OUTA won’t retract report on leaked NSFAS recordings implicating Ernest Khosa

Contrary to what Khosa claims, there was no duty on OUTA to consult him before releasing the report or laying criminal complaints against him. It is now up to law enforcement to investigate the matter.

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07/02/2024 08:00:36

Image: Facebook/NSFAS

OUTA won’t retract report on leaked NSFAS recordings implicating Ernest Khosa

The Organisation Undoing Tax Abuse (OUTA) will not retract its report on leaked voice recordings implicating the Minister of Higher Education, Dr Blade Nzimande, and the chairperson of the National Student Financial Aid Scheme (NSFAS), Ernest Khosa, in corruption. 

The report was made public on 4 January 2024. The NSFAS board announced one week later, on 11 January, that Khosa had voluntarily tabled a notice of 30 days’ leave of absence to allow for an investigation into the matter. The board undertook to appoint an independent legal firm to investigate the veracity of the allegations against Khosa and submit its findings within 30 days of its appointment. It is unclear whether such an investigation is indeed underway, or which law firm was appointed to investigate the matter.

OUTA responded to a letter received on Friday 2 February 2024 from Khosa’s legal representative, Ian Levitt Attorneys, which demands the retraction of the report and removing it from OUTA’s website and social media platforms by 6pm on Tuesday 2 February.  

The letter also states that “no effort was made to afford him (Khosa) an opportunity to comment on the findings” in the report. It claims that Khosa should have been afforded a “reasonable opportunity” to comment on the report and furnish OUTA with “countervailing information and/or evidence to disprove the findings made about him”. Failing to do so, “is unlawful and constitutes a violation of our client’s right to dignity,” and also “disregards the fundamental principles of fairness and our client’s basic entitlement to be heard”.

However, OUTA says there is no duty on it as a civil activist organisation to approach government, a private- or state-owned entity or individual, before preparing or publishing a report of this nature. “We scrutinised the recorded conversations between Khosa and individuals closely linked to Coinvest Africa (Pty) Ltd, a service provider contracted by NSFAS for the direct payments of allowances to NSFAS. Then we drafted a report, which we used to lay a complaint with law enforcement and other oversight bodies,” says Advocate Stefanie Fick, Executive Director of OUTA’s Accountability Division.

 “We also shared the report and recordings with law enforcement authorities, since it’s their duty to conduct a fair criminal investigation into the tender processes at NSFAS.”

Fick says OUTA was under no obligation to ask the implicated parties to comment before filing a criminal complaint and publishing the information. This is a matter of strong public interest, backed up with evidence, against powerful people who may have tried to block the complaint and publication of it.

Responding to Khosa’s demand that OUTA should give a written undertaking that they will “refrain from presenting the report of facts on any platform, including mainstream media and social media”, Fick says OUTA is unable to do so. “The report was part of a criminal complaint, and it is already with law enforcement agencies.” 

In reaction to Khosa’s demand that he should be provided with an opportunity to provide OUTA with “countervailing facts and/or evidence” in response to the findings in the report, Fick says OUTA is willing to meet with Khosa on mutually accepted terms. “If he is willing to share more facts or evidence, we will definitely listen and evaluate the information.  That said, we would be obliged to share all evidence and/ or information with law enforcement since a criminal investigation into the matter is already underway.” 

In response to Khosa’s threat of instituting legal action and claiming “pecuniary and/or constitutional damages” from OUTA should his demands not be met, Fick says OUTA can’t stop him from litigating. “However, we don’t see a basis for a legal claim. But in the event that it happens, we will vigorously defend any and all claims.”

More information

A soundclip with comment by OUTA Executive Director Advocate Stefanie Fick is here.

OUTA’s report on the NSFAS recordings can be found here: main reportannexure A (report on the Services SETA), annexure B (preliminary report on NSFAS), annexure C (report on SSETA and Star Sign and Print), annexure D (report on SSETA and Five Star) and annexure E (report on NSFAS direct payment contracts).

Key extracts from the leaked recordings are here: meeting one and meeting two.

The full recordings are here: meeting one and meeting two.

More on OUTA's work on NSFAS is here and on the Services SETA is here.

More on the criminal charges against Andile Nongogo is here.

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