Higher Education Amendment Bill [B36-2015]: Department response to submissions; deliberations
Higher Education, Science and Innovation
09 March 2016
Chairperson: Ms Y Phosa (ANC)
The Department of Higher Education and Training (DHET) said the Committee’s proposed amendments to the Bill were mostly technical issues.
The submission by USAf contained eight concerns of which four are being considered by the Department, while it disagrees with three points raised by USAf and one item DHET found difficult to understand.
USAf said that the place of Technical and Vocational Education and Training colleges (TVETs) was not clearly clarified. TVETs are clearly defined in terms of their role, scope and range of activities in the Higher Education Law Amendment Act.Many other organisations had also raised concerns about Section 34(4) and the administrative burden it places on institutions.However, the Department is also aware that employees’ interests change and so this information had to be captured annually for transparency purposes.The insertion of the references to the Promotion of Administrative Justice Act (PAJA) and the Promotion of Access to Information Act (PAIA) was done when the Bill was sent to Parliament as a draft.The State Law Advisors said PAIA is an Act which itself indicates its scope and anyone can access this, hence it was decided that PAIA should be removed from the Bill. The exclusion of PAIA and inclusion of PAJA is related to constitutional obligations. The Department did not want to repeat what has been already written in the Constitution regarding the two Acts. DHET believes that articulation and recognition of Recognition of Prior Learning is not SAQA’s responsibility, as stated by USAf; SAQA’s function is quality assurance. However, SAQA has the obligation to manage how assessment centres which provide for RPL are managed. USAf argues that the administrator that takes on the governance function should not be terminated when a new Council is appointed. The Department believes that there cannot be two bosses at the same time. In any case, when a new Council has been appointed, the administrator should not continue with that function.The intention is that when the Council is appointed all the functions of governance are reverted back to the Council from the administrator. Therefore, the administrator cannot continue to fill the role of the Vice Chancellor. It then becomes the responsibility of the Council to appoint an Acting Vice Chancellor.The Minster could issue a post administrative directive to the Council to ensure continuity of the Council, at the same time the administrator could then be appointed as the Acting Vice Chancellor.
The Committee’s concern was mostly about the management of institutions and the overlapping roles of the administrator and the Council. A DA member was concerned that the absence of a Vice Chancellor at an institution could be problematic and, as such, the Council should be compelled to appoint an Acting Vice Chancellor. The definitions of “university”, “higher education colleges” and “spouse” was also of a concern for the Committee. The Committee believed that incorrect definitions could open up legal challenges for the Department. Instead of the use of the Use of Official Language Act, the Committee was all in agreement that Section 6 from the Constitution should replace the Act in Section 27. The DA suggested a definition for “adverse finding” because it believed that this should be defined according to the context of the Bill.
Department briefing on proposed amendments to Higher Education Amendment Bill
Mr Firoz Patel, Deputy Director-General: Planning,DHET,spoke to the proposed amendments that appear in the new working draft of the Bill.
In Clause 1, in the definitions of “higher education college”, “university” and “university college”, the references to other sections of the Act have been revised. On the incorrect reference in Clause 5 regarding Section 20(5)(b), the section was later changed to Section 20(5B), which later again changed to Section 20(1)(b).
Under Section 1(u) the definition of ‘university college’ there were proposed amendments to remove sub-section (3)(a) and for the Section to remain as Section 3 only.
Under Clause 3, Section 3 was proposed to be replaced with “(1) The Minster must determine policy on higher education after consulting the CHE and such policy includes, but not limited to: (a) the transformation goals and oversight mechanisms for such goals (b) articulation and recognition of prior learning across the education system”
In Clause 33, “or higher education institutions as the case may be” the word “institutions” will be replaced with the word “colleges”.
He said that these were the only technical issues which needed to be amended.
The submission by the Universities South Africa (USAf) was welcomed by the Department. It contained eight concerns of which five are being considered by the department, while two will not be considered and there was one issue which the department found difficult to understand as it was not clearly explained. In general, USAf supports the Bill - with some rewording and suggested improvements - however it does have some concerns. Their single biggest concern relates to institutional autonomy. With regards to USAf’s submission on the place of TVETs, which the department has responded to by discussion, USAf says that the place of Technical and Vocational Education and Training colleges (TVETs) was not clearly clarified. As DHET previously explained, this particularBillrefers to the Higher Education Act and not the Higher Education Laws Amendment Act. TVETs are clearly defined in terms of their role, scope and range of activities, which is further stipulated in the Higher Education Laws Amendment Act.
USAf had a problem with Section 20(5)(b) which the department has corrected. DHET has also acknowledged USAf submission on Clause 10 amending Section 34(4) due to the administrative burden that the section places on institutions and the purpose as to why every employee should declare their interests every year. Many other organisations had also raised this concern about the administrative burden it may have on institutions; however, this was not the department’s intention. DHET is aware that employees’ interests change every now and again. However, no amendment will be made to Clause 10.
The insertion of the Promotion of Administrative Justice Act (PAJA) and PAIA was done when the Bill was sent to Parliament as a draft. At the time, the Department had not considered the fact that PAIA is an Act which itself indicates its scope and anyone can access PAIA in terms of its prescripts, hence it was decided that PAIA should be removed from the Bill. PAJA, on the other hand, will remain in the Bill because it is applicable to the independent assessor – the Act prohibits the independent assessor from being absolutely independent under the current Bill.
