Higher Education and Training Laws Amendment Bill; FET Colleges Amendment Bill: briefing with Deputy Minister of Higher Education

Meeting report

The Chairperson welcomed Deputy Minister Mduduzi Manana and accepted the apology of the Director General who was unable to attend the meeting.

Further Education and Training Colleges Amendment Bill [B24-12]
Mr Boshoff said the Further Education and Training Colleges Amendment Bill sought to amend certain definitions of the FET Colleges Act and to deal with the very important aspect of the whole concept of colleges and also ABET Centres and how they could be included and provided for in a framework that was known to the education constituency. The Bill would provide the necessary flexibility to deal with that institutional type in a more coherent and conclusive manner.

The Bill contained the definitions of the new institutions introduced. Many of the amendments in the Bill dealt with changes in terminology as a result of the references to institutional types that this legislation sought to amend and to provide for.

There were a lot of consequential amendments as a result of that. The Bill introduced a new institution type, a Community Education and Training College (CETC), that would replace the current Adult Basic Education and Training (ABET) Centres.

The Bill also introduced the SA Institute for Vocational Education and Training, which was an institute to support these new institutional types, the CETC and the technical and vocational education and training (TVET) colleges. This institute was not an institution, but would provide the support and the structure for the colleges. This institute would make these colleges more responsive to the educational needs in the adult sector. The Bill would also deal with transitional arrangements and provided for the name change to the Act. In future the Further Education and Training Colleges Act would be known as the Continuing Education and Training Act.

When looking at definitions, the concept of a college had been redefined. It was providing for a TVET College. This Act would bring SA more in line with the international approach, while keeping the distinctive nature of the programme mix and qualifications at colleges specialising in technical and vocational education.

The Adult Education and Training Centres had always been dealt with by an Act which was very limited in its application. The current governance structure only provided for compulsory members like the principal, the educators and the students at the institution. If applicable, it provided for external members. In essence, only an internal constituency ran such an institution. Another current limitation was that it could only provide for qualifications at NQF level 1. There was also no mechanism for articulation between these qualifications and other tertiary level qualifications that the student may want to pursue as set out in the National Qualifications Framework Act.

The two types of colleges were the types which existed internationally to address the adult education needs of communities and would provide the necessary flexibility to deal with the demand for that sector in SA.

The Act provided the definition for, and established the SA Institute for Vocational and Continuing Education and Training as a support structure for these colleges. The Act provided for a range of technical changes to the definitions, which basically repealed parts of the existing legislation which would become obsolete as a result of the specific reference to further education and training. It introduced changes to other parts of the legislation and new definitions, using the new terminology.

It also provided a change to the reference to the old SAQA Act and referred to the National Qualifications Framework (NQF) as the piece of legislation that currently governed this area.

Mr Boshoff discussed the different clauses and the amendments contained in each:

Clause 1
It defined ‘college’ as the two types of public colleges:
• TVET or technical and vocational educational and training college and
• CET or community education and training college.
This clause also provided for private colleges to be established along these two lines and registered under the FET Colleges Act.
It also defined the SA Institute for Vocational and Continuing Education and Training (SAIVCET).

Clauses 3-4, 6-14 and16-19 and 22
These clauses all served to substitute the word ‘further ‘ wherever it occurred with the word ‘continuing’.

Clause 2
This clause referred to amendments to Section 3 of the principal Act which provided for the establishment of two types of public colleges, which were also juristic persons: TVET Colleges – technical and vocational education and training colleges and CET Colleges – community education and training colleges. It set out the procedures to be followed in the establishment of a college.

Clause 5
This clause sought to amend Section 11 of the principal Act in that the Minister by Notice in a Gazette could determine that a specific CET college did not require an academic board if the qualifications offered did not warrant it and the decision was taken in the best interest of the college. In this case the DHET would perform the functions of an academic board.

