Further Education & Training Colleges Amendment Bill: Department of Higher Education & Training briefing

Meeting report

Further Education & Training Colleges Amendment Bill: Department of Higher Education & Training briefing
Mr Firoz Patel, Deputy Director General, Department of Higher Education and Training, and Mr Eben Boshoff, Chief Director: Legal Services, Department of Higher Education and Training, presented and took Members through the Further Education and Training (FET) Colleges Amendment Bill (the Bill).

Mr Patel stated that the Bill had already been certified by the State Law Advisers and was deliberated on and approved by the National Assembly (NA) on 31 May 2012. The main object of the Bill was to amend the FET Colleges Act (the Act), in order to provide for the inclusion of a second type of institution within the existing framework. The two institutions would, in future, be the Technical and Vocational Education and Training (TVET) colleges, with all current FET Colleges being deemed to be TVET colleges, whilst a second institutional layer would be added, by way of Community Education and Training (CET) colleges, as identified in the Green Paper. A substantive matter of interest to the provinces would be that the current Adult Basic Education and Training (ABET) centres would be deemed to be CET colleges, and would be subject to the transitional provisions set out in the Bill until the new Act came into force.

Mr Patel indicated that, in this regard, the Act would not come into force as soon as the President assented to it, but instead on a date to be determined by the President. This would ensure that, on the date it came into force, all the necessary logistical and organisational matters had been finalised.

Mr Patel added that the proposed amendments also would convert the existing FET colleges into research colleges. The conversion of ABET centres to CET Colleges would raise their esteem and profile. The Adult Education and Training Act would be repealed once the new Act was put into force.


Mr Patel said that in future there would be recognition of higher education and continuing education sectors. The scope of qualifications from the two types of institutions would be amended to include all qualifications from levels one to four. Currently, the FET Colleges were training at levels 2 to 4, and the ABET at level 1. However, a combination would allow CET Colleges to provide both basic and further education training and qualifications. It was intended that the qualifications or part qualifications that were currently being offered by the FET Colleges would be taken across and offered by the TVET Colleges.

The Bill also contained provisions establishing the South African Institute for Vocational and Continuing Education and Training (SAIVCET), as envisaged in the Green Paper. The functions of SAIVCET were listed in the Bill. It was necessary to create this institution because over the past years there was not enough support offered to colleges in regard to curriculum development, governance, administration and other matters. Some of the colleges had been neglected, and the AET centres had felt aggrieved that they were not properly recognised in the landscape.

The formerly-known “FET Act” would be renamed as “the Continuing Education and Training Act 16 of 2006”, once the Bill came into force. This change in name would help to eliminate the current confusion about the system. “Further education and training” was not something that was limited to institution-type. When the former Department of Education was split into Department of Basic Education (DBE) and Department of Higher Education and Training (DHET), there had been some confusion around the fact that grades 10 to 12 were offered not only at schools, but also at FET colleges. This Bill noted that both types of institutions were offering further education. The Council of Education Ministers (CEM) had decided, when the split of departments occurred, that the Minister of Higher Education and Training should put processes in place to allow for national management of FET Colleges and ABET institutions. A protocol had been signed between provincial MECs, the Minister, the Director General of Higher Education and Training and heads of Provincial Departments of Education, dealing with transitional matters, and to ensure full cooperation.

Parliament had, earlier in the year, through a Constitution Amendment Bill, agreed that all functions of FET Colleges would henceforth fall under the Minister of Higher Education and Training, with the exception of provincial education budgets and human resource management, which were the subject of other legislation. Further Education and Training should in future fall under the exclusive competence of national government.

Mr Eben Boschoff noted that the Bill was essentially amending the FET Act, and explained that this followed a decision of the CEM to use existing legislation and structures that were already in place to achieve the new goals. Of course, this involved quite substantial amendments.

He outlined that a number of definitions had to be amended. In addition, there were amendments dealing with the establishment of a public college, and the two institutional types were named. SAIVCET was being set up, and a number of provisions dealt with its composition, functions and functioning. Provisions were also required to deal with the transitional matters, and to provide for the repeal of the Adult Education and Training Act 2000. Then other new sections had to be added to the FET Colleges Act.

Mr Boschoff took Members through a summary of the clauses. Clause 1 dealt with the definitions, and again he noted that some were amended, and some were new insertions. He highlighted the definition of
 ‘college’ to provide for the public TVET colleges and CET colleges. It would also provide for a private college being established, declared or registered under the FETCA. However, it did not cover a college under the authority of a government body other than the DHET.

