Further Education and Training Colleges Amendment Bill : Negotiating Mandates consideration

Meeting report

Further Education and Training Colleges Amendment Bill [B13-2011]: Negotiating Mandates consideration
The Chairperson informed the Committee that all provinces had submitted their Negotiating Mandates and asked each province to state what its provincial legislature had decided. The meeting was to be brief.

Western Cape Provincial Legislature
Mr M de Villiers (Western Cape, DA) read the Negotiating Mandate and informed the Committee that the Western Cape Provincial legislature supported the Bill.  The Western Cape legislature supported the Bill with the following recommendations: under Clause 35 it would be prudent for the Minister of Minister of Higher Education and Training to wait for the Eighteenth Constitution Amendment Bill to be promulgated first, failure to do so would mean that the Western Cape Province would reserve its right to challenge the Minister.

Advocate Anthea Geraldin, Parliamentary Legal Adviser, explained that the Committee had to undergated. tand Schedule 4 as it spoke of concurrent competency between provinces and national irrespective of legislative competency that fell to Parliament and not to the Executive. She further explained that the Bill was dealt with as a Section 76 Bill. If the Constitution Amendment Bill came into effect before the Further Education and Training (FET) Colleges Amendment Bill was passed, it would mean that Schedule 4 would change and the FET Bill would become a Section 75 Bill and would have to be processed all over again. This meant that the FET Bill had to go to Parliament before the Constitution Amendment Bill.

Mr Firoz Patel, Deputy Director-General (DDG) for Planning and Monitoring Coordination from the Department of Higher Education and Training (DHET), informed the Committee that the recommendations of the Province were covered by the Legal Adviser

Mpumalanga Provincial Legislature
Ms M Boroto (Mpumalanga, ANC) read that the Mpumalanga legislature was in favour of the Bill without any recommendations or concerns.

Free State Provincial Legislature
Ms D Rantho (Eastern Cape, ANC) read the Negotiating Mandate and informed the Committee that the Free State Provincial legislature supported the Bill with the recommendation that “immediate family” be defined in the Bill.

The Parliament Legal Team agreed with the Province on the definition of “Immediate Family”.

Gauteng Provincial Legislature
Ms B Mncube (Gauteng, ANC) stated that Gauteng supported the Bill but there were issues raised during the public hearings. She did not read the concerns as the Members had the Negotiating Mandate documents.

The Chairperson explained that the Department of Higher Education and Training would address those issues as the Members had the documents in front of them.

Mr Patel promised the Committee that the Department would take the concerns into account in the implementing of the bill.

At a later stage of the meeting Ms Mncube asked the Committee that she be allowed to read the recommendations from the Gauteng portfolio committee that the Bill should be processed in tandem with the Constitution Amendment Bill as the amendment sought to amend the constitutional provisions. She also wanted clarity as to what was going to happen to the recommendations of the stakeholders.

Ms Mncube quickly read the concerns of the Province.

Northern Cape Provincial Legislature
Mr W Faber (Northern Cape, DA) firstly informed the Committee that he went to the Province as he was sent by the National Council of Provinces (NCOP) and when he got there he found out that the portfolio committee was not ready and its members were not available for the meeting. However subsequent to that there was an official from the DHET who met the portfolio committee. After this meeting the vote from the Northern Cape Legislature was that it was in favour of the Bill and supported it.

Limpopo Provincial Legislature
Mr T Mashamaite (Limpopo, ANC) stated that the Limpopo Legislature supported the Bill in its entirety. He suggested, however, that an extension be given in order for the portfolio committee to conduct public hearings and hold sufficient consultation so that the outcome could be incorporated in the final Bill.

Mr Patel suggested that one meeting with all the provincial legal advisers had to be scheduled because of constraint of time so the Department had to brief all the provinces.

The Chairperson agreed with Mr Patel and she reminded the Members that the final mandate was on the 30 November 2011 so every province had to submit its final Mandate by 29 November 2011.

Eastern Cape Provincial Legislature
Ms Phumeza Mpushe, the Eastern Cape Provincial Legislature delegate, read that the Eastern Cape had voted in favour of the Bill and mandated the Eastern Cape delegate to the NCOP to negotiate in favour of the Bill within the following parameters. The Province proposed that Section 20(4) should be removed so that colleges could not appoint their own additional staff and that the responsibility to appoint all staff and determine their conditions of service must rest with the Minister because this created undesirable disparities between colleges that had enough funds and the ones that did not. 

Secondly the Province proposed that grammatical corrections be made to Item 35(1) (Evaluation) and to Item 36(1) and (2) (Disciplinary code of [lecturers and support] staff for the sake f better legislative drafting.

The Province suggested, with reference to Clause 34 (Transitional Provisions) that all college staff be transferred to the Department of Higher Education and Training for uniformity and equity.

The Province wanted clarity as to how long the process of verification of posts by the Minister would take.

In general the Eastern Cape Province suggested that the head of an FET college be given a status of a principal and not of a chief executive officer (CEO) and that public FET colleges should not have autonomous status.

The Province proposed that the DHET and Department of Labour had to work together to ensure that the FET colleges provided practical and experimental training that was properly recognised by the labour market.

The Province also raised its concern about colleges in the Eastern Cape that had a shortage of resources and about the non-recognition of the qualifications they offered.

Lastly the Province suggested that Section 10 of the Further Education and Training Colleges Act 2006 (Act No. 16 of 2006) be amended to ensure that local communities were represented in college Councils.

