Higher Education Laws Amendment Bill [B24B-2010], Skills Development Levies Amendment Bill [B25-2010] and Higher Education and Training Laws Amendment Bill [B26B-2010]: Department of Higher Education and Training briefing

NCOP Education and Technology, Sports, Arts and Culture

12 October 2010
Chairperson: Ms M Makgate (ANC – North West)
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Meeting Summary

The Director: Legal Services of the Department of Higher Education and Training (DHET) briefed the Committee on the Higher Education Laws  Amendment Bill [B24B-2010], the Skills Development Levies Amendment Bill [B25-2010] and the Higher Education and Training Laws Amendment Bill [B26B-2010].

The Bills arose out of the splitting of the former Department of Education into the Department of Higher Education and Training and the Department of Basic Education and the Presidential Proclamations that were issued.  The amendments to the applicable legislation were of a technical nature and did not change any fundamental aspect of the current laws.  The Bills merely transferred the responsibility for certain operations to the applicable Department and transferred the relevant powers and functions defined in the existing legislation.

Certain Members found the presentation document prepared by the Department to be difficult to understand but eventually accepted the assurance of the Department that the nature of the amendments was purely technical.  Members queried the omission of the word ‘Basic’ from the Adult Education and Training function and debated the different connotations the word implied.

The Committee approved the Committee Programme for the fourth quarter of the Parliamentary Term.

Meeting report

Presentation by Department of Higher Education and Training on the Higher Education Laws Amendment Bill [B24-2010], the Skills Development Levies Amendment Bill [B25-2010] and the Higher Education and Training Laws Amendment Bill [B26-2010]

Adv Eben Boshoff, Director: Legal Services, DHET, said that the amendments were precipitated by the splitting of the previous Department of Education (DOE) into the Department of Basic Education (DBE) and the Department of Higher Education and Training (DHET) by way of a Presidential Act. Presidential Proclamations (PP 44 of 2009, PP 48 of 2009 and PP 56 of 2009) were promulgated and transferred the powers and functions in legislation that applied to higher education and training from the Minister of Education and the Minister of Labour to the Minister of Higher Education and Training. However, the existing legislation did not reflect the changes caused by the Proclamations and referred to the incorrect authorities.

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

The Minister of HET had the exclusive administrative authority relating to the HEA, NSFASA, ABETA, FETCA and the NQFA. However, only specific sections of NEPA , GFETQAA, EEA and SACEA relating  to Further Education and Training (FET) colleges and Adult Basic Education and Training (ABET) were transferred to the Minister of HET. PP 56 transferred the administration, powers and functions under the Skills Development Act (SDA) and the Skills Development Levies Act (SDLA) from the Minister of Labour to the Minister of HET in so far as the provisions did not apply to Productivity South Africa and other employment services.  Consequently, the Minister of Public Service and Administration requested that the legislation was amended to reflect the transfer of functions. This precipitated the three Amendment Bills, i.e. the Higher Education Laws Amendment Bill (HELA), the Skills Development Levies Amendment Bill (SDLA) and the Higher Education and Training Laws Amendment Bill (HETLA). 

The Bills did not change the substance of any legislation but merely reflected the necessary technical changes to bring the legislation in line with the splitting of the Departments and to consolidate, streamline and simplify the various pieces of legislation dealing with education. The Bills included amendments to the definition of certain words and expressions in order to reflect the new dispensation.

The Chairperson thanked Adv Boshoff for the presentation and opened the floor to questions.

Ms R Rasmeni (ANC – North West) said that the amendments were straightforward and that there was little to comment upon. She asked whether the Sector Education and Training Authorities (SETA’s) that were transferred to the DHET were under the scope of the amendments and what significance was of the removal of the word 'Basic' from the phrase ‘Adult Basic Education and Training’ (ABET).

Adv Boshoff replied that the word 'Basic' had specific connotations which contributed to the confusion as to whether or not ABET fell under the DBE or the DHET. By removing the word ‘Basic’, it was made clear that Adult Education and Training was the responsibility of the DHET.  The SETA’s were part and parcel of the SDA and the relevant portion of legislation dealing with the SETA’s was not significantly changed.  The Green Paper, followed by the White Paper on Education was expected to further clarify the position of the SETA’s.  The intention of the amendments was not to deal with issues of substance and pre-empt the content of the anticipated White Paper.

