Higher Education and Training Laws Amendment Bill [B23-12]: Department response to submissions

Higher Education, Science and Innovation

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

The Department of Higher Education and Training responded to written and oral public submissions concerning the Higher Education and Training Laws Amendment Bill. Submissions were received from Higher Education South Africa (HESA), the Central University of Technology (CUT), University of Pretoria (UP), the Council of Higher Education (CHE), the South African Students Congress (SASCO), the Congress of South African Trade Unions (COSATU) and the National Education Health and Allied Workers Union (NEHAWU).

Concerns raised by HESA were that the Bill should ensure any investigations into allegations were thorough and substantiated. They were concerned about the meanings of “category of persons” and “implicated persons”. HESA expressed a concern about the impact of withholding funds on students and staff of higher education institutions and the DHET echoed that concern.
The meaning of dissention was discussed and a decision was made to remove it from the topic of dysfunctionality in the Bill. HESA proposed the Bill be more flexible by introducing the measure of suspension. The DHET did not believe this would be effective and it would make the Bill a lot more complicated to implement.

CUT linked the constitutional principles of freedom of speech and academic freedom with institutional autonomy. They felt the legislative amendments and the appeal by the DHET against the “CUT versus the Minister of HET” judgement could not run concurrently.

CHE was concerned about the new powers being given to the Independent Assessor. They questioned the addition of “any circumstances” in the appointment of administrator in section 49(1)(b) of the Bill as they argued that it was too wide and open ended and allowed unfettered discretion to the Minister. CHE was further concerned that the grounds on which the Minister issued directives would impinge on institutional autonomy: Section 49A(1)(c)-(f). This had already been addressed in an earlier presentation. The University of Pretoria had similar concerns which DHET chose not add as there were many duplications.

SASCO supported the Bill and proposed that the Minister appoint a competent individual from society to work with the council in resolving the matter. COSATU and NAHAWU made a joint submission which supported the Bill especially in regards to transparency, openness and the need for the state to intervene where state resources were at stake.

Discussions centred around the topic of institutional autonomy and members were concerned that the Department was not taking the topic seriously enough, the idea of dissention and what it meant, the wording of “with the approval of the finance minister” and the meaning of “unfettered discretion”. They discussed how practically suspension and dissolution would work and if this would affect tenure, if members could be re-appointed and if they could be transferred council and how to determine a person’s role on a dysfunctional council so as not to penalise them unfairly.

Meeting report

Briefing by the Department of Higher Education (DHET)
Mr Eben Boshoff, Chief Director: Legal and Legislative Services in the DHET, explained that in the public hearings a number of comments were received which could be split into two groupings. Those against the amendments included Higher Education South Africa (HESA), the Central University of Technology (CUT), the University of Pretoria (UP), and the Council of Higher Education (CHE). Those in favour were the South African Students Congress (SASCO), the Congress of South African Trade Unions (COSATU) and the National Education Health and Allied Workers Union (NEHAWU), who made a joint presentation.

DHET Response to HESA Submission
HESA argued that the Higher Education Act (HEA) of 1997 should neither qualify nor restrict an investigation based on complaints, allegations or information. The investigation had to determine the substance and the nature of the allegations. DHET acknowledged that this was a weak area in the current Bill and something they were looking to amend. They argued that a person making a complaint should be placed under oath by the Independent Assessor (IA) should other evidence/documents arise to corroborate their complaint. The IA may replicate documents even if the council or any other person is unwilling. DHET believed the powers of the IA should be extended to be able to gather all necessary information to make an informed decision.

With respect to the “Category of Persons” section 45 (1) (b) (ii), the IA had to be able to gather evidence and substantiate facts without orchestrated hampering or interference. HESA was concerned that no category of person should be excluded from the investigation. DHET clarified that it was not the intention that such a category of persons would be excluded from the investigation, but it is merely directed at a limitation, when a specific proceeding or meeting is conducted by the IA to obtain corroborative evidence. They believe that this was a common piece of legislation that one would find in any legislation of the public protection.

HESA asked for clarification of the “implicated person” in section 45 (8) (a). DHET stated this was subjective to the nature of the investigation and the allegations made. An investigation by its very nature had the effect that the actions or conduct of implicated persons could be potentially harmful to the persons and therefore it was important to allow a person who may be negatively impacted the chance to respond.

