Higher Education Laws Amendment Bill: Department of Higher Education briefing

NCOP Education and Technology, Sports, Arts and Culture

21 November 2012
Chairperson: Ms M Makgate (North West, ANC)
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Meeting Summary

The Department of Higher Education and Training briefed the Committee on the Higher Education Laws Amendment Bill, which sought to clarify the issues around the establishment of the National Institute for Higher Education (NIHE) and to extend the functions of a NIHE It was clarified that where a higher education institute might become dysfunctional, an Independent Assessor could be appointed to investigate the matter and might make a recommendation to the Minister that an administrator then take over the governance functions of the institute. The powers and functions of the Independent Assessor and the administrator were specified in the Bill. The State Law Advisors were satisfied that the Bill was Constitutionally sound. The Bill made changes to various other Acts dealing with higher education. A brief description was given of the content of the new section 38K, and the appointment of the administrator. However, the meeting had very little time scheduled for full interaction, a point that Members complained about, saying that the meeting felt rushed.

Members wondered why the Institute was not envisaged in all the provinces, and one Member asked about the tagging of the Bill, saying that since the universities existed in many of the provinces already, he would have thought that this was a matter relating to provincial competence. However, it was explained that this Bill amended an Act of national competence. Members questioned if monitoring at least every two years was sufficient, asked why different portions of the legislation provided for a Board and Council, and sought an explanation of the difference between them, and wondered why the university’s own administrative functions would be dissolved when an administrator was appointed, and whether the Independent Assessor and Administrator would work together. They questioned the consultation process by the Minister, asked what the need was for the National Institute, and sought clarity on how the Assessor would be “independent”. The Chairperson asked that all responses, which were only answered briefly, also be put in writing, and assured Members that they would have another chance to interact with the Department.

Meeting report

Higher Education Laws Amendment Bill: Department of Higher Education Presentation
Mr Eben Boschoff, Chief Director, Department of Higher Education, briefed Members on the Higher Education Laws Amendment Bill (the Bill). He noted that it dealt with four issues. Firstly, it sought to provide afresh for the establishment of the National Institute for Higher Education (NIHE) and to extend the functions of a NIHE, secondly, to provide for the appointment of an administrator for a NIHE and to provide for the closure of a NIHE where necessary, thirdly, to extend the powers and functions of an independent assessor, and fourthly to provide for the intervention of the Minister in cases of poor or non-performance so that it was possible to temporarily take over the management, governance and administration of the Council.

He said the State Law Advisers were of the opinion that the Bill was drafted in accordance with the norms and standards followed in South Africa. This opinion, together with the Bill, had been presented to Cabinet during May 2012.  Cabinet had approved the tabling of the Bill for the 2012 Parliamentary process. The Bill had been certified by the State Law Advisers

He ran through the amendments, clause by clause, from clauses 1 to 7, noting that the Bill made various changes to other Acts that dealt with higher education

He wanted to detail the appointment of the administrator. The new section 38K of the Higher Education Act stated that the Minister may, after consultation with the board of a NIHE, if practicable, appoint an administrator. The administrator would be appointed to take over the management, governance and administration of the relevant
National Institute for Higher Education (NHIE) or to perform the functions of the NIHE in certain circumstances.

Clause 9 of the Bill provided for the investigation by an Independent Assessor (IA). He stated that on receipt of a complaint, or an allegation, or on the grounds of information that had come to the knowledge of the IA which pointed to specific circumstances, the IA would have the power to conduct an investigation, for the purpose of determining the merits of the complaint, allegation or information and to determine how the matter should be dealt with from there.

Clause 11 covered the appointment of the Administrator, and other matters detailed the specifics (see attached Bill for full details).

Institutes in Provinces
Ms B Mncube (Gauteng, ANC) suggested that perhaps it might be necessary for the Department of Higher Education and Training (DHET or the Department) to give consideration to establishing Institutes in other provinces, pointing out that there were several in which universities operated.

Mr Gwebinkundla Qonde, Director General, Department of Higher Education,  responded that enrolment at universities stood at around 900 000 and the biggest accommodator of students was UNISA, with other full time institutions having about a quarter of the enrolment. After a thorough investigation by the Department and engagement with various stakeholders, it had become obvious that the Department would have to expand the capacity of universities to enrol more students, as the student figure was projected to reach 1.5 million by 2030. This would acquire huge expansion of infrastructure in the system. He noted that South Africa needed to establish new universities on an ongoing basis as even the establishment of the new University of Mpumalanga and the University of the Northern Cape would not meet the demand. The establishment of the Institute was supposed to form the basis of establishing a fully-fledged university, and it was believed that there was a need for a national institute.

Ms Mncube asked what would be entailed in establishing institutes in the other provinces.

Mr Boschoff replied that the intention was not to provide institutes in other provinces automatically, but to deal with the matters according to the scope and on application.

Ms M Boroto (Mpumalanga, ANC) asked what the rationale was providing for monitoring and collaboration with the provinces only once every two years, asking what would happen if other problems occurred during that time.

Mr Boschoff replied that the Bill provided that the monitoring should be done at least every two years. The Minister could provide a shorter period, but the maximum was two years. There was also an extension of no more than six months. There was already sufficient flexibility was provided.

