Higher Education Laws Amendment Bill, Skills Development Levies Amendment Bill & Higher Education & Training Laws Amendment Bill: briefing

Higher Education, Science and Innovation

02 August 2010
Chairperson: Ms M Kubayi (ANC)
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Meeting Summary

The Department of Higher Education and Training briefed the Committee on the Higher Education Laws Amendment Bill (24-2010), the Skills Development Levies Amendment Bill (B25-2010) and the Higher Education and Training Laws Amendment Bill (B26-2010). These amendment bills were occasioned by the division in May 2009 of educational legislation at national level between the Minister of Higher Education and Training and the Minister of Basic Education by Presidential Act. The amendments were purely technical in nature and did not impact on the substance of any legislation. The changes stemmed from Presidential Proclamations which transferred the authority over certain acts to the Minister of Higher Education and Training. The splitting of the Department of Education into two new departments had precipitated the need for technical corrections. All legislation applicable to Skills Development had been transferred from the Minister of Labour to the Minister of Higher Education and Training. The Minister of Public Service and Administration had requested that the applicable legislation subjected to the transfer of functions be amended and simplified to make it more user-friendly in the implementation process. The Department gave details of all legislation affected by the changes. 

Members questioned whether the bills would only have a technical effect and debated whether the Committee should engage in full public participation over the bills if they were indeed only amendments of a technical nature. It was decided that Members of the Committee would review the bills in Members’ study groups. Thereafter the Committee would meet again to decide how to proceed in terms of public participation. 

Meeting report

Department of Higher Education and Training (DoHET) on the Higher Education Laws Amendment Bill (B24-2010), the Skills Development Levies Amendment Bill (B25-2010), and Higher Education and Training Laws Amendment Bill (B26-2010). Presentation
Professor Mary Metcalfe, Director-General, the Department of Higher Education and Training (DoHET), said that the amendment bills being tabled were all technical amendments. These amendments were logically necessary and in some cases stemmed from name changes resulting from the creation of the Department of Higher Education and Training and the Department of Basic Education (DoBE). The amendments were also to make the legislation clearer and simpler.

Advocate Kobus Boshoff, Department of Higher Education and Training, said that the amendments were influenced by the changing of the national scenery of education by the creation of two education departments by way of a Presidential Act in May 2009. Presidential Proclamations (PPs) 44 of 2009, PP 48 of 2009 and PP 56 of 2009 transferred the powers and functions of legislation applicable to higher education and training from the Minister of Education and the Minister of Labour to the Minister of Higher Education and Training.

The existing legislation did not reflect the changes caused by the Proclamations and referred to the incorrect authorities.

PP 44 transferred executive responsibility for  the following acts to the Minister of Higher Education and Training: the National Education Policy Act (NEPA) 1996, the Higher Education Act (HEA) 1997, the Employment of Educators Act (EEA) 1998, the National Student Financial Aid Scheme Act (NSFASA)1999, the South African Council for Educators Act (SACEA) 2000, the Adult Basic Education and Training Act (ABET) 2000, the General and Further Education and Training Quality Assurance Act (GFETQAA) 2001, the Further Education and Training Colleges Act (FETCA) 2006, and the National Qualifications Framework Act (NQFA) 2008. This list needed to read in conjunction with the transfer of legislation and administration to the Minster of Basic Education.

The Minister of Higher Education and Training had the exclusive administrative authority relating to HEA, NSFASA, ABETA, FETCA and the NQFA. However specific sections of NEPA , GFETQAA, EEA and SACEA relating  to Further Education and Training (FET) colleges and Adult Basic Education and Training (ABET) had been transferred to the Minister.

PP 56 transferred the administration, power and functions of the Skills Development Act (SDA) and the Skills Development Levies Act (SDLA) from the Minister of Labour to the Minister of Higher Education and Training, in so far as they did not apply to Productivity South Africa and employment services. 

Consequently the Minister of Public Services and Administration requested that the concerned legislation be amended to reflect the transfer of functions. This precipitated the three amendment bills concerned: the Higher Education Laws Amendment (HELA) Bill (B24-2010), the Skills Development Levies Amendment (SDLA) Bill (B25-2010), and the Higher Education and Training Laws Amendment (HETLA) Bill (B26-2010).  These amendment bills did not change the substance of any legislation but merely reflected necessary technical changes.

Discussion
The Chairperson assumed that the substance of the legislations would not be affected by these technical changes.

Adv Boshoff replied that this was correct and that the Department’s approach had been to correct technical errors and clarify critical provisions.

The Chairperson stated that therefore the assessment of the efficacy of the legislation had not been examined.

Prof Metcalfe replied that the Minister had indicated that the Green Paper in preparation would deal with that issue.

Dr W James (DA) presumed that the Higher Education Laws Amendment Bill and Higher Education and Training Laws Amendment Bill would not require any Constitutional amendments. He added that it seemed that they had kept most definitions from the earlier legislation and had simply put them into the newer ones even when they were problematic. The Higher Education and Training Laws Amendment Bill’s definition of an educator made no reference to qualifications, which was a problem. Furthermore the 'employer' was the Minister and not the council of a further education and training college.

Prof Metcalfe replied that none of the amendments would require any Constitutional amendments.

Adv Boshoff stated that Clause 1 of the Higher Education and Training Laws Amendment Bill and the definitions had been extracted from the current Employment of Educators Act 1998, which defined people who were seen as educators. The Department had kept the terms in order to not change the substance. After the White Paper there might be substantial changes. He understood that there were difficulties when it came to the substance of the definitions, but that these were only technical amendments designed to streamline, without making policy changes. He added that the further education and training college as the employer was within Clause 9, and that Clause 1 dealt with adult educators and was so drafted in order to retain the current situation. The employer had not been changed and the substance remained unchanged. These amendments would be incorporated into the original Act and would provide greater clarity.