The Chairperson asked the State Law Advisor to elaborate on the inclusion of PAJA and the exclusion of PAIA in the Bill.
Mr Sisa Makabeni, State Law Advisor, explained that the exclusion of PAIA and inclusion of PAJA is related to constitutional obligations. The department did not want to repeat what has already been written in the Constitution regarding the two Acts.
Mr Patel noted that he made a mistake earlier on saying that DHET is considering five of the proposals in the USAf submission. The correct statement is that the Department is considering only four of the points raised by USAf and they are in disagreement with three points raised by USAf for the same reasons raised earlier.
The next point raised by USAf was on the administrative powers to develop the articulation of Recognition to Prior Learning (RPL). DHET believes that articulation and recognition of RPL is not SAQA’s responsibility; SAQA’s function is quality assurance. However, SAQA has the obligation to manage how assessment centres which provide for RPL are managed and how their courses are carried out. SAQA does not manage the range and functions of RPL.The current Act requires SAQA to monitor the whole education system, and if there are issues that are in conflict, in terms of their quality assurance, then SAQA would have the open role to advise the Minister according to the quality assurance. The reason SAQA was included in the Bill means there is a line function between SAQA and universities, but SAQA will always be free to operate in whichever way it sees fit.
Another big issue raised by USAf is investments. USAf referred here to a pre-tabled, draft version of the Bill when it still had Section 5A which defined where investments can be made, hence there is no need to amend the Bill as proposed by USAf. There was also a second part which referred to the establishment and investment in entities – this part was also removed from the Bill because there were not any substantive investments that were required to be regulated. There is a process which the Department is currently undertaking to assess whether there are institutions which need to have their investments regulated, in terms of from where the investments come.
The last point was about the term of office of the administrator. There are two types of administrators that we get in institutions – the administrative body which often acts as the Vice Chancellor and the Council that still holds its powers as given to them by the Act. There are also administrators which take on both the role of the Vice Chancellor and the Council. USAf argues that the administrator that takes on the governance function should not be terminated when a new Council is appointed. DHET believes that there cannot be two bosses at the same time, in any case, when a new Council has been appointed, the administrator should not continue with its function.
Lastly, USAf believes that the Bill’s specific scope and application should be read as “specific scope of specific application” but the amendment with which the DHET agrees with is that it should be “specific scope of application”. The issue here is the use of language because there seems to be a direct translation of the Afrikaans usage of the word “of”.
Adv Eben Boshoff, Chief Director: Legislative Services, DHET, said the moment a Council is appointed into an institution and at the same time the institution continues to have an administrator with full powers in terms of management, this becomes a difficult position to manage. The intention is that when the Council is appointed, all the functions of governance revert to the Council from the administrator. Therefore, the administrator cannot continue to fill the role of the Vice Chancellor. It then becomes the responsibility of the Council to appoint an Acting Vice Chancellor.
Dr Diane Parker, Deputy Director-General: University Education, DHET, said the mischief for USAf is that should the Council be appointed without the proper structures for effective management, they believe that it would be useful to continue with the administrator. The Minster could issue a post administrative directive to the Council to ensure continuity of the Council, and at the same time, the administrator could then be appointed as the Acting Vice Chancellor. Hence, there is no need for that provision to be included in the Bill.
Mr E Siwela (ANC) asked if the Vice Chancellor and an administrator can be appointed at the same time.
The Chairperson replied that when an administrator is appointed, it means that the whole institution as a collective has failed to perform, including the Vice Chancellor.
Mr M Mbatha (EFF) said that administrators are appointed because the whole university structure is not coping, and not due to the mistakes of the Vice Chancellor. The mistake that most people make is to assume that it is only the Vice Chancellor who is to blame when the university does not perform.
Mr C Kekana (ANC) asked if, when an administrator is appointed, they are appointed with their own team of financial and legal advisors, or is the administrator appointed without a team of advisors.
Mr Y Cassim (DA) said the fact that the university council is not compelled to appoint an Acting Vice Chancellor is problematic.
Dr B Bozzoli (DA) asked the department to elaborate why USAf wants SAQA to regulate RPL programmes.
Mr Patel replied that there are two types of administrators which the Minister can appoint. There is an administrator who will assist with reshaping the governance structure or there is an administrator who will be responsible for the overall management of the university – in this case, the appointed administrator will act as the executive of the university and the Council will take orders from the administrator.
The Chairperson added that the administrator who is appointed by the Minister can act as the Vice Chancellor or the whole Council. In most situations if an administrator is appointed to replace the Council, the administrator will represent the Council when the Council works with the Vice Chancellor.
Ms J Kilian (ANC) added that USAf’s concern is about the appointment of an administrator relates to the date at which an administrator is appointed, and the date on which the Council takes over the functions of governance. The dates for appointment of these two bodies should be clearly stipulated in the Bill.
The Chairperson replied that the administrator’s appointment should immediately take place when it has been established that the university is no longer functioning.
Dr Bozzoli asked why the Minister was asked to intervene in the regulation process of RPL, and why could the universities not do it themselves.
The Chairperson replied that some universities still do not recognise RPL and because of this they still continue to exclude a portion of people. That is the reason it was important for the Minister to intