Higher Education Amendment Bill: discussion

Basic Education

18 September 2000
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Meeting report

EDUCATION PORTFOLIO COMMITTEE
19 September 2000
HIGHER EDUCATION AMENDMENT BILL: DELIBERATIONS

Relevant Submissions
Higher Education Amendment Bill
ANC Proposed Amendments to the Bill (Appendix 1)
NNP Proposed Amendments to the Bill (Appendix 2)
Amendments agreed to at this meeting (Appendix 3)

Summary
the committee went through the Higher Education Amendment Bill clause by clause. The Democratic Alliance noted that higher education institutions were concerned that the provisions in the Bill take away from their institutional autonomy and might even be unconstitutional. Universities that are not mismanaged and who have a good track record should not be restricted by the provisions in the Bill. They disagreed with the unlimited discretion and overreaching powers given to the Minister.

The Department indicated that the state law advisors had found no problems concerning constitutionality.

Minister Asmal stated that allowing the Minister to oversee the scope and rendering of operations would not interfere with what is actually being taught at higher education institutions. These provisions could possibly be reviewed in a few years' time but they are currently vital to the entire issue of revising the system of higher education.

The Minister made an earnest plea that this Bill be passed and reminded the Committee that it could be reviewed in a few years time. He asked Committee members to understand that the national interests involved should be the only criteria under discussion. The Bill will be formally considered on Tuesday, September 26, 2000.

MINUTES
The Chair read the motion of desirability and it was accepted.

Adv Gaum (NNP) requested some discussion of the actual definition of "higher education institution". He asked that it be reconsidered in order to cater for a number of variable situations which exist in the private higher education domain (as proposed by the Alliance of Private Providers of Education, Training and Development). Prof Ripinga (ANC) suggested that Adv Gaum should have requested this earlier. Mr Boshoff of the Department addressed Adv Gaum's concern by stating that in Clause 1 they have added a definition for "to provide higher education" where they are trying to define provider and qualifications. The reason for this derives from concerns regarding the current institutions set up as tuition centres as they do not meet all of the fundamental qualifications of a higher education institution. The Chair commented that he did not want to enter further discussion on the issue and the issue was closed.

Clause 1 Amendment of section 1 of Act 101 of 1997
Adv Gaum proposed that section (a)(ii) "Companies Act, 1973 (Act No. 61 of 1973) be deleted. Additionally, he proposed in section (b) that "in terms of the Companies Act, 1973 (Act. No. 61 of 1973)" also be deleted. He commented that this stipulation was "a bit rigid" because it does not make room for other juristic persons. It should be enough to state "local juristic person".

Prof Ripinga commented that the ANC would support this clause including the reference to the Companies Act, 1973. He asked the Department to clarify this reference to the other parties concerned.

Minister Asmal stated that this reference clarifies that institutions are also businesses/companies and can therefore be sued. This reference is a way to cover these institutions. He stated that the feeling is that this requirement is a minimal one and is a basic safety provision.

Clause 2 Amendment of section 3 of Act 101 of 1997
The ANC proposed that in line 20, after "operations" that "including the size and institutional configuration," be omitted as this was already covered in the Bill.

Adv Gaum stated that he still had a problem with the clause as it gives too much power to the Minister. He proposed that the entire clause be deleted or that it should expressly provide for criteria upon which this power may be exercised, its limits and invocation. A fair hearing for the affected private education provider should also be provided for.

Prof Ripinga suggested that Adv Gaum read these clauses within the proper context and understand that the Minister is the one who determines policies.

A committee member asked whether or not the Minister is still required to take the views of the Council on Higher Education and if so, is it during or after consultation with them?

The Chair said that that goes without saying. He said it is so structured that any policy issues go through the Council on Higher Education.

Minister Asmal responded that, effectively, it is after consultation.

Mr Aucamp (AEB) commented that he too had a problem with this clause because it seemingly gives the Minister "absolute carte blanche." He said it gives quite a bit of ministerial control on matters that should be handled within the University itself. He agreed that there should be some control, but he felt as though it could be done better and that it should be discussed further.

Minister Asmal replied that there is a current problem of satellite institutions that are set up far away from the principal campuses for Black students who are attending White institutions. There are funding implications as well. Minister Asmal commented that allowing the Minister to oversee the scope and rendering of operations would not interfere with what is actually being taught at these institutions. One cannot pass legislation for every single matter that may arise, thus this Bill must be reviewed on a wider scale. It is a National Plan and will allow the whole community of education to be involved. He noted that private higher education institutions are only interested in "cherry picking." Specifically, they only want to offer certain disciplines such as MBAs or Technology degrees. This clause will make it possible for the Minister to review the range of operations of these institutions, which is very necessary. He added that this clause could possibly be reviewed in one yea's timer, but it is currently vital to the entire issue of revising the system of higher education.

