Further Education & Training Colleges Amendment Bill, Higher Education Laws Amendment Bills: responses to submissions

Higher Education, Science and Innovation

05 September 2011
Chairperson: Adv I Malale (ANC)
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Meeting Summary

The Department of Higher Education and Training (the Department) provided a summary of the public submissions on the Higher Education Laws Amendment Bill (HELA) and the Further Education and Training Colleges Amendment Bill (the FET Bill). The Department’s comments were also noted.

In respect of HELA, some submissions on the prohibition on councils members from contracting with colleges were based on a previous version of the Bill, so many of the concerns were already covered. The Department did not agree that there should not be an absolute prohibition, nor with the suggestion of a criminal sanction, but was prepared to build in some flexibility in respect of unique products. New subclauses 2(4) to (8) were proposed. The submissions on clause 4 were criticized as too wide, but the Department pointed out that the clause complied with Public Finance Management Act requirements, and the “any action” phrase was limited to this clause and to specific circumstances. The concerns over terms of reference for an Administrator were covered elsewhere. Concerns about the powers of the Minister to dissolve the Board, under clause 5, were countered by the Department’s note that these provisions existed in other legislation, but it was prepared to amend the wording to ensure that all criteria would be considered. All commentators agreed that section 23 of the National Student Financial Aid Schemes Act did not comply with the Constitution, and the new proposals would deal with recovery of arrears by way of a simpler process. Members made suggestions to improve the wording to make it more consistent, in clauses 1 and 2, queried if the time period was necessary under clause 3, and proposed a tightening of the wording in clause 4, to limit the powers of the Administrator to what was necessary, rather than doing anything. Members agreed that it was not necessary or desirable for the Board still to be in place if an Administrator was appointed, and requested an amendment. An anomaly in the new section 17A(1) must also be corrected.

Most submissions on the Further Education and Training (FET) Colleges Amendment Bill supported the suggestion to move the FET Colleges to an exclusive national competence, and supported most of the new clauses. However, there were some concerns on the conflict of interest provisions, and the Department’s response was similar to that set out for the HELA Bill. Other submissions, and the majority of questions by the Committee, were directed to the dual system for appointment of staff. Although the majority of colleges were in support of this system, as it allowed for flexibility, they were concerned as to which bargaining councils would apply to staff who would become public servants, and some suggested that a new Service Act be drafted for educators, although the Department said this was not practicable at present. Members noted that the dual system had applied since 2006. A DA Member raised concerns about the potential for exploitation of college-employed staff, thought that the colleges were not fulfilling their intended aim of supporting and being driven by communities, that the organogram remained very flat, and that the gap between wealthier and poorer colleges would widen. Members asked if all staff would receive both equal remuneration and equal benefits, and the Department pointed out that any inconsistencies could be addressed under labour law and collective bargaining. Members also discussed whether College Councils should have the power to investigate performance of the principals.  

Meeting report

Higher Education Laws Amendment Bill [B14-2011]: Department’s feedback on public submissions
Mr Eben Boshoff, Chief Director, Department of Higher Education and Training, noted the apologies of the Director General. He noted that the Department of Higher Education and Training (DHET or the Department) had prepared a summary of the responses to the public submissions, which he would present clause by clause.

Clause 1
Comments raised on this suggested that the amendments needed to be extended to members of committees of council, and that sanctions should be imposed where there were contraventions, with the University of Cape Town (UCT) suggesting that this should be regarded as a criminal offence. The Department thought that these comments were based on the old version of the Bill, not version B14-2011. The concerns were covered in the new clause 1 (see attached document for full details). The Department believed that the criminal offence suggestion could not be supported, but that sanctions of suspension from meetings had merit.

The Department supported a suggestion that the clause should be extended to a committee of council, and would add the words “a member of a committee of council” to clause 1(a). Further proposed wording for clause 1(b) was also set out. Mr Boshoff said that these amendments could be incorporated into existing clauses, so that it would not be necessary to use Rule 249 of the National Assembly Rules. The Department pointed out that it was not necessary to define a “conflict of interest” as this was already contained in the Bill.   

Clause 2
Mr Boshoff noted that all submissions supported the intention of a restriction on staff from conducting business with the universities, but did not agree with an absolute prohibition, proposing instead that conflicts should be declared and the University Council should manage the conflict. The Department supported the proposal around declaring conflicts, but believed that prohibition on conducting business should be retained, albeit in a more flexible way that would allow a Council to do business with a member of staff in respect of a unique product when the staff member was the sole provider. The Department proposed an amendment by adding new subclauses (4) to (8) that would cater for this (see attached document, page 3).

Clause 3
This Clause was supported by all stakeholders.

