The Ombud Affair: Wind of Change or a Cross-Fire Hurricane?

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Part 3 – The Ombud Affair: Whistleblowing Ombud, VC/Council ‘Wind of change OR a cross-fire hurricane?

This is the last of three evidence-based narratives that chronicle damaging ‘Affairs’ involving ‘bullying’ during UCT’s Fallist-era. A much longer and more detailed version has been submitted to interested and affected parties.

 A Whistle-blower’s bombshell?

On 9 July 2020, 48 hours before the newly constituted UCT Council was due to meet to elect its leadership, Zetu Makamandela-Mguqulwa dropped a highly damaging institutional ‘bullying bombshell’. She is UCT’s first and only “certified, organizational Ombudsperson”, appointed during the Max Price VC-ship. Without permission from UCT’s Council and despite legal advice to UCT that her actions could cause permanent and irreparable damage to the Vice-Chancellor’s office and to the governance and stability of UCT, the Ombud released her Annual Report for 2019 into the public domain. She described it as a “standard deliverable” and “an honest reflection on my experiences within the reporting period”.

In fact, the Report is ‘non-standard’. Its unprecedented preamble/introduction focuses on an array of specific, serious, work-related and confidential “complaints and accuses individuals of wrongdoing. UCT’s Executive – especially VC Mamokgethi Phakeng – are described as being “combative and violent” and of repeated “bullying” of members of UCT’s community.

History

This contravention of established practice was the culmination of an internecine ‘war’ that began in February when the Ombud submitted a draft of her report to Council Chairperson Sipho Pityana. He referred it to the Registrar, Deputy Chair of Council and the VC for information.

On 2 March, Vice-Chancellor Prof. Mamokgethi Phakeng expressed her “shock” since the Report implicated her personally and her Executive Legotla without giving them an opportunity to respond to its allegations. Phakeng asserted that the Ombudsperson is appointed to act as “a person designated as a neutral or impartial dispute resolution practitioner. Her function is to provide confidential and informal assistance as a counsellor, shuttle diplomat, mediator, fact-finder and agent for orderly systems change”. Therefore, “the tone of the report and the manner in which it was submitted” raised serious “questions about [the Ombud’s] motives” and of “acting outside of her mandate”. Phakeng requested that “the Ombud retract the Report so that “proper process could be followed and confidentiality be ensured”.

Pityana decided not to include the Ombud’s Report in the agenda for the next Council meeting (March 14) and to deal with it in “another way”. This ‘triggered’ the 6 March resignation of Deputy Chair Debbie Budlender. She felt that the decision was a “breach of established practice and a cover-up” attempting to squash the Ombud’s report. Budlender asserted that “nothing and no one, including the executive or the Council, should get in the way of her [the Ombud] fulfilling her accountability duty to Council”.

[NB Budlender was deputy chair [assisting Pityana] of the Institutional Reconciliation and Transformation Commission (IRTC) Steering Committee that created the process leading to the amnesty of recidivist law-breaking Fallist students and the ‘validation’ of the  widely-advertised, highly controversial perception that UCT was and remains “entrenched” and “rife with institutional racism”, “unjust discrimination” and “systematic suppression of black excellence” that needs to be “erased”.

At an pivotal videoed IRTC workshop [not a full meeting of the Steering Committee], Budlender facilitated the incorporation into IRTC Terms of Reference and give credence to the highly controversial ”Alumni’ Framework” – championed by strongly pro-Fallist Lorna Houston (see here and here).]

In short, Budlender complained that, instead of holding VC Phakeng to account for opinions expressed in the unauthorized, evidence-free and unprecedent Report, Pityana had “bowed to her interests”.

On 8 March, VC Phakeng responded to the Ombud’s Report – point by point.

She demonstrated that the Ombud “violated fundamental principles that govern her office” and “precipitated unnecessary tension and crisis”. She called for the report to be withdrawn so that, after thorough investigation, all damaging allegations could be resolved. Nevertheless, the VC indicated that she was open to mediation between her office and the office of the Ombud.

On 13 March, the Ombud reaffirmed that her report followed a “standardised process” set in place during the Price VC-ship. It was an early warning of “organisational concern”, “upward feedback”, “critical analysis of a systemic mood” and a “recommendation for appropriate remedial actions”. Therefore, she dismissed the VC’s demands as “unreasonable”.

In the meantime, Chair Pityana convened a meeting of the external members of Council. They requested that the Ombud make “additional information” available so that matters could be resolved at a special meeting (24 April). The Report would be circulated to Council in advance of that meeting, together with the responses from the VC, the Executive of the University and the Deans, and new information from the Ombud.

