The Portfolio Committee on Higher Education and Training considered the proposed amendments by stakeholders and the public to certain provisions of the Further Education and Training Colleges Amendment (FETCA) Bill [B24-2012].
The DA Member found herself in a difficult position as her party had originally opposed the Bill. However, though she could not undertake to support any amendment, she was willing to contribute to the discussion. An ANC Member explained, for the benefit of an IFP Member, that the DA expressed opposition to the transfer of the control of colleges from the provincial level to the national level.
The Committee approved some of the proposed amendments and rejected some after careful deliberations and advice from legal experts.
Further Education and Training Colleges Amendment (FETCA) Bill [B24-2012]: consideration of proposed amendments
The Chairperson asked Members whether they were in agreement with the proposed amendment to the definition of a ‘college’ in Clause 1 of the Bill as originally tabled.
Mr S Makhubele (ANC) agreed to the amended definition.
Mr G Radebe (ANC) seconded.
Dr A Lotriet (DA) found herself in a difficult position as her party had originally opposed the Bill. ‘I cannot say that I support any amendment; I will, however, participate in the process.’
Ms N Gina (ANC) asked whether the DA was opposed to the entire Bill.
The Chairperson stated that the DA, on a political level, did not see the need to amend the Further Education and Training Colleges (FETC) Act.
Mr A Mpontshane (IFP) stated that he missed the point of the DA’s opposition. ‘I need to familiarise myself with the reasons for their opposition. Mr Chairperson, could I have a minute to confer to know the reasons’, he asked.
Mr Makhubele explained that the DA expressed opposition to the transfer of the control of colleges from the provincial level to the national level. ‘I think that is what Dr Lotriet is referring to. They (DA) want it on the provincial level.’
Members subsequently agreed to Clause 1.
The Chairperson asked Members if they agreed to the proposed amendment to Clause 2, for the Minister of Higher Education and Training (‘Minister’) to establish a college ‘after consultation with the Institute [South African Institute for Vocational and Continuing Education and Training (SAIVCET)]
Mr Makhubele agreed.
Mr Mpontshane asked whether it meant that the Minister did not necessarily have to consult with SAIVCET.
The Chairperson stated that the Minister would not be bound by the decision of SAIVCET. The Minister had to only consult SAIVCET and consider its position.
Mr Radebe seconded Mr Makhubele.
Members agreed to the amended Clause.
The Chairperson asked whether Members agreed to the proposed amendment to Clause 6.
Mr Makhubele agreed that the word ‘further’ should be removed and replaced with the word ‘continuing’. ‘I also agree that the word “programme”’ should also be replaced with the word ‘qualifications.’
Mr Mpontshane seconded Mr Makhubele.
Members agreed to the proposed amendments to Clause 6.
The Chairperson asked if Members were in agreement with the proposed amendment to Clause 15 in regard to the proposed insertion of ‘Chapter 7’ in the original Act and with particular reference to Section 43C. The Chairperson referred the Members to the issue of the members of the SAIVCET ‘not being more than 10 ordinary members’.
Mr Eben Boshoff, Chief Director: Legal and Legislative Services, Department of Higher Education and Training (DHET), stated that Higher Education South Africa (HESA) had made the proposal in relation to the board of the National Institutes of Higher Education (NIHE) which was proposed in the Higher Education and Training Laws Amendment Bill [B23-2012]. There was no proposal on the composition of the board of SAIVCET and the Portfolio Committee did not deliberate on any such proposal.
Ms Gina stated that she had problems with the wording ‘ordinary members’ used in the FETCA Bill.
Mr Radebe stated that an ‘ordinary member’ was different from a board member. ‘We need the requisite skills in the board and not anybody from the street.’
Dr Lotriet stated that the Committee was dealing with terminology in reference to a particular provision. ‘I think the wording is correct.’
The Chairperson asked whether subsection (4) of Section 43C would not be used to ‘co-opt’ so many members. ‘We hope that they would be people with the requisite skills and not just anybody’, he said.
Mr Makhubele stated that he assumed that if the board ‘co-opts’ people, the term of office of those ‘co-opted’ would not exceed the term of office of the board. There was a need to limit the number of persons to be ‘co-opted’ by specifying a number. ‘It should not be left open-ended.’
The Chairperson stated that the Committee could decide that the ‘co-opting’ should not exceed a specified number.
Mr Radebe proposed that the number of persons to be ‘co-opted’ should not be more than three and that the ‘co-opted’ persons’ term of office should not exceed the term of office of the board.
Mr Makhubele agreed to limit the number of persons to be ‘co-opted’ and for their term of office not to exceed that of the board. ‘But we must ask what guides the “co-opting” because I believe that such “co-opting” would be based on the needed skills in the board. Why cannot 10 members do the work? We should specify a guideline for the co-opting.’
The Chairperson proposed that the number of persons to be ‘co-opted’ should not exceed five; they should be persons with the requisite skills and their term of office should not exceed that of the board.
Mr Boshoff stated that the ‘co-opted’ persons would be different from board members. He supported the Chairperson’s proposal that the number of persons to be ‘co-opted’ should not exceed five. ‘The Chairperson’s proposal could easily be effected.’ The next thing to do would be to provide guidelines for the ‘co-opting’ and that should relate to the requisite skills needed by the board such as knowledge of continuing education, financial skills, legal skills etc.
The Chairperson stated that the requisite skills should not be specified in the Bill. The board should be allowed to decide the skills it needed.
Mr Firoz Patel, Deputy Director-General: Monitoring and Evaluation, DHET, asked if it would not be better to state that the board might ‘co-opt’ persons to ‘assist’ it for a ‘period of….’ This would ensure that the ‘co-opted’ persons would not have voting rights.
