Higher Education Amendment Bill [B36-2015]: Ministry & Department response to submissions

Higher Education, Science and Technology

24 February 2016
Chairperson: Ms Y Phosa (ANC)
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Meeting Summary

The Minister and Deputy Minister were present to hear the Department response to the public submissions on the Higher Education Amendment Bill [B36-2015].

In the submission by South African Parastatal and Tertiary Institutions (SAPTA), the Department explained that section 3(1) of the principal Act was peremptory and therefore these amendments are not conferring new policies. section 3(1) states that the Minister must determine policy on higher education after consulting the Council on Higher Education (CHE). The Department accepted the proposal on section 42(1) in clause 16, to substitute “unfair and discriminatory” with “wrongful”.  A reference to “wrongful conduct” will encompass actions that are deemed “unfair and discriminatory”.

The Department proposed an amendment to the definition of “spouse” as requested by the Universities South Africa (USAf) and North-West University (NWU): “spouse” means a person’s partner in a marriage- (a) recognised as such in terms of the laws of the Republic or a foreign country; or (b) concluded in terms of Islamic or other religious rites; or (c) in a same sex or heterosexual union which is intended to be permanent.
 

The Department proposed a revision of the definitions of “university college” and “university”. The Department was opposed to the proposal made by CHE to stipulate that private universities would also be required to have Senates, as the highest decision making structures on academic and research matters. This is a corporate governance function.

Transformation Stellenbosch had submitted a proposal for the inclusion of a “racial equality” definition in the Bill. However, the Department was not convinced that it is crucial for this definition to be included in the Bill. The Department was of the view that the provisions of the Constitution, the Higher Education Act and other legislation such as the Promotion of Equality and Prevention of Unfair Discrimination provided adequate measures to protect individuals against racial discrimination.

COSATU and NEHAWU had noted concerns about investment of the funds of public higher education institutions. However, the Department believed that the amendments effected adequately address this concern, at least at this stage, as it will be impossible to legislate for all possible unforeseen circumstances.    
      
The Department agreed with the South African Communist Party (SACP) submission and indicated that the concerns would be taken on board during deliberations on the Bill.  

In the discussion that followed, it was noted that the Department had provided assurance that the intention of the Bill was not to encroach institutional autonomy of universities but to entrench public accountability. The belief was that institutional autonomy and public accountability were two sides of the same coin and therefore there is a need to balance the two. Some Members noted that the University of Cape Town submission had raised concern that the Department was likely to push the balance to public accountability rather than institutional autonomy. Clause 42 of the Bill did encroach on the institutional autonomy of universities. It would be important to hear from the Department on the mechanisms in place to ensure that there was transparency in how the Minister would determine the scope and range of transformation goals and oversight mechanisms.

Some Members urged that the Committee should focus on the substance of the Bill rather than the administrative matters. The intention of the Bill was to appraise the political objective of where the institutions of higher learning should be in the country.  A directive from the Minister is usually reached administratively and the Bill could not focus on what should become a directive.

It was suggested that the Department should consider customary relationships in the definition of “spouse”, as clearly defined by other Acts.

The Democratic Alliance expressed concern that clause 42 appeared to give the Minister enough power to be a court of law and decide on what could be construed as wrongful conduct. The Minster did not have the  right to decide on whether a conduct is wrongful. This could allow an unscrupulous minister to purge a vice councillor that he/she did not like. It suggested that public higher education institutions should be included under the Public Finance Management Act (PFMA), as are all state-funded institutions that are responsible for fulfilling public responsibilities. 

The Director General and Deputy Minister then briefed the Committee on the recent violent protests in various tertiary institutions, specifically University of Pretoria, University of North West and University of Free State. The Deputy Minister urged Members to be responsible in their actions and utterances, as there are student movements that are affiliated to some political parties represented in Parliament. It was clear that while everyone was preaching non violence, there are political parties that are calling for bloodshed. This type of behaviour at various tertiary institutions should be curtailed in order not to lead to bloodshed not only in institutions of higher learning, but also within the broader society. The Deputy Minister assured everyone that the officials of the Department were on the ground and trying to provide every possible assistance to stabilise the situation at the affected institutions.

Meeting report

Opening remarks
The Chairperson said the Committee had received a total of 60 written submissions on the Higher Education Amendment Act [B36-2015]. The second agenda item was a briefing on the ongoing violent protests in our tertiary institutions, particularly the recent violence in the University of North West, University of Cape Town and University of Free State. The Chairperson urged Members stick to the substance on the matters to be discussed without any political grandstanding.  

Higher Education Amendment Bill: Department response to public submissions
Adv Eben Boshoff, Chief Director: Legal Services, DHET; indicated that the response to the submissions, would be dealt with in the chronological order of the public hearings. For the sake of completeness, the Department deemed it prudent to accentuate both the positive points and the concerns raised in these submissions.

