Higher Education and Training Laws Amendment Bill: Public submissions

Higher Education, Science and Innovation

09 October 2012
Chairperson: Adv I Malale (ANC)
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Meeting Summary

Public submissions were made on the Higher Education and Training Laws Amendment Bill (the Bill) by Higher Education of South Africa (HESA), the Council of Higher Education (CHE), the Central University of Technology (CUT) Free State, South African Students’ Congress (SASCO) and Congress of South African Trade Unions (COSATU).

HESA raised four main concerns.
Whilst HESA supported reasonable measures aimed at achieving greater public accountability, this must be balanced against satisfactory levels of institutional autonomy. Its first concern related to the appointment of the Independent Assessor, which did not follow the original rationale in the Higher Education Act (the Act). It proposed a deletion of the proposed 45A(1)(b)(ii), and redrafts, for greater clarity, of the proposed sections 45(8), 38J(1)(c) and (e), and section 49B(1)(c). It felt that the current Act provided sufficient safeguards and whilst HESA would support Ministerial intervention in the case of financial difficulty, it could not support Ministerial intervention in the broad “otherwise managed” circumstances. It was concerned that dissension in a Council could result in dissolution, which would be inappropriate unless the Council was dysfunctional. The third concern was that the provisions for appointment of an Administrator were too broad and created potential for conflict, and it pointed to inconsistencies in section 49B(1)(a). More clarity was needed on what role an Administrator could play. Fourthly, HESA pointed to inconsistencies between sections 49E and 49B(1)(c). of the Act. Members asked for clarity on whether an Administrator and Council could co-exist, who should take over the functions of a Council on suspension or dissolution, and suggested that rather than dissolving a whole Council, it may be more appropriate to address individual behaviour causing problems.

CUT set out six principles that must be adhered to in the higher education sector, and examined, in turn, the principles of adherence to cooperative governance, good
corporate governance, academic freedom and institutional autonomy, public accountability, State control, state interference and state supervision of universities, and a culture of justification rather than deference to authority. It submitted that some of the inadequacies that the Bill sought to address were perceived rather than real. A detailed analysis should have been undertaken into the challenges and their reasons, as well as effectiveness of current systems, before drafting the Bill. Substantive amendments were made to the role and nature of investigation undertaken by the Independent Assessor, and the powers of the Minister to intervene. CUT commented that no revisions should have been made to section 38A, without also considering section 41A. The Minister should be obliged to provide written reasons if advice was not to be followed. Section 38J(1) should not result in the Minister’s directive violating or subsuming the powers of HEI governance structures. Detailed criteria were needed to assess whether an institution was functioning effectively, as well as what types of interventions were needed, and more clarity was needed on the proposed section 38J(1)(c), with proper recognition of internal procedures. CUT submitted that it was premature to include the proposed section 38J(4)(a) pending the outcome of the appeal in its own case about dissolution of the Council. The matter of costs had to be considered seriously, and the time frames should not be standardised at a two year period for intervention. The qualifications of administrators also should be more precisely set out, and should require experience in the running of similar institutions. CUT agreed that dissolution of a full Council, rather than dealing with individuals, may not be appropriate. Members supported the views that arbitrary interventions should not happen, the need for co-operative and corporate governance, and Ministerial interventions only when there was serious financial impropriety or maladministration, and not on the basis of unsubstantiated complaints.

The CHE commented that the substantive amendments went way beyond what was originally introduced. It agreed with CUT that a detailed analysis of the problems and current system should have been undertaken. It stressed the need to
strike a proper balance between institutional autonomy and public accountability, and urged that it should be given the opportunity to advise the Minister on the merits and implications of the amendments. CHE was concerned at the fundamental changes to the Investigator’s role and did not think that turning the process into a quasi- legal process was appropriate. It agreed that the current provisions for intervention of the Minister were adequate and appropriate, and was concerned that “any other circumstances” were not defined, and posed the danger that dissatisfied or disaffected individuals could erode the authority of existing governance structures. It was concerned about the excessive powers under the proposed section 49A(1)(d), as well as the “omnibus” nature of  the new section 49A(1)(e). Members noted some circumstances where it might be appropriate for a Minister to intervene, but thought that these would have to be clearly defined. They also would give consideration to whether an assessor should have broadened powers of investigation.  

