Higher Education Amendment Bill: hearings

Basic Education

20 August 2002
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Meeting Summary

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Meeting report


20 August 2002

Chairperson: Prof Mayatula (ANC)

Documents handed out:
SAQA Submission on Higher Education Amendment Bill (Appendix 1)
NEHAWU Submission on Higher Education Amendment Bill
CTP & SAUVCA Submission (Appendix 2)
UCT Council Submission (Appendix 3)

The Committee heard submissions from the following three representative organisations. The National Education Health & Allied Workers' Union (NEHAWU), the South African Qualifications Authority (SAQA) and the Committee of Technikon Principals (CTP) & The South African Universities Vice-Chancellor's Association (SAUVCA). All presenters agreed to the Bill's principles provided some modifications were made. NEHAWU focused on the implications of the Bill for employees that would be affected by the transformation. CTP and SAUVCA agreed largely with NEHAWU. CTP and SAUVCA accepted the Bill's proposition that the size of Councils be limited to thirty. They expressed concern over the the default limit on borrowings.

South African Qualifications Authority
Presenter: Mr Samuel Isaacs, Executive Officer.
There is no reference to any process that the Minister might need to follow in producing the national curricula. SAQA's view was that any national curriculum process must be inclusive of key education and training interest groups within the bands and across the bands, to ensure that issues of articulation are addressed at all levels. Should this not be the case, the concept of an integrated approach to education and training would be lost.

SAQA also argued that the process for the assessment of learner achievement is critical. If the assessment method is simply a written examination, this will be a retrogressive step.

National Education Health & Allied Workers' Union (NEHAWU)

Presenter: Mark Sweet, Parliamentary Officer.
Mr Sweet gave a presentation against the background of NEHAWU's response to the National Working Group Report, released in February 2002. One the matter of the Bill he firstly emphasised that the Bill did not mention the Labour Relations Act 12 of 2002, as amended. He suggested that any reference in the Bill to the Labour Relations Act should state "the Act, as amended". He also strongly felt that throughout the Bill, the word "incorporated" should be inserted after the word "merged" so that it would be clear that it was referring to both merged and incorporated tertiary institutions. He also felt that certain provisions of the Bill undermined the ongoing bi-lateral negotiations between NEHAWU and the Ministry and the NEDLAC process too. The Bill should take into account the role and rights of employees in the process of transformation.


Mr Van den Heever (ANC) asked if NEHAWU was proposing a moratorium on the ongoing issues that were being discussed with the Ministry and NEDLAC.

Ms Jawodeen (NEHAWU) explained that NEHAWU was not seeking a moratorium at all but that NEDLAC should be involved in the transformation of higher education institutions. She strongly felt that no institution should be left to transform on its own because the process had economic implications for employees. She pointed out that Clause 5(c)(2g) amending Section 23 of the principal Act should be deleted for the same reasons.

Mr Abrahams (UDM) asked if there was any importance in differentiating between 'merged institutions' and 'incorporated institutions'.

Ms Jawodeen explained that the distinction was important because the different models that had emerged so far in the process of transformation made it imperative to have the distinction to avoid future legal battles. She made an example of the University of Qwaqwa's incorporation and that of Vista as different and having different implications between themselves and to those of the merging institutions. She insisted that the distinction between merged institutions and incorporated institutions must be maintained and spelt out clearly in any discussion and documentation of transforming higher education institutions.

Committee of Technikon Principals (CTP) & The South African Universities Vice-Chancellor's Association (SAUVCA)
Presenters: Hugh Amoore, Registrar: UCT and Prof. Hennie Snyman, Rector & Vice-Chancellor: PE Technikon.

The CTP and SAUVCA supported the principles of the Bill and had only minor technical objections. Mr Amoore noted that they largely agreed with NEHAWU's submission. He added that in terms of the composition of Council, they accepted the limitation of the size of the Councils to thirty. They also accepted that membership to the Council could not overlap with membership as staff or student in a particular institution. The CTP and SAUVCA concluded the presentation by pointing out that the 5% default limit on borrowings was unacceptable and they suggested a higher percentage of up to 100%.


