By Jovial Rantao and Moshoeshoe Monare
Kader Asmal, the minister of education, has drawn sharp criticism for his dealings with the management of the University of South Africa.
In confidential correspondence with Asmal, Unisa stopped short of calling him a liar, but says he misinterpreted the findings of the auditor-general's report into the financial affairs of the Unisa council.
The auditor-general found that the Unisa remuneration committee had no powers to decide what council members should earn and suggested recovery of some monies.
Asmal later held a press conference and made allegations of fraud and criminal conduct against council members.
The Unisa council and management say Asmal made the allegations without substantiation. Unisa says the auditor-general's report did not make any of the allegations attributed to it by Asmal.
"The report consistently refers to 'non-compliance' with stated council policy. There is no finding of theft or unjust enrichment. The ministry may have come to its own deductions, but it is not entitled to attribute these to the report of the auditor-general," the confidential letter, which was leaked to The Sunday Independent, says.
Unisa took the minister to court to stop him from merging the institution with Technikon SA and the distance education arm of Vista University. Unisa is arguing that Asmal's actions were unlawful and carried out with unreasonable haste.
Lawyers for Unisa have accused Asmal of abusing his powers by exercising the law in a manner in which it was not intended. They say he used the law to get rid of the council and that he unilaterally and unlawfully gave the new institution a name, the Open Learning University of South Africa.
Unisa contends that the Higher Education Act does not give the minister the power to decide the date on which the merged institution will come into existence or to name it.
The institution also argues that the minister took the first step towards the merger - by disbanding the Unisa council and appointing an interim council - without taking practical steps such as establishing an administration structure and a physical address for the new institution.
The university also accused Asmal of the intention to violate South African labour laws by going ahead with the merger without any consultation with employees and trade unions.
Attempts by The Sunday Independent to obtain a copy of the disputed auditor-general's report drew a blank. Francisca Durant, of the auditor-general's office, said the report was a special audit commissioned by the department of education. "It is therefore a confidential document and only the department can authorise its release," Durant said.
Nasima Badsha, deputy director-general in the department, said she did not have the authority to release the report and "it is up to the minister to do so".
Molatwane Likhethe, Asmal's spokesperson, said the department would not release the report as they were still studying Unisa's response.
On complaints that Asmal applied the law to suit himself, Likhethe said: "We have followed the requirements of the Higher Education Act and what is required of us in terms of the merger."
On the complaint that Asmal did not consult on the name of the new institution, she said: "Should there be any concern from the interim council or the final council about the name, the minister will consider recommendations from them."
She said the physical address of the new institution was contained in the government gazette of January 4. The address is the same as that of Unisa and Technikon SA.
Regarding complaints that Asmal violated labour laws by not consulting staff, Likhethe said: "The new institution is declared in terms of a gazette notice and, as a result, all the labour relations issues were considered."
In other developments, according to documents filed in the Pretoria high court, Asmal had asked Unisa to confer an honorary doctorate on him, but the university held the application in abeyance because he was a sitting cabinet minister responsible for education.
Some university officials believe that this, and the fact that the minister has not been invited on an official visit to Unisa, is what has led to the animosity, especially between Asmal and McCaps Motimele, the chairperson of the Unisa council.
Nasima Badsha, a deputy director-general in the department of education, denied this, saying the minister had only told the council that it would had been nice for him to have received a degree in an open ceremony.
"This was within a context that the minister told the council that he was not able to get his junior degree because of the (racial) segregation that characterised the Unisa graduation ceremony then.
"I am not aware of any correspondence between the minister and Unisa about the issue (of an honorary degree)," Badsha said.
President Thabo Mbeki is believed to be concerned about the fight between Asmal and Unisa and has encouraged an out-of-court settlement.
The Sunday Independent has been told that Mbeki discussed the situation when he bumped into Barney Pityana, the principal of Unisa, recently. The president then called Asmal to express his wish for an amicable resolution, our sources said.
The minister later announced that he had postponed the merger until April 1.
Unisa's lawyers said the postponement did not address the substantial issues raised by the university.
"By April 1, the working group will not have finished a proposed structure for the new institution, particularly in relation to Technikon SA," said lawyer Joe Nelane.
"And what about the new students? Which institution will they be applying to? What about staff? What does the future hold for them?"
"Ideally the minister must withdraw the gazette, disband the interim council and give the working group a chance to work out crucial aspects of the merger."
The acrimony started to move towards a climax on November 28 last year, when the minister wrote to Unisa indicating his intention to fast-track the merger with Technikon SA and Vista. Somehow this letter did not reach the council, chaired by Motimele.
On December 13, the council was due to meet with Asmal but declined because there was no agenda.
The council wrote to Asmal questioning the speed with which he wanted the merger implemented and asked why a working group to facilitate the merger, chaired by Professor Franklin Sonn, was disbanded.
Asmal acknowledged Unisa's correspondence but did not address the concerns raised. Unisa then sought legal advice and brought an interdict against the minister.
The minister has until Tuesday to file replying affidavits and the matter is set down to be heard on January 22. Indications are, however, that an out-of-court settlement will be negotiated.
The fight between Asmal and Unisa started after a meeting on July 18 last year during which Asmal gave the 33-member university council a tongue-lashing, telling them they that were paid too much and had too many meetings. He also said they should not replace the then-vice chancellor Professor Anton Melck.
The Unisa council, led at the meeting by Motimele and Brigalia Bam, the deputy chairperson, wrote back saying Asmal could not order them to do certain things because they were an autonomous institution, protested about the manner in which they had been treated, and demanded an apology.
Asmal replied, saying the memorandum "contained a number of inaccuracies and distortions".
The council also declared their intention to hire a vice-chancellor to replace Melck, who was retiring.
The new vice-chancellor, the council said, would navigate the merger as directed by government policy and led by the minister. Asmal then threatened to withhold the university's R40 million subsidy. Unisa threatened to go to court and the subsidy was released. Lawyers for Unisa said it became clear at this stage that the merger would be used to remove the Unisa council.