SASCO focused its comments on the nature and desirability of institutional autonomy. Since  public HEIs were funded by the government, they should be regarded as the property of the people of South Africa, and thus had a responsibility to be accountable. The question of whether government should intervene and/or interfere (a debatable concept) in HEIs should be examined carefully and assessed cautiously, in order to give clear guidelines on roles. The nature of “autonomy” was discussed. SASCO suggested that Parliament could have a greater role to play in the appointment processes of administrators. It suggested that institutions that had failed to meet transformation targets or to adhere to certain sections of the Act should also be put under administration. SASCO cautioned that the State’s capacity to run higher education should not be assumed to be adequate, and whilst it understood frustrations with the systems, it proposed that an alternative form of intervention, through the Minister appointing a competent individual to work with the Council, should be used. It also proposed that the Auditor General should assess HEIs, and consultative mechanisms involving the private sector were needed on curriculum planning, appointment of Vice Chancellors, codes and creation of more accountable mechanisms. Members questioned whether the existing legislation around racism, discrimination and sexism was not sufficient, and asked for clarity on how the SASCO proposal would differ from an administrator.

COSATU broadly supported the Bill, and believed that it was necessary to synchronise HEIs and the Department of Higher Education and Training (DHET), to achieve greater coherence and accountability in the national higher education sector. It supported the Minister’s increased powers of intervention, but said that more work was needed to ensure that DHET coordinated its work better on skills development, further education, higher education and training, and ensure that existing skills shortages and needs were met. Uniformity in the quality of HEIs was needed to protect the integrity of standards, and this should be entrusted to the DHET. It also supported the strengthening of the investigative capacities and roles of the Independent Assessor, but commented that any interventions needed to be more inclusive. Members noted that whilst it might be justifiable for interventions where dissensions on a Council might relate to corruption and maladministration, this must be distinguished from normal debate, and it was necessary to decide when a Council was dysfunctional.

Meeting report


Higher Education and Training Laws Amendment Bill (HETLA Bill)
Higher Education of South Africa (HESA) submission

Mr Hugh Amoore, Board member, HESA, noted that HESA had four areas of concern in relation to the Bill. In relation to the appointment of an Independent Assessor, HESA felt that the amendments should follow the original conception of the appointment. As presently framed the amendments to section 45A(1) allowed an Assessor to respond to all manner of information, allegations and complaints (which would include those untested and anonymous).There was a need to qualify such complaints, information and allegations, to ensure that the Independent Assessor  would not have to investigate every complaint, allegation or information.

HESA also proposed that subsection b(ii) of the proposed section 45A(1) should be deleted. This said that an Independent Assessor may direct that certain categories of persons shall not be present at any proceedings relating to any investigation or part of an investigation. The issue was then how the Assessor would determine that the presence of a category of persons was not desirable. The test was an objective one rather than a subjective one.

HESA also noted that subsection (8) of the proposed section 45 needed to be redrafted, to make it clear both what a ‘potentially implicated person’ was to respond to, and what the role of the Council was.

HESA’s second point related to the intervention by the Minister of Higher Education (the Minister) in the affairs of a higher education institution (HEI). Section 42 of the Higher Education Act (the Act) currently allowed the Minister to intervene and set specific terms and conditions for a HEI, if that public HEI had failed to comply with the conditions prescribed by the Minister. HESA noted however, that now new reasons for intervention were also proposed, beyond those in the current section 41A(1) and (2). HESA would support the proposal for the revision of section 38J(1)(a) on the ground of ‘financial difficulty’. However, the second part, that made reference to ‘or was being otherwise mismanaged’ was too wide-ranging and vague for application to HEIs, and therefore the second part of paragraph (a) should be deleted.

In relation to section 38J(1)(b), HESA although it agreed that ‘dissension’ could paralyse the governance of a university at Council level, it was not convinced that every strong disagreement, contention or quarrel should be the basis for a Ministerial directive to intervene in the affairs of a HEI. HESA believed that the Minister should only intervene when the situation at the university Council had deteriorated to a level of ‘dysfunctionality’, and the conditions for such an intervention should be clarified. Section 42 of the Act did not provide for such an intervention.

In relation to section 38J(1)(c), HESA stated that the words ‘unfairly’, ‘discriminatory’ and ‘inequitable’ were used vaguely in the paragraph. Specific conditions to clarify this should be included in the Act. In its current form, the formulation was open to many interpretations and could therefore be applied inconsistently, to the detriment of HEIs.

HESA was in support of section 38J(1)(d).

In relation to section 38J(1)(e), HESA again felt that this paragraph was vaguely worded and too wide. There were sufficient safeguards in the current regulatory framework to allow institutions to account to the public through the Minister as an Executive Authority. Therefore, this paragraph should be deleted. Section 42 of the Act also already provided for an intervention by the Minister.

HESA endorsed paragraph (f) of section 38J(1) of the HETLA Bill.

The third issue related to the appointment of an Administrator. Mr Amoore stated that
the new proposal went beyond what was in the proposals for sections 41A(1), (2) and (3). There was a conflict, between 49A(4)(a) and 49B(1), given the wording of the proposed section 49A(4)(b). Section 49A(4)(a) provided for the Administrator to take over the functions of Council, while section 49B provided for the Administrator to take over control of the Council, as well as the management and administration role of the Vice-Chancellor as Chief Executive Officer. Though in some cases this may be necessary, HESA would prefer to see this reworded as ‘to take over the governance, and/or management and administration’. It was also pointed out that section 49B(1) must be read with the proposed section 49E, which dealt with the status of Council.