The Ombud declined to provide Council with any additional information, insisting that her report contains sufficient information to help the University to deal with “what needs fixing”.

However, in the media, she revealed that:

  1. 37 visitors had complained about the VC. [NB UCT’s Community comprises 29000 students, 5000 staff and ca 170000 alumni spread across >121 countries globally].
  2. Complainants were drawn from “different levels of the university community” – Faculty, PASS Staff, students, and “some externals”.
  3. Most internal complainants expressed “debilitating fear” of the VC, but some only expressed “disappointment and confusion”.
  4. She had recommended that UCT develop “a [new?] policy on the Office of the Ombud” that should explain the service and the requirements for the Ombud Office to do its work and recommend sanctions if complainants who use the services of the Office are “victimised”.
  5. Since she had incorrectly envisaged that a sympathetic VC and Council would support her office, it was now futile for her to help develop such a policy.
  6. Despite multiple meetings with the VC, “none were event free” and “confirmed a near impossible working relationship”.
  7. “Attempts to raise these issues with both the Deputy Chair and the Chair of Council” failed to a suitable outcome”.

On 31 March, UCT’s deputy vice-chancellors (DVCs) and Chief Operating Officer (COO) submitted a “warning” document stating:

“It is our view, based on information we have at our disposal, that the way this matter has been dealt with … presents a major risk to the university. These include at the individual level personal and professional risks; and at the institutional level include legal, reputational and governance risks. We therefore request that, as a matter of urgency, Council formally prescribe the way it intends to deal with this matter both substantively and procedurally.”

On 1 April, the Deans also commented:

“Our collective response is based on our individual interactions with the Ombud. Recently appointed Deans have consulted with their predecessors and drawn on their experiences.” “In general, we all believe that the relationship between the Ombud and the Deans has always been marked by professionalism and cordiality. We appreciate the role of the Office, its independence and oversight and we have generally responded in a timely manner to issues raised by the Ombud. Overall, we agree that the Office of the Ombud provides a valuable service for staff and students. We are particularly mindful that the Office of the Ombud provides a safe and objective place where people can air their concerns, receive referrals, find out about relevant policies and procedures, and discuss formal and informal options for addressing their concerns”.

WRT the Ombud’s key issues:

“Not only do they [the executive] sometimes make decisions or calls of judgement that appear to be unfair.”

“We understand that this is precisely the reason for the role of the Ombud. Despite our best efforts to provide a caring and supportive environment for staff and students, at times our decisions are not able to adequately address the particular situation. We are often expected to make judgement calls, and in some cases, get these wrong. In these cases, the role of the Ombud is very important in providing the space for concerns to be aired and for people to be directed to the appropriate channels. We recognise that the University has a complex system of checks and balances where decisions are taken by various persons, committees and offices with appropriate review or appeal mechanisms to correct and rectify maladministration.”

I have at times worried that the views of the Executive might influence how other members of the University engage with my office

“The Deans can confidently respond that we have not been influenced by the views of the Executive in our interactions with the Ombud. We have engaged with the Ombud’s office individually in a professional and collegial manner. We have not been party to any discussions with the Executive about their views with respect to the Ombud. We also do not know how the Executive has interacted with the Ombud.”

“except for push-back from some Deans, commitment to help deliver fair outcomes across the university is growing…”

We do not have any recollection of “pushing back” in the face of cases that have been brought to our attention. We have engaged with the Ombud in the spirit of mutual respect and cooperation for the advancement of just and fair decision making in the University.”

Final remarks

“We reiterate our commitment to working [with the Ombud] for the advancement of just and fair decision making at UCT. We would like to encourage the Ombud to feel free to raise any concerns her Office may have with any of us directly and, if that does not address the concerns, to our line Manager, then the Vice Chancellor and then Council. This could help to resolve any concerns she has in a timely manner.”

Soon thereafter, UCT’s COO and DVCs clarified:

  1. Although they took no issue with the VC’s response to the content of the report, they maintained that “the full executive team should respond to the report … as part of a process delineated by Council once Council has received and engaged with the Ombud Report”.
  2. It is premature to respond to the Ombud Report since it “deviates from previous reports in a significant way”, which “warrants the need for Council to provide direction on how it wants to deal with it”.

On 8 April, an advocate provided a 72-page MEMORANDUM advising that the Ombud’s Report was “neither impartial nor neutral, had breached confidentiality and exceeded her mandate” and recommended that it “not be served before council, and kept confidential to prevent permanent and irreparable damage to the VC, and to the university”.