A key aspect of HESA’s comments was its concern with the directive in the current HEA which allowed the Minister to withhold funds in the instance of a Higher Education Institution (HEI) failing to comply with a provision. They were concerned that this directive could directly negatively impact students and staff and the impact of the ‘punishment’ would have worse consequences for the students than for the council from whom the problem stemmed. DHET was also concerned by this, therefore, the intention of the HETLA Bill, was to direct the relief at the perpetrator (council/management) by replacing that structure/function of office and placing it under an administrator who could perform the functions without any disruption to the learning process. This allowed the HEIs to resolve the problem themselves and the role-players involved to be a part of the solution. They stressed that in any matter concerning an HEI; the rights of employees and learners should be paramount.

The issue of ‘Dissension’ in section 49(A)(1)(b) was widely discussed throughout the meeting. HESA addressed the grounds for appointing a minister in the case of a council being rendered dysfunctional due to dissention. They objected saying that there were many issues which could render a council dysfunctional and to only raise one issue was a problem. DHET agreed there was a problem. The concern was about council’s being dysfunctional and the final “due to dissension between Council members” could be deleted and this would strengthen the legislation.
Mr Boshoff explained that it should be read within the context of a caveat that the dissention within the council could only be regarded a measure for intervention when it rendered the council ‘dysfunctional’. They acknowledged that dissention was merely one of the reasons which could render a council dysfunctional. 

In section 49(A)(1)(c) of the Bill, HESA was concerned by the criteria that referred to unfair, discriminatory or inequitable sections, claiming they were too far reaching by nature and could not be limited or clarified without losing the real effect and impact of unfair discrimination and inequitable measures. DHET responded that the legislation was not vague and explained that this was safeguarded by section 49A, subsection (3) which provided that all parties affected by this discriminatory and inequitable conduct should be afforded the opportunity to make representations. This required the Minister getting the comments and recommendations to the Council for consideration before making a decision and the Minister would not be able to proceed with any directive without substantial evidence.

HESA was concerned that 49A(1)(e) “failed to comply with any directive” and asked how they would know of any directives. This could be easily understood with reference to Section 42 and so the DHET introducing the reference to section 42 of the HEA at this point. The amendment would therefore ensure that the provisions of section 42 would only be directed towards the Council that caused the failure, without unforeseen consequences on the learning processes where the students and staff were deprived of funds.

HESA proposed that the legislation be more flexible and introduce the idea of suspension and not only dissolution of a council. DHET were unsure what HESA’s proposal of suspension meant in the context of the Bill. Suspension was normally linked to disciplinary measures as a pre-emptive step before the final decision was made. There would be no role and function for the suspended Council of the University, especially taking into account that the Council was dysfunctional when the decision to appoint an administrator was taken.

Mr Boschoff stated that in nine out of ten cases where an administrator has been appointed for a council, there was an acceptance by the council, the situation was resolved and a new council was appointed in their place. They stressed that the principle solution was to put in place a new council who would stop the council becoming dysfunctional again.
HESA raised a concern about an “inconsistency” between section 49B(1)(c) and section 49E but DHET believed there was no inconsistency as dissolution was linked to the appointment of an administrator and not to the request for an administrator by the council. 

DHET Response to CUT Submission
DHET noted that the CUT submission had many similarities to HESA’s. CUT linked the constitutional principles of freedom of speech and academic freedom with institutional autonomy whilst the white paper separated institutional autonomy, academic freedom and accountability from each other saying these were not the same concepts.  DHET believed that by separating institutional autonomy from academic freedom and freedom of speech, the students were protected from bad governance. Institutional autonomy could not be used as an excuse to deviate from constitutional principles of freedom of speech and academic freedom.

CUT said that these legislative amendments and the appeal by the DHET against the “CUT v the Minister of HET” judgement could not run concurrently. Parliament had an unfettered right to make legislation. Furthermore, the judgement was not related to an act of Parliament but to the decision of the Minister. The proposed amendments were addressing the weaknesses in the current legislation and uncertainties that existed in the Bill in regards to a council when an independent Assessor or Administrator was appointed.

With regards to the concerns of an administrator assuming management and governance functions and oversight - even when a court appoints a liquidator or administrator to a company, that person assumed both governance and management roles. Governance was the main concern when it came to dysfunctionality. Oversight of a Council under normal circumstances was with the Minister, so was any administrator. The Minister can hold the administrator accountable and can replace such an administrator for reasons of non-governance, mismanagement, misadministration and/or non-performance. The DHET believed the oversight structure of a council as exactly as it should be.

DHET was unable to respond to the many personal experiences of the CUT presenter.