Adv Gaum said that the problem he has is that there are no clear criteria by which the Minister can be tested. He said this may be unconstitutional. He noted that higher education institutions were concerned that this clause takes away from their institutional autonomy and quoted one as saying this is "draconian" in nature. He emphasised that either criteria needed to be added or this clause should be removed.

Mr van den Heever (ANC) said that it sounded as if Adv Gaum was trying to make this a political issue. He stated that there is no ministerial decree and that it is not "draconian" in nature. He asked the Committee to decide if they really wanted to look at this as a matter of educational concern or did they want to discuss it as a matter of politics.

Mr Boshoff addressed the constitutionality concern. The Department had discussed this issue with state law advisors and other legal committees, including representatives of some of the higher education institutions and organizations, and no issues concerning constitutionality were found. This clause was found to be acceptable by them, so this concern was very contradictory to what had been discussed.

Mr Aucamp pleaded with the Committee that reasonable discussion must be had without regard to politics. He asked if it was possible to achieve some goals with open discussion as was done with former President Mandela.

Prof Ripinga asked for clarification from "the other side" of what these criteria are that they are requesting. He noted that neither Adv Gaum nor Mr Aucamp has given any specific criteria to put in the place of the clause they wanted deleted.

The Chair interjected and said enough time had been spent on this discussion.

Adv Gaum clarified for Mr van den Heever that his earlier use of the word "draconian" was a quote from one of the public submissions and was not his own view.

The Minister stated that these amendments are necessary because it is unlikely that another chance exists to ensure that those higher education institutions are fit for all. This is a chance for us to ensure that our higher education institutions come up to speed. He emphasized that this was not just a "homeland" problem, but it includes all higher institutions. He made an earnest plea that this Bill be passed and he reminded the Committee that it could be reviewed in a few years time. He asked Committee members to understand that the national interests involved should be the only criteria under discussion.

Before the Minister left the meeting, he was asked by Mr Aucamp if he was against all satellite institutions. The Minister replied that he was not against them all. However, he was against those that are antisocial and those that do not integrate.

Clause 3 Amendment of Section 3 of Act 101 of 1997
No comment was made on this clause.

Clause 4 Amendment of section 40 of Act 101 of 1997
Mr Aucamp commented that if a university meets certain standards than they should be exempted from this clause. If they have a good track record and have proven themselves than they should not be penalized by this clause. This could limit these institutions from doing good things.

The Chair noted that Mr Aucamp's concerns were covered in the second half of Clause 4. However, Mr Aucamp disagreed that this issue was covered.

Adv Gaum agreed with the ANC's proposed amendments which were to omit the word "full" in the subclauses of Clause 4: "a public higher education institution may only with a resolution of its full council". However, he still had a problem with part (b) of each subclause dealing with approval by the Minister. He proposed that those sections be deleted. He said that it is severely restricting the operations of institutions that are not mismanaged, thus hampering the well-managed unfairly.

Mr Boshoff responded that there are other mechanisms that have been put in place and they must be recognized. This is a preemptive approach to deal with problems early on. He stressed that this issue had been researched thoroughly. Moreover, it is nothing new and he read from the Act to prove his point.

A committee member asked the Department how they see subclause (i) being used.
The Department replied that they are currently looking into financial reporting mechanisms in more detail. They are looking at comparative systems such as the United Kingdom to see how these particular issues have been assessed.

The Chair asked if the Department had a timeframe for the implementation of these mechanisms and its proposed language for the clause.

The Department responded that the financial mechanisms would be completed in the new year. In terms of a clause regarding this mechanism, that would have to be discussed further.

Mr Aucamp said that he still believed that this was an insult to those institutions doing well. He asked, "How do we know the Minister's views will always be good for those institutions?" Furthermore, "differentiation is the name of the game."

The Chair stated that enough had been heard on the issue.

Clause 5 Amendment of section 41 of Act 101 of 1997
No comment was made on this clause.

Clause 6 Substitution of section 51 of Act 101 of 1997
Adv Gaum comments that in 51 (b) the words "in term of the Companies Act, 1973 (Act No 61 of 1963)" should be deleted.

Clause 7 Amendment of section 53 of Act 101, amended by Act 55 of 1999
Mr Aucamp asked exactly what was meant by "reasonable" in the phrase "reasonable requirement" in 7(c). The Chair asked if he was proposing something in its place.

Mr Aucamp responded that he did not know what to propose, but that he felt it should be discussed because he saw it as a problem.

Adv Gaum proposed that 7(a) be deleted or provide expressly for reasons upon which an application by a private education provider may be refused. Additionally, he proposed that 7(c) be deleted or provide for objective parameters for the use of these names, which do not differentiate between public and private institutions. He said that he could not go along with broad and unlimited discretion by the Minister. Criteria must be set as it would be "virtually impossible" to test this discretion. He pointed out that there was a constitutional problem with this clause.