More bombshells

On 10 June, in sharp contrast to glowing comments on Phakeng given in March 1918, outgoing Council Chair Pityana retrospectively disclosed “concerns” about VC Phakeng. Pityana said that the VC Selection Committee (chaired by him) and the Senate and Council had – before Phakeng’s appointment – “highlighted [Phakeng’s] leadership and personality shortcomings”. Since then, “her leadership and personality shortcomings have marred and have come to haunt an otherwise colourful, energetic, diligent, passionate, refreshing, impressive and highly respected Vice Chancellor’s tenure.” “Whatever assistance she [Phakeng] might have received from [an appointed] Life Coach, certainly wasn’t having the desired effect”. Moreover, Council was concerned about an apparent undercurrent of tensions “within the senior leadership team which threatened good governance and institutional stability”. There was also a “tendency of the DVCs and the COO to club and caucus positions prior to management engagements”, which could be “divisive, unhealthy and potentially insubordinate”.

The DVCs and COO did not take kindly to Pityana’s conclusions. They wrote in response that Pityana’s use of the word “insubordinate” had been unfortunate and that, as the executive, each was “simply fulfilling their leadership function”.

On 12 June, Council recommended that agreements of cooperation be signed by the VC, each DVC and the COO to ensure that all concerned were “expected to commit to personally make these relationships work for the sustainability of our institution”. Pityana warned that anyone who undermined these undertakings for future co-operation would face “action”.

WRT the Ombud’s unauthorized Report, although Council recognized that the Ombud is “independent”, she reports directly to Council – via its chairperson – which has the “sole authority” to “approve and release annual reports” – regardless of the Ombud’s views and intentions.

Therefore, “after Council had reviewed the full report and ancillary documents for consideration”, it resolved:

  1. to only “note” the controversial first part [preamble/introduction] of the Report “Message from the Ombud” and
  2. authorize the publication of the second part as the “regular” 2019 Annual Report.

The Ombud requested publication of the preamble as an accompanying letter with the report. This request was not granted because it “would be in breach of the decision of Council as stated above”.

Given this apparent ‘final decision’, had all and sundry conducted and settled this dispute in confidence – as is prescribed in UCT rules and regulations – they could have continued to provide good service to UCT’s Community.

Sadly, all and sundry did not follow this strategy.

The ‘media-faeces’ hits the fan

A broad range of ‘newspapers’, ‘journalists’, ‘expert commentators’ and in-house members of the UCT Community used the Ombud’s Report and statements released in the public domain to ‘expose’ or ‘defend’ the various ‘actors’ in what effectively became a ‘reality show’.

 

A new Council takes charge

On 14 July, Babalwa Ngonyama – the first female Chair of Council – took a firm grip on the newly constituted Council’s ‘reins’ – supported by social justice advocate Nazeema Mohamed as Deputy Chair.

She announced that, being a new governing board, the Council resolved to:

“start afresh, to restate its commitment to the mission of our university and to support the members of the university executive in their leadership and management of the university”.

The Council confirmed its “awareness of the many past and more recent successes of the university, and the collective contributions of the Vice-Chancellor and her senior executive team in leading and managing UCT during these extremely demanding times”. Council also indicated its “determination to work in the best interest of UCT being particularly mindful that the statement of values of the university is a framework that will guide its action, and expect that it will similarly continue to apply to all members of the university”.

Chair Ngonyama “noted that the UCT Ombud’s Report had resulted in various reports in the media”. Since the Office of the Ombud is an independent entity reporting directly to Council, the Ombud’s “decision to release her report” for 2019 did not “follow due process” and was “deeply regrettable”. It did not “ensur[e] that the institutional mechanisms to safeguard the integrity of the University’s processes are strengthened with due respect for the principles of administrative justice and protection of the rights of all concerned”.

Furthermore, although “UCT is rooted in wider society” and “UCT’s scholars are widely acknowledged for the societal value in their work”, “[t]here will, however, be occasions when matters affecting UCT and members of its community are not appropriate for public discourse”. “In such instances Council will continue to ensure that these are attended to through the appropriate internal mechanisms of the university and will therefore not comment publicly.”

On 11 July, the Ombud made her position crystal clear in a media report:

“If my report is anything to go by, they [Phakeng and her Legotla] have failed me. It was working well in the past, well in a sense there have always been some disagreements, but we found ways to resolve them internally during the leadership of former vice-chancellor Dr Max Price”.

