Higher Education Laws Amendment Bill: Department's presentation

Meeting report

Higher Education Laws Amendment Bill [B14B -2011]: Department of Higher Education and Training briefing
Advocate Eben Boshoff, Legal Adviser, Department of Higher Education and Training, briefed the Committee on the Higher Education Laws Amendment Bill [B14B-2011] (the Bill). By way of background, he indicated that Adv Boshoff stated that declarations from Parliamentarians and public servants had to be made on an annual basis. This Bill contained restrictions on staff from conducting business with the universities, The Ministerial objectives needed to provide a clear indication of reasonable timeframes for the actions to follow directives. Student loans and deductions were covered by the National Credit Act.

He then highlighted certain portions of the Bill. Clause 12 of the Bill sought to amend Section 20 of the Higher Education Laws Act (the Act). It dealt with employment issues, and in this regard he pointed out that in the current system, there were essentially two “sets” of employees. For those who were employed by the state, the state would be responsible, as the employer, to deal with all employment issues, but for those who were privately contracted by the Further Education and Training (FET) Colleges, the Colleges would be responsible. The FET Colleges Amendment Bill stated that a College’s council had statutory responsibilities to perform specific functions, and needed to use state employees. Section 90 of the Act provided for adherence by such employees to instructions by the College. This was repeated in clause 12, which dealt with the appointment of college staff. Subclause (3) stated that state employees had to report to the College Council in respect of matters and functions allocated to them by the Council in terms of the Act, and that the Council would also need to report to the Minister in terms of the Public Service Act.

The Minister would have to consult with the board regarding the appointment of any assessors.

The FET Colleges Amendment Bill dealt with the issue of the conflict of interest related to the council members. The first issue related to delegation of functions to a Committee, and he pointed out that the purpose of this clause was to ensure that decision making was less likely to be affected by considerations of self-interest.

Clauses 11, 12 and 13 dealt with the transitional arrangements for fully funded posts. The issues of subsidies were provided for by the norms and standards provided for in section 35 of the principal FET Colleges Act. These posts would be identified by the college and agreed to by the Minister, as there would be a fully funded structure to pay for the post. Identifiable resources were linked to identifiable posts. It was important that the transfer of these posts were linked to funds that were already budgeted for, rather than creating an un-funded statutory provision. The intention was to avoid job losses.

Discussion
Ms D Rantho (ANC, Eastern Cape) stated that the crisis around the National Student Financial Aid Scheme (NSFAS) revolved around key interests, and the fact that students were basically criminalised in consequence of their unemployment. The fundamental problem lay with the charging of interest. This Bill was not responding to the realities. She wanted to know how those who borrowed money for their studies would be protected. Often, the failure to repay was not directly the fault of the student, but was rather a social problem to which government needed to respond.

Adv Boshoff assured Members that there was plenty of protection provided by the National Credit Act to ensure that students were protected, and that the process was fair. There was a whole chapter in the Bill that was dedicated to education loans and those provisions formed the basis of protection for the borrower. The intention of the Bill was to deal with a provision that had never been implemented and to ensure that there were no constitutional challenge.

Ms Rantho commented on the dual employment processes, saying that there was a new post provision being transferred to the Further Education and Training (FET) sector. The fact that there were deepening crises in Basic Education was because former model C institutions were allowed to appoint as many teachers as they could afford, because of their financial muscle, at the expense of the township and rural learners who were operating on a skeleton staff. She wondered how vulnerable institutions could be protected. She pointed out that this policy of “own appointments” exacerbated the deepening inequalities in Basic Education, and was now being transferred to the FET sector. Finally, she commented that the process of amending the Act was taking too long.

Adv Boshoff responded that the points raised by Ms Rantho were of a political nature and needed to be debated at a later stage.

He stated, however, that on the issue of dual employment, it was important to note that the school system used the FET College system and the Technical College Act as the basis for getting staff employed by the schools, so the process had not operated the other way around. If the State took over all the staff in the FET Colleges, there would not be sufficient funds to pay, because the FET Colleges were not subsidised by the State. This was a difficult situation, because the intention was not to cause job losses.

He added that Section 20 of the Act specifically provided that the state was the employer for an identifiable number of posts, and subsection 20(4) provided that the College would be the employer. Subsection (3) affirmed that state employees needed to support and provide their services to the statutory responsibilities of the council. It was not possible to re-write all the provisions of the Public Service Act into the Bill, but it clearly stated that all staff would be appointed in terms of the Public Service Act and all provisions of that Act would be applicable to them.

Mr W Faber (DA, Northern Cape) raised concerns about Clause 47, and said the costs associated with appointment of administrators would be for the account of NSFAS. Unless the committee was going to start changing the NSFAS Act, then he did not believe the Committee could agree to this, as he believed that it would contravene the principles.

The Chairperson stated that this briefing was intended to give members clarity on the Bill, and these discussions needed to take place at the provincial level, where public hearings would be held. Members would return to Parliament to hold the final negotiations. The Chairperson urged Members not to engage too fully on matters that were the responsibility of the provinces to debate.

Mr M De Villiers (DA, Western Cape) asked why the claims of staff were not included into the Bill. He wondered if this aspect should not be covered in either the code of conduct or the disciplinary procedures. He asked who was referred to in clause 13.

Mr S Plaatjie (COPE, North West) asked for clarity on the FET College Amendment Bill, as the roles of the provinces were not mentioned, in particular the Members of the Executive Committee (MECs) for Education. 

Adv Boshoff responded that any public function was determined in terms of the statutory powers provided to that authority. The recommendation that came from the MECs was that the focus of their agreement was to ensure that there were positive results on education. Therefore, it had been agreed that it was in the best interest of the FET college sector that National Department should take the ultimate responsibility, with a provincial presence. This was similar to the approach taken by the Department of Labour’s Skills Development Act .

Ms B Mncube (ANC, Gauteng) raised the question of loans, and the fact that they could, in the final two years,  be transformed into bursaries. She stated that if they were not regulated, it would become a problem, and she was not sure whether this was an omission from the Bill. She indicated that there was a clause prohibiting the Council from entering into any loans without informing the Minister. She asked if the principal Act set out the procedures for getting a loan.

Ms Mncube said that nothing was mentioned about the responsibility for establishing the Council. This would lead to problems for disbanding the Councils.

Mr Boshoff clarified that the purpose of the legislation was to provide student loans and the administration of the governance was part of the NSFAS. Allowing the administration costs to be deducted from those functions was within the prescripts of the Act.

Mr Boshoff stated that the conversion of loans to bursaries was not contained in the legislation, because this would be subject to the availability of funds. This Act dealt primarily with loans agreements, but had not provided for a bursary scheme. This concept needed to go through a policy development framework process before there were any attempts to amend the legislation, as it could have severe financial implications that were no budgeted for.
 
The meeting was adjourned.