The word ‘institute’ was inserted to provide for SAIVCET. This word was also defined.

‘Continuing education and training’ was defined and ‘further education and training’ was deleted.

The definitions of ‘private college’, ‘public college’ and the wording ‘to provide continuing education and training’ were amended, to ensure these definitions were in accordance with the concept of continuing education and training.

The wording ‘National Qualifications Framework’ was inserted to provide for references to the National Qualifications Framework (NQF) Act 67 of 2008, instead of the repealed South African Qualifications (SAQA) Act 58 of 1995.

Clause 2 of the Bill set out amendments to section 3 of the principal Act. It provided for establishment of two types of public colleges, the TVET Colleges and CET Colleges. A Notice must be published which must set out the date of the establishment of the college, what type of colleges it was, its name, its physical location and address.

Clauses 3 to 4, 6 to 14 and clause 16 were amending the relevant sections of the principal Act by substituting the word ‘further’, wherever it occurred, with the word ‘continuing’.

Clause 5 amended section 11 of the principal Act. The Minister could, by Notice in a Gazette, determine that a specified CET college did not require an academic board, if the diversity of qualifications or part-qualifications did not justify the establishment of such a board. Any decision must be taken in the best interest of the college and the delivery of continuing education and training within that college. If the Minister published such a Notice, the DHET must perform the functions of the academic board applicable to the college.

Clause 15 was amending the principal Act, by inserting a new Chapter 7A. This dealt with the establishment of the SAIVCET, and provisions around the framework within which SAIVCET was to be funded and governed, as well as related functions. This Chapter also introduced new sections 43A to 43K into the principle Act. He explained them briefly. Section 43A allowed for the establishment of SAIVCET as a juristic person, by the Minister. Section 43B dealt with the functions of the SAIVCET. Section 43C dealt with the governance structure of SAIVCET, which was the Board. Section 43D provided for the vacation from office and filling of vacancies of the board members. Section 43E provided for the funds and accountability of the SAIVCET.  Section 43F provided for the intervention of the Minister if the SAIVCET was involved in financial impropriety or was being mismanaged, or if it was unable to perform its functions effectively, or had acted unfairly or in a discriminatory or inequitable way towards a person to whom it owed a duty in terms of the FETCA, or if it had failed to comply with any Ministerial directive, or had obstructed the Minister or a person authorised by the Minister from performing a function pursuant to the principal Act. The new section 43G provided for the appointment of an administrator by the Minister, after consultation with the board if practicable, to take over the governance and administration of SAIVCET, and to perform the functions of SAIVCET. Section 43K provided for the closure and disestablishment of an Institute (which would at the moment be limited to SAIVCET) and stated that all assets, including immovable property, and all liabilities would vest in the State.

Clause 20 provided for the Short Title, and this had the effect of the renaming of the principal Act, as the ‘Continuing Education and Training Act 16 of 2006’, instead of the ‘Further Education and Training Colleges Act 16 of 2006’. 

Clause 21 was amending of Schedule 1 of the principal Act, so as to bring that Schedule in line with the proposed amendments.

Clause 22 dealt with the amendment to the Preamble of the principal Act, to ensure access to basic adult education, further education and training and the workplace, through continuing education and training of persons who had been marginalised in the past, such as women, the disabled and disadvantaged. It also noted that CET and TVET Colleges should perform specific functions by offering basic adult education and further education, as contemplated in section 29(1) of the Constitution.

Clause 23 amended the Long Title, to provide for the concepts of continuing education and training, technical and vocational education and training colleges, community education and training college, the offering of continuing education and training qualifications or part qualifications, and the SAIVCET Institute.

Clause 24 dealt with the repeal or amendment of laws.

Clause 25 provided for transitional arrangements. These included that any college in existence immediately before the commencement of this Amendment Act should continue to exist as a VCET College and would be deemed as established as a TVET college. Any member of a Council, academic board and Student Representative Council of a college, who was appointed under the FET Colleges Act and remained in office, would continue to be a Council or Board member and continue to perform the relevant functions. Similar transitional arrangements were provided for AET Centres, where AET centres were deemed to be CET colleges. All the other related matters were dealt with by way of these transition arrangements.

Clause 26 provided for the Short Title and commencement of this Amendment Act, and again Mr Boschoff drew attention to the fact that it would come into operation on a date to be determined by the President, by notice in the Gazette.