“Negative remarks from the VC about my office concern me. I wonder how these views might impact the university’s capacity to deliver on fair outcomes where her office is involved as well as potential watering down of my effectiveness and the gains of the office over the years”.

In another media report (13 July) “several sources at UCT” surmised that there is “a powerful faction [including the Ombud] within management” that has “an axe to grind with the VC”. “The ombud has turned [her] office into a complainant and judge in her own cause.” The faction also includes some members of the “previous university Council aligned to the Democratic Alliance (DA), the City of Cape Town and the Premier’s Office”. They object to her “autocratic management and leadership style” that has “silenced professionals on campus and destroyed careers” and “fear her transformation agenda” that has been “dumbing down standards at one of the top-rated universities in the world”. Their goal is “to remove Phakeng from her VC post” “before her term ends in the next two years”. ‘Evidence’ of the VC’s ‘dangerous’ policy is that UCT had filled “10 vacancies in the 23-member Leadership Lekgotla” with “black Africans”.

No mention is made of any less-than-stellar qualifications, achievements, capability and experience of these “black African” appointees.

On 14 July, the Ombud denied involvement with a “white racist plot” with “knives out” for the VC. Nevertheless, even though she was an “impartial dispute resolution practitioner” whose job was “to recommend procedural changes within the university” she would” not be forced to sweep the truth under a rug”. Her evolved “mandate” since she “assumed this position” was “to challenge the highest powers, if need be”, “hold a mirror to the institution” and “fix what’s not quite working”. She now also criticized Pityana because: “Instead of heeding the Report, Sipho sought legal advice to weigh up the risk of releasing the Report”, joining the VC “to stop me from reporting that which is my standard deliverable”.

“Black people should not protect each other like that”.

Given Pityana’s last-minute retrospective criticisms of Phakeng’s “leadership style”, it seems unlikely that the outgoing Council Chair was ‘protecting’ anyone – other than himself.

On 15 July, Makamandela-Mguqulwa, told Daily Maverick that she had been “inundated [via e-mail] with more corroborating complaints about the vice-chancellor’s leadership style”.

There is no record or even a summary of this ‘e-mail vote’.

On 20 July, the UCT Executive issued a collective statement vis-à-vis the Ombud’s Report.

“Dear colleagues and students

You would no doubt have taken note of the articles in the media recently relating to the Ombud’s Report to Council, the executive team and the relationships within, as well as Council’s engagement on these.

We acknowledge that there have been tensions in the executive, much of it has been resolved and we remain committed to working as a team. The interest of the university is at the centre of what we do, and we are focused on ensuring that the University of Cape Town (UCT) continues to succeed. Leading a university like UCT is a complex, challenging and exhilarating experience. Whilst there might be differences of opinion and personal complexities from time to time, we are, as a team, totally committed to leading this university in the best way possible. We are united around this goal in our daily work and are determined to continue to lead this university to an exciting and thriving future.”

Professor Mamokgethi Phakeng – Vice-Chancellor

Professor Loretta Feris – Deputy Vice-Chancellor: Transformation

Professor Sue Harrison – Deputy Vice-Chancellor: Research and Internationalisation

Associate Professor Lis Lange – Deputy Vice-Chancellor: Teaching and Learning

Dr Reno Morar – Chief Operating Officer

On 21 July, Chair Ngonyama stressed that, under the Phakeng’s leadership:

  1. UCT had become “the leading African university in all the five major world university rankings for the first time”;
  2. despite ‘inheriting’ many “vacant deanship positions” – one of which resulted from Professor Bongani Mayosi’s tragic suicide soon after her appointment – UCT had, for the first time, eight black deans; and
  3. UCT had developed a new “clear vision” during “a time of great change”.

Despite this leadership ‘hospital pass’, Phakeng had “skilfully steered the institution to more stability particularly in terms of student unrest” and effected meaningful transformation “while prioritising excellence”. This assessment was indicative of the new Council’s “tone and vision” – to “protect the integrity of the university’s governance processes without fear or favour”.

WRT the Ombud, Ngonyama confirmed that:

  1. Council respected her independence;
  2. she had engaged with Makamandela-Mguqulwa vis-à-vis her Report; and
  3. “dedicated attention” would be paid to “all the matters raised in the report” while “enhancing the university’s governance and institutional culture”.

However, although “Council welcomes scrutiny by the media”, “leaking confidential matters not only compromises the ability of council to do its work but also damages the university”. Despite the leaking of the Report, Ngonyama “assure[d] the university community that as council we are committed to giving dedicated attention to all the matters raised in the report.” This would be done “without singling out particular individuals”, emphasizing that “UCT’s values are based upon respect for the dignity of all its members [my emphasis]. Any conduct by any member of the university that undermines these values is unacceptable”.