Mr Makhubele stated that the presumption was that the ‘co-opted’ persons could not vote. However, this must be specified.
Adv Gary Rhoda, Parliamentary Legal Adviser, stated that a board did not have a term as it ran perpetually. It was the board members’ term that expired. The provision of Section 43C(2)(b) was not that there must be 10 board members; the members could be less than 10.
The Chairperson stated that the provision meant that there could be less than 10 members but not more than 10 members.
Mr Makhubele asked whether it meant that if there were only three members in the board, the board could only ‘co-opt’ seven persons.
Mr Mpontanshe asked whether the provision could not be amended to read ’10 members’, instead of reading’ not more than 10 ordinary members’.
The Chairperson stated that Mr Mpontshane’s suggestion would not give room for flexibility. ‘The DHET needs a board and we will give them one. But we can’t have a board that we cannot picture.’
Mr Mpontshane stated that the Committee could provide that the members of the board would be 10 and then specify the number of persons that could be ‘co-opted’.
Adv Rhoda stated that the persons to be ‘co-opted’ would not be board members. ‘If you say “10 members”, what it means is that if they are less than 10 then the board cannot take decisions on issues.’
The Chairperson stated that the issue raised by Adv Rhoda was always handled through having a quorum.
Mr S Mayatula (ANC) asked whether the proposed Section 43C meant that after five years, all the board members would go and there would be a new board.
The Chairperson stated that the section provided that members of the board could serve for five years, which could be extended for another five years by the Minister.
Mr Makhubele stated that having clarity that the board was continuous is important. ‘What is the worry is the status of the “co-opted” members.’ It should be clarified. What was their status?
Mr Radebe said that the Committee should first focus on how to determine the number of persons to be ‘co-opted’. Then the Committee could consider the issue of the status of the ‘co-opted’ persons.
Mr Boshoff stated that the Members were correct in saying that there should be a limit to the number of persons to be ‘co-opted’ by the board. The issue was whether the ‘co-opted’ persons would have voting rights. This could be amended to state that persons could be ‘co-opted’ with or without voting rights. In relation to voting rights, regard should be had to the rationale for ‘co-opting’ such persons.
Mr Mpontshane stated that he had two problems with the provision. Firstly, there was no threshold for the minimum number of board members. It would be better to state that the board would consist of ‘not less than…’ or ‘not more than….’ A board that functioned with ‘co-opted’ members that were more in number than the members of the board was a dysfunctional board. The ‘co-opted’ persons were ‘co-opted’ to the board and became members of the board. There was a need to delineate their functions.
Ms D Chiloane (ANC) asked what happened when there was a vacancy in the board.
The Chairperson stated that the issue of a vacancy in the board was dealt with under the proposed Section 43D.
Mr Mayatula proposed that there should be no ‘co-opting’ of persons to the board. The board should have a minimum of nine members and a maximum of 15.
Mr Makhubele agreed as that would mean that board members would have equal status and voting rights.
Other Members agreed.
Mr Makhubele stated that the wording ‘term of office not exceeding a period of five years’ in subsection (3) of the proposed Section 43C meant that there would be instances where a member’s term of office could be less than five years.
Mr Patel said that the provision of subsection (5) of Section 43C should align with the term of office in subsection (3).
Mr Boshoff said that the Minister had discretion to determine a term of office that was less than five years for both the provisions of subsections (3) and (5).
Mr Patel stated that it could be worded that the term of office would be for ‘a maximum period of five years’.
The Chairperson said that the provision of subsection (3) did not give the Minister discretion; the term of office must be for five years or else it would be ultra vires.
Mr Radebe stated that the wording ‘not exceeding 5 years’ meant that the term of office could be less than five years. ‘We must remove “not exceeding” and just say “five years” to avoid arguments’, he said.
Adv Rhoda stated that the rationale behind the wording ‘not exceeding 5 years’ was that a person appointed to the board might not be available for a period of five years. For example, if a person was 62 years old, he would not be able to serve for five years because the retirement age was 65 years. A person could also be appointed for a particular skill and for a particular period.
Mr Makhubele stated that when constituting the board, the term of office of the members should be for five years. However, there might be good reasons why the Minister would think that the term of office did not have to be five years. ‘We must leave the discretion’, he said. However, it must be specified that the renewal of the term must be for five years. The example in relation to retirement age given by Adv Rhoda was incorrect. If a person was appointed for a specified period, he would act for the duration of the period even if he had attained the retirement age.
The Chairperson stated that the wording ‘not exceeding five years’ could be added to the provision of subsection (5) to align it with the provision of subsection (3).
The Members agreed to the Chairperson’s proposal.
The Members also agreed to delete subsection (3) in the proposed Section 43D.
In relation to Section 43F(1)(a), Mr Boshoff stated that if the word ‘difficulty’ was replaced with the wording ‘impropriety’ it would not make any grammatical sense. However, the wording ‘financial difficulty’ should be replaced with the wording ‘financial impropriety’.
The Members agreed with Mr Boshoff.
The Members agreed to insert the following subsection to Section 45K(1):
‘(2) Before making a decision under subsection (1) the Minister must, subject to the Promotion of Administrative Justice Act (Act 3 of 2000) -
(a) give notice to the board of the intention to issue a directive;
(b) give the board a reasonable opportunity to make representations; and
(c) consider those representations.’
Mr Boshoff stated that the amendment to the Preamble was to replace the wording ‘further’ with the wording ‘continuing’. The Preamble was redrafted to be all encompassing and to link the provisions of the Bill to the right to education in the South African Constitution.
The Members approved the amended Preamble.
The meeting was adjourned.
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