Higher Education and Training Laws Amendment Bill [B26 – 2010]: consideration of provincial negotiating mandates

Meeting report

Negotiating Mandates on the Higher Education and Training Laws Amendment Bill
The Chairperson pointed out that the mandates before the Committee were not final. Much interaction on the mandates could still take place. To save time, she asked provinces to read out only their mandates and to skip additional information thereto. Eastern Cape, Gauteng and North West appeared to have made major inputs on the Bill.

Eastern Cape negotiating mandate
Mr Mzoli Mrara, a member of the Eastern Cape provincial legislature, presented the mandate. The Eastern Cape had voted in favour of the Bill but had raised certain issues and made recommendations.

The Eastern Cape considered it a problem that Further Education and Training (FET) educators were employed by two employers - the Government and the FET Council. The Eastern Cape proposed that FET educators should be employed by Government and that the Bill should place the FET Sector fully under the control of the state.

The Bill should clearly spell out the entry qualifications for both FET and Adult Basic Education and Training (ABET) educators and should contain prescripts that standardised qualifications.
 
The FET and ABET centres should not be autonomous and should be fully under the control of the state.

The placement of ABET under the Ministry of Higher Education and Training created the impression that these adults would be expected to pay for their education. The issue should be clarified and ABET should still be free, since the state had made it clear that the foundation phase of education was free.

ABET was two-fold; there was a foundation phase, namely, ABET levels 1-4; while higher education was at National Qualifications Framework (NQF) level 1. The possibility of splitting these levels of ABET between the two education ministries should be explored. Thus the foundation phase would be placed under the Ministry of Basic Education and the National Qualifications Framework (NQF) level would be placed under the Ministry of Higher Education.

It was proposed that a national monitoring instrument be developed which would provide guidelines to be followed when doing monitoring and evaluation.

It was proposed that the criterion for the appointment of members of the Council and their qualifications should be stated in the Bill.

Entry and exit points to FET and ABET Centres should be provided for in the Bill.

With reference to Clause 4 proposing insertion of Chapter 3A in the Adult Basic Education and Training Act 2000: Section 20J(3)(a) and (b) allowed ABET educators to voluntarily retire at the age 55 years but did not state whether there would be any penalties imposed for taking early retirement.

There was a need for the Bill to provide for the advancement of ABET and FET students to other learning institutions. This must also involve the review of the curriculum in order to allow advancement.

The current legal framework for ABET Centres and FET Colleges was problematic and there was a need for it to be reviewed in totality. It was therefore proposed that the Department review the applicable legislation.

Mr Eben Boshoff Chief Director: Legal Services, Department of Higher Education and Training, noted that many of the issues raised went beyond the ambit of the Bill. Many of the issues would be covered by the White Paper that the Department was currently working on. The public had difficulty understanding the legal framework.

The issue of FET lecturers was covered by the FET Colleges Act. It did not fall within the ambit of the Bill. Labour issues affected workers’ rights. The policy framework had to be spelled out first. The Bill did not deal with the policy framework. The issue had been flagged.

The issue of entry qualifications also spoke to employment issues. Issues were covered by personnel administrative measures and conditions of service. There was already a framework in place. It fell outside the ambit of the Bill. When the White Paper addressed the broader system, the role of ABET and FET Colleges would become clear. There was no gap in the legislation.

Regarding the autonomy of FET Colleges and ABET Centres there was no extension or change in status. The White Paper would deal with the issue. The issue could not be dealt with by the Bill as it had to be dealt with first in policy terms.

ABET dealt with a different sector - it dealt with the level 1 NQF qualification. Within level 1 there was a breakdown into subdivisions over which there seemed to be confusion. The South African Qualifications Authority’s (SAQA) webpage reflected the sublevels. The National Qualifications Framework Act 2008 had 10 levels. The Bill did not change anything but just sought to simplify. There was no change in position. There were still 4 levels of ABET within level 1. Monitoring was provided through a policy instrument.

The appointment of Council Members was through Regulations that were still statutory and still enforceable.

The issue of entry and exit points was already covered in legislation. Qualifications were set out within NQF 1. Entry and exit levels had to be flexible and there were different types of qualifications. The regulatory framework set out entry and exit levels.