Clause 15
This inserted a new chapter 7A into the FET Colleges Act, 2006, whereby the South African Institute for Vocational and Continuing Education and Training (SAIVCET) would be established. It also set out its functions, its governance structure and how vacancies on the board would be filled, how it would be funded and how and to whom it would account. It stated how the Minister would intervene if SAIVCET strayed from its brief. It set out how, under circumstances which would legally permit the Minister to do so, the Minister could dissolve the board and appoint an administrator to perform all the functions of SAIVCET. This period under administration would continue for a maximum of two years. This clause also made provision for the closure and disestablishment of SAIVCET.

Clause 25
It provided for transitional arrangements for colleges already in existence. It set out how they would make the transition from their current nature to become one of the two types of colleges described in the Bill, in terms of what happened to the people on governing boards, student representative bodies, employees and academic staff.

Discussion
Ms A Lotriet (DA) said the Committee was dealing with the Amendment Bill on the Further Education and Training Colleges Act. What was the impact of the Act as it was, in light of the fact that the Constitutional 18^th Amendment had not taken place? In terms of the different constitutional schedules, where did the Committee stand?

Adv Boshoff replied that, in terms of the Constitution, Schedule 4 indicated that education, including tertiary education, was a concurrent function. This Bill and the scope which it addressed was clearly not tertiary education. Tertiary education has always been seen as university education. Concurrent function meant that government at national and provincial levels had legislative power. It did not prescribe the extent and relationship or interaction between the two levels of government in the provision of this facility. It was then acceptable that national government provided national legislation where the statutory functions were dealt with at a national level of government and that did not mean that a province could not engage in its own legislative framework in order to deal with it. It was not unconstitutional to have national government deal with statutory responsibilities at a national level. This was what they sought to do. The Bill was not a constitutional amendment and it was not addressing the constitutional amendment. The Bill was not making it a sole competency of government at a national level. It merely provided national government (who had the constitutional authority to make legislation within that area of education) with legislation to give it authority to act within its national competence.

This was the principle accepted by the state law advisers and was also exactly the same principle accepted in the amendment to the FET Colleges Act that came to this Committee in 2011. It was an accepted principle which was taken by the Council of Education Ministers in 2009 where the execution of the statutory provisions for FET and Adult Education and Training had to move to the national department and not the provinicial departments, because the foci of the provincial departments were so concentrated on schools. It was not unconstitutional and this was also the view of the state law advisors who certified the Bill that it was not unconstitutional.

Adv Monwabisi Ngugu, Senior State Law Advisor, said the Member asked what the relationship between this Bill and the Constitutional 18th Amendment Bill, which was in Parliament. The Constitutional 18th Amendment Bill was trying to change Schedule 4 of the Constitution. Schedule 4 of the Constitution dealt with provincial and national concurrent competences. It included education, excluding tertiary education. Tertiary education was a national competence. The Constitutional 18th Amendment Bill was not passed into law, which meant that the constitutional framework remained intact. The FET College Amendment Bill was a Section 76 Bill, which would allow the provinces and the NCOP a say in the Bill. The status quo in terms of the Constitution remained. The issues addressed with this Bill fell within what was a national and provincial concurrent competence. It did not contradict what Adv Boshoff said.

Mr Mpontsane referred to Clause 5 which dealt with the establishment or not, of an academic board for a college. What would the difference be between having the board and not having the board?

Adv Boshoff replied that the Amendment Bill was doing away with an academic board. This was only meant for the initial phase while ABET centres would be converted to Community Colleges. There would be no need for academic boards where centres had only one or two qualifications on offer. It had to be justified and in the best interest of the college. It was a ‘may’ rule.

Mr Mpontsane said the Bill was supposed to make provision for the establishment of private colleges. He did not see the clause that dealt with the establishment of private colleges.

Adv Boshoff replied the definition dealt with private colleges. A whole chapter in the FET Colleges Act was dedicated to private colleges. This chapter was still applicable. It had to be read with the principal Act.