Clause 4
Mr Boshoff noted that the UJ and HESA believed that the new section 4A proposed by this clause would allow for far too wide unilateral action by the Minister, and would usurp the functions by the Board, as well as compromise its integrity and independence. They pointed out that the Board was only allowed to make representations after failing to implement the Minister’s direction. The Department thought that their understanding of the clause was incorrect. This clause was in line with the Public Finance  Management Act (PFMA) regulations, and was intended to ensure that public money was properly managed. “Any action” was confined to this clause, not an unfettered discretion, and the discretion could be exercised only if the National Student Financial Aid Scheme (NSFAS) Board has made a presentation, and if material aspects of financial management would otherwise be compromised.

The UJ suggested that the administrator’s term of office be limited, but the Department explained that the clause must be read as a whole, and that appointments were limited to two years.

The Chairperson asked what time limit applied to appointment of an administration.

Mr Boshoff replied that this would be no more than two years.

Ms J Kloppers-Lourens (DA) enquired about the six month extension.

Mr Boshoff said that this would be applied in exceptional circumstances, where there were still issues outstanding.

Mr Boshoff added that UJ’s concern that there were no terms of reference for the Administrator was already covered in section 4B. He added that the Minister must be given the power to step in and appoint an administrator if the body failed to perform. HESA suggested that the Board should have the opportunity to make submissions prior to appointment of an administrator, but the Department thought that this was already catered for, because section 4A(3) of the Act required consultation by the Minister before taking the decision.

Clause 5
This Clause dealt with the dissolution of the board. HESA and UJ acknowledged the principle that a Minister who appointed a board should also be able to dissolve that board, but wanted stricter criteria to be set out. The Department did not feel that the Minister’s powers were unfair. A similar approach was taken in the Higher Education Act when an administrator was appointed, or a substantial percentage of members resigned. Before the Minister dissolved the Board, the Board had the opportunity to make representations. In the event of dissolution, it would be the Administrator, not the Minister, who would take over the functions. However, the Department agreed that the wording could be made more clear and suggested that the word “and” be inserted after subparagraph (1)(a)(i) to ensure that all criteria were taken into account.

Clause 6
The Clause was supported by all stakeholders.

Clause 7
Mr Boshoff said that all commentators believed that section 23 of the NSFAS Act, as currently worded, did not comply with the Constitution. NSFAS proposed that an alternative procedure could be followed to recover loans, and this was supported. He set out the amendments that would be needed to sections 21(4)(b), section 23(1)(b) and (2), the insertion of a new subsection 23(3), requiring an employer to make deductions if written consent was obtained, and repeal of 23(5). He then noted that a new section 23A would be inserted into the Act, dealing with recovery of arrears, through NSFAS filing a statement of arrears, which would be given the effect of a civil judgment. He stressed that the recovery of debt would allow the money to be ploughed back into NSFAS to assist future students.
The Chairperson noted that the legal drafters had in many cases raised technical objections.

The Chairperson asked for comment on the wording “activities undertaken” as set out in clause 1, amending section 7(c) of the Further Education and Training Colleges Act (the Act). “Conflicts” could perhaps be reworded as “possible conflict” and the reference to “activities” could be changed to “interest”.

The Chairperson suggested that in Clause 2, amending section 34 of the Act, the words “member of staff” should be replaced by “academic employer” or “employer”, as these were the terms used in the principal Act.

The Chairperson questioned whether, under clause 3, it was necessary to have a 90 day limit, saying that this might cause unforeseen consequences, and it might be preferable to leave this time period open.

The Chairperson suggested, in respect of clause 4, that the words “any action” could be tightened up, and that perhaps the wording should be “the Minister may issue a directive to the Board”. Effectively, the administrator appointed “may do anything”, and this was far too wide. It would be more appropriate to use wording such as “An administrator will have the necessary powers to perform such functions as the Board might have”. It was further proposed that the word “Board” and not “NSFAS Board” be used, for the sake of consistency.

Mr Z Makhubele (ANC) agreed that it was necessary to limit the powers of the administrator.

The Chairperson agreed that section 23 relating to NSFAS was not constitutionally correct, but also questioned whether the new proposals were not removing the right of the debtor to have his or her say in Court. NSFAS provided loans for financial support, whereas debt could be recovered with assistance from the National Credit Act.

Mr Z Makhubele (ANC) then raised his concern regarding the co-existence of the Administrator and the Board, pointing out that if the Administrator was appointed to address a specific weakness, the Board must surely be dissolved. From a practical point of view, the Administrator’s salary would have to come from the budget for the Board.  