Ms Ghandi (ANC) wanted to know if the financial budgets of public tertiary institutions were transparent to the public.

Mr Amoore explained that tertiary institutions were required by law to submit their financial statements to the government and hence the public. He also added that no public tertiary institution was immune from the provisions of the Promotion of Access to Information Act. CTP and SAUVCA had no objections to the Minister's determination, provided institutions are weighted on the strengths of their financial capacities.

Mr Abrahams asked if it was not necessary for the Minister of Education to make a distinction between short term and long term loans when determining an application for borrowings by public tertiary institutions. Mr Amoore and Prof Snyman explained that they had no problem, provided institutions were measured on the strength of their financial capacities.

Mr Mseleku: Director General, Department of Education, explained that the 5% default was not absolute and that the Minister would act in good faith in his determination of application for borrowings by public tertiary institutions.

Mr Vadi (ANC) asked what the actual amount was which was constituted by the 5% default limit.

Mr Amoore made a simple example of an institution whose 5% of annual income was about R35million. He said that given the burden of previous long term loans and the need for acquisition of capital, the R35million was a small amount in today's cost standards.

Mr Abrahams asked the CTP and SAUVCA if they were satisfied with the Director General's comment.

Once again CTP and SAUVCA reiterated that the 5% default was too little and that they did not object to the Minister having a role in its determination.

Prof Ripinga (ANC) asked the Department to respond to NEHAWU's submission with reference to the point that the Bill was undermining the ongoing process of negotiations between NEHAWU and the Ministry.

Mr Mseleku said that he did not believe that the Bill was affecting the process. He viewed that Bill as simply setting the framework for the transformation process.

Council of the University of Cape Town
The Council of the University of Cape Town (UCT) made a written submission and expressly chose not to make an oral presentation. The Council argued for no limitation on the size of Councils. Their submission pointed to the fact that the Council of the University of Cape Town consists of 40 members, and they argued that the limitation proposed in this Bill should not be enacted.

The meeting was adjourned.

Appendix 1:
Submission of the South African Qualifications Authority
Education Laws Amendment Bill, 2002

A national curriculum and assessment of learner achievement

The following amendments have relevance:
· Insertion of section 6A in Act 84 of 1996;
· Substitution of section 61 of Act 84 of 1996, as amended by section 5 of Act 53 of 2000;
· Amendment of section 47 of Act 98 of 1998;
· Insertion of section 18A in Act 52 of 2000; and Amendment of section 41 of Act 52 of 2000.

There is no reference to any process that the Minister might need to follow in producing the national curricula. It is SAQA's view that any national curriculum process must be inclusive of key education and training interest groups within the bands and across the bands, to ensure that issues of articulation are addressed at all levels. If this is not the case, the concept of an integrated approach to education and training will be lost.

Similarly the process for the assessment of learner achievement is critical. If the assessment method is simply a written examination, this will be a retrogressive step. The GETC in the Department of Education policy is 25% external and 75% internal assessment - this provides a mechanism for diversifying assessment.

Furthermore the area of curriculum development in schools is a highly contested area and should be managed sensitively.

Amendment of section 5 of Act 58 of 2001

Clause 29 now correctly reflects the quality assurance function of the General and Further Education and Training Quality Assurance Council.

However the Explanatory Memorandum in section 2.4 suggests that the amendment is to effect textual corrections i.e. 5(1)(b)(i) was inadvertently included.

The original Act has the following:

5(1) The Council must be regarded as having been accredited by SAQA in terms of section 5(1)(b)(i) of the SAQA Act, 1995 (Act No.58 of 1995), as the body responsible for establishing education and training standards or qualifications for general and further education at education institutions contemplated in section 2.

The current amendment is more than a correction of the incorrect clause reference. It reflects a change in the function that was assigned to the Council in the original Act. The function now assigned is the correct one.

The explanation should clearly reflect that the amendment is more than a textual correction. As it stands, it is misleading in that lawmakers will not be alerted to the seriousness of the original error in the Act.

Appendix 2:

The South African Universities Vice-Chancellors Association (SAUVCA) and the Committee of Technikon Principals (CTP) welcome the opportunity to make representations on the Higher Education Amendment Bill, 2002.