HESA recommended that this provision should provide for the Minister to (a) suspend the Council for a period of up to one year, if the Minister had reason to believe that this was in the best interests of the HEI (a subjective test), or (b) to dissolve the Council, if the Minister found that the Council was no longer capable of functioning (which was an objective test).

A further inconsistency was noted in section 49B(1)(a), which provided for the appointment of an Administrator if there was ‘serious undermining’ of the effective functioning of the HEI. The first clause of this section required an audit finding, and the second required an Assessor’s report. However, the third clause was not qualified, and HESA believed that a qualification was needed, if the Council of the public higher education institution requested such appointment. If the Council required an Administrator, it should be able to ask either that the administrator take over only the governance function of the university, to replace a dysfunctional council, or for the administrator to take over the management and administration function of the HEI, replacing the Vice-Chancellor, where the Council has been unable to resolve a dysfunctional executive, or a third possibility of both. Further clarity was needed on this.

Mr Amoore then noted that a number of clauses in the Bill referred to a  ‘public higher education and training institution’, and HESA suggested that the words ‘and training’ should be deleted.

Section 49B(1)(c) relied on ‘circumstances arising’ but gave no indication of how or when these would arise.

HESA was concerned at the use of the phrase ‘reasonable period’, in some sections and sub-sections, and felt that it should be described in respect of each of the clauses in which it appeared.

The fourth point that HESA wanted to make related to the dissolution of a Council of a HEI. HESA was of the view that the proposed section 49E was inconsistent with section 49B(1)(c) of the Act.

Mr Amoore stated, in conclusion, that it was important to remember and adhere to the principle that Council, as the governing authority, bore ultimate responsibility for and had ultimate authority over all the activities of the institution it governed. HESA was in full support of any reasonable measures aimed at achieving greater levels of public accountability. However, this public accountability should be circumscribed by a framework which ensured satisfactory levels of institutional autonomy, as enshrined in the current regulatory framework. Particularly in relation to the new provisions relating to the intervention of the Minister, HESA reiterated that it believed that the current Act already provided sufficient safeguards for the objectives of institutional autonomy and public accountability to be simultaneously pursued.

The Chairperson asked for clarity on the issue of the appointment of an Administrator in relation to a Council, and asked that HESA clarify the co-existence of an Administrator and a Council.

Ms D Chili (ANC) asked who would take over the functions of a Council upon the suspension or dissolution of a Council.

The Chairperson asked if it was not better to remove a particular person who might be causing problems in the Council, rather than seeking to dissolve or suspending the entire Council.

Ms A Lotriet (DA) asked what HESA meant by referring to the ‘qualification’ of complaints to be investigated by an Independent Assessor, and how it suggested this should be worded.

Mr Amoore thought it was conceivable that an Administrator could co-exist with a Council, although he had not seen such a situation before. There had been instances where a Council did not want the Chief Executive to continue in office. If that was the case, and the Council was functional, the Council could ask for the appointment of an Administrator but the Council itself should not be suspended. However, he wanted to emphasise that this type of intervention should only take place where the Council was still functional. Where there was a dissolution or suspension of the Council of a HEI, the Administrator would then take over the function of the Council. He explained that where there had been a suspension of Council, the Council would return at the end of the Administrator’s tenure. Where there had been a dissolution of Council, this would not happen. It was provided for in the current Act, and needed to be incorporated also into the amendments. He finally explained that the proposals around ‘qualification’ of complaints related to the fact that since an Independent Assessor was to carry out an investigation, the complaints should be substantiated by the complainant.

Central University of Technology Free State (CUT) submission
Prof Thandwa Mthembu, Vice Chancellor, Central University of Technology Free State,  presented the submissions of that institution (CUT). The submission would set out some of the principles that CUT believed should guide higher education governance and management, a number of which emanated from the Constitution. His submission also provided a clause-by-clause commentary on the HETLA Bill, and he hoped that the exposition of the principles would provide the context for specific comments made.

CUT was of the opinion that some of the proposals for review or revision of the Act were not firmly embedded in the long fought-for and agreed principles. If it was intended to change the principles, then a proper open and transparent process (like a new White Paper) should have been conducted, rather than attempting to take a piece-meal and less principled approach to amending the Act, which was likely to violate the principles.

The first principle that must be appreciated when amending the Act was the principle of co-operative governance. The White Paper on Higher Education (1997) drew this principle from the Constitution, since section 41 of the Constitution enjoined all State institutions that exercised public power and authority to co-operate with one another in mutual trust and good faith, in pursuance of the public good. The Preamble of the Constitution called for a democratic and open society based on democratic values and democratic government. This concept of governance was inspired largely by the pre-1994 debates in the progressive movements on the most appropriate framework for the emerging new State. The concept was adhered to at present in the higher education sector, as evidence by structures of governance such as the Institutional Forum, the Student Services Council, Senate and Council, each of which provided a cross section of stakeholder representatives. This principle had to apply not only to the universities, but also to government departments and ministries.