The Chairperson agreed with him on this point

Mr K Dikobo (Azapo) did not agree that this would always apply, since in some cases the Administrator might still require assistance from the Board.

Mr Makhubele countered that this was not intended to cover a normal situation. By the time the Administrator took over, the due processes would have happened that effectively removed any power from the Board. The processes would lead to further investigations. The Administrator must be able to appoint other people to help him, if necessary, and the Board should not be involved at all.

Ms Kloppers-Lourens referred to page 4 of the Bill, noting that this did not imply that the Board would simply disappear. The Administrator was empowered to assist and train the Board. In response to the Chairperson’s suggestion that an incompetent Board should not be allowed to remain in place, she commented that it was necessary also to bear in mind that the Minister would have appointed this Board.

Ms Kloppers-Lourens pointed to a further anomaly. The new section 17A(1) made reference to the Minister appointing an Administrator “after consultation with the Board”. This did not make sense.

The Chairperson agreed and advised the Department that this must be taken out of the Bill. Mr Boshoff was asked what would happen, in practice.

Mr Dikobo pointed out that this was “after consultation” and did not imply that there should be any negotiation.

Mr Boshoff agreed that this issue was important. The intention was to provide for some flexibility. Some issues could be addressed independently, but others not. The mechanisms provided for three possible scenarios. In the first, listed under the new section 4A, the directors would remain, whereas 4B contemplated the situation where they might need more assistance, and 4C related to a situation where the Minister would have to oversee that there was least disruption. Finally, the Minister could replace the Board.

The Chairperson commented that the Board was a strategic entity. An administrator could not be expected to teach skills to the Board.

Mr Makhubele reiterated that he did not believe that both should co-exist. If there were such weaknesses at Board level that the Board itself could not sort them out, and an Administrator had to be appointed, then clearly there was no longer a reason to have that Board.

Mr S Moni (ANC) also felt there should be no confusion with regard to the co-existence of the board and administrator.

Mr W Nelson (ANC) felt this Board could not be compared to a school Governing Body, and agreed that the Board should be dissolved in circumstances outlined by Mr Makhubele.

Ms Nelson asked if the appointment process would check whether an applicant had been found guilty of corruption or had a criminal record.

Mr Boshoff said that he appreciated the input. He would draw up new proposals in line with the comments.

Mr Boshoff said that, in relation to section 23, there were already similar provisions in the National Credit Act and it would be possible to deal with debt in terms of that Act. However, the Department preferred to strengthen the position in this legislation and create a procedure that would shorten the time for recovery.

Further Education and Training (FET) Colleges Amendment Bill: Department’s responses to public submissions

Mr Boshoff noted that comments on the were received on this Bill from Tshwane South College, South African Democratic Teachers Union (SADTU), National Education Health and Allied Workers’ Union (NEHAWU), and National Professional Teachers’ Organisation of South Africa (NAPTOSA). All submissions supported clauses 1 to 10 and 14 to 33. There was overwhelming support for removing the reference to “provincial authorities” and assigning all functions to the National Minister or Department. He mentioned that Tshwane South College had raised some issues that were not in the scope of this Bill.

In respect of clauses 11-13, and clause 34, the concerns related to the conflict of interest, similar to the concern that was raised earlier on the Higher Education Laws Amendment Bill (HELA). Here the Department noted that it was possible to align the two Bills, to cater for comments raised.

Submissions also made comments on a possible dual system for appointment of staff, either by the State, in terms of the Public Service Act, or by the colleges. The Department reiterated that it was necessary to avoid any conflict of law. The Public Service Act allowed for employment of public servants. Although there was allowance in that Act for educators and other sector employees to have their own Services Act, in practice there were not sufficient numbers to justify this, although one of the unions had argued for it.  Specific Occupational Dispensations were allowed, to cater for conditions applicable to a particular profession. FET Colleges did need the power to appoint additional staff, as specific donors might require specialist skills, and a dual system had applied prior to 2006. It was not uncommon, and did allow for flexibility.

Some comments addressed the position of the bargaining councils, and Mr Boshoff explained that the General Public Service Sector Bargaining Council (GPSSBC) unit for FET college staff was currently applicable. Lecturers currently employed in fully state-funded posts would become public servants, and fall under this Bargaining Council, but all other conditions of service would remain in force until modified by the employer and unions. He noted that transitional arrangements were built in. Clauses 34, 35(1) and 35(2) could come into effect on a different date.

The Chairperson asked for more clarity on the apparent contradiction that the State wanted to create a single higher education system, and transfer the colleges under the national legislative competency, whilst also noting that there did not appear to be budget to do this for all. The question of dualism should have been addressed.

Mr Dikobo explained that prior to 2006 there were three different ways in which people were employed. Lecturers were protected by the Employee Education Act, administrative and support staff fell under the Public Service Act, and college employees were employed directly by the college. The latter group could not simply be transferred, as they were never employees of the State, and it was clear that the State could only pay for some employees, not all. It might be possible for the Public Service Act to designate a sector, to ensure that they were equally protected.

Mr Makhubele pointed out that the colleges still wanted the power to employ people if they could find funding. This meant that dualism would have to continue. It might be necessary to look at a new structure in the future, but many of the colleges were not unhappy with the present arrangements.

Mr A van der Westhuizen (DA) wanted to note his concerns, for the record. He thought that the Committee should rather have focused on areas of the Act that needed to be changed. Five years ago, the Department said that its vision was to link FET Colleges closely to the communities, but he felt that it was moving away from that vision. He questioned the role and importance of the College Councils, saying that these were crucial to supplying relevant information about each college. He felt the gap between the wealthy and poor would widen, with a dual system. Staff members employed by College Councils were often exploited, and needed legal protection, but this legislation was not providing it. The legislation undermined the concept of community-driven colleges. He urged that other options should be examined.

The Chairperson responded that the dual system was allowing College Councils still to exist and make appointments, although there was a need to guard against exploitation.

Mr Dikobo agreed. Both administrative staff and lecturers could be exploited. He wondered if this debate had been raised at trade union level. He would support dualism, but not poor behaviour of colleges.

Mr Boshoff reiterated that the Act already provided for a dual system, and this was not new. Clause 12 provided protection, and there was further protection by a provision that the Council must pay the same remuneration as would have been paid to a State employee in that position. He agreed that there was always a risk of exploitation, but safeguards did exist on pay.

Mr van der Westhuizen asked what was included in “remuneration” and if it included pension, and possibly conditions around full or part time service. He was still worried about the gaps.

Mr Dikobo added that he wanted to know if the Government Employee Medical Aid would apply to such employees.

Mr Boshoff responded that not all terms and conditions would be the same, but the basic cost-to-employer would have to be in line. If employees were exploited by not receiving pay during holidays, this must be dealt with on a case by case basis, under the current labour law. Collective bargaining could also take place.
Mr Boshoff wished to clarify his earlier comment on bargaining structures, noting that there would still be two bargaining structures, and people would fall under one or other, depending on their employer. Those who moved to the Public Sector would have a similar structure. The Department had tried to deal fully with the transitional issues. The wording of “educator” and “lecturer” had to be brought into conformity, to ensure smooth transition. Those working outside the institution were referred to as “educators” and were supported by the Provincial Department. He confirmed that both the colleges and unions had asked that the dual system continue, to allow for flexibility.

Mr van der Westhuizen pointed out the dualism currently affected between senior and junior staff, but it now seemed that there would be disparity between all permanent staff, and support staff such as cleaners. He was concerned that the managerial organogram was very flat. People should have the opportunity to apply for higher posts. The same issues were repeated under the new structure, except for the creation of the new roles of Chief Executive Officer (CEO) and Deputy CEO. College councils should have the flexibility to reward good work, and he thought that the current system of “topping up” was not correct. He asked if this was covered in the Public Service Act.

Mr Makhubele said that it would take too long for government to approve the filling of every post. Having a dual system did not necessarily imply that there would be exploitation.

Mr Makhubele asked that Members should be very clear on the points around merger of colleges.

Mr Boshoff referred to Clause 5, saying that the intention behind the merger issues was to amend Section 6, which said that the “provincial authority” could take a decision. This was being amended as they would no longer be involved. The Act had previously dealt with all processes discussed effectively.
Mr van der Westhuizen wanted the powers of college councils to increase, and would like to see section 19 of the Act prescribing that College Councils could also measure the performance of the College Principal, even if this was done in consultation with the Department.

Mr Boshoff said that the essence of this proposal was already captured, by performance agreement provisions. Subsection 19(3) noted that all staff must report to Council and the Minister. That was in line with the Public Service Act.

Mr van der Westhuizen reiterated that he would still like to see this changed. He feared for the function of the College Councils and wondered who would be interested in still working for the Councils.

The Chairperson asked why some of the functions could not go be delegated to the Councils

Mr Dikobo, who had served in the past on College Councils, said that the College Council President was perhaps not the best person to monitor the Principal, who might overpower the Council. Instead, the Department should perhaps monitor the CEOs.  

Mr Boshoff said the Public Service Act set out the conditions around delegation within the departments. Normally, there would be a direct line of monitoring between original and delegated authority.

The Chairperson asked that the necessary amendments be effected, and that clear proposals should be presented on the following day.

The meeting was adjourned.


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