Ms B Mncube (ANC – Gauteng) noted that PP 44 related to the EEA but confusion arose because the EEA operated under both the DHET and the DBE. The structure of the presentation was very complicated and difficult to follow. She felt that the presentation document was unnecessarily difficult to understand when in fact the issues were simple. She asked if ‘consultation with Parliament’ meant the Cabinet or the National Assembly as this was the first time that the matter was presented before the National Council of Provinces (NCOP).

Adv Boshoff replied that consultation with Parliament was partly to deal with the technical issue of the SDLA being a Money Act. The reference made referred to consultation with the Parliamentary legal advisors. As there were no substantive changes to the existing legislation, there was no need for a consultative process as was the case with other types of legislation.

Mr M Mrara (ANC), Chairperson of the Portfolio Committee on Education, said that with regard to matters of autonomy there was some confusion by the FET colleges on whether or not they were State institutions or autonomous entities.  With regard to provincial administrative functions, the establishment of two ministries that shared the responsibility for the administration of the laws complicated the issue. Currently there were FET governance structures in the provincial administrations. He asked how the DHET envisaged the operation of the provincial structure in future.

Adv Boshoff responded that the FETCA addressed the issue of concurrency between national and provincial Government and there was currently no change to these competencies. The FETCA assigned responsibility to both national and provincial levels of Government, with funding provided by the province, through the national Department. Autonomy and employment was not affected at all. Management personnel were the only staff not employed by the college, as was currently the situation.

Mr W Faber (DA – Northern Cape) said that the presentation was in Queen’s English and it was not difficult to understand that the changes to the legislation were merely technical amendments, which did not have any financial implications.  He felt that there was no need to suspect any hidden agendas that were not there.

The Chairperson had a similar understanding that the amendments dealt with the changing of titles and definitions.  However, she found that the additional input provided by Adv Boshoff made matters sound more complicated.

Ms Mncube raised a point of order against Mr Faber.  She felt that Mr Faber was sarcastic and his comment undermined the Member’s understanding of their third language.

Mr Faber said that there was nothing sarcastic in his statement.  As the presentation was in the Queen's English he did not think that there was any hidden agenda in the wording of the document and that the amendments were of a technical nature.  It was not his intention to make anyone feel bad about their understanding of English.

The Chairperson said that she would still have to consult further before ruling on the point or order.

Adv Boshoff said that it was the intention of the Department to keep things as simple as possible and that the amendments were indeed simply technical amendments. There were many other substantive policy issues that could have been dealt with, but these issues were not dealt with in the presentation and the White Paper process had to be completed first. The amendments before the Committee were intended to level and clarify the playing fields, so that when the White Paper stage was reached, the process would be easier and clearer.  The Department was briefing the Committee because it was complicated for the Minister of HET to deal with legislation currently under the ambit of another minister. The situation created difficulties in the management further down the line. The intention was to streamline the reporting lines and make the legislation more accessible. The crux of the matter was that the Bills were part of a technical process that sought to align the relevant legislation in line with the responsibility of the DHET and the DBE.

Mr Mrara remarked that ABET was at National Qualification Framework (NQF) level 1 and was therefore considered to be basic education. The route that could be followed by ABET learners to the tertiary education institutions was not clear. There appear to be different interpretations of the term 'basic'.  He felt that the definition needed to be clear. The Department had to define what was meant by Adult Education and Training (AET) centres as well.

Adv Boshoff replied that the scope of AET legislation was unchanged and continued to refer to NQF level 1. What was considered to be basic for an adult was different from what was meant by basic for a child. The intention of the legislation was not to deal with this issue but to identify the split between a school and a non-school education, in line with the split between the DHET and DBE. The amendments to the legislation did not change the type of education provided by the ABET colleges.

Ms Mncube remarked that Adv Boshoff had verbally simplified the subject under discussion but the presentation document was more complicated.  She suggested that a simpler, more user-friendly presentation document was prepared.

Adv Boshoff agreed to Ms Mncube’s suggestion.

The Chairperson thanked Adv Boshoff for the presentation.  She advised that the Members of the Committee would have a further opportunity to discuss the matter when the Green Paper was presented.  She said that the issues became clearer when the amendments to the legislation was scrutinised.

Consideration of Committee Programme for the Fourth Quarter of 2010
The Chairperson presented the draft programme of the Committee for the fourth quarter of the Parliamentary term.

Mr M De Villiers (DA -Western Cape) moved for the adoption of the programme.  His motion was seconded by Mr Faber.  The Committee’s programme was adopted without further changes.

The meeting was adjourned.


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