Adv Geraldin agreed on the recommendations for grammatical corrections.

Ms Boroto asked if the legal team could give its answers in writing as Members were not legal experts.

Ms Rasmeni asked that the legal team ensure that the bill was numbered correctly. She also wanted clarity as to what the legal team meant by “starting all over again”.

The Chairperson explained that the legal team was responding to the Western Cape recommendations and she asked the legal team to submit their answers to the Committee before the end of the day.

Mr Patel stated that even prior to the 2006 amendment FETs appointed staff according to the funds provided to them. The Minister could appoint staff up to the funds s/he had given to the FETs as the budget would allow. As to the composition of the Council the Minister had the right to appoint five members of the Council.

Mr Gwebs Qonde, Director-General (DG), DHET,   thought that the issue raise by the Province should actually be located within the framework of practices and the entire system, whether it was about higher education or basic schooling. One had to look at what was based on the norms and nature of that particular facility. He further explained that in the entire system there was what was called 3rd stream where the institution raised funds for itself and the Department did not want to be too prescriptive to the point where there was no room for innovation, creativity and flexibility.

The Chairperson asked the DG to be more specific as Ms Mpushe was not satisfied with the response given.

Ms Mpushe told the Committee that the  Provincial Legislature would do a follow up on the information given by the DG.

Ms Rantho raised her concern to the Department that the Bill that could be finalised while the Eastern Cape Legislature still needed clarity on the recommendations it had raised. She suggested that the Department  meet with the province to clarify the recommendations.

Ms Linda Hlongwa, KwaZulu-Natal Provincial Legislature delegate, proposed that the Department had to consider the issue raised  about Section 20(4) concerning the appointment of staff.

Ms Mncube wanted clarity as to process used because she believed that the purpose of the meeting was to discuss the mandates and make decisions.

Ms Mpushe also wanted clarity on the process that was followed in the meeting  as she believed that if there was no discussion the response of the Department would mean that the Department did not accept the Eastern Cape Provincial recommendations.

The Chairperson explained that all Members were in the meeting because they attended as representatives of different provinces and the Members would receive their response in writing so that when the Members meet for the consideration of the final mandate they would have had time to discuss the responses in their separate provinces. She also reminded the provinces that the Committee would be considering the final mandate by  29 November 2011.

KwaZulu-Natal (KZN) Provincial Legislature
Ms Hlongwa read the mandate with the issues that were considered by the legislature and she stated that the KZN Legislature supported the legislature with the consideration of the considered issues. Following issues were considered and proposed; Clause 12 on the appointment of staff - the Province proposed that Section 20(4) be deleted. Clause 19 on the amendment of Section 28 - the Province wanted clarity as to why “juristic person” was substituted by “company”.

Clause 34, which dealt with the conditions of employment, had to be deleted and the Council had to improve the conditions, review of salaries and other remunerations in accordance with the Bill. The KZN Province supported the Bill, provided the above were considered and consolidated with the Bill.

Mr Patel stated that his response to KZN was the same as to the Eastern Cape.

Mr S Plaatjie (North West, COPE) wanted more clarity as to what Ms Geraldin had explained about the 'juristic person'.

Mr Patel explained that the private institutions were guided by the Companies Act, so even the private FETs had to follow the regulations of the Companies Act.

North West Provincial Legislature
Ms R Rasmeni (North West, ANC) stated that the North West Provincial Legislature had voted in favour of the Bill and supported it with the concerns that were highlighted as follows; the Province was in agreement with Clauses 1 to 10 and 1 to 14 but proposed that the Minister in consultation with the stakeholders should appoint the Council of FETs; and the national Department had to do a road show on the migration of duties and induct  employees on all systems before integration into the national Department.

The Province was in total agreement with the changes that had been made to Clause 8.

With reference to Clause 11, 12, 13, 14 the Province suggested that the amendment should make a distinction between academic and non-academic staff and the definition thereof. The definition of scarce skills should be inserted to include artisan, boiler-maker, motor mechanics, et. Staff employed by Council versus staff employed by Department should earn equal salary.

Mr Patel stated that the Department would take due regard. He explained that academic and non-academic staff were defined as non-support staff.
 
Postponement of DHET Annual Report 2010/11 Presentation
The Chairperson asked Ms Rantho to take over as Acting Chairperson.

The Acting Chairperson informed the DHET that the Committee was very unhappy with the fact that the Minister was absent from the meeting. She wanted to know if he had sent an apology for not attending.

Ms Mncube agreed with the Chairperson that it had been three years since the Select Committee on Education and Recreation had been visited by the Minister.

Mr Qonde apologised on behalf of the Minister and agreed with the Chairperson that the Minister was supposed to be present but the Minister had to attend the Cabinet meeting.

The Chairperson told the Department that the Committee wanted a written apology from the Minister because the National Council of Provinces was a recognised House of Parliament.

Ms Mncube added that the Committee needed to be taken seriously by the Department.

Ms Rasmeni suggested that the Committee hold a closed session about the issue.

Mr Faber also emphasised that the Minister was supposed to attend the meeting and the Minister’s absence was unacceptable.

The Acting Chairperson asked the Department and the Parliamentary Monitoring Group (PMG) monitor to wait outside.

After a short closed session, the Acting Chairperson informed the Department that the Committee had decided to dismiss the Department. It must return with the Minister or Deputy Minister so that the Committee could get the Minister’s political inputs.

Mr Mashamaite added that the Committee rejected the Minister’s verbal apology.

The meeting was adjourned.