SAUVCA and the CTP support the objectives of the Bill as set out in the long title and in the memorandum and our submission relates to matters of detail.

We place on record that the Department consulted SAUVCA and the CTP in the process of drafting this Bill, and that some of our suggestions have been incorporated into the Bill as now presented to Parliament.

Our comments are confined to technical aspects of the Bill.

1. Amendments to Sections 21 and 23 of the Act relating to labour matters

1. The Explanatory Memorandum to the Higher Education Amendment Bill, 2002, maintains that the purpose of the proposed amendments to sections 21 and 23 concerning labour relations (clause 4(b) and clause 5(c) of the Bill) is to give effect to the principle of the automatic transfer of contracts of service, as provided for in section 197 of the Labour Relations Act (66 of 1995), and to remove potential uncertainty on the applicability of section 197 (see paragraph 2.1).

2. It is, however, apparent that the proposed amendments in many respects do not properly or fully do justice to the stated goal discussed in 1. above.

3. Firstly, the proposed section 5(a) and 23(2A) attempt to address the issue in a unique way - this is apparent from the strongly-worded qualification at the beginning of the proposed clause, which states explicitly that "Notwithstanding section 197 of the Labour Relations Act, 1995 …"

4. Secondly, the clauses do not do justice to the principle of job security underlying the automatic transfer of contracts of service. Although provision is made for the automatic transfer of contracts of service (see clause 5(a) and 23(2A)), clause (6) and 23(2G) allows the "old" employers (i.e. the respective employers prior to the merger) to conduct a prior rationalisation of the workforce in terms of section 189 of the LRA (dismissal on the grounds of industry requirements. The purpose of sub-clause 2G is clear: the old employers are allowed to reduce/restructure the workforce prior to and with a view to the merger.

5. This is contrary to the current position in law. Two matters deserve mentioning:

(a) In terms of the Labour Court judgment in Western Cape Workers Association v Halgang Properties 2001 6 BLLR 693 (LC), section 197 of the LRA does not permit an employer to dismiss employees on the grounds of industry requirements with the view to a merger.

(b) The recent amendments to the Labour Relations Act now provide that a dismissal automatically amounts to an unfair dismissal if the reason for the dismissal of an employee is "a transfer, or a reason related to a transfer, contemplated in section 197" (section 187(I)(g) of the LRA).

6. Thirdly, the proposed labour relations clauses are not aligned with other recent amendments to section 197 of the LRA, or as a result of section 197. The implication is that employees and trade unions that represent employees suffer harm in particular. Two examples may be mentioned:

(a) The proposed clauses, contrary to the new section 197(5(b)(ii), does not provide that the new employer (i.e. the employer of the merged institution) is bound by the terms of a collective agreement which was binding on the old employers in terms of section 23 of the LRA.

(b) The clauses do not provide for a statutory obligation to disclose relevant information to representatives of employees in the case of an agreement that covers pertinent matters (see the new section 197(6)(b) and (c) of the LRA).

7. Fourthly, the strongly worded provision that the transfer of the contracts of service and the employers takes place "without the employees' consent", is questionable, particularly in view of the fact that the proposed clauses leave no leeway for different agreements concluded with employees or employees' representatives - which is permitted by section 197(2) of the LRA. It is also clearly at variance with comparative case law, which allows affected employees to refuse to be transferred. In its current formulation the provisions are in our opinion unconstitutional. It is certainly possible to argue that (a) is opposed to the constitutionally-guaranteed right to collective bargaining (section 23(5) of the Constitution). As for (b), it may be argued that it is contrary to the provisions of section 33 of the Constitution, as well as the provisions of the Promotion of Access to Information Act 2 of 2000 and the Promotion of Administrative Justice Act 3 of 2000.

8. Lastly, the reference to "any redeployment of an employee as a consequence of the merger is subject to applicable labour legislation" is questionable. One matter in particular deserves mention: Section 197 of the LRA does not contain a similar provision, but provides that the new employer may employ transferred employees "on terms and conditions that are on the whole not less favourable to the employees than those on which they are employed by the old employer" (section 197(3)(a)). In our opinion the provisions of these clauses go beyond section 197, and erodes the protection afforded to employees in terms of section 197.