Mr G Radebe (ANC) asked what the relationship was between this Act and the Labour Relations Act (LRA).  What happened to the staff currently working in existing colleges?

Adv Boshoff replied that the transitional arrangements were specifically drawn up for those affected by the consequences of this amendment. These staff members had to be dealt with in terms of Section 197 of the LRA. The transitional arrangements would make sure that the rights of individuals were protected. The employees would get the benefit of fair labour practices and procedures.

Mr G Hadebe referred to Clause 15. The presentation read: ‘Should the board fail to comply with the Ministerial directive within the stated period, the Minister must dissolve the board and appoint an Administrator to perform all functions of the SAIVCET.’ If the board failed to comply with the Minister’s directive, what kind of time period was talked about? Other Bills specify a period of three months within which the board had to comply with the administrator, or a period of six month for which the administrator would administer the organisation. Here there was no time period specified.

Adv Boshoff replied that the Act specified the timeframe for the institution to be run by an Administrator to be not longer than two years. There were different interventions and the length of time was left up to the discretion of the Minister.

Mr B Bhanga (COPE) asked whether allowing the Minister to establish an academic board would not affect the academic independence of a college. He linked this discussion to the 2020 post matric, because the country wanted to build better institutions.

Mr Firoz Patel, Deputy Director-General: Monitoring and Evaluation, replied if one read the legislation closely, one would realise that the legislation gave one more power than currently existed for the adult education governing structures. This Act gave more power to the Adult Education Field.

With FET Colleges, since 1995, the curriculum for N1-N3 had not changed. This was where the SA Institute for Vocational and Continuing Education and Training would come in to develop the curriculum, to provide for lecturer training and to facilitate articulation. That type of capacity was not in the system. The legislation would empower that.

Articulation issues would be uppermost in the mind with every new development.

Mr A Mpontsane (IFP) needed clarity on the establishment of these colleges. What special needs did these colleges address?

Mr Mpontsane said the term ‘further’ was being substituted with ‘continuing’. What was the difference in meaning in practical terms?

Mr Bhanga asked why two types of institutions were established by the Act instead of one type offering many different kinds of qualifications. The Act introduced many new concepts and terms which he found confusing.

Adv Boshoff replied that this was an Amendment Bill. The FET Colleges Act was still there dealing with the bulk of the statutory provisions in the running, the establishment and the declarations. This was just to identify within the existing legislation specific amendments which would provide the flexibility to deal with the current need. The establishment of the two institutional types within the current strategic framework was not a new concept. It was used in the Higher Education Act. The universities, technicons and higher education colleges could be established using the one piece of legislation. This was the same approach. The institutional types depended on the qualification offerings. The one would focus on technical and vocational qualifications, while the other one focussed on broader community educational needs. These were concepts clarified in the Green Paper and was internationally accepted within the field of education.

The legislation was to provide for two distinctive institution types and two distinctive qualification offerings within the same legislative framework. It was to comply with the principle that one did not multiply the legislation on the statute books, but used existing legislation to address current needs.

Mr S Makhubele (ANC) said some questions were about issues other than clarity. The issues raised would be engaged with at a later stage, together with other stakeholders. Some of the concepts were raised in the Green Paper but this current meeting was not the platform to discuss it. He asked the Chairperson to demarcate the boundaries of what were legitimate questions for this session and what were not.

The Chairperson said he trusted the Adv Boshoff would be able to clarify all the questions asked.

Ms N Gina (ANC) asked what the scope was of a CET college. She understood that Adult Education went up to Level 1. She also wanted to understand how a CET qualification articulated with other possible post-school qualifications.

Adv Boshoff indicated that the policy of the Minister would provide the scope. It was not limited to NQF level 1, but right up to NQF Level 4. He made the example that if a community needed people trained to set up fences, that skill could be offered in a community college and people could get recognition for a qualification in that field.