The second principle was the principle of corporate governance, as enshrined in the King III report. Corporate governance, amongst other issues, sought to ensure a clear separation of powers amongst all the structures of governance and management. There must always be independent governance oversight over management. However, the appointment of administrators who would take over powers of governance, management and administration all at the same time was, in CUT’s view, a violation not only of principles of corporate governance, but also the principle of co-operative governance. Such an appointment would mean that there was no independent oversight over the management function, since the same Administrator was both manager and governor. That was a recipe for corruption, amongst other governance and management ills. He reminded Members that although King III was not a law, it remained world-class practice in South Africa and elsewhere. Parliament should therefore ensure that legislation abided by the spirit of this Code. In the university sector, there was an expectation that there would be adherence, both from the Auditor-General and the Department of Higher Education and Training (DHET). CUT had revised all terms of reference for Council sub-committees to align with King III. CUT was therefore concerned that the DHET and Minister did not appear to abide by the same principles that they expected of universities.

The third principle was the principle of academic freedom and institutional autonomy. Academic freedom was enshrined in the section 2 of the Constitution.. Once academic freedom was jettisoned, no university would be worth the name of “academic”, and universities might find themselves obliged to say what politicians wanted to hear rather than speak the truth.

The fourth principle was the principle of public accountability. In national debates, public accountability was sometimes used as a whip to whip academic freedom and institutional autonomy, but this did not have to be so.

The fifth principle was the principle of State control, state interference and state supervision of universities. It had been well understood, in the South African university environment, that State supervision through steering mechanisms such as planning, quality assurance and funding did happen, for public accountability purposes. However, CUT noted with concern recent interactions between the Minister and universities, including the manner and frequency in which Administrators had been appointed, that seemed to suggest an attempt to impose either State interference or even state control. Universities in South Africa were considered the best in the continent, mainly because of the current limited State supervision model. CUT requested Parliament to re-assert this model, and reverse the trend towards state control.

The sixth principle was the culture of justification rather than deference to authority. The culture of authority that the minister seeks to employ in the university sector was at odds with the post-1994 dispensation. The Minister appeared simply to have accepted the recommendations of the Assessor he had appointed at CUT and believed himself to be under no obligation to provide his own reasons - including how he had reconciled two obviously contradictory reports, one by the Assessor and one by the Council - on the state of the university. That was unacceptable.

CUT made specific comments on various clauses in the proposed section 38A. It was noted that section 38A was very much related to section 41A, and therefore had to be considered together. CUT did not understand how Parliament could allow revisions of section 38A to go ahead without seeing how section 41A was to be revised, and this was one of its most serious concerns. Section 38A dealt with national institutes, which, although not universities, had academic programmes and rules and processes similar to those of universities. They did not have authority to run their own programmes. Any revision of the Act that affected institutes may eventually affect universities as well, and this could then impact on the principles already outlined.

In relation to section 38A(1), CUT noted that the Minister had asserted, in the Statute approved in July 2010, that the CUT Council must give written reasons to the Institutional Forum in cases where Council rejected the Forum’s advice. To be consistent, the Minister similarly should be obliged to give written reasons why he was not intending to follow advice.

In relation to the proposed section 38J(1), CUT believed that the Minister’s directive should not violate or summarily subsume the powers of governance structures of the institute. It would be odd if the Minister were to direct that a particular programme be introduced, without consulting the Senates who owned academic programmes.

In relation to the proposed section 38J(1)(b) CUT stated that some criteria were needed to assess whether an institution was ‘functioning effectively’, otherwise there was danger of indiscriminate decisions being taken. It must be stated who was to set and measure standards of effectiveness. CUT would prefer a statement that interventions would be taken if a Board was not functioning in accordance with the Statute and the Act. Currently, the wording of the clause could support dissenters, and legislation should not cater for exceptions.

In relation to section 38J(1)(c), CUT repeated its question as to who was to determine unfairness, discrimination or inequity, stating that unless this was clarified, any number of claims could be submitted from disgruntled people to try to get the Minister to issue a directive. There were internal procedures to deal with dissatisfaction, and the Minister should not be resorting to such micro-management.

In relation to section 38J(4)(a) A HETLA, CUT noted that it would be necessary to wait for the Minister’s appeal in relation to the CUT case, because an argument was raised that the Minister may not dissolve a Council (the equivalent of the Board in this context). If this clause were to be inserted now, it could result in confusion.