Prof Metcalfe added that the broadness of the definition did not reflect a policy void and that there were other acts which covered employment, eligibility and qualification specifications for the different types of educators. It was a broad framework in which other legislation nested.

Dr James noted that this was understood, but that he wanted to flag the issue as something that should be attended to in the Green paper as the standard of teachers was a dire issue.

Ms F Mushwana (ANC) asked whether Members were going to be having a workshop on the amendment bills and stressed that it was important to ensure that educators understood these laws.

Prof Metcalfe agreed that it would be useful to explore the idea, but stressed that there were no policy changes. She agreed that legislation needed to be intelligible to those that needed to use it, but at the same time it needed to make use of 'legalese' in some instances in order to give precise guidance. After the Green Paper process, which might result in comprehensive amendments to legislation, the Department would be more than willing to work with the Committee to ensure maximum intelligibility of the legislation and follow up with workshops and consultations with all stakeholders.

Mr A Mpontshane (IFP) referred to Clause 7 of the Higher Education Laws Amendment Bill. Where the word 'basic' was removed from the term 'adult training', it removed the constitutional right of access to basic education.

Prof Metcalfe replied that the removal of the term 'basic' did not remove the constitutional right to basic education. The Department had taken a memorandum to Cabinet in order to look at a constitutional review and had ensured that this change did not remove any constitutional right.

Adv Boshoff added that the removal of the term 'basic' from adult education did not affect The Constitution. According to the definition of adult training it was the level one National Qualifications Framework (NQF) training, which was basic. Therefore there was no change in substance.

Ms Mushwana said that the removal of the term 'basic' from adult education was good as the needs of adult education were different from those children. She added that the substance of the definition might not be understood and that perhaps the Committee should go through the documents and review them.

Prof Metcalfe said that functions in relation to employment and qualifications would be in different departments as the Department of Basic Education dealt with employment of educators and the Department of Higher Education and Training dealt with the qualifications frameworks, which would be gazetted.

The Chairperson stated that they should remember that the amendments were technical and that these were the crux of the matter. The Committee needed to decide whether it would deliberate on the definitional changes, engage the public on the technical matters and not other issues, or engage in full public participation. Submissions would most likely cover matters not restricted to the technical amendments. The Committee needed to decide whether it would strengthen the legislation now or wait for the Green paper process. It needed to reflect on this as it had advised the public and stakeholders that it would be putting out an advertisement calling for public hearings from 24 August to 02 September 2010.

Dr James asked what exactly these public hearings would be on.

The Chairperson replied that if Members pursued this process they would either have to have minimalist technical hearings or hearings engaging on broader issues.  He added that as the delegation had nothing more to say, this was the stage at which the Committee was left.

Prof Metcalfe stated that she would be willing to listen.

Ms N Vukuza (COPE) sated that the interaction with the public should solve problems and that there should be caution against going to the public with technical amendments.

The Chairperson agreed and stated that he did not think that public participation was necessary for the cleaning up of technical issues, but that it would be better to engage with the public for the Green Paper process. 

Ms Mushwana disagreed and stated that if a piece of legislation concerned people, then the people concerned needed to be present. She added that Members needed to include the people who would have to use this legislation and added that this did not mean receiving submission from all and sundry, but from concerned parties only.

Mr Mpontshane said that he suspected that this would not be a short debate and that a precedent had been set whereby technical amendments were made to legislation without a public hearing.

Ms N Magazi (ANC) asked which stage of the process of the bill had been reached.

The Chairperson replied that it had been referred to the Committee.

Ms Magazi asked whither the study groups from the different parties had engaged with the bills yet.

The Chairperson replied that he did not think so.

Ms Magazi proposed that Members enter their study groups and look at the bills, and then reconvene in order to deliberate on whether or not to go public.

Dr James seconded this recommendation.

The Chairperson replied that the matter was simple, it was a question of minimalist engagement, but also one of whether some definition changes would open up bigger legislative changes. The Committee needed to assess politically what they wanted to do. It could decide on minimal engagement or substantial engagement with the public. If it decided on the minimalist option then the public hearing would simply be procedural. He suggested that at the next meeting the study groups should address the Committee.

Ms Vukuza said that she appreciated the political process, but that Members needed to acknowledge that they had received a presentation which did not promote any legislative changes and therefore they could engage with the public on a non-issue. 

The Chairperson stated that the complexity was that in initiating an amendment to a law, Members could not say what the outcome would be in terms of parliamentary processes. He added that after engagement in study groups Members could choose what path to follow according to their analyses.

Mr Mpontshane stated he would adhere to his position, but that if the Committee wished to go to public hearings then it could do so.

The Chairperson reiterated that it was the Committee's choice.

Dr James said that if the issue was that of ensuring the satisfaction of the Committee and the study groups that the amendments were only technical then this needed to be done and the Committee reconvened thereafter. He therefore supported this position.

The Chairperson agreed and stated that when an act was being amended the Committee could not dictate to the public but only focus on the points in the amendment bill. He suspected that the amendments might not have technical effects only and that therefore the consideration of the bills by the study groups was the correct path.

Dr James stated that he was unhappy about the presence of all the chief executive officers of Sector Education Training Authorities (SETAs) at the meeting, as it was a waste of money.

The Chairperson replied that no one was told that he or she had to come and that a general invitation had been issued.

Dr James asked if this meant that their expenses were for their own account.

The Chairperson confirmed this and added that there would be no advertisement in the paper, but rather a letter informing the stakeholders.

The meeting was adjourned.

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