FET Colleges Amendment Bill, Higher Education & Training Laws Amendment Bill: Department's response to public submissions

Meeting report

Further Education and Training Colleges Amendment Bill & Higher Education and Training Laws Amendment Bill: Departmental responses to public submissions
Mr Firoz Patel, Deputy Director General: Planning, Department of Higher Education and Training, and Mr Eben Boshoff, Chief Director: Legal and Legislative Services, Department of Higher Education and Training, presented the responses of the Department of Higher Education and Training (DHET) to the public submissions on the two education amendment bills. They explained that the response related to the seventeen written submissions and six oral submissions presented to the Portfolio Committee on Higher Education and Training.

Further Education and Training Colleges Amendment Bill (FET Bill)
Mr Boshoff stated that the Workers’ College (WC) proposed that the definition of a ‘college’ in the FET  Bill should be expanded to include civil society education courses, which it said were providing a public function. It also argued that civil society organisations should also be called public educational institutions, to distinguish them from private educational institutions which were run for gain. DHET’s response to the WC’s submission was that the South African Constitution made provision for two types of educational institutions, namely, public educational institutions (established by the State) and independent educational institutions (established privately). The term ‘private’ was defined in the Further Education and Training Colleges Act (the FET Act) and the Adult Education and Training (AET) Act. If civil society education institutions were included in the definition of a ‘college’ then this raised the question of whether they should be regarded as public or private colleges, for there would be a problem if they fell into the former category, without being under the control of the State. Registration of educational institutions was not dependent upon whether they made a profit or not. This was a policy issue, and thus would have to be considered in the Post-School White Paper Process.

The WC also proposed that programme levels 1-5 be offered in Continuing Education and Training Centres (CETCs), as distinct from the levels 1-4 mentioned in the FET Bill. DHET believed that a private college could provide level 5 qualifications if it took on dual registration, both as a Further Education and training (FET) and Higher Education institution (HEI), and had that accredited by the Council for Higher Education (CHE).

Umfolozi College had made a similar suggestion and once again the same answer applied.

Umfolozi College had suggested that clarity was needed on whether campus managers were regarded as lecturers. DHET pointed out that the lecturer establishment, as provided in section 20 of the FET Act would determine whether the person occupying such post was a lecturer, and this would include any management staff who were classified as lecturers in the establishment.

Umfolozi College also expressed a concern that if the Principal was the chairperson of the academic board, this could lead to a conflict of interest. DHET responded that since the Principal was the chief academic at a College, s/he was expected to lead in terms of the academic aspects of the college. It did not see that there was any conflict.

Mr Boshoff moved on to discuss issues raised by Education South Africa (EDUSA). It had spoken of recognition and accreditation, but did not seem to be aware that its members could be registered as private FET Colleges or Higher Education Institutions or accredited as a Skills Development Provider. The DHET would provide EDUSA with the necessary information.

The submissions of the South African Women in Co-operatives (SAWICO) and the South African National Apex Co-operative (SANACO) were generally positive in regard to CETCs, and both had expressed interest in being involved with CETCs dealing with co-operatives. DHET said that the FET Bill was already flexible enough to deal with emerging policy discourses on the issue.

The Office of the Auditor General (AG) made certain proposals in its submission on the FET Bill, and DHET would respond to those in writing. The AG had proposed that the Minister for Higher Education and Training should consult with the South African Institute for Vocational and Continuing Education and Training (SAIVCET) when establishing FET Colleges. DHET agreed with the proposal and suggested that this could be done by amending the existing section 3 of the Further Education and Training Colleges Act, to read ‘The Minister may, after consultation with SAIVCET, by notice in the Gazette….’

The AG had then proposed that the proposed section 43E(3) be deleted. DHET agreed with the proposal.

The AG proposed that in relation to the proposed new section 43E(2), the wording should be amended to include a definite date, and had proposed a cut-off date of 31 August of each year, in accordance with the Public Finance Management Act (PFMA). DHET agreed with the proposal.

DHET did not agree with the AG’s proposal for the new section 43E(6), because it arose from a misconception of the provision. Section 47(4)(c) of the PFMA specifically excluded public higher educational institutions, but not FET institutions or institutes, from being listed as a public entity. On the other hand, the new SAIVCET would, in the main, receive public funds, perform a public function and therefore would qualify to be listed as a public entity in terms of the PFMA. It was not an institution in terms of the Higher Education Act. I

DHET agreed with the AG’s proposal on the new section 43E(7), as it referred to measures that were already in the PFMA and regulations. The new section would be amended to read:”the accounts, financial statements and records of the Institute must be audited annually [as provided for in the Public Audit Act 2004 (Act No 25 of 2004)]”.