In relation to section 38J(6), CUT stated that the matter of costs had to be considered seriously. An Administrator taking over the powers of management and Council, where no body had oversight, could claim that determination of his or her own remuneration fell within his or her own responsibility. Currently, the Minister carried the costs and took the decisions.

In relation to section 38K(1), CUT repeated its assertion that the Minister should provide written reasons to the Board for not accepting its advice, in line with the reasons that Councils must provide to Forums. CUT said also that it should not be assumed that the conditions that justified the take-over were all of governance, management and administration together, and so specific conditions should be provided for each type, to avoid confusion and unnecessary take-overs. In cases where there was a need for both governance and management intervention, CUT suggested that an administrator be appointed to take over management functions, whilst a team of two or three eminent persons be constituted to take over the powers of council/board, and to ensure oversight over the administrator.

In relation to the proposed section 38K(3)(b),  CUT believed that the period should not necessarily be a standard time of two years, but should rather depend on the circumstances and what needed to be done. A new Council could, for instance, be put in place within six months.

In relation to the proposed section 38L, CUT noted that, at present, the Act required that those people appointed should be part of a panel of experts approved by the CHE. Further qualifications should be required, such as a chartered accountant or auditor in case of financial matters, and due institutional processes must be followed to appoint such experts. Parliament should also review the appointment of assessors or administrators, as they might be relatively junior people who had never run any university and thus not been directly involved with university governance and management. South Africa had an abundance of excellent former Vice-Chancellors and former CEOs of companies and parastatals who would be ideally suited to make assessment and execute interventions in universities or institutes.

Finally, in relation to the proposed section 38N, CUT repeated that if the problem lay with management, then it may not be necessary to dissolve the whole Council.

The Chairperson stated that the pertinent question was whether a Council should be liable to dissolution or suspension if there was a dysfunction. The appointment of administrators meant that there were serious problems in the institution, and any interventions should be based on precise legal principles. No arbitrary interventions should take place. He agreed with the comments on the need for co-operative and corporate governance and consultations, and said also that the Minister should be empowered to intervene only when there was serious financial impropriety or maladministration.

Mr L Bosman (DA) agreed that administrators did not need to be appointed except when an institution was in serious trouble. He agreed also that administrators should not be able to be appointed on the basis of an unsubstantiated complaint. He suggested that greater clarity was needed as to whether a appointing an Administrator.

Prof Mthembu agreed that preliminary investigations should be undertaken, either by the Council alone, or jointly with the DHET, before the appointment of an Administrator. In the case of CUT, there had been a forensic investigation by KPMG, who was mandated, but failed to, produce a report of the forensic investigation within two months. DHET had felt that the CUT Council was not serious about the report and was suspicious that the council might already have received the investigative report, although it had not. Currently, the Act provided for the steps to be considered when dissolving a Council. Statutes of the individual institutions also gave more clarity on the issue. In cases where it was clear that a Council had failed to adhere to its statutes or the Act, then he agreed that the Council was dysfunctional and should be dissolved. He explained that in the CUT case, dissenters who supported the Minister were not able to convince the rest of the Council of their views. It would be extremely dangerous to put in provisions that would give more power to dissenters.

Council of Higher Education (CHE) submission
Mr Ahmed Essop, Chief Executive Officer, Council of Higher Education, noted that the CHE
had not had the opportunity to discuss the proposed amendments formally, due to the short notice period for public comment. The substantive nature of the new amendments went well  beyond the amendments as originally introduced, relating to the establishment and functioning of a National Institute of Higher Education, and for this reason the CHE’s Executive Committee had agreed that the CEO should present a submission.

Mr Essop said that the proposed amendments sought to address perceived inadequacies in the efficacy of the existing intervention mechanism - namely, the independent assessor process, and limitations on the powers of the Minister to address governance and management challenges in higher education. CHE, however, was of the view that any attempt to rectify perceived inadequacies should have been preceded by a detailed analysis of the underlying factors that contributed to the ongoing governance and management challenges in higher education, as well as an analysis of the effectiveness of the existing intervention mechanisms. Failing this, ad hoc amendments were being made, and these were in fact addressing perceived, and not real problems.

There were two substantive aspects to the amendments. Firstly, the role of the Independent Assessor and the nature of the investigation that s/he would undertake were changed substantially from those outlined in the current Act. Secondly, the powers of the Minister to intervene in HEIs were extended. Given the nature and implications of these amendments, and the need to strike a proper balance between institutional autonomy and public accountability, CHE felt it was necessary to have a broader consultative process with stakeholders. The CHE, in particular, in line with its statutory responsibility, should be given the opportunity to advise the Minister on the merits and implications of the amendments.