2. Amendments to Section 27 of the Act: the Composition of Councils

The Bill seeks to reduce the size of Councils to a maximum of 30 members.

SAUVCA and the CTP support this, but in doing so, record that the position of SAUVCA's members is not unanimous on this point, some Councils taking the view that this amendment is unnecessary.

SAUVCA suggests that a new provision be added to S 27 to ensure that the people appointed as members in the categories for external members (that is people who are neither students or staff) vacate their seats if they enrol as students or are appointed to the staff. While most institution provide this by way of a clause in their institutional statutes or their rules, the issue is so important that we propose that it be included in the act by way of the addition of the following subsection, and the renumbering of the remaining existing subsections of S 27 of the principal act:

"(6) The members appointed in terms of subsection (4) (c) and (h) must be persons who are not employed by, or students of, the public higher institution concerned, and cease to be members if employed by the institution or enrolled as students of it."

The CTP supports this proposal.

SAUVCA and the CTP draw attention to the need to amend subsection (4)(c) of S 26 in consequence of the proposed amendment of S 27, to read as follows:


(c) the chairperson and the vice-chairperson of the council must be elected from the members contemplated in section 27 (4) (c) and (h)."


3. Amendment of section 40 of the Act: limitation on total borrowings

SAUVCA and the CTP recognise why the Minister should be able to impose limitations on an institution's total borrowing in the public interest. But we have a serious objection to the level of borrowing contemplated as the default position.

In terms of the Bill's provisions, a limitation imposed by the Minister will apply. In those cases, and only in those cases where the Minister does not make a determination, the limit will be 5% (five per cent) of the institution's annual average income over the last two years. This limit is the limit of all long-term and short-term borrowing. Borrowing at this limit (5%) can be serviced and repaid by an appropriation of 0,5% of an institution's annual income. This number (for the total borrowings, both short term and long term) is impractically low. If a Minister wishes to stop a particular institution borrowing, the powers in subsection (b)(I) allow him or her to do this. The default position of 5% is unreasonable.

In SAUVCA's submission to the Department it was argued that this should be the average income of the institution over the past two years, not 5% of this number. The CTP in its submission indicated that by requiring the Minister's consent when the aggregate sum of loans and overdrafts exceeds the stipulated provisions, places an unnecessary burden on the institutions especially when bridging funding is sought by most institutions at the beginning of an academic year, prior to the payment of the government subsidy commencing only in April. We reiterate these arguments and add that this amendment if implemented, could render some institutions inoperative during the first quarter each year which could have dire consequences.

4. Amendment of Section 65A : the seat of a public higher education institution

The reference in this should be to 23(3)(b)(iii), not 23(3)(c).

5. Amendment of Section 41 A: resignation of a council

The CTP argues that this proposed sub-section presupposes that when a council is deemed to have resigned, the institution is incapable to reconstitution a new Council. Such a process of reconstitution should surely take place in accordance with sub-section (9) and should be open to an institution before the Minister can resort to the drastic step of appointing an administrator for six months?

12 August 2002

Appendix 3:
Higher Education Amendment Bill, 2002

The Council of the University of Cape Town has considered the Bill presented to your Committee on 30 July 2002, and submits the following comments for the consideration of the Committee. Th Council does not wish to make oral submissions.

Clause 6 of the Bill proposes an upper limit of thirty (30) to the membership of the Councils of public higher education institutions. The Council of the University of Cape Town consists of 40 members, and proposes that the limitation proposed in this Bill NOT be enacted.

The Council consists of 40 members. This constitution proceeds from the rule that 60% of the members must be persons other than staff or students.

Adequate representation of the internal members (after allowing for the Vice-Chancellor and four deputy Vice-Chancellors), in particular the Senate, the Staff, and the Student body, is not possible within the 40% limitation if the maximum size is 30 (allowing for only 12 internal members).

Clause 8 of the Bill deals with limitations on all borrowing. The Council supports the clause with one exception. The Council believes that the 5% default limit provided for in the proposed S 40(b)(ii), is too low and should be at least 50%.


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