DHET Response to CHE Submission
CHE believed that the independent assessor was a unique provision based on distrust. The current legislation did not provide the IA with the tools to perform his/her function, which was to provide the Minister with the relevant facts for his/her findings and recommendations. Information could be withheld from the IA and this was why legislation should provide the IA with the power to investigate properly. The Bill did not require the IA to provide reasons for the findings and recommendations. Administrative law required the decision maker (Minister) to make an informed decision based on corroborated and substantiated evidence or facts. The current Bill required the IA to rely on his/her reputation, knowledge and experience which was insufficient for the report to stand the muster of a challenge.

CHE questioned the addition of “any circumstances” in the appointment of the administrator in the Bill, Section 49(1)(b), as they contended that it was too wide and open ended as it allowed unfettered discretion to the Minister. DHET believed that the amendment was not open-ended and unfettered as it specifically provided that financial or maladministration of a serious nature affecting the functioning of the public institution should be revealed.

The decision of the Minister was subject to Administrative Law which required that the facts on which the decision was based had to be substantiated or corroborated by evidence. This provision would require the Minister to consult with the council where practical. The circumstances would have to be of such a serious nature that reliance on the audit or an assessment may cause more harm to the rights to public accountability, public resources or public education. The presenter gave examples of what would constitute “any circumstances”.

CHE was concerned that the grounds on which the Minister issued directives would impinge on institutional autonomy: Section 49A(1)(c)-(f). This had already been addressed in an earlier presentation. The University of Pretoria had similar concerns which DHET chose not add as there were many duplications.

DHET Response to SASCO Submission
SASCO supported the Bill especially in regards to the transparency, openness and the need for the state to intervene especially in public institutions. SASCO suggested further ground for the directive to the Council for discrimination, in regards to race or creed. DHET agreed, however, that the matter was sufficiently covered in the Constitution and under amendments in Section 49(A)(1)(c) and (d). SASCO proposed that the Minister should appoint a competent individual in society to work with the council in resolving the matter. DHET asked how that person would be appointed, what their impact would be, how it would be enforced and how someone from the outside who was not directly related with higher education without the insight could be of use. This proposal went beyond the current amendments and would require substantive policy discussion.

DHET Response to COSATU and NEHAWU Submission
COSATU and NEHAWU made a joint submission which supported the Bill especially regarding transparency, openness and the need for the state to intervene where state resources were at stake.

Mr Boshoff suggested that the outcome of the discussions would provide an A and B Bill from possible amendments and this could be provided to the Committee if requested.

After the first round of public hearings, a request was submitted that the Bill should deal with the functions and the compositions of the National Institute for Higher Education. DHET responded that requests regarding the functions were easily accommodated. In regards to composition, it was requested that of the ten ordinary members in the Institute, two should be appointed from negotiations between the principle HEIs. That aspect has not been discussed in the Committee yet. DHET wanted to look into it and would create an opinion so when the Committee discussed it, they could be informed.

The Chairperson asked whether the suspension would require the extension of tenure. Unless, the law stated it, a suspension should not apply to tenure. He agreed with the idea that suspension would not work if a person/Council has been suspended due to incompetence. He asked what happened if members were appointed by stakeholders who were dishonest, as the purpose of creating a provision for Council Members to be appointed by stakeholders was unhelpful.

A member asked at what point a council could be dissolved and an administrator could be brought in. If dissention was not there, was it still dysfunctional? He suggested the issue of dissention be totally removed as the issue was about dysfunctionality. With the issue of dissension on a board, he asked if the whole Council must be dissolved as it was often unclear who has been effected and who was responsible so dissolution would not work without a full investigation. All board members who were dissolved may not qualify to be re-nominated and may have to clear their names first.

Mr A Mpontshane (IFP) reminded the committee that the wording “with the approval of the Minister of Finance” in Clause 8(49)(d) was to be replaced with “in consultation with” otherwise the Minister of Education became junior to the Minister of Finance. He stressed that the presenter spoke of ‘institutional autonomy’ too glibly; he dismissed it rather than seeking compromise. It was something than many vice-chancellors and stakeholders felt strongly about and suggested that the DHET seek an agreement.