CHE noted that clauses 5, 6 and 7 of the Bill detailed the powers of the Independent Assessor, procedures and access to information relating to an investigation. Mr Essop repeated that they fundamentally changed the nature of the independent assessor’s role from what was in the current Act. In terms of section 43 of the Act, the CHE must appoint an independent assessment panel, and from that the Minister may appoint an independent assessor to ‘conduct an investigation at a public higher education institution’. The key criterion for appointment to the independent assessment panel, as set out in section 43(a), was ‘knowledge and experience of higher education’. This suggested that the role of an Independent Assessor was to launch an investigation in general terms, based on a good understanding of the workings of a higher education institution, whether there was evidence of financial or other maladministration and/or whether the governing structures of the institution were functioning effectively. The assessor could then recommend measures or interventions that would remedy the defects, which could include the appointment of an Administrator by the Minister. This process was not a legal process, in the sense that the Independent Assessor was undertaking a general investigation in a way that would enable individuals and institutional constituencies to express their views freely, without the constraints such as the right of legal representation and the right not to provide information that may be incriminatory. The current investigative process did not contemplate subpoena powers, the submission of affidavits, the giving of evidence under oath. However, the proposed amendments had the effect of changing that process into a legal process, without any clarity on why this was considered necessary. CHE believed it was inappropriate and contrary to the intention of the original Act.

Clauses 8 and 9 of the Bill substantially extended the power of the Minister to intervene in public HEIs, above the limitations of the current Act, both by extending the circumstances in which Ministerial interventions could be made, and by extending the process for determining those circumstances. Currently, the Act provided for Ministerial intervention, by way of appointing an Administrator, when an audit of the financial records, or an investigation of an independent assessor, revealed ‘financial or other maladministration of a serious nature at a public higher education institution, or the serious undermining of the effective functioning of a public higher education institution’. However, the new section 49B(1) sought to extend these conditions also to ‘any other circumstances arising that reveal financial or other maladministration’ or when the Council of the institution requested such an appointment. CHE considered this clause to be too broad and open-ended, as it failed to specify what circumstances would justify the appointment of an administrator. Mr Essop noted that the present wording of the clause could allow for appointment of an administrator on information provided by disaffected individuals or constituencies, irrespective of the veracity of the complaint or the merits of the action. He noted that this could give rise to unsubstantiated allegations being made by those wanting to erode the authority of existing management and governance structures of an institution.

Clause 49B(1)(c) was similarly too broad and open-ended and did not specify the circumstances under which it would be appropriate for the Minister to consider the request of the Council to appoint an administrator. This led to the danger of internal disagreements and differences between the Council and management giving rise to the appointment, as well as the danger that Council might try, through such appointment, to intervene in matters outside of its authority, such as academic issues that were the prerogative of the Senate. Both clauses impinged on institutional autonomy.

The new section 49A(1), as contained in clause 8, was even more broad and open-ended. The Minister was being given the power to intervene and to issue directives on a range of matters, and the power to appoint an Administrator if an institution did not comply. There was no precise definition of the nature of the directives that the Minister could issue, nor the steps that institutions would be expected to take in response, and no limits were placed on ministerial action. It was unclear what the purpose was of this clause, given that section 42 of the Act already gave the Minister the power to take action against a Council that failed to comply with the Act and/or any conditions set by the Minister. Once again, the grounds for Ministerial intervention went beyond cases of financial mismanagement or dysfunctional governance structures, as set out in the current Act, and again could impinge on institutional autonomy.

The new section 49A(1)(d) empowered the Minister to issue a directive if any institution had failed to comply with any law. This seemed excessive, as it was effectively empowering the Minister to issue directives even in cases where there might have been minor breaches of a health or safety law, and it was in any event debatable whether this was competent since such laws would fall outside that Minister’s executive authority.

The proposed section 49A(1)(e) was an omnibus clause, allowing the Minister to issue directives ‘on any matter relating to higher education’, and once again this could impinge on institutional autonomy.

Mr Essop pointed out that the Preamble to the Higher Education Act expressed that it was desirable for higher education institutions to enjoy freedom and autonomy in their relationship with the State, within the context of public accountability and the national need for advanced skills and scientific knowledge. These proposed amendments were contrary to the spirit and letter of the Preamble. CHE urged further consultation with stakeholders to ensure that the appropriate balance was maintained between institutional autonomy and public accountability.

The Chairperson asked whether the Minister could legitimately intervene if, for instance, it was alleged that the institution had a discriminatory admission policy, or where infrastructural decay was found. He noted that there were circumstances where interventions could legitimately be done, but it was necessary to put those into the legislation, by clearly defining in what stated instances the Minister could intervene.

The Chairperson asked Members to consider whether it was objectionable for an assessor to have certain investigatory powers.

Mr S Makhubele (ANC) was of the view that there was insufficient clarity on the purpose or intention of the amendments around intervention by the Minister, and the instances must be clearly detailed, as any uncertainty would defeat the purpose of the amendments.

