MY IM­AGE

‘I did not have sex with that woman’, claims Venda professor six years af­ter failed charges

CityPress - - News - SIZWE SAMA YENDE sizwe.yende@city­press.co.za

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.

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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