The AG had suggested that the word “difficulty” in the new section 43F(1)(a) may pose a problem, but DHET suggested that the word be replaced with “impropriety”. The AG had made two suggestions; the first, however, required actions that could only follow an investigation whereas this clause was intended to apply prior to investigation. Although the AG had made an alternative proposal, it was too detailed and could limit the scope of general financial issues. The use of the word “impropriety” would allow for unintended circumstances, and whilst a financial difficulty faced by an institution should not fall under this provision, a financial impropriety should.

The AG had suggested that in the new section 43G(2), the words  “and continuing education and training in an open and democratic society” did not flow well, and therefore suggested their deletion. However, DHET pointed out that the concept of “continuing education and training” was defined in the FET Bill and it was necessary for the Minister to weigh up all competing interests when taking this decision.

The AG had made a proposal on the new section 43I, but Mr Boshoff thought that the AG may have construed the wording to mean that the Minster of Higher Education and Training, in concurrence with the Minister of Finance, would have to determine the remuneration and allowances of an Administrator, or any person appointed by the Administrator in each and every case where an Administrator was appointed. In fact, the Minister of Finance had already established rates and tariffs for these cases. This clause merely provided for the Minister of Higher Education and Training to consult the Minister of Finance if the remuneration and allowances were to be above the normal rates, and so the AG’s fears about delays were unfounded.

The Adult Learning Network (ALN) had expressed concern about the removal of the word “basic” in relation to adult education, and the implication that it might affect access to education by adults. DHET pointed out, however, that the name change would not affect the right to adult education as guaranteed under section 29 of the Constitution.

The South African Qualifications Authority (SAQA) had made a proposal for the rephrasing of section 43B(1), which dealt with the functions of the SAIVCET. It had suggested that the words “to provide management, leadership, and operational training at all levels for” (Sector Education and Training Authorities (SETAs) to “facilitate access to” (instead of “provide”. DHET could not comment on the proposal at present, as no motivation was provided by SAQA.

The union NEHAWU had proposed that SAIVCET be required to provide annual reports to Parliament. Mr Boshoff stated that since SAIVCET would fall within the definition of a public entity, it would be bound by the terms of the PFMA and its reporting requirements, and this would include reporting to Parliament if so determined by the Minister of Finance.

Higher Education and Training Laws Amendment Bill (HE Bill)
The AG had made a submission on the new sections 38H and 38I of the Higher Education Act. Mr Boshoff explained that section 47(4)(c) of the PFMA specifically excluded public higher education institutions, but not the envisaged National Institutes for Higher Education (NIHE), from being listed as a public entity. The envisaged NIHEs would, in the main, receive public funds, perform a public function and therefore would qualify to be listed as public entities in terms of the PFMA. The Institute was not an institution in terms of the HEA.

Higher Education of South Africa (HESA) had also commented on this Bill, and had proposed that the powers and functions of the Institute, as set out in the new section 38B, should include specific functions and powers relating to the scope and application of the NIHEs generally and in accordance with the definition of a National Institute. DHET suggested that the current provisions in of section 38B(d) could be amended, to allow the Minister to make regulations around the specific powers, duties and functions of the specific NIHE that was established in terms of section 38A(3).

HESA had made a proposal that two members of the NIHE boards should be representatives from the higher education sector. DHET was in agreement with this proposal, and therefore suggested that section 38C be amended to state: “‘The board of the National Institute for Higher Education consists of: (a) a chairperson; [and] (b) not more than ten ordinary members; and (c) at least two of the members contemplated in (a) and (b) must have specific knowledge and experience generally in higher education and specifically in the scope and application of the Institute”.

HESA had also raised concerns about funding of the NIHEs. DHET noted that the current legislation provided sufficient measures for the Minister to consult with the CHE, the Minister of Finance and to determine policy for public HE institutions in a transparent and fair manner.

The South African Democratic Teachers Union (SADTU) had commented on the Bill, but some of the comments indicated that the role of the NIHEs may have been confused with public Higher Education Institutions. It was not envisaged that NIHE would register any students or provide any education and training.

SADTU had submitted that the Bill should make reference not only to taking into account the interests of NIHE and higher education and training, in the new section 38K, but also that interests of students should be taken into account. DHET responded that the reference to “higher education and training” implied that everything to do with that concept, including students, must be considered.

SADTU had proposed that the Bill provide limitations or qualifications when a NIHE was closed. Mr Boshoff noted that the closure of a NIHE was an administrative decision, and the Minister could take that decision only after giving the NIHE an opportunity to comment on his impending decision, and that the decision could only be taken for sound reasons.

Vryheid District Examination had raised issues around the definition of AET educators, their qualifications requirements, their functions and the legislative requirements. Mr Boshoff pointed out that AET educators were currently covered in the AET Act, and they would fall under the definition of lecturers. This body had also proposed that AET practitioners be recognised as educators in terms of the South African Schools Act, and the Employment of Educators Act (EEA), the DHET stated that the EEA did not fall under the control of the Minister of Higher Education and Training. However, conditions of service and staff lecturer provisions were dealt with in the Public Service Act.  