Mr Essop summarised that the CHE believed that the current provisions of the Act set out sufficient reasons for the Minister to intervene. However, it believed that the additional powers proposed by the Bill were not warranted, unless justification were shown. The Act also provided for assistance to an Administrator in carrying out his or her duties, which would include access to relevant documents, and that strengthening this area could be positive, although he did not believe that any individuals should be required to provide evidence, on oath, to an Assessor.

South African Students’ Congress (SASCO) submission
Mr Luzuko Buku, Deputy Secretary General, S A Students Congress, noted that his institution (SASCO) had been debating institutional autonomy, a concept highly contested over many years in the higher education sector. The reality was that because
public HEIs were funded by the government, they were the property of the people of South Africa as a whole. Their structure and functioning was determined by their own statutes and the Higher Education Act, but they did have a responsibility to be accountable to the public.

Institutional autonomy, in succinct terms, was a condition that allowed an HEI to govern itself without external interference, particularly from government or political control. Few apologists of institutional autonomy called for autonomy from business, donors, sponsors and other sectors of society. However, one problematic aspect was that some people suggested that institutional autonomy was a way of avoiding public accountability and the necessity to follow the overall direction of the programme of the nation. SASCO believed that the proposed Bill was responsive and sought to empower the Minister, but not a participatory structure like Parliament, which was the democratic representative of the people. Whilst the Minister needed to play the role of principal political head of higher education and training in the country, institutions had to be accountable to Parliament. Therefore, the Minister, in a process that included the Portfolio Committee, should be permitted to appoint an Independent Assessor and an Administrator. Institutions that failed to meet transformation targets and refused to adhere to the Act in terms of transformation should also be put under administration. Institutions that had failed to merge, like the University of Free State with the Qwaqwa Campus, should also be investigated. SASCO believed that the Bill was correct in appreciating this concept, rather than limiting appointment of administrators to institutions that were struggling financially.  The current provisions discriminated against historically black institutions who, because of the flawed funding model, were riddled with student debt, inadequate resources and unable to attract the best and qualified academics and managers.

SASCO believed that the question of whether government should intervene and/or interfere in higher education should be looked into quite carefully and assessed cautiously, and clear guidelines were needed on how different higher education stakeholders understood and defined their roles. The concepts and practice of ‘interference’ and ‘intervention’ were deliberately used interchangeably since they were and/or could entail the same thing, depending on who assessed the relationship that government established with HEIs. Government intervention could be seen as interference by some sectors of society, and interference could be seen as intervention by other sectors of society.

Those who called for government interference were starting from the wrong presumption that government had the capacity to effect changes and perform managerial duties, without disorganising Higher Education as a sector. The State’s capacity to run Higher Education was assumed to be adequate to make effective determinations, whilst ensuring high levels of qualitative and quantitative productivity, sustainability and responsiveness of societal needs and challenges. However, the institutional governance frameworks and interventions that government had introduced and made in Higher Education, over the past twelve years, had been proven a sham, and they at times failed to meet the objectives initially set.

The state of higher education in South Africa had necessitated the call for government to directly intervene in the governance and management of higher education institutions. This was genuinely a result of frustrations created by the existing governance structures and systems. However, despite this, government intervention/interference should not be an option, for a variety of reasons ranging from cronyism to decline of international standards.

SASCO proposed that a new paragraph (g) should be inserted into the proposed section 49A(1), to provide that the Minister could intervene where a Council had failed to ensure that no discrimination of race, sex or creed was promoted (directly or indirectly) by its institutional policies and institutional culture and/or practices.

SASCO further proposed an alternative form of intervention, instead of appointing an Administrator, by the Minister. This could be achieved by inserting a new paragraph (d) to the proposed section 49A(3). The wording would provide that the Minister must appoint any competent individual in the society to work with the Council to resolve the matter, and if such process failed, or  received resistance from the Council or the institutional management, then subsection 49A(4) must apply.

SASCO stated that within the present legislative framework, government should introduce systems that would increase, enhance and harness accountability mechanisms of HEIs. The level of accountability should range from the kind of programmes that institutions provided to the manner in which their funds were utilised. The Auditor General should assess HEIs, since they were heavily reliant on public funding. Furthermore, a broadly consultative mechanism should be instituted to address and deal with such factors as curriculum planning, which would be primarily designed to respond to the needs of society as a whole. Curriculum planning should not be the sole preserve of academics, but should also involve important stakeholders as civil society, labour, students, industry, and professional bodies. This would certainly increase and enhance the curriculum’s relevance and responsiveness to the needs of society and industry, whilst meeting the basic quality needs of a particular profession.