Conditions applicable to retrenchment could be negotiated and set out in contracts of service. The penalties that applied to public service employees did not necessarily apply to educators. It was correct that there was personalisation for teachers and perhaps for the whole public service as well. The issue fell within the domain of the Minister of Public Service and Administration. It was not dealt with in the Bill.

Mr Boshoff said that the issues raised would be covered by the White Paper which would deal with the system as a whole.

Mr Gideon Hoon, Principal State Law Advisor, and Ms Anthea Gordon, Parliamentary Legal Advisor, concurred with Mr Boshoff’s response.

Free State negotiating mandate
Ms M Moshodi (ANC, Free State) stated that the province had voted in favour of the Bill.

Gauteng negotiating mandate
Ms B Mncube (ANC, Gauteng) stated that the province had voted in favour of the Bill but had made suggestions and recommendations.

The Council for Adult Education and Training (CATE) had suggested that the definition of “adult education and training” as contained in Clause 1 (a) of the Bill should mean all learning and training programmes for adults on levels 1-4 registered on the national qualifications framework contemplated in the National Qualifications Framework Act 2009 (Act No. 67 of 2008).

There must be consistency between the Bill and the Act because the Act referred to Public Adult Learning Centres whereas the Bill referred to Adult Education and Training Centres (Clause 5 inserting Chapter 4A in the Adult Basic Education and Training Act 2000: Section 25J). The Bill had to reflect the appropriate term.

Mr Boshoff responded that as an institutional type one was dealing with NQF level 1. The implications of extending the definition needed to be considered. What would be the qualifications to be offered? It would be a radical change. Adult and education training institutions struggled with NQF level 1. The extension without a broader policy structure would be problematic. The White Paper would address the issue. Currently there was no clarity.  Even with good policy in place it would not be easy to implement. It was not easy to deal with this type of policy structure. He felt that he had explained the issue in his response to the Eastern Cape

Ms Mncube reported that the Johannesburg Central College for FET had recommended that the Department should embed Adult Education in the Further Education and Training Act to create a single legislative environment with harmonised governance, policy and quality monitoring. It should make Adult Education Centres and FET Colleges specialised and unique institutional sites of delivery for Post-School Education and Training that would be positioned to articulate with Sector Education and Training Authorities (SETAs) and universities in a single coherent and seamless system to achieve the goals of the National Human Resource Development Strategy.

Adult Education and Training Centres should be attached to public FET Colleges to increase curriculum co-ordination, articulation and career pathing that led to various levels of the world of work (level 2 to level 5 employment competencies). Such institutional arrangements would improve service delivery coherence and a common approach to quality assurance.

If the current legislative separation remained, the College had recommended co-embedding elements of adult education in the Further Education and Training Act, and elements of Further Education and Training in the Adult Education and Training Act, as amended, to create a single legislative environment which harmonised governance, policy and quality monitoring.

It was recommended that provincial planning be added to the monitoring and evaluation functions without contradicting Sections 25B and 41B for Adult Education Centres and FET Colleges respectively. The headings of the said sections would be changed to “Provincial Planning, Monitoring and Evaluation”. Based on provincial priorities for growth and development , the role of regional planning, monitoring and evaluation of provincial departments would serve to ensure responsiveness of colleges and adult centres to local, regional and national development priorities.

With regards to quality assurance, the recommendation was to co-embed all relevant quality authorities, including the Higher Education Quality Control, into the proposed legislative amendments to enable seamless articulation of quality assurance and management practice across the entire education and training system.

Mr Boshoff responded that it was not possible just to change legislation. There must be a policy structure. It was an important issue and would be covered by the White Paper. The issue was about being part of a single system. There was flexibility in the FET Colleges Act to allow for mergers.  There were, however, severe policy implications to consider. A framework needed to be worked out to cover such issues as management and personnel. What had been proposed had many implications. The use of the word “elements” was vague. Policy had to first clarify things. The problem needed to be addressed in the totality of a framework. Quality assurance was exactly what was provided for in the NQF Act. The problem raised was already being addressed.  

Mr Hoon and Ms Gordon concurred with Mr Boshoff’s response.

Limpopo negotiating mandate
Mr T Mashamaite (ANC, Limpopo) stated that Limpopo had voted in favour of the Bill.