Mr Boshoff finally noted that Mr Halalisani Michael Zulu’s submission made broad statements about access to and affordability of education in various areas, but they were not directly related to the Bills under consideration.

Mr Thembisile Vinah Zwane had made a submission that raised certain statements only, but had not indicated his concerns, nor made any proposals.

Discussion
The Chairperson asked whether there was a definition of a private college in the FET Colleges Act. The Constitution, in section 29(3), provided for the establishment of independent educational institutions, provided that they did not discriminate on the basis of race, were registered with the state, and maintained standards that are not inferior to standards at comparable public educational institutions.

Mr S Makhubele (ANC) stated that in the past there used to be State aided institutions and State institutions, but the current system provided for State institutions and private institutions. However, it was still possible for the State to subsidise or assist private institutions. He believed the issues raised by WC in relation to the definition of a college should not be included in the FET Bill, but instead should be addressed in further discourse.

Mr B Bhanga (COPE) agreed that the categorisation of civil society educational institutions required further discourse.

Mr Boshoff stated that the FET Colleges Act had a definition of a ‘college’. It also defined what a public or private college was.

Mr Patel stated that the difficulty that DHET had with the WC’s proposal for the definition of a college was that the WC’s work was clearly in the public domain as it provided training to trade unions and civil society organisations, yet it had to describe itself as a “private” institution, because it was not state-funded. The WC’s submission did not really concentrate on whether the colleges made a profit or not, but had stressed that civil society organisations were trying to bring about political and socio economic change in the society, which, it submitted, was the true function of education. The WC was doing public work, with the support of the DHET. 

Mr Patel added that in relation to the submission on programme levels 1 to 4, the WC had approached the DHET to register, but had realised that this had certain implications for the way in which it delivered services to the society.

The Chairperson agreed with the replacement of the word “difficulty” with “impropriety” in the new section 43F(1)(a).

Mr Bhanga asked whether the DHET was stating that there should be a clear distinction between a university and an Institute. He agreed that there was a need for clarity on the distinction between the proposed NEHI and other higher educational institutions, in the HE Bill. He asked how DHET defined an “institute”.

Mr Bhanga agreed that it was vital that two members of the NEHI Board should be experts from the higher education sector. There had been instances in the past where a Minister appointed representatives who had no knowledge of the higher education sector, despite the fact that they were supposed to proffer advice on the sector.

Ms N Gina (ANC) expressed her concern that to name only “two persons” from the higher education sector to sit on the NEHI Board was too restrictive and she did not think a number should be included.

The Chairperson stated that the DHET should think of providing a safeguard in the provision to prevent the abuse of the provision.

Mr L Bosman (DA) asked whether the number should not be expanded. As it stood presently, the Minister could appoint other persons who may not have the requisite knowledge. It was accepted that different members of a board should have different skills and knowledge.

Ms A Lotriet (DA) suggested that the word “two” be removed, but the remainder of the proposed wording should remain.

Mr C Moni (ANC) stated that HESA was clearly protecting its own interests, and thought that the number of representatives might have come from its submission.

The Chairperson stated that the Portfolio Committee would look at any further presentation of HESA might make to it, to see if its proposal on the issue would be sectarian or strategic. If it was sectarian, the Portfolio Committee would be inclined to disregard it. HESA was worried about the possible proliferation of these National Institutes.

Mr Makhubele stated that it was not appropriate, at this point, for the Committee to debate whether the precise number should be removed; this was supposed to be a session seeking clarity and the precise wording would be more fully debated at another meeting.

Mr Makhubele asked how clarity could be achieved in relation to the ALN’s concern on the removal of the word ‘basic’, in reference to adult education.

Mr Patel stated that clarity could be given in the Preamble to the Act.

The Chairperson added that clarity on the issue could be achieved in the definitions clause, and there should also be a link to the Constitutional provisions. He asked that DHET articulate the issue further.

Ms D Chili (ANC) asked the difference was between the National Institute and other higher education institutes.

Mr Boshoff stated that what was being proposed in the HE Bill were National Institutes of Higher Education (NIHEs). A National Institute of Higher Education was different from ordinary higher educational institutes, as it would be a specific statutory body that would have specific roles and functions such as academic research, co-ordination and other academic functions. It would not be recruiting students in the same way that other HE institutions did.

Mr Bhanga asked whether the word ‘may’ used in the clause relating to the Minster consulting with SAIVCET before establishing a college meant that the requirement was discretionary.

Mr Boshoff stated that the word ‘may’ used in clause 2(a) of the FET Bill was mandatory.

The Chairperson stated that the Constitutional Court had made a ruling that in certain circumstances, “may” could mean “shall”.

Mr Patel stated that the  word “may” related to the Minister’s decision on whether a college should be established. It was only when a Minister determined that a college should be established that the Minister would be bound to consult with SAIVCET.

The meeting was adjourned.