Finally, Mr Boschoff noted that some incorrect wording that had been detected in the current version of the Bill would be corrected, and read out the technical correction needed to clause 1, in the definition of ‘college’, as well as the correction of the title of the Sector Education and Training Authorities.

Discussion
Ms D Rantho (ANC – Eastern Cape) stated that the Bill had not yet been tagged, and suggested that perhaps the Parliamentary Legal Services should look into this.

Adv Boshoff added stated that the FETCA Bill was a section 76 Bill. The Constitution provided that any functions that fell under Schedule 4 would be dealt with under section 76.

Ms Rantho noted that AET colleges would in future be CET colleges, and asked if there was a special curriculum or skills description for the two institutional types.

Ms Rantho asked for confirmation that the setting up of academic boards by the DHET in an institution as provided for, in clause 5 of the Bill, would not affect the structure and interest of the institutions, and the skills of persons currently in those institutions.

Mr S Plaatjie (COPE – North West) noted that the Bill provided that the function of the academic board would be performed by the Minister until an academic board was appointed in an institution. Mr Plaatjie asked what would happen if the Minister abused his/her role in exercising this function, and where then a person had to seek redress, since normally a person would have to complain to the Minister.

Mr Plaatjie was in favour of the name-change from FETCA to CETA, but he asked for the rationale for changing the name.

Mr Plaatjie asked if the establishment of the CET Colleges was aimed at improving the conditions of service by improving them.

Mr M Mrara (ANC – Eastern Cape) asked whether, in establishing the two institutional types of colleges, the DHET was trying to establish autonomous colleges in the system.

Mr Mrara asked what the entry and exit points into the two types of colleges were, as he wanted to check if matters of articulation were covered in the Bill.

Mr Mrara asked if the academic board mentioned in the Bill was a replacement of the Councils of colleges.

Mr Mrara asked for clarity on SAIVCET. He had noted that the Minister had powers to dissolve the Councils of institutions if they did not perform their functions. He asked if this dissolution would take care of other administrative structures and wondered what the impact of the dissolution would be, in terms of the stabilisation of the institution. He was worried that there could be tension between an academic board and an Administrator when the Council was dissolved.

Mr Mrara enquired if the Bill allowed for the establishment of satellite centres by the CET colleges and, if so, whether they would be regulated properly.

Mr Mrara noted that the Bill did not provide for the establishment of an institution specifically for learners with disability.

Mr M De Villiers (DA – Western Cape) asked about the cost of the implementation of the Bill, and whether it was included in the DHET budgetary allocation for the year. He noted that an indication had previously been given of the cost of the implementation of the Further Education and Training Colleges Act, to the provinces. He also wanted to know if there had been consultation on the Bill with heads of the Provincial Education Departments, and their responses.

Mr Patel gave a general answer on the issues raised. He reiterated that at the moment, the AET Act only allowed for AET institutions to offer programmes at NQF Level 1. However, in future, the CET Colleges would provide for offering of programmes at Level 1 to 4. Learners at these colleges would therefore be able to do their matriculation. Any new programmes would be structured for handling by the CET Colleges. The SETA funding, of around R8 billion, could be channeled to conceptualise the system. At the moment, the AET centres were like glorified schools, but in future these centres would be part and parcel of CET colleges. He added that ‘Community’, as used in the Bill, bore no geographic meaning.

In answer to questions around the boards, he explained that the DHET, and not the Minister, would perform the functions of an academic board where institutions had not yet appointed academic boards. He clarified that an academic board was not a governing Board. The Councils of institutions would still remain. Academic boards determined matters such as programmes, examinations, who would pass, and similar issues. As capacity grew in the CET colleges, the academic issues could be delegated, but at the moment that capacity simply did not exist. 

Mr Boschoff added that it would not always be feasible, from considerations of capacity and performance, for every CET to have an academic board. Where it was not feasible, the DHET would perform that function, and he too stressed that it would not be the Minister. The Minister, as the executive authority, would have the power to correct and deal with issues of abuse within the DHET. The academic board was not a separate legal entity. The legal entity was the College, which was governed by a Council. An Academic Board is a sub-structure of the legal entity, and the same applied to the Student Representative Council (SRC). Both were identifiable structures.

