On Tuesday afternoon, the lawyers of the Special Investigating Unit (SIU) had a meeting to discuss the ruling by the Bhisho High Court compelling them to provisionally exclude Eastern Cape Premier Oscar Mabuyane from their probe into irregularities at Fort Hare University.

“This has never happened before,” SIU spokesperson Kaizer Kganyago said. “We must discuss what to do.”

It is the first time in the history of the SIU that one of its investigations has been interdicted. In a statement issued later on Tuesday, the SIU indicated that it was encouraged by the judge’s suggestion that it can ask for the proclamation to be amended.

Kganyago stressed that the interdict was temporary and would remain in place only until Mabuyane’s review application has been ruled on.

In terms of the rules of the court, a provisional interdict, like the one that was issued by the Bhisho High Court, cannot be appealed against. 

The interdict that excludes Mabuyane from being investigated in the SIU’s probe will remain in place until a court has ruled on a number of legal problems that the premier’s lawyers have raised regarding a proclamation signed by President Cyril Ramaphosa in 2022.

Ramaphosa said in his affidavit that the proclamation was based on a memorandum that had been provided to him by the minister of justice and correctional services, Ronald Lamola.

Read more in Daily Maverick: Eastern Cape premier Oscar Mabuyane wins interdict forcing SIU to back down, pending judicial review

The interdict was brought on an extremely urgent basis after the SIU issued a subpoena for Mabuyane to produce documentation relating to his academic relationship with the university.

Mabuyane indicated that while he didn’t mind handing over these documents, he regarded the investigation as unlawful as the SIU was “trying to extend the ambit of the proclamation to include the master’s programme”.

In a statement issued by provincial government communicators on Tuesday, Mabuyane said he welcomed the court’s decision and “was looking forward” to the adjudication of the next part of the case.

Evidence of maladministration

In her summary of the evidence, Judge Thandi Norman said the SIU had found evidence of maladministration in the university’s master’s programme, specifically that non-qualifying students had been admitted to the programme.

“It also found evidence that prima facie showed that a team of university officials and researchers produced a thesis on behalf of [Mabuyane] who was pursuing a master’s and doctorate qualifications at the relevant time without having been awarded an honours degree or its equivalent,” Norman said.

“It also appeared to the SIU that Mabuyane was irregularly registered and admitted for a master’s degree without satisfying the prerequisite of having an honours degree. It further appeared that the applicant was already enrolled for a PhD degree at the time he registered for his master’s degree,” she added. 

Opposition parties in Eastern Cape have made repeated calls for Mabuyane to resign over this issue.

Read more in Daily Maverick: Eastern Cape Premier Oscar Mabuyane asks court to exclude him from ‘malicious’ SIU Fort Hare probe

But if the aim of Mabuyane’s intervention was to prevent his inclusion in the ongoing criminal investigations at the university, this interdict was not the way to go. The interdict binds the SIU but none of the other law enforcement agencies or the National Prosecuting Agency.

In its papers, the SIU said it had found prima facie evidence of fraud, forgery and uttering relating to Mabuyane’s enrolment in the academic programme. 

“We don’t deal with criminal investigations,” Kganyago said. “If we find any evidence of criminal activity we refer the National Prosecuting Authority who will have it investigated.”

The Hawks have arrested Mabuyane’s supervisor, Professor Edwin Ijeoma, for academic fraud. Mabuyane has admitted that he did not have an honours degree and was deregistered from the master’s programme.

Documents requested by the SIU included ones that Mabuyane would have used to register for the master’s programme and these would include any recognition of prior learning. Mabuyane also relied on an affidavit from Ijeoma to obtain the current interdict.

In his affidavit before the court, Fort Hare’s vice-chancellor, Professor Sakhela Buhlungu, said the SIU should probe all academic fraud at the university.

But Judge Norman said the proclamation signed by Ramaphosa was not worded in a way that would allow for the master’s degree programme to be included in the probe.

“The proclamation clearly specified that it would apply to the award of honours degrees only.”

She added that there was nothing preventing the SIU from asking the Fort Hare proclamation to be amended to include the master’s degree programme.

“Looking at the proclamation objectively, there are prospects that the review court may set aside the decision of the SIU to include the master’s programme and its investigations without the authority of the President,” she added.

Mabuyane has consistently denied any wrongdoing in relation to his studies at the university. DM