Adv Boshoff said the name of the institutional type was directly linked to the qualification offerings it had on offer as in a technical and vocational college. The broader skills and educational programmes that were linked to numeracy and literacy were offered at the community college. It ran under the sub-framework of general and further education and training in the National Qualifications Framework. What was important was it was not linked to the old concept of Adult Basic Education and Training centre, which only went up to NQF Level 1 and therefore caused a blockage in the articulation to the further levels and qualifications within that framework.

This approach meant that there were two college types. Each would have a distinctive character and would be determined by the qualifications. It would also absorb existing institutions, but build on their programmes offerings in order to address the educational needs within that area.

When the educational need was broader and more basic literacy and numeracy orientated, the Community Education and Training College was the one to go to. When the educational need was more technical, specialised and vocational, linked to trades, the Technical and Vocational College was the one to go to.

The main Act as it was currently worded, said the Minister would provide the policy to provide the specific direction needed to identify the two institutional types. He already alluded to the fact that a big part of the Green Paper dealt with the two institutional types and provided a policy framework.  The concepts of further and general education were not unique to the function of the Minister of Higher Education and Training. Those were concepts that were present in school education. School education also had a general education and a further education and training phase. With post-school education, one had to focus on the type of qualifications that were on offer, instead of terms and concepts like further education that was used, by different Ministers, but could cause confusion.

Mr Bhanga asked whether the Minister was not given too much authority if the Minister could decide to appoint an administrator, as well as whom to appoint? Institutions had to run themselves. Institutions were becoming more administrator-driven.

Adv Boshoff said in a perfect world it would be wonderful to have no administrators but it was also important to have a mechanism to set things right when they were not going according to the will of Parliament. When this was the case, someone had to take the responsibility to bring the institution back on track and to comply with the accepted standards and norms that was provided in the legislation and with other applicable legislation like the Public Finance Management Act. There was an obligation on the Minister to intervene when, and only when there was statutory empowerment. This was an acceptable way to deal with serious mismanagement of finances and administration. It could not happen at a whim of the Minister. There had to be evidence from external sources to justify this step by the Minister. It was done through a process and there had to be compliance to specific indicators. There was therefore, not only in education, but also in a majority of legislation, provision for administrators to be appointed to statutory bodies, in order to ensure accountability and compliance with legislation.

The SA Institute for Vocational and Continuing Education and Training was not an institution which was going to provide training. It was a statutory body to provide an advisory service and a support service to ensure quality in the courses and programmes offered by the colleges.

Mr Makhubele noticed that there were quite a few aspects of the Green Paper incorporated in the Bill. He asked if the Committee was dealing with the issues of the Green Paper in a piecemeal manner, or what was envisaged going forward.

Mr Firoz Patel said he wanted to amplify some aspects of the discussion. He thought the amendments were technical in terms of their renaming and re-organising the current situation. For now FET Colleges were renamed Technical and Vocational Training Colleges, because that was what they did. FET Colleges used to be called technical colleges.

Secondly, the current ABET Centres, which would become Community Education and Training Colleges would form but one part of the community education and training colleges field.

It did not mean the policy process around expansion of community colleges would end with this legislation. This legislation did not restrict. It empowered.

Ms Lotriet said Mr Patel said the SA Institute for Vocational and Continuing Education and Training would do curriculum development. How did it tie in with the functions of the Quality Council for Trades and Occupations (QCTO)? One of their primary functions was curriculum development. Would there be an overlap?

Adv Boshoff replied that the QCTO was a quality council applicable to the trades and occupational sub-framework. The framework wherein the SA Institute for Vocational and Continuing Education and Training and the two institutional types had to work, dealt with the two sub frameworks. The two bodies had to work together synergistically. The Quality Council would provide quality assurance and the development of the qualification, not the detail of the curriculum, while the SA Institute for Vocational and Continuing Education and Training would be more concerned with the detail of the curricula.

