Cleanse my image

2017-04-23 06:00
Professor Peter Mbati. PHOTO: Sowetan

Professor Peter Mbati. PHOTO: Sowetan

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The vice-chancellor of the University of Venda, Professor Peter Mbati, has asked the Thohoyandou High Court to expunge two reports that suggested he had “an extramarital affair” with a staff member.

Mbati’s complaint is that mediator Lavery Modise’s report claimed he admitted to having had “consensual sex” with the former dean of the School of Education, Professor Thidziambi Phendla, over a period of nine months.

He feared the claim could destroy his marriage. He has asked the court to review and set aside a report that was commissioned by his own institution’s council. It found him to have behaved improperly with a former colleague, according to court papers.

When faced with allegations that Mbati had sexually harassed Phendla six years ago, the university commissioned Modise to mediate between the two academics in 2011, but the discussion became deadlocked. Phendla also complained to the Commission for Gender Equality about sexual harassment. The complaint was ultimately unsuccessful.

While the commission’s initial report was scathing on Mbati, a Johannesburg High Court order on May 30 last year excised some of the commission’s findings, but compelled the university to again invoke a formal inquiry in terms of its sexual harassment policy.

The university again asked Modise to assess and compile a second report, which exonerated Mbati last year.

City Press has seen Mbati’s affidavit filed in the Thohoyandou High Court. He wants the court to expunge critical aspects of the 2011 report and then review and set aside Modise’s second report, dated June 24, and declare it to be null and void.

The sting in Modise’s second mediation report is that Modise wrote that Mbati had “admitted to having had consensual sex” with Phendla.

Modise said: “Mbati initially denied ever having had sexual intercourse with Phendla. However, when I presented him with the difficulty I have with his denial, based on Phendla’s graphic description of his house contents and, particularly, the setting of his bedroom and certain parts of his anatomy, and, to his credit, Mbati admitted he had indeed had a sexual relationship with Phendla and that, because of the nature of their relationship, Phendla expected him to turn a blind eye to her acts of misconduct.”

However, Mbati has argued in court papers that Modise was not appointed to investigate the legitimacy or otherwise of Phendla’s complaint.

“He [Modise] was solely appointed as a mediator to assist the parties to resolve their dispute. He was not expected to be inquisitorial or investigative. It was solely intended to assist the parties to talk and attempt to resolve the dispute. He was more like a conciliator and/or facilitator,” Mbati said.

“In view of the nature of the dispute, it was inherently expected that confidential information may be shared with the mediator, but participants were equally expecting professional or ethical conduct on the part of the mediator that such information would end with him only without disclosing same to the other side or making any inference or opinion in that regard.

“He was not entitled to make any opinion or express a view on the matter as he has done in the [2016] report,” Mbati’s court papers read.

Mbati further said that Modise should have simply given a report stating that the dispute remained unresolved.

“After all, the information he got was never tested in cross-examination. His purported views amount to biased opinion based on nothing,” he charged.

“Extramarital affair”

The professor also asked the court to expunge from Modise’s 2011 report a paragraph that makes a subtle reference to the alleged “extramarital affair” that reads: “Be that as it may, having had the opportunity to consult broadly with Mbati and Phendla, I do have a view on the legitimacy or otherwise of Phendla’s complaint.”

Mbati also accused the university council, through its lawyers, of having given a “wrong and/or incorrect” instruction to Modise on June 14 when they demanded he conduct and submit the second report that “will provide your assessment of the allegations of sexual harassment by Professor Phendla; and provide recommendations, if any, to the council on how to deal with the matter going forward”.

“During my consultation with Phendla, she provided me with a 49-page document containing itemised calls and text messages exchanged between her and Mbati,” Modise’s report reads.

“I am satisfied that Phendla and Mbati had a consensual sexual relationship, which took place over a period of no less than nine months. In light of the above, I accordingly find that there is no basis for Phendla’s complaint that Mbati sexually harassed her,” the report concluded.

Phendla’s document also showed that she and Mbati had exchanged telephone and text messages between May 1 2008 and March 28 2009.

“Tellingly, most of the telephone calls and text messages were made between 3pm and 12.47am,” Modise said.

Though Modise cleared Mbati of a sexual harassment charge, the vice-chancellor is still not happy.

In his court bid he declared: “I never admitted to any sexual relationship with [Phendla].”

This is despite his saying in the same court papers that he may have told Modise things that were not meant to be included in his report.

“I will suffer severe injury, hardship and prejudice if this application is not granted. My social standing ... will be compromised. My family will disintegrate due to the false allegation of sexual relationship outside marriage,” Mbati pleaded in court papers.

Modise is not opposing Mbati’s application, but he filed an explanatory affidavit to help the court have a full understanding of the matter.

In his court papers, Modise said he issued the second report after having sought clarification from the university, which asked him to specifically provide his assessment of the allegations of sexual harassment, and that he should provide recommendations based on his assessment.

On Mbati’s claims that the court order last year was clear that the university should call for the mediator’s report, Modise said Mbati wanted the Thohoyandou High Court to second-guess an order of the Johannesburg High Court on the mediator’s report.

“I humbly and respectfully believe that he should have approached the court that made the order to clarify paragraph 3 [whether a new mediator’s report was required or not] of its order.”

Modise denied that his investigation was inquisitorial, that he disclosed confidential information to anyone or expressed views that amounted to bias based on nothing.

He further dismissed Mbati’s claims as being “argumentative, repetitive and specious, and, accordingly, do not in any way advance his case”.

“There is no factual basis for him to make such a bold and unsubstantiated allegation. Mbati has failed to take the court into his confidence by referring to the opinion or view that he alleges I expressed in the report,” Modise responded.

Phendla told City Press that she had no money to challenge Mbati’s application, but was surprised he was objecting after six years.

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