Mpumalanga negotiating mandate
Ms M Boroto (ANC, Mpumalanga) reported that Mpumalanga was in favour of the Bill.

KwaZulu-Natal negotiating mandate
Ms G Swartbooi, a member of the provincial legislature, reported that KwaZulu-Natal had voted in favour of the Bill.

Northern Cape negotiating mandate
Mr M de Villiers (DA, Western Cape) presented the mandate in the absence of Mr W Faber (DA, Northern Cape). The Northern Cape had voted in favour of the Bill.

North West negotiating mandate
The Chairperson, Ms Makgate, reported that North West had voted in favour of the Bill, but had made inputs.  

With reference to the Bill (Clause 10: insertion of Chapter 6A in the Act No. 16 of 2006: Section 41C (iv)) which referred to “child”, “person” and “student”, the suggestion was made that “student” alone be used for consistency.

In other areas “educators” at various FET Colleges were referred to as lecturers or tutors. The suggestion was that lecturers be referred to as educators for uniformity and consistency.

A concern of the ABET Directorate on the removal of the word “basic” was that the education offered at ABET Centres was of basic level.
 
The Bill was silent in terms of the allocation of posts for the education sectors, especially in FET Colleges.
There was a concern that matriculants be catered for and accommodated at the Adult Education Training Programmes.

There was a concern on the lack of structure for the Bargaining Council at the provincial level. It was only provided for at national level.

Mr Boshoff responded that the use of “student” would affect policy regarding persons who wished to attend institutions. “Persons” covered every human being. The issue of rights in terms of the Constitution would come into play. Every person in terms of the Constitution had a right to education. The suggestion did not add value but was rather restrictive. The word “student” created uncertainty.

To change terms like “lecturers” to “educators” would not solve the problem. The colleges were employers of lecturers. The issue had to be dealt with as a system as a whole.

The word “basic” had different meanings. On qualifications, basic was not part of the structure. The word “basic” was used in the Constitution. General education was basic education. It was how it was understood.  There was no moving away from the current situation.

The issue about the allocation of posts changed from year to year. Allocation of posts depended upon such factors as funding and numbers of students. It was impossible for the Bill to deal with the allocation of posts. Even the Public Services Act did not cover the allocation of posts as things changed from year to year.
Matriculants fell within the domain of schools - the domain of basic education. There was no hint of matriculants moving within the scope of adult education. Matriculants were at NQF level 4. ABET was at NQF level 1. Matriculants were at a higher level.

Bargaining Council structures were an important issue for collective bargaining.  It was a very contentious area.

Mr Hoon and Ms Gordon concurred with Mr Boshoff’s response.

Western Cape negotiating mandate
Mr De Viliers stated that the Western Cape had voted in favour of the Bill.

Discussion
The Chairperson requested Mr Boshoff to provide the Committee with a written hard copy of his responses.

Mr Boshoff agreed.

Ms Mncube pointed out that the Gauteng Provincial Department of Education was concerned that the FET Act provided that the MEC must fund public colleges from money appropriated by the provincial legislature, whereas the funds were allocated to provinces as conditional grants which withdrew the powers of the MEC.

Mr Boshoff responded that funds were an area dealt with by different pieces of legislation. The Division of Revenue Act (DORA) dealt with conditional grants. Conditional grants to colleges were allocated through norms and standards as contained in the FET Colleges Act. No powers were taken away from MECs.  Nothing had changed. The conditional grant was a pragmatic provision for the current financial year. DORA dealt with the issue on a year on year basis.

Mr Mrara responded that for the last 16 years he had been told that to bring about changes in basic education there was a need to amend the legal framework. It was his belief that making recommendations on the Bill was essentially trying to amend the legal framework. He had thought that the legal framework constituted transition which he now saw was not the case. At what stage was the legal framework to be transformed? He had been under the impression that the legal framework would set the tone for transformation. What was contained in the White Paper that was being referred to? Reference was made to the notion of articulation and it was asked why an ABET learner could not attend university. Articulation needed to be provided for in law. He thought that perhaps the Bill could provide for it.

The Chairperson stated that the responses given by the Department would be forwarded to provinces in written form. Further engagement would take place as the mandate process was by no means at its final stage.

The meeting was adjourned.