The Skills Development Act dealt primarily with private skills training providers, while this Act would give public colleges the curriculum and the standards to comply with the standards set by the respective Quality Councils, to assist the college to deliver the qualifications to students within a broader perspective. One had to insist that institutions deliver qualifications and insist that the system worked as a unit, not in silos.

A member asked why the Bill was called the ‘Further Education and Training Colleges Amendment Bill’ if ‘further’ was being replaced by ‘continuing’.

Adv Boshoff replied that the observation was correct. Once the Amendment Bill was accepted, an amendment would be made to the short title and the long title and in future the FET Colleges Act would be known as the Continuing Education and Training Act of 2006.

The Chairperson said that if the Bill became law, one would be saying Continuing Education and Training Colleges instead of FET Colleges. There would also be community education and training colleges.

Adv Boshoff had copies of the integrated legislation with all the amendments. He would make this available.

Higher Education and Training Laws Amendment Bill, 2012 (HETLA Bill) (B23-2012)
Adv Boshoff said currently the provision in the Act for Higher Education was only directed at two provinces, which was a strange phenomenon, because the constitutional provision was that national legislation had to deal with the country as a whole. The need for the National Institute for Higher Education (NIHE) was still there and it would be dealt with on a national level.

It provided afresh for the establishment of a National Institute for Higher Education (NIHE), to extend the functions of a NIHE. To provide for the appointment of an administrator for a NIHE, to provide for closure of a NIHE and to provide for other matters concerned.

The HETLA BiLL would also amend the National Qualifications Framework Act, 2008 in the sense that it would amend the date on which the annual report of the SAQA must be submitted to the Minister.

The Bill was certified as constitutional by the State Law Advisers on 11 June 2012.

Clause 1 and 2
These amendments sought to extend the powers of the Minister to establish afresh national institutes for higher education (NIHEs).

Clause3
This clause provided for the insertion of new sections 38J to 38O.

Section 38J provided for the intervention by the Minister when an institution was financially mismanaged or unable to perform its functions.

Section 38K dealt with the circumstances under which an administrator could be appointed.

Clause 4
This Bill sought to amend the National Qualifications Framework (NQF) Act by changing the date on which the annual report of the SAQA must be submitted to the Minister.

Discussion
The Chairperson said he had read articles by the Speaker of Parliament about the way that MPs behaved in Parliament, often just rubberstamping whatever was brought before them. The law that was currently being amended had been passed only just recently. It could make the Committee look clumsy.

The second aspect was the Administrator Syndrome. An administrator could earn more than a board. Members had to think about this. Perhaps the board had to be dissolved and a new one appointed.

Mr Makhubele asked whether the two Bills would be opened up to the public for participation, or whether they would be regarded as technical and be dealt with within the Committee.

Mr Gary Rhoda, Parliamentary Legal Advisor, said the Committee was bound by law to facilitate public participation in the process.

Ms Gina asked referred to the establishment of a regional institute. Would it be done after consultation with the Council on Higher Education? Why was that consultation necessary? Should the CHE give the green light? What was the consultation all about?

Ms Gina said administrators were becoming common. Universities were run by administrators. The Committee needed to look at various issues. The country was killing the credibility of its institutions. She was concerned about the issue of administrators.

Mr Bhanga asked why the Minister did not give powers to the management of universities. Why did the Ministers not push more towards giving more control to institutions? The way the Department of Higher Education used its power was not helpful. In the Eastern Cape, everything had been put under administration and it did not work. There had to be independent bodies for dealing with these issues. They would have to look beyond technical issues.

The Chairperson said the Committee had to be careful not to discuss the concept of administrator at this briefing stage. He had just been asking the Department to think about the issue of administrators. Should one appoint an administrator? The concept of an administrator emanated from the Higher Education Act.

Mr Makhubela said that this meeting was for the purpose of getting clarity on the Bills as it stood, so that when the Committee took it forward, members understood what they were dealing with. He agreed that a discussion on the desirability of the use of administrators as well as alternatives to them, could be provided by the Chairperson at a later stage

The meeting was adjourned.