawn up and signed.

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Ramaphosa continued that Mabuyane was wrong in his assertion that tertiary education was a provincial competency and that he, as the premier of the province, should have been consulted.

“The source of funds for a public higher education institution such as Fort Hare is largely from the public. It follows that any malfeasance or corruption with respect to such funds, whether from the state or sourced from the public has the capacity to cause serious harm,” Ramaphosa added. 

He also said his proclamation wasn’t vague. “Quite frankly, I do not understand what [Mabuyane] means in this complaint,” Ramaphosa added.

‘Ongoing public humiliation’

In his papers, Mabuyane continued that he had requested an interview with the SIU when it became clear that he was also included in the investigation as he was “subjected to ongoing public humiliation with regards to my studies with the UFH”.

Mabuyane said that he was never awarded a postgraduate degree by UFH, but after he had indicated his willingness to talk to SIU investigators, he was served with a subpoena.

“This notice was unnecessarily draconian. Given that the SIU had agreed to a meeting, the issuance of a subpoena was oppressive and designed to cause me embarrassment. This is because a failure to comply with the subpoena carries criminal consequences.

“There was absolutely no justification for the SIU to threaten me with criminal consequences as if I had attempted to evade any discussion with them. The sole intention of the subpoena was to create the false impression that I was recalcitrant and unwilling to cooperate,” he said.

“Without any notice to me, some SIU officials hatched and engineered a further strategy to embarrass me. After this very application was launched, they approved an application for a search and seizure warrant against me at my private residence. The very idea of a search and seizure warrant in respect of proceedings that are being challenged in court is itself a constructive contempt of court.

“It manifests extreme bad faith by the SIU, employing tactics reminiscent of the past. My house is entirely irrelevant to the issue being investigated against me. It is apparent that the SIU was seeking these warrants for an ulterior purpose,” Mabuyane said in the papers before court. 

He continued that the SIU did not need to search his house to prove that he never obtained a honours degree from Fort Hare. “I have never ever claimed that I have an honours academic qualification or its equivalence.”

The SIU wants Mabuyane to produce his identity document, a degree certificate, documents to show recognition of prior learning and an original copy of his research proposal.

“I have never refused to produce these documents,” Mabuyane continued in his affidavit.

“I intend to produce these in a lawful investigation. I object to the clandestine, unconstitutional methods of investigation. Even as I contest the jurisdiction of the SIU, I still offer my full cooperation if they respect my constitutional rights to dignity and equality and stop their unlawful conduct,” he added.

Contradictory claims

The vice-chancellor of Fort Hare University, Sakhela Buhlungu, said in an affidavit filed at court that Mabuyane started to review the proclamation but was now challenging its implementation. 

“This is in stark contradiction to what he says in his founding affidavit.”

“Considering the extent of the maladministration of the University and the corruption and theft that followed, the SIU with its resources and far reaching powers can achieve what is necessary, promptly,” Buhlungu said.

“[Mabuyane] effectively says that he was a student who had applied for and was granted admission into the master’s programme with the Faculty of Public Administration,” Buhlungu continued.

“Academic integrity is clearly in the public interest. It is important that the qualifications a university offers and the students who are awarded those qualifications are perceived to be of good quality by them. Their families, community, their future employers and the general public. Unethical or fraudulent practices that compromise the value of a university’s degrees and diplomas are a serious threat to a university’s reputation and to the public good,” he added.

He said that the allegation was that Mabuyane was one of a number of applicants who were admitted to the master’s programme without an honours degree. 

“There is prima facie evidence of Mabuyane’s complicity in having his research proposal for his master’s degree prepared for him by postdoctoral students under the guiding hand of Professor Edwin Ijeoma,” Bulhungu added.

He said Mabuyane “suffers no more prejudice than any other person being investigated, whether by the SIU or the Hawks”. 

“All Mabuyane is required to do at the moment is to provide documents concerning his identity, his academic qualifications in order to determine whether university officials irregularly admitted him for a master’s degree without the requisite qualification,” he said.

“The investigation may reveal that [Mabuyane] is also implicated in a fraudulent process that resulted in him being admitted as a master’s student,” he said.

Buhlungu added that they had evidence that there was “no meaningful input from him” in his research proposal. “All of which is prima facie, [and] constitutes unethical and academic conduct which may be unlawful.”

“There is no malicious plan to cause Mabuyane ‘grave embarrassment’. There is an investigation into whether he was complicit in an unethical process … If there is any embarrassment, Mabuyane brought it on himself by launching this application,” Buhlungu concluded.

The court will rule on 20 June. DM