SASCO also believed that the appointment of institutional senior managers, particularly managers that were tasked with accountability of the institutions, should be opened to a broader community. A broadly consultative system should be introduced to ensure, for instance, that Vice Chancellors were democratically voted into office by the broader University community and relevant societal stakeholders. That would also enhance their accountability. There should be some sort of Ethics Code, or Code of Conduct, to guide members of Councils and various institutional governance structures in South Africa. The business and financial interests of Council members should be questioned and assessed, to ensure that this did not affect their objective serving on institutions. Efforts to build a responsive, responsible and accountable higher education system in South Africa should continue, without undermining academic freedom and institutional autonomy, whilst avoiding overstretching these phenomena.

The Chairperson stated that there was already legislation that dealt with racism, discrimination and sexism. There could be a provision stating that where an institution did not adhere to such legislation, the Minister could intervene, but he was not sure that the intervention had to take the form of dissolving a Council. If the investigation were to find that a particular individual was causing the problem, it would be more appropriate to remove that person than to dissolve the Council. He thought the potential problems lay with the proliferation of the functions of a person appointed to deal with a dysfunctional Council

Ms N Gina (ANC) asked for clarity on what SASCO meant by ‘any competent person’ in its proposal, and how this would differ from an administrator working with a Council.

Ms Gina pointed out that whilst the last part of the submission did not relate directly to the Bill, it would be interesting if SASCO could be invited, at a later stage, to lead some discussion on the issues raised.

Mr K Dikobo (AZAPO) stated that the current system provides for an Assessor and an Administrator. Essentially, SASCO was now providing a third route, and he questioned how that would fit in. DHET already had officials who could assist HEIs, and he believed that this assistance was more appropriate. He also asked for clarity on the point it had made about preserving the reputation of Council members who had done wrong, questioning why wrongdoers should be entitled to such protection.

Mr Buku stated that SASCO maintained that instead of relying on broad legislative provisions around discrimination, the Act itself should specify the power of intervention by the Minister if there was discrimination and racism. He answered Mr Dikobo by clarifying that he had not meant to suggest that wrongdoers’ reputation should be protected, but rather was noting that it may be the case that not every Council member was responsible for problems, and an outright dissolution of the whole Council may result in damage to the reputation of those members who were not at fault. The purpose of the third route that SASCO had proposed was to address concerns that an administrator could wield so much power. Whether or not it was seen as a form of administration, the difference was that the Council could use its knowledge about the institution to assist the person who would be appointed, as proposed by SASCO. Only if there was a resistance by the Council should the Minister then intervene and appoint an Administrator. The point was that appointment of the administrator should not be the only form of intervention.

Congress of South African Trade Unions (COSATU) submission
Mr Matthew Parks, Parliamentary Officer, Congress of South African Trade Unions, stated that both the Congress (COSATU) and its affiliate NEHAWU welcomed and supported the objectives and intentions of the HETLA Bill. They believed that it was necessary that HEIs synchronised with the DHET, in order to achieve greater coherence in the national higher education sector, and to ensure that public HEIs were accountable.

COSATU supported the objectives of empowering the Minister to intervene, issue directives, hold HEIs accountable and to appoint Assessors and Administrators. This was an important and fundamental step towards ensuring accountability and minimum standards in the sector. However, more work was needed to ensure that the DHET’s work, in regard to skills development, further education, higher education and training was better and more strategically co-ordinated. This should be linked to the objectives of the New Growth Path and the existing skills shortages and needs in the economy.

Higher education was a critical area, and the education and skills levels of South Africans need to be drastically improved in order to increase their skills, employability, and their levels of employment and productivity. Historically, this had been a weak link in the education system. Due to capacity levels at public HEIs, there was a need to ensure uniformity in quality and to protect the integrity of standards. It was correct to entrust such responsibilities with the DHET. Since public funds were involved in public HEIs, there was a strong need to ensure their accountability at all times to the public. COSATU supported the principle that the Minister be empowered to oversee, maintain, enforce and intervene, where necessary, to achieve this. It felt that it was correct to empower and strengthen the investigative capacities and roles of the Independent Assessor, as well as to allow for interventions by the Minister including the right to issue directives, appoint assessors and administrators and to dissolve Councils within the prescribed parameters. It believed that the Bill was necessary to address critical shortcomings in the sector. However, the interventions needed to be more inclusive of the sectors, in particular labour.

The Chairperson asked if COSATU believed that dissension should be a ground for intervention by the Minister. He commented that whilst it may be justifiable to intervene when there was dissension because some Council members were encouraging corruption and maladministration, this was different from the case where some of the Council members did not agree with others members on an issue.

Mr Makhubele stated that the question was what should be done if Councils were unable to function effectively because of dissension and factions within that Council, and at what point the Council would be regarded as dysfunctional, and thus necessitate Ministerial intervention.

Mr Parks stated that the Bill did not state that the Minister could intervene when there was a dissension. Certain criteria were provided in the Bill, and these must be adhered to. An intervention must always be in the public interest, and in the interest of the institution. An intervention could always be challenged in a court of law.

The meeting was adjourned.


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