Mr Boshoff of the Department answered that this criterion is laid out in the Constitution. He said that time was spent with the state law advisors on this issue and they were assured that this clause is in line with the Constitution. Additionally, Mr Boshoff clarified that this amendment is only a technical amendment because it is actually from the old Act. This provision was originally in the Programs section and it is merely being put on its own. He stressed that this was nothing new.

Adv Gaum stated that 7(c) is only aimed at private higher institutions.

Clause 8 Amendment of section 54 of Act 101 of 1997
Adv Gaum proposed that in 8(1)(b) and (c) the word "may" be deleted or clear criteria be provided according to which differentiation may take place in terms of (b) and provide for clear reasons upon which an application by a private education provider may be refused in terms of (c).

He commented that it seemed as if the Department and the Government overall wanted to give the Minister "far and overreaching powers" and instead they "should be limiting his power." If his power is not limited, it will be hard for his party to support the clause.

Mr Aucamp said "there is such a thing as fair discrimination … and differentiation."

Clause 9 Substitution of section 65 of Act 101 of 1997
Mr Aucamp referred to 9(1), and asked "must the Minister always have approval?"

Mr van den Heever replied that this was pretty straightforward. Moreover, the Minister should be informed and be aware and at the very least consulted on such a matter.

Adv Gaum noted that being informed or consulted is different than having the approval of the Minister.

The Department responded that the determination of how an institution is named can lead to problems if not monitored properly. This is not to enhance the Minister's power but it is a safety mechanism so that the same provisions are followed by all institutions.

Clause 10 Amendment of section 66 of Act 101 of 1997
No comments on this clause were made.

Clause 11 Amendment of section 76 of Act 101 of 1997
This clause was moved to clause 12 and a new clause 11 was inserted (see Amendments agreed to).

Clause 12 Short Title
This clause was moved to clause 13.

The Chair adjourned the meeting.

Appendix 1:
ANC EDUCATION STUDY GROUP

AMENDMENTS PROPOSED TO HIGHER EDUCATION AMENDMENT BILL [B55-2000]

LONG TITLE

On page 2, in the sixth line, to omit "full".

CLAUSE 2

On page 4, in line 20 after "operations" to omit ",including the size and institutional configuration,"

CLAUSE 4

1. On page 4 in line 49, to omit "full"

2. On page 5 in line 6, to omit "full"


Appendix 2:
PROPOSED AMENDMENTS TO AND COMMENTS ON HIGHER EDUCATION AMENDMENT BILL, [B 55 - 2000] BY THE NNP

Definition of "higher education institution"

Re-consider definition to cater for a number of variable situations which exist in the private higher education domain as proposed by The Alliance of Private Providers of Education, Training and Development.

Clause 1

Amendment of section 1 of Act 101 of 1997

Delete (a) (ii)

In (b) delete "in terms of the Companies Act, 1973 (Act No 61 of 1973)"

Clause 2

Amendment of Section 3 of Act 101 of 1997

Delete Clause 2

or

expressly provide for the criteria upon which this power may be exercised, its limits, and invocation. A fair hearing for the affected private education provider should also be provided for.

Clause 4

Amendment of section 40 of Act 101 Of 1997

Delete (b) (2) (b) and (3)

Clause 6

Substitution of section 51 of Act 101 of 1997

In (b), delete the words "in terms of the Companies Act, 1973 (Act No 61 of 1973)"

Clause 7

Amendment of Section 53 of Act 101 of 1997, as amended by Act 55 of 1999

Delete (a)

or

provide expressly for reasons upon which an application by a private education provider may be refused.

Delete (c)

or

provide for objective parameters for the use of these names, which do not differentiate between public and private institutions.

C!ause 8

Amendment of section 54 of Act 101 of 1997

Delete (1) (b) and (c)

or

provide for clear criteria according to which differentiation may take place in terms of (b) and provide for clear reasons upon which an application by a private education provider may be refused in terms of (c).


Appendix 3:
AMENDMENTS PROPOSED TO
HIGHER EDUCATION AMENDMENT BILL [B55-2000]

CLAUSE 2
On page 4, in line 20, after "operations" to omit ", including the size and institutional configuration,"

CLAUSE 4
On page 4, in line 49, to omit "full"
On page 5, in line 6, to omit "full"

NEW CLAUSE
That the following be a new Clause:
Amendment of section 68 of Act 101 of 1997

Section 68 of the principal Act is hereby amended by the substitution for subsection (2) for the following subsection:

"(2) The council of a public higher education institution may, on such conditions as it may determine, delegate any of its powers under this Act or delegate any of its powers under this Act or delegated to it in terms of subsection (1), except the powers to make an institutional statute or the process contemplated in section 40(2)(a) and (3)(a), and assign any of its duties in terms of this Act or assigned to it in terms of subsection (1), to the other internal structures, the principal or any other employee of the public higher education institution concerned."

LONG TITLE
On page 2, in the sixth line, to omit "full".

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