Ms Mncube asked if the Board and the Council were the same.

Mr Boschoff replied that this was an amendment Bill, which dealt with provisions that were already included in the principal Act, and concepts that were already included in the legislation. He pointed out that the current section 38A of the Act already provided that a National Institute for Higher Education was to be governed by a Board. There were a number of provisions in the Bill that provided that a university or higher education institution’s structure would be dealt with by their Council. The amendments to section 38A onwards were linked to the Board of the National Institute for Higher Education, and matters from section 48 onwards dealt with the Council matters.

Ms Boroto asked why the Board would be dissolved when an administrator was appointed. She note that a Board would usually have a specific term of office, and wondered why the Board and Administrator could not operate together. She wanted more detail on the Independent Assessor and Administrator, asking what their relationship would be and whether they worked at the same time.

Mr Boschoff replied that it was important to note that the Independent Assessor would, firstly, be used in order to assess whether it was necessary to appoint an Administrator for the higher education institution. In other words, the one followed the other. Not in every case would an independent assessor be called in, as it was possible that the issues might, for instance, be outlined in the audit report. There were also some other methods, as outlined in section 49B. The specific circumstances would dictate what directives the Minister issued. However, if the Council failed to comply with these directives, then the administrator could be appointed, once an investigation had been carried out and a final report made.

Mr Gwebinkundla Qonde added that in most cases the Independent Assessor would investigate allegations of maladaministration levelled against an institution, or allegations that a Council or university had failed to exercise its fiduciary responsibilities or proper governance. When that investigation was finalised, the IA would then make recommendations. The IA might find that the Council had failed so dismally that the IA believed it had no capacity to exercise its responsibilities for the benefit and interest of the institution, in which case there would clearly be a need to appoint an administrator to take over either the role of the Council, as governing structure or management structure of the institution. This legislation would outline more clearly how the processes would unfold and strengthened the position.

Mr Boschoff stated that it was possible to have two decision-making structures functioning at the same time. The Bill stated that if an administrator was appointed, the administrator would take over the governance function. If this was necessary, because the Council was dysfunctional, there was clearly no point in keeping the Council also in place. The Bill sought to clarify that if a decision was taken to appoint an administrator, then the university’s own governance structure would be disbanded, no matter that the term of office had not expired. In other words, this Bill would override the appointment term.

Mr M De Villiers (Western Cape, DA) asked why the Minister needed to consult with the Board of the National Institute of Higher Education after following the dissolution process, or beforehand.

Ms Boroto asked for more clarity on the terms “Council”and “Board”. She also pointed out that both the revised sections 38K and 49 spoke to appointment of the administrator and asked what the difference was between these clauses, and when each would apply.

Mr Boschoff replied that the interventions would be planned in accordance with the problem experienced. The same principles would, however, apply, although the two clauses dealt with separate entities. However, there were some distinctions, because the Independent Assessor would not be applicable if the matter was to do with the Institute, although this was required in relation to universities, because these bodies impacted upon a huge number of students. It was important that the Minister ensure that decisions were founded on a solid report.

Ms M Moshodi (Free State, ANC) asked why there was a need for the National Institute of Higher Education, and what challenges it sought to address.

This question did not appear to be answered

Mr De Villiers asked why the Bill was a section 75 Bill and not a section 76 Bill. He said that he understood that there was no National Institute substitute that represented the provinces, but pointed out that universities were to be found in various provinces and this seemed to suggest that it should be a section 76 Bill. He thought that there was a need to consult the provinces.

Mr Boschoff replied that Schedule 4 of the Constitution dealt with the concurrent legislative functions between the national and the provincial legislature. That schedule provided that tertiary education was a national competence. The mere fact that a university was situated in a province did not alter the function, and the tagging of this Bill as a section 75 Bill was due to the fact that it was effecting amendments to a national piece of legislation relating to universities.

Mr De Villiers asked for clarification on the independence of the Independent Assessor. He stressed that the assessor should not be connected  to anything that could influence the work s/he did during the intervention in the institution. 

Mr Qonde replied that the appointment of an administrator would always be done after recommendations by the Independent Assessor. The Independent Assessor would be appointed from a list of assessors drawn up by the Council for Higher Education, so this meant that the Minister could not simply appoint someone of his or her own choice. The list of assessors would be pre-determined, and they would be academics of high calibre and quality, who had been identified and selected by the Council for Higher Education (CHE).

The Chairperson asked for the responses to be put in writing so that Members had a better chance to engage fully with them.

Mr Boschoff wondered if the responses as recorded by the Parliamentary Monitoring Group should not simply be forwarded to the Committee.

The Chairperson said that the Department must provide them, as this was the manner in which the Parliamentary procedures worked.

Ms Boroto said that she wanted to express her dissatisfaction of the pressure under which Members were placed, when dealing with this Bill. This was the only chance that the Committee had to ask questions and the atmosphere was not conducive to a full examination of the issues.

The Chairperson said that this was not the first or last time there would be a deliberation on the Bill, and there would be opportunities for deeper interaction. On this occasion, the Programme Committee had drawn a schedule that was not under the control of this Committee.

The meeting was adjourned.


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