■ In the South African Parastatal and Tertiary Institutions (SAPTA) submission, it was acknowledged that the Bill has been widely consulted. SAPTU concentrated its comments on the proposed amendments – with a direct bearing on conditions of service of members of a trade union and these included Transformation Goals plus Oversight Mechanisms in section 3(3)(b). Clause 3 was too broad, without any definition. The Ministerial Directives plus appointment of an Independent Assessor (IA) and Administrator in [section 42-49J] [clauses 16-28] was giving too much power to the Minister. There was also concern around increased administrative burden [s 41 &34] [clauses 13 & 10] in respect of declaration for Supply Chain Management (SCM).

The Department had pointed out that section 3(1) of the Act is peremptory and therefore these amendments are not conferring new policies. It must be stated that section 3(1) of the Act states that the Minister must determine policy on higher education after consulting the Council on Higher Education (CHE). The Department proposes an amendment to section 3(3)(b) to read as follows :”( b) determine the scope and range of transformation goals and oversight mechanisms;” and remove “appropriate”. In relation to the proposed amendment in section 42(1) in clause 16, the Department accepts substitution of “unfair and discriminatory” with “wrongful”.  A reference to “wrongful conduct” will encompass actions that are deemed “unfair and discriminatory”. The Minister will exercise his/her powers within the context of established law, whereby the manner in which those powers are exercised can be tested in an independent legal forum against established legal principles.

 In relation to the declaration of declaration of interest: SAPTU acknowledges the need to regulate against corruption of individual self-interest in the context of employment within an organ of state. The onus is on the employee to declare any business, commercial or financial activities undertaken for financial or other gain that may raise a conflict or possible conflict of interest with the public higher education institution (PHEI) concerned [s. 34(4)] [cl.10(b)]. Not all employees should declare their interest but only those employees with delegated functions and/or any members of council or committee of council, particularly in section 27(7)(c), clause 8(e)], section 27(7C), clause 8(h)] and section 27(7E) / clause 8(i).

Adv Boshoff mentioned that the Department proposes an amendment to the definition of “spouse” as requested by Universities South Africa (USAf) and North-West University (NWU): “spouse” means a person’s partner in a marriage (a) recognised as such in terms of the laws of the Republic or a foreign country; or (b) concluded in terms of Islamic or other religious rites; or (c) in a same sex or heterosexual union which is intended to be permanent.

■ UCT submission:
DHET said in order to separate the sections dealing with Public and Private HEIs, the Department proposes a revised definition for: ‘higher education college’, ‘university’ and university college.

UCT complained that the new types university college and Higher Education College not consulted on. DHET said that the urgency of being constitutionally compliant, affected consultative process regarding the different higher education institutions (HEIs). College is defined; it is not a new term.

The Department concurs with the removal of the definition of  PFMA – it was a typo

The Department accepts substitution of “unfair and discriminatory” with “wrongful” [s. 42 (1)( c); was s. 49A(1)(c )] [clause 16]  Reference to “wrongful conduct” will encompass actions that are deemed “unfair and discriminatory
Ground in clause 16: “has failed to comply with any law” (section 42(1)(d)). The Department does not concur with the recommendation by UCT to amend the clause to read as follows:  “a substantial contravention of or failure to comply with any law”.

Clause 36 [section 65BA(1) and (2)], although the Department concurs with the recommendation that the disciplinary provisions applicable to students as set out in the Institutional Rules may make provision for the withdrawal and revocation of any degree, diploma, certificate or other qualification on other grounds after due legal processes are followed, it is for the higher education institutions to incorporate such in their respective Institutional Rules. This amendment is purely to rectify an error by an institution. This amendment is extended to Private HEIs. The Department also recommends that if qualifications are revoked ,the relevant Quality Council and SAQA to be informed so as to amend the National Learner Record Database if necessary

Clause 37 [section 65D(2)]: Qualifications registered on National Qualifications Framework (NQF): Any public HEI identified by the Minister in accordance  with policy determined under section 3, MUST offer an education programme or trade and occupational learning programme… hence the Minister can compel institutions to offer an educational programme and in the Department’s view that cannot be taken arbitrarily and capriciously. The issue of funding as well as other consideration will certainly have to be taken into account

■ The Higher Education Transformation Network (HETN) is of the opinion that the Amendment Bill is necessary and in the national interest to assist the country to attain its National Development Plan (NDP) goals and objectives. HETN supports the legislative amendment that the Office of the Auditor-General is involved in the external audit functions of all publicly funded higher education institutions. CHE acknowledges the intention and spirit of the provision for the Minister to determine the transformation goals for the higher education system and institute oversight mechanisms as contemplated in clause 3 [section 3(3)(b)]. An oversight mechanism of the nature intended will ensure that the matter receives adequate attention and rises above the radar in terms of accountability and measurable progress while mitigating the effects of volatility and upheaval instigated from time to time by vocal and militant constituencies which perceive progress to be too slow.

■ The CHE acknowledges the intention and spirit of the provision for the Minister to determine the transformation goals for the higher education system and institute oversight mechanisms as contemplated in clause 3 [section 3(3)(b)]. An oversight mechanism of the nature intended will ensure that the matter receives adequate attention and rises above the radar in terms of accountability and measurable progress while mitigating the effects of volatility and upheaval instigated from time to time by vocal and militant constituencies which perceive progress to be too slow

CHE supports amendments in clauses 15 to 29 [sections 41A to 49W] as well as subsequent clarification of various constructs such as ‘Ministerial directive’, ‘Independent Assessor’ and ‘Administrator’. CHE agrees with the Department that these amendments serve to strengthen the accountability of institutions in terms of good governance, without interfering with the autonomy and academic freedom of institutions of higher learning. It has become imperative for speedy intervention in dysfunctional institutions or those in protracted crisis so that remedial action can be taken timeously, and long before irreparable damage is done to an institution and the value of its qualifications

 The Department concurs that the oversight will be consistent and transparent to all the parties. The fact that the Higher Education Act prevails, subject to section 34 of the National Qualifications Framework Act, 2008, over provisions of other legislation that regulates higher education and related matters in the Republic, and that is materially inconsistent with the objects or a specific provision of the Higher Education Act, does not have a dilatory effect on the independent advisory and monitoring functions of the CHE.

The Department does not concur with the proposed amendments to stipulate that the private universities would also be required to have Senates, as the highest decision making structures on academic and research matters. This is a corporate governance function.

With regards clause 36 [section 65BA(1) and (2)], dealing with the “Withdrawal and revocation of degree, diploma or other qualification”, the two year period is a prescription period which shall only apply if error(s) are made by the higher education institution. The provision does not only apply to public higher education institutions but is also applicable to private higher education institutions. Subsection (3) will be inserted to indicate that the provisions of subsections (1) and (2) shall mutatis mutandis apply to private higher education institutions, subject to the necessary changes.”

 The Higher Education Qualifications Sub-Framework (HEQSF) is defined in the Bill, but the Department omitted to amend section 65D(1) and consequently the acronym HEQF has not been substituted by HEQSF, as it should have been. Also amendment to 3(3) does not include consultation with CHE, however it is a requirement in section 3(1). With regards section 65B, which deals with degrees, diplomas and certificates: the Department admits that the current provision is silent on a private higher education. The Department concurs that same  provisions must mutatis mutandis apply to private higher education institutions, subject to the necessary changes, hence the insertion of a new section 65BB to that effect is recommended

With regards clause 37, the Department’s position is that there is nothing erroneous with this provision. The concern that the Minister can compel institutions to offer an educational programme can, in the Department’s view not be taken arbitrarily and capriciously. The issue of funding as well as other considerations will certainly have to be taken into account

On the setting of ‘transformation goals’ [clause 3; section 3(3)(b)]: The Minister has the right and responsibility to determine policy “in the interest of the higher education system as a whole” (section 3). Section 3(1) of the Act makes it peremptory for the Minister to determine policy on higher education after consulting CHE.

Taking all the comments into consideration, the Department proposes an amendment to the current clause 3: [section 3(3)(b)], to read as follows:
“determine the scope and range of transformation goals and oversight mechanisms; and”

■ The Catholic Institute of Higher Education (CIHE) noted that with regards the setting of ‘transformation goals’ [clause 3; section 3(3) (b)]: The Minister has the right and responsibility to determine policy “in the interest of the higher education system as a whole” (section 3). Section 3(1) of the Act makes it peremptory for the Minister to determine policy on higher education after consulting the CHE. Taking all the comments into consideration, the Department proposes an amendment to the current clause 3: [section 3(3) (b)], to read as follows: (b) “determine the scope and range of transformation goals and oversight mechanisms;”.

■ The Department replied to the USAf submission as follows:
▪ Clause 1: Section 1 – Definitions
The Department is amenable to the amendments of certain definitions to address the concerns raised to include private higher education institutions and proposes the rephrasing of the definitions currently in the Bill. Redrafts were provided for ’higher education; ‘university’ and 'university college’ and ‘spouse’

▪ Clause 3 amending Section 3(3)(b)
The Department noted and acknowledges the difficulties that may be presented by the proposed amendment. It, however, believes that the Minister has the right and responsibility to determine policy “in the interest of the higher education system as a whole”. Section 3(1) of the Act makes it peremptory for the Minister to determine policy on higher education after consulting the CHE. Taking all the comments into consideration, the Department proposes an amendment to the current clause 3: section 3(3)(b), to read as follows:
“(b) to determine the scope and range of transformation goals and oversight mechanisms;"

▪ Clause 16 amending Section 42:
Higher education institutions, as organs of the state as defined in article 239 of the Constitution, are state-funded and fulfil public responsibilities, hence must be held to public account and the power of the Minister to appoint an Independent Assessor or Administrator is perfectly acceptable. These provisions are existing in the current Act, the only difference is that these provisions in the Bill are strengthened and their positions within the Act are rearranged. The Department does not agree with the proposal to delete section 42(1)(c). However, it is amenable to delete the terms “unfair” and “discriminatory” and to substitute that with “wrongful conduct” as proposed by SAPTU and to restrict it to substantial contravention of or failure to comply with any law

▪ Clause 36 inserting section 65BA
The inclusion of provisions for the withdrawal and revocation of degree, diploma, certificate and other qualifications that public institutions may award erroneously or fraudulently, but the amendment effectively states that public universities have the obligation to withdraw or revoke degrees, diplomas, certificates and other qualifications that they may award erroneously or fraudulently. However, this obligation is not extended to private higher education institutions. The CHE is of the view that private higher education institutions should also be obliged to withdraw or revoke qualifications that they may award erroneously or fraudulently. The amendment will include reporting to the relevant Quality Council and SAQA to amend the National Learner Record Database if necessary. The proposed two year period is a prescription period which shall only apply if errors are made by the higher education institution. The provision does not only apply to public higher education institutions but is also applicable to private higher education institutions. If there is misrepresentation, fraud or plagiarism, there is no time prescription. 

▪ Clause 37 inserting section 65D
The concern regarding this proposed amendment is that it unduly extends the ministerial powers and encroaches upon institutional autonomy and academic freedom. Whilst the Department notes this concern, it believes that such a decision by the Minister cannot be taken arbitrarily and capriciously. Before the Minister can take such a decision, he/she will have to do so in terms of Section 3. Furthermore, the issue of funding as well as other considerations will certainly have to be taken into account.

■ COSATU and NEHAWU both strongly supported of the Bill. They view the Bill as striking the balance between ensuring accountability of public higher education institutions and the protection of their institutional autonomy as well as academic freedom. In regard to investment of public higher education institutions funds, the Department has noted COSATU/NEHAWU’s concern. However, the Department believes that the proposed amendments adequately address this concern, at least at this stage, as it will be impossible to legislate all possible unforeseen circumstances.

■ Independent Institute of Education (IIE) welcomes the Bill in general and the introduction of the new institutional types proposed in the Bill. Clause 3: Section 3(3) – the Department has noted this concern however, it submits that this concern will be adequately clarified by the policy to be determined by the Minister. Clause 31: (amendment to section 51 of the Act) The Department does not see any incongruity between the heading and content in this provision. The Department acknowledges that the Bill does not deal with support centres that the Distance Education Policy requires and admits that this latter issue needs to be looked into. Transformation Stellenbosch (TS) submitted a proposal for the inclusion of “Racial Equality” definition in the Bill. This proposal was noted however, the Department is not convinced that it is crucial for this definition to be included in the Bill. The Department is of the view that the provisions of the Constitution, the Higher Education Act and various other legislation, e.g. Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.4 of 2000) provides adequate measures designed to protect individuals against various forms of discrimination including racial discrimination.

Adv Boshoff noted the submission that had been made by Congress of the People Student Movement (COPESM) in general, welcomes and supports the Bill with minor concerns. Its submission was mainly focused on Chapter 6A of the Bill, which deals with the National Institutes for Higher Education. In its submission, COPESM argued for the deletion of this Chapter in its entirety. It contended that there were no cogent reasons for the establishment of these bodies as they are basically a duplication of the CHE. The Department has noted the submission by COPESM but their proposal is not the subject of the current amendments. The Department agreed with the submission by the South African Communist Party (SACP) and indicated that the concerns that had been flagged by SACP will be taken on board during further deliberation on the Bill. Durban University of Technology (DUT), North West University (NWU) and University of Stellenbosch (US) all supported the intentions of the Bill but raised concerns around the encroachment of institutional autonomy of universities. The Department welcomes the proposed amendments made by South African Union of Students (SAUS) but believed that the scope of these concerns fall outside the parameters of the current Bill. Consequently, the Department will take these concerns into consideration when future amendments to the Higher Education Act are deliberated.

Discussion
Prof B Bozzoli (DA) appreciated that the Department had provided assurance that the intention of the Bill was not to encroach on the institutional autonomy of universities but to entrench public accountability. The belief was that institutional autonomy and public accountability were two sides of the same coin and therefore there is a need to balance the two. However, UCT had raised concern that the Department was likely to push the balance to public accountability rather than institutional autonomy. It was clear that clause 42 of the Bill was clearly encroaching on the institutional autonomy of universities. It would be important to hear from DHET on the mechanisms in place to ensure that there was transparency in how the Minister would determine the scope and range of transformation goals and oversight mechanisms. What would happen if the Minister was unable to meet the transformation goals?

Mr Gwebinkundla Qonde, DHET Director-General, replied that the manner in which DHET is relating to institutions of higher education was mainly through engagement. The question of a transformational goal was not the conception or the imagination of DHET as there was an engagement with institutions and all stakeholders at the Transformation Summit in 2015. The determination that was reached in the Summit was that DHET needed to make a determination of the key goals that would actually be a determinant of how a transformed institution would look like, both in the quality of education that is provided and balanced representation across the system.

Prof Bozzoli suggested that it should perhaps be included in section 3(3)(b) that there is public consultation on the transformation goals and oversight mechanisms. This would reduce the anxiety from many institutions about the possible encroachment of institutional autonomy of universities by government.

Mr Qonde replied that the legislation enjoins the Minister to put to the attention of the university council a matter that is not receiving adequate attention by the institution. There was a process for the Minister to arrive at a determination that a particular institution was not meeting the transformational goals, in ensuring that there is good governance and accountability to the interests of South Africans as a whole. It was not a matter of one individual deciding that a particular institution was untransformed and proposing measures to be taken going forward but a process that would be done in consultation with the council of the institution.

Mr M Mbatha (EFF) urged that Members to focus specifically on the substance of the Bill rather than the administrative matters. The intention of the Bill was to appraise the political objective of where the institutions of higher learning should be in the country.  A directive from the Minister is usually reached administratively and the Bill could not focus on what should become a directive but on what should be transformed.   

The Chairperson wanted to know why DHET had agreed to remove “unfair and discriminatory” and replaced it with “wrongful” in section 42, as this was not a derogatory phrase and is also contained in the Constitution. The intention is to be as explicit as possible as opposed to sugar-coating matters. Presently, the country was dealing with discrimination in institutions higher learning and DHET should retain “unfair and discriminatory”.

Adv Boshoff admitted that indeed the three concepts were also contained in the Constitution but the main argument was that “wrongful” would include an act or conduct that could be considered unfair and discriminatory. DHET was not feeling strongly about the matter as “wrongful’ was also adequately dealing with any act or conduct that is discriminatory in nature.

Prof Bozzoli reiterated that clause 42 seemed to be giving the Minister enough power to be a court of law and decide on what could be construed as wrongful conduct. The Minster did not have a right to decide on whether a conduct is wrongful or not. This could also possibly allow an unscrupulous minister to decide that wrongful conduct is, for example, appointing or purging a “wrong person” or a vice councillor he/she did not like.

Adv Boshoff replied that the Bill was structured in a way that the directive is not a conclusion of the process but the beginning as adequately covered in the Promotion of Administrative Justice Act (PAJA). In essence, a directive is not an order but for the council to investigate and report on any suspected case of misconduct or wrongful act.  

Ms J Kilian (ANC) pointed that the Act was already empowering the Minister to take a decision on what could be construed as wrongful conduct. The current revised clause 42 was compelling the Minister to go broader when intending to intervene on a case. The Minister would now look at the repercussions of the decision to be taken on the institution of higher learning. There is now more pressure that the Minister should comply with various provisions of the Act.

Mr C Kekana (ANC) mentioned that the Constitution was there to safeguard all rights of individuals and the Minister would have to take a decision based on the constitutional mandate. The powers that are given to ministers are not above the Constitution and therefore the Minister could not take a decision that was considered as inconsistent with the Constitution.

Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, said that subsection 4 indicates that the powers of the Minister to make a determination on the wrongfulness of the conduct would be exercised and tested by an independent legal forum. There are many checks and balances that would have to be taken into consideration on the powers that have been afforded to the Minister. The Minister could not arbitrarily take a decision to determine if a conduct of the institution could be deemed as unfair and discriminatory.

Mr Mbatha asked the opinion of DHET on the varying definitions of “spouse” and whether these definitions took into consideration of other forms of relationships like same sex marriage that are recognised in terms of the laws of the country.

Adv Boshoff replied that the definition of “spouse” included same sex and heterosexual union which is intended to be of a permanent nature. The amendment that is provided in section 41 was to add a homosexual relationship. The definitions would always be interpreted in conjunction to the context of the legislation. The traditional definition of a “spouse” would not have included or recognised same sex marriage.

Ms Kilian said that there was a need to take into consideration the explanations provided by Adv Boshoff. Different committees of Parliament had already dealt with the definition of “spouse”. It would be important to learn from other exercises so as to be clear on what was intended to be regulated in the definition itself. The major concern was that “relative” could also refer to a “spouse” and the main contestation would be on whether these two definitions are supporting or contradictory to one another. The Committee would need to elaborate further and also get assistance from the State Law Adviser on the matter.

The Chairperson wanted to know if clause 1(r) (a) included the Income Tax Act and the Estate Duty Tax.

The Parliament Legal Adviser replied that definitions of a “spouse” and “relative” should be read in conjunction to the intention of the legislation. The Income Tax Act provides specific details as to what is the spouse. It would be important for DHET and the State Law Adviser to craft a definition that would be specifically relevant to the Bill, so as to avoid legal challenges. She promised to come up with a proposed definition of a “spouse” that would be deliberated when the Bill is dealt with on a clause-by-clause basis.

Mr Mbatha suggested that DHET together with the Parliamentary Legal Adviser should also consider a customary relationship in the definition of a “spouse” as clearly defined by other acts. It would not be fair to look at the definition of a “spouse” without looking at existing acts that had already promoted all sorts of other relations.

Ms Kilian welcomed the proposed amendments that had been made by DHET on the definitions of “university” and “university college”. It would be interesting to understand from DHET on whether the omission of the private university sector in other clauses in the Bill was a deliberate attempt or just lack of oversight.      

Adv Boshoff replied that the Bill has been crafted with a chapter identifying the impact on the private university sector although the cross-cutting issues were not fully appreciated. DHET had identified some concerns that are indeed related to oversight.

Prof Bozzoli pointed out that DHET had already explained on why there was a need to have definitions of “university” and “university college”. However, the UCT submission wanted to know why DHET was suddenly interested in providing these definitions in the Bill. 

Adv Boshoff replied that the provision of the two definitions was about bringing changes which were brought about by the establishment of the Sol Plaatjie University and University of Mpumalanga. The Act did not have the definition of “university college” precisely because there was no competitor for the private institutions in terms of section 29 of the Constitution. The introduction of the definition of “university college” was to avoid the situation where DHET would have a constitutional challenge for identifying a private institution with, for example, 500 students as a university. The definition of “college” was in the Act but it has now been extended to include “university college”.

Prof Bozzoli wanted to know if Technical and Vocational Colleges Education Training (TVET) colleges were not definitional part of colleges. If DHET was to include the definition of “university college” then it would also be important to also include the definition of TVET colleges.

Adv Boshoff replied that the TVET colleges are defined in the Continuing Education and Training Act and it was not in this legislation to be defined. These are only colleges that offered Malta Qualification Framework (MQF) Level 5 qualification and above.  

The Chairperson clarified that the intention at the moment was to include the definition of those colleges that are still at the developmental stage.

Prof Bozzoli asked whether the country would now have three different types of colleges as this had never been discussed at the policy level. It seemed like the inclusion of the definition of “university college” was retroactive approach that was taken without further consultation of the broader structure of the Higher Education structure.

Mr Qonde replied that the Minister had indicated that the Bill was not the totality of how the system of Higher Education would evolve and be structured. DHET was still working on the development of the National Plan for post-school education, which would be concluded by March 2017. There would be a need to undertake a comprehensive review of all pieces of legislation that contained the definitions of post-school education and training - as they are still separated and pocketed at the present moment.

Minister Nzimande added that “university college” was an old concept and not something new and DHET was not in any way changing its original definition. It was indeed true that DHET had introduced the definition of “university college” so as to avoid a constitutional challenge that might arise. But this was also done so as to obviate a risk of immediately giving new colleges the full status of a fully-fledged university. Both the Sol Plaatjie University and University of Mpumalanga are the first universities to be immediately afforded a status of a fully-fledged university. DHET was also planning to have a comprehensive and interlinked college system in South Africa, so as to cater for other colleges. There are a number of colleges in the country like police college or nursing college that are not talking to each other.

The introduction of the definition of “university college” was to deal with the immediate existing gap. DHET was also grappling with MQF Level 5 and this was considered as one of the biggest headaches at the present moment. There was a need to respond to a number of imperatives, whether it was foundation type programmes and a whole range of issues. The concerns of Prof Bozzoli would be taken into consideration but it was indeed not a “train smash” to include the definition of “university college” in order to deal with this immediate existing gap. It would bring about serious challenges if South Africa would have existing institutions that are left undefined.

Adv Boshoff indicated that the powers that are given to the Minister in section 21 of the current legislation stipulate that “the Minister may, after consulting CHE declare an education institution providing higher education as a university, technikon or college”.  

Prof Bozzoli expressed concern about the word “any law” in section 42(1) (d) as it implied that the Minister would be obliged to intervene to any cases that are not actually related to a wrongful act, like dirty toilets. DHET should take very seriously the recommendation that had been made by UCT that section 42(1)(d) should be amended to read as follows: “a substantial contravention of or failure to comply with any law”. The law should be drafted in a way that you avoid any possible constitutional challenge that might be instituted.

Minister Nzimande replied that the intention of DHET was trying to balance institutional autonomy and public accountability. The argument that is forwarded by Prof Bozzoli was that government should be as minimalist as possible, while the intention of DHET was to be as substantial as possible. There is always a phenomenon in the country where government is pushed to the edges in the drafting of legislation and this was the similar case in the drafting of a Constitution in 1996. It was not helpful to be thinking about all the administrative aspects when drafting the law. This was not to say that DHET should not consider and contemplate those aspects. The recommendation by UCT that section 42(1)(d) should be amended to read as follows: “a substantial contravention of or failure to comply with any law” was a subject for debate as well.

Prof Bozzoli said that the main concern was not on whether the Minister should intervene or not when there is a contravention of the law but where to intervene in those cases. Section 42(1)(d) has been crafted in a way that the Minister’s intervention could include cases where, in an extreme example, the toilets of a university are not clean.  

Minister Nzimande clarified that issuing a directive does not mean to put the institution under administration. The law as it stands at the moment does not even allow the prior step to appoint an assessor. It was impossible to put an institution under administration just because of, for example, dirty toilets and DHET was allowed to make a provision for misconduct.    

Prof Chris De Beer, Council for Higher Education, explained that the Minister may issue a directive only if there is reasonable ground to believe that an institution had failed to comply with a law. The current Bill has been drafted in a way that the Minister has three options of dealing with any institution that has failed to comply with law.

The Chairperson asked if “subject to the necessary changes” in clause 36(1) and (2) implied that DHET was expecting any necessary changes or adjustments to be undertaken.

Prof Boshoff replied that the public higher education institutions have Senates while the private higher education institutions may not necessarily have a Senate. The Act specifically refers to the Senate of the university.

Ms Kilian added that the provision was once again extended to the private institutions and this was not originally in the Act.

Mr Mbatha requested DHET to compel private higher education institutions to also have Senates. This was to ensure that the private higher education institutions are characterised in the same way as public institutions.

Ms Kilian suggested that public higher education institutions should be included under the Public Finance Management Act (PFMA) as all state-funded institutions are which are responsible for fulfilling public responsibilities. 

Prof Bozzoli wanted to make it clear that she was totally opposed to the suggestion by Ms Kilian.

Ms Kilian said that it was absurd that the DA always appeared to be about the protection of the Constitution, but opposed to the very section 239 of the Constitution, which clearly states that any institution that is state-funded and fulfil public responsibilities must be held to public account. It is clear that there is a severe disjuncture between the Constitution and the PFMA and this was where public higher education was “falling through the cracks”. Parliament was passing the Appropriation Bill annually, in terms of Chapter 13 of the Constitution, and therefore it would be important to do a follow-up on the money that had been allocated to public institutions. It was disturbing to witness that the DA would be against the very premise of accountability. 

Prof Bozzoli rebutted the notion that public higher education should be regulated by the PFMA as the funds of these institutions are perfectly regulated under the Higher Education Act.

Mr Mbatha asked whether DHET was contemplating the possibility of ensuring that the public higher education institutions are regulated under the PFMA.

Prof Boshoff replied that it was only the Minister of Finance that could make amendments to the PFMA so as to regulate the funds of public higher education institutions.

The Chairperson wanted to know what would happen if the Minister ignored the adverse findings of the Independent Assessor against a Council member.

Prof Boshoff stated that he did not have a specific answer as to what steps could be taken if the Minister ignored the adverse findings of the Independent Assessor. The intention is for the Minister to comply with PAJA of 2003. The procedure to be followed by the Independent Assessor in the current Bill was much more closely monitored in terms of PAJA principles.

The Parliamentary Legal Adviser said that one of the objectives of the Bill is to ensure that the Act is compliant with the Promotion of Access to Information Act (PAIA) and PAJA. The Minister cannot just rubberstamp the adverse findings made by the Independent Assessor as he would be required to apply his/her mind on the findings and then makes an informed decision based on those.     

Ms S Mchunu (ANC) asked if there was a particular reason why DHET was limiting the withdrawal and the revocation of degrees, diplomas and other qualifications issued erroneously to two years in clause 36. Was this an attempt to condone the rampant acts of false qualifications in the country?

Prof Boshoff clarified that university would not wait for two years before the withdrawal and revocation of degrees, certificates and other qualifications. The two years is a window period that would ensure that once the university has suspected any qualification had been awarded erroneously, then it must be dealt with within the two year period. The intention was not to punish a student for the mistake that had been made by a higher education institution.   

Prof Bozzoli maintained that the fact that the Bill had extended the powers of the Minister to make a decision on whether a certain act was wrongful or not was concerning as this meant that a future unscrupulous Minister could exploit section 42 to advance his/her own interests.

Mr Kekana assured her that the Bill was drafted in a way that all the checks and balances are taken into consideration. The Bill exists under circumstances where the separation of powers is evident and any act which could be construed as unjust and inconsistent with the Constitution could be challenged in the Constitutional Court.

Prof Bozzoli asked if the issuing of qualifications erroneously was a prevalent matter that should even be accommodated in this Bill.

The Chairperson maintained that “prevention was better than cure” and therefore it was always important to ensure that legislation is drafted in a way that would pre-empt and discourage any kind of misconduct. It would be important to hear from DHET on the recommendation that had been made by Transformation Stellenbosch on the inclusion of the definition of “racial equality” in the definition of the Bill.

Prof Boshoff replied that DHET was of the view that the provisions of the Constitution, the Higher Education Act and other legislation provide adequate measures designed to protect individuals against any form of discrimination including racial discrimination.

Mr Mbatha urged DHET to ensure that there are instruments in place to deal with deep-rooted racism in institutions of higher learning. The recent acts of racism in institutions like University of Free State showed that the country was moving in the opposite direction.  

Mr Qonde said that a bill is not drafted in a way as to deal with specific human behaviour and it would be impossible to legislate as to how human beings should behave. The priority is to draft a Bill that would have a context within which certain conduct would be unacceptable. It must be indicated that Parliament was also in similar situation, where it was extremely difficult to regulate the repugnant behaviour of Members of Parliament (MPs).

Prof Boshoff reiterated that the Promotion of Equality and Prevention of Unfair Discrimination Act was an important Act that had been sanctioned by the Constitution to deal with acts of racism, discrimination and prejudice.   

The Chairperson once again asked why DHET was opposed to the suggestion that had been made by Transformation Stellenbosch to replace the word “directive” in clause 16 with “instruction”.

The Parliamentary Legal Adviser explained that the word “directive” was a typical legal terminology that was used most of the time.

The Chairperson asked the opinion of DHET on the recommendation that had been made by the South African Union of Students (SAUS) that the public higher education institutions should declare their reserves, especially those that had directly benefited from apartheid subsidies.

Mr Qonde replied that it was important to dismiss the misconception that is perpetuated that public higher education institutions have a lot of money. The reality was that most institutions were really struggling and are working very hard to secure more funding from DHET.

Prof Bozzoli asked if there was any credibility to the document that had been submitted by Higher Education Transformation Network which alleged to have figures of the reserves of the public higher education institutions.

Mr Qonde replied that he was not aware of such a document and the main concern of DHET was to caution the Committee not to accept the misconception that public higher education institutions have a lot of money.

Mr Mbatha mentioned that DHET should also not attempt to spread the information that there are no universities that benefited massively from apartheid subsidies. The DG should not come to the Committee and “preach like a priest” as there are universities with exceptional reserves and they would even go to the extent of hiding them from being accessed by DHET. 

The Chairperson thanked DHET and Members for their contribution in the Bill. It was clear that the Bill was widely supported by Members but there were a few administrative issues that still needed to be addressed. The Committee would now like to hear from the Deputy Minister on recent violent protests at universities and the steps that had been taken to urgently address the matter. The priority of DHET and everyone at the moment should be about normalising the situation in tertiary institutions in the country so that teaching and learning can continue.  

Briefing by DHET on the recent violent protests around universities
Mr Qonde said that the universities that are affected by violent protests included University of Pretoria, University of Free State and University of North West. There are a number of pertinent issues that have caused these protests in various universities and these ranged from lack of funding to transformation. The Minister had already met with Vice Councillors and chairs of Councils of former Afrikaans universities on 16 April 2015. There were intense engagements and there was a directive from the Minister to actually attend to issues that are perceived to be discriminatory or exclusionary. The Minister was emphatic in saying that there is no language that could be used as a form of discrimination or exclusion. There have also been engagements with individual institutions in attending to all these pertinent issues. DHET immediately had an engagement with the management in the University of Pretoria after the violent protest broke up and there was a clear understanding that lectures needed to be carried out in English. UP informed DHET that all the lectures are currently carried out in English, with some undergraduate programmes offered in both English and Afrikaans. UP assured them that there is no student that was being denied access to education on the basis of a language.   

The University of Pretoria has commissioned an investigation on the question of a language policy of the university. The investigation came up with the recommendations that all lectures should be offered in English only, with Afrikaans and Sepedi being offered as a form of additional support during tutorials, practical tasks and discussions. There is a meeting with the Senates that is scheduled to take place on 16 March 2016 to discuss outstanding issues. It is important to highlight that most of the institutions have complained that these student protests are driven by group of students that are not even democratically elected. These grouping of students are alleged to have undermined existing governance structures like the elected Student Representative Councils (SRCs) of these institutions. These radical student groups are basically violently imposing their views on other students. Universities are a place for academic activities and there is no force that is always on a standby to intervene in cases of violent protests or disruptions.

Mr Qonde said that it would be important to urge Members not to incite or disseminate messages that would encourage violence. There are also political parties outside of the institutions that are encouraging students to engage in these violent protests. The institutions have also complained that they are being made a “political football” and it was not their terrain to enter into political matters. There have been complaints that DHET was moving at a slow pace in intervening to these violent protests, but it was unclear exactly what kind of intervention that DHET was requested to undertake. The Committee could perhaps guide DHET on kind of intervention that could be undertaken, taking into consideration the autonomous nature of the institutions of higher learning. DHET was in support of a resolution that would be based on non-violence, whether at UP, UNW or UFS. It must also be highlighted that although these institutions are subjected to these kinds of racial animosity and violent protests, they are in fact headed by black vice chancellors and it would be important for them to be accorded respect.               

Deputy Minister Mduduzi Manana appealed to Members to take this matter very seriously as it did not require any form of posturing. The DA had just accused the Minister of not intervening in the recent violent protests at various tertiary institutions, but not a single person has come up with a concrete plan on the intervention to be undertaken. The DG has already indicated that DHET may not intervene because of the autonomous nature of tertiary institutions. Some of the utterances that are made by political leaders have the potential for worsening the situation in these institutions of higher learning. The officials of DHET are in constant contact with the affected institutions in trying to provide support. Members needed to be responsible in their actions and utterances as there are student movements that are affiliated to some of the political parties represented in Parliament. It was clear that while everyone was preaching nonviolence, there are political parties that are calling for bloodshed. This type of behaviour at various tertiary institutions should be curtailed in order not to lead to bloodshed not only in institutions of higher learning, but also within the broader society. The Deputy Minister assured everyone that the officials of the Department were on the ground and trying to provide every possible assistance to stabilise the situation at the affected institutions..

The Chairperson thanked everyone who was present in the meeting, particularly the Minister and the Deputy Minister. The Committee would continue next week with the deliberation on the Bill on a clause-by-clause basis. The meeting was adjourned.    

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