Mr Patel clarified that the Constitution provided for basic education, adult basic education and training, and higher education. The fact that the one department went by the name of DBE did not mean that it offered adult basic education and training as envisaged by the Constitution. The phrase ‘Further education’ was describing a level of education, quite apart from the department or institution that provided it. FET colleges currently offered programmes from NQF Levels 1 to 4, but the fact of having this offered by FET Colleges did not mean that only they should offer it. The agreement to which he had referred earlier meant that further education should not be confined to only one department. Some AET centres would become CET colleges, with entry to them allowed at any point. These colleges would then cater for those who had never attended schools, as well as those who had dropped out after a certain level. Any person who was not in school could enter the CET colleges, except for those who were subject to compulsory education in terms of the South African Social Security Agency (SASSA) Act 9 of 2004.

Mr Boschoff said that the basic entry point into CET colleges would be level one NQF, and the exit point would be level four NQF.

Mr Patel then touched on the transitional arrangements. Current employees of AET centres would (pursuant to sections 1 and 7 of the Labour Relations Act) be moved to the service of the Minister, and not of the provinces.

Mr Boschoff added that the FET Colleges Act had been amended two years previously, to the effect that the principal’s post and funded posts would still be within the domain of the Minister, not within the college as the employer. In 2008, an amendment was made to the AET Act to the effect that the principal’s and funded posts moved over to the provinces. The transitional arrangement now provided that the staff must move over and be dealt with in terms of the Labour Relations Act, and that the employer would be the Minister and not the provincial MECs.

Mr Patel noted that the intention was to move 3 000 AET centres to CET centres, although not all of the existing AET centres would become CET colleges; some may be merged, and perhaps thought should be given to having one governing structure for all the AET centres in a region, to give them the necessary facilities and support. That was the reason for the establishment of SAIVCET. However, all the powers of an existing Council set up under the FET Colleges Act would remain. Further articulation would happen around the design of qualifications. The academic board mentioned in the Bill was the SAIVET board, not the FET Colleges boards. The SAIVCET Board was to be a governing Board, so it was not the same as the Boards of the CET Colleges.

Mr Patel noted that the Minister took a strong and unapologetic stance about the proposed dissolution of Boards that were not doing their jobs and the appointment of Administrators in their stead. An Administrator could perform every single governance function of a Board. That Administrator could appoint other persons to assist him/her, but would in practice always utilise the existing structures in an institution.

Mr Boschoff added that when an administrator took over, he would be taking over the governance and management of the Board only, as set out in clause 15 of the Bill, which specified administration issue. Section 46 of the FET Colleges Act already empowered appointment of an administration in relation to those colleges, and this would apply also to the new CET colleges. Essentially, there was no change in principle. An administrator appointed to an institution could only deal with governance, so any management functions would still be dealt with by the principal and staff. No administrator would have the power to dissolve an academic board, as that was not within his function. There was no possibility for tension between the administrator and the academic board. SAIVCET was seen as a developmental institution, with professionals that could provide support to public institutions. It would not provide training to students.

Mr Patel touched on the costs again, saying that there would not be a cost in implementing the Bill itself, but there would be costs in moving the structures over.

In answer to questions about the consultation with heads of Departments, Mr Patel said that in terms of the current AET Act, CEM was the structure for consultation. The DHET did consult with the heads of departments in provinces and MECs before the Bill went to Parliament.

Mr Patel answered the questions of Mr Mrara by saying that the Bill would allow DHET to look into the issues of satellite centres.

Mr Boschoff added that legislation provided for FET colleges to have satellites, but the limits had to be further investigated, as the FET Colleges Act at the moment did not address satellites specifically, but allowed those colleges to determine the seat. It must be remembered that this was linked to the funding model, scope and needs of an institution.

Mr Patel said there was ample opportunity in the Bill to deal with the issue of disabled learners, and it was possible to set up a CET to deal with persons with disability. The Constitution allowed for concurrency with provinces for the setting up of colleges and providing for their governance, but, in terms of co-operative governance, the provinces would have to look at what was being done at national level.

Mr Boschoff added that there is no legislation yet, at any of the provinces, on further education. There was a national Act on further education and training. This, however, did not affect the ability and right of the provinces to make legislation on the issue.

Mr Boschoff said that the word ‘autonomous’ was not used in the Bill. The words used were ‘legal’ and ‘juristic’. In the context of the Bill, it was the Board of the SAIVCET that was being referred to, as it was intended to provide for a statutory body that would be responsible for providing the functions within the framework of the FETCA. The fact that AET centres would move to become CET centres did not change their status. They would remain legal persons, as they were within the AET Act, which provided the legal framework for their operation.

The meeting was adjourned.