Reinforcing this commitment, Ngonyama said she had “engaged with the Office of the Ombud and we’re committed to work together to move the university forward in a unified way, especially around enhancing the university’s governance and institutional culture”. More specifically, Council and the Office of the Ombud have committed to:

  1. expediting the adoption of an overall bullying policy referred to in the report;
  2. strengthening the governance of the Office of the Ombud;
  3. establish more robust reporting mechanisms to Council;
  4. consult with the university community on the best ways to institutionalise the reports of the Office of the Ombud to ensure that the executive, deans and heads of department engage more formally with these reports;
  5. institute with immediate effect monthly meetings between the Chair of the Council and the Office of the Ombud;
  6. provide for the Office of the Ombud to report to Council on a six-monthly basis instead of annually; and
  7. ensure that recommendations made by the Office of the Ombud are timeously and practically followed up and given the necessary attention.”

“Despite the fact that the Ombud’s report as released was regrettable, it was further agreed to implement appropriate mechanisms to deal with the complaints and allegations made to the Office of the Ombud in order to respect the rights of all [my emphasis] the parties concerned, especially the visitors who entrusted the Ombud with their complaints. This requires exploring the best approaches to rebuilding the relationship between the Office of the Vice-Chancellor and the Office of the Ombud, ensuring mutual respect for both offices.”

“Council thus reaffirms its commitment to good governance to create an environment conducive for all our stakeholders to be able to maximise their potential in pursuit of our shared vision. We will build on what we have done well in the past and have the courage and honesty to improve on areas where we fell short.”

“Council always strives to be as transparent as possible to ensure the integrity of its processes. Council welcomes scrutiny by the media but leaking confidential matters not only compromises the ability of Council to do its work but also damages the university.”

Failed reconciliation and suspension

Chair Ngonyama and Deputy-Chair Mohamed made several attempts to engage with Makamandela-Mguqulwa vis-à-vis “mending” her relationship with Council and the Executive to regain mutual respect between them.

They failed.

On 18 August, Ngonyama circulated a letter to Council members describing Makamandela-Mguqulwa of acting as if her Office were a “law unto itself”. More specifically, Ngonyama stated:

“In my view, it [the ‘Ombud Affair’] has reached a point now where the council has to take a firm position on this matter. We cannot allow this situation to continue where the ombud believes that she is above council. This would be a very dangerous precedent to set.”

On August 24, again via the media, the Ombud remonstrated with Council, citing further interference in her role after Ngonyama sent UCT constitutional law expert Prof. Pierre de Vos to talk to her about her office, its function and relationships. More specifically the Ombud wrote:

“Our focus and priorities are seemingly vastly different. You have a list of steps to tick for the public statements while I have real issues to deal with for my visitors. I am sorry, but it is not your role to dictate priorities for my office, whose work you do not even know or care about. Your statements, observations and directives have demonstrated clearly that you do not understand the nature or the role of my office. No Chairperson has ever done what you are doing. This may be related to how they had taken time to understand my office, its mandate, the Terms of Reference and it falls outside of the university organogram. Surely you cannot think that I am waiting on instructions from you with absolutely no other work to complete. Your “boss” attitude is not suitable for my office and may well work for you in other areas, but I do not appreciate it.”

On 28 September, UCT Registrar Royston Pillay served Makamandela-Mguqulwa with a notice of “precautionary suspension” “on full pay”, pending the outcome of an investigation into her alleged misconduct. This decision is in accordance with terms of UCT policy and process.

Makamandela-Mguqulwa is “seeking legal advice”.

New developments on this Affair will be outlined in a ‘postscript’.

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Next articleThe Ombud Affair: A Poscript
Professor Tim Crowe is a descendant of oppressed Irish freedom-fighters from the United States working class. He is a first generation university graduate, non-settler immigrant alumnus, Elected Fellow and emeritus (40 years’ service) professor at the University of Cape Town. He is a Ph.D.-educated expert on evolutionary biology (covering everything from ‘race’ to deeply rooted evolutionary trees) and conservation biology (especially regarding sustainable and economically viable use of wildlife). He has published nearly 300 peer-reviewed scientific papers/books and is regarded as the world’s leading authority on game birds (chickens, turkeys, guinea fowls, etc.). About 70 of his graduated students have published their research and established themselves in their own right, including four professors.