Mr Gwebinkundla Qonde, Director-General of the DHET, stressed that there was no doubt that universities were autonomous but this was not absolute. It was within a Minister’s power to appoint an administrator. However, people were very fast to play the autonomy card when there was an issue of compromising freedom of speech or if academic freedom was at stake. Where there were large quantities of money, the government had a role in ensuring it was being spent as it was intended. In this respect, the Bill had very little to do with autonomy and did not threaten it in any way. He did not even see suspension as a feature. If a council was dysfunctional, it had to be dissolved and a new one appointed. The point of re-nomination was a tricky process but a councillor would disqualify himself if he had committed specific wrongdoings. It was legally untenable to disqualify others on the council for what others have done. To dissolve a collective, the law should state that certain things should have happened and a person should be linked to those things.

Mr B Bhanga (COPE) requested clarifications from CUT on some implications made during their presentation. He requested that DHET explain the context for this presentation. He asked for evidence that current mechanisms in which the governments intervention in HEI’s had not worked. He asked if there have been occasions where councils have refused to accept the work that the government does and if there was a legal framework for them to do that. He asked where students or unions could go to complain about governance at their institution. He requested that they remove the idea of dissention and focus only on dysfunctionality of councils. He suggested that the Minister visit Fort Hare and see what is happening there.

The Chairperson clarified that dissention was a tool of extrication. It was not a tool of destruction but a tool of engagement. It is a way of recording disagreement or opposition.

Prof S Mayatula (ANC) proposed that the Committee stop discussing council members and to focus only on dysfunctionality and not dissention, as it would be deleted from the Bill. The Bill did not affect the autonomy of universities. In the cases of bad management, the council would be given a chance to rectify it. The Minister would only be brought in if it was dysfunctional. 

A Member asked if it was practical in a democracy like South Africa, within the law, to have an unfettered discretion. He suggested that would not be the case.

The Chairperson clarified that the minister had far reaching powers. It was a parliamentary requirement that you could not put money into black holes and so if a council was dysfunctional, money could not be given to them.

Mr Qonde explained that the entire DHET budget went to institutions and R37 billion went to universities a year. There were various interventions from other quarters for universities. A university existed for teaching and learning and to uphold academic enterprises in its totality. Everything done was done in order to uphold those goals. When a university was established, the governance resided fully with the council so the Committee had to be mindful of the council in discharging its responsibility to that institution.

Regarding the disqualification of a member who was associated with a dysfunctional council - the DHET heard about issues of corruption, mismanagement etc from other members of the council who had good standing. Council members should understand that their jobs had serious implications for the development of the country; therefore, there should not be concessions for those who have been involved in dysfunctional councils as it was “recycling problems”. In an institution, the Vice-Chancellor was an elected member of the Council. A council became dysfunctional when the vice-chair or chair did something to discredit/compromise that council. It must then be dissolved, as it will never be able to operate like that again. He stressed the importance of upholding moral policies and constitutional principals as fundamental. Malpractice and corruption could not be accepted in institutions; the good practice of councils was vital for the academic strength of an institution.

Mr Boshoff stressed that it was important that the structure of the appointment of council members was by nomination but it was possible for the Committee to discuss grounds for elimination and grounds for eligibility for council members to be appointed on other councils. 
He agreed that the words “in consultation” could work as an amendment to allow the Minister of Higher Education and Training and the Minister of Finance to work together. He explained that he did not see the issue of autonomy as insignificant. He believed it was a right but not a fundamental right and therefore should not be linked with other fundamental rights.

He stated that the current legislation was not broad enough to allow an assessor to get to the heart of an investigation or to obtain the relevant and necessary information. He suggested a softer option which was the directive which allowed the council to handle problems themselves, but this could not work unless it was directed by law.

Mr Boshoff explained that unfettered discretion was raised only in the context of Parliament. This was a function of Parliament. “Unfettered right” only referred to Parliament and no other body of Parliament and a constitutional right to make law. The DHET was not suggesting Section 42 of the Bill should be repealed but that it was not the only option - there were alternatives which could be combined with newer approaches which would strengthen the legislation.

Mr K Dikobo (AZAPO) was concerned that the DHET had cast aspersions on the CUT presentation and comments, and that their response had an attitude due to the current disagreement. He reminded the Committee that it did not matter what happened in Parliament - what was said in Parliament could not be used in court, so whether or not there has been a disagreement is irrelevant.

A Member felt that some of the conflicts that led to dysfunctionality were due to some of the imperatives of transformation. He asked for a profile of some of the university councils and how far they have transformed the councils.

The Chairperson requested that the Bill be prepared for Tuesday when the next round of hearings will occur and suggested that once the lawyers and other stakeholders were complete, Members should be given the chance to have the Bill, which would allow them to prepare well for the next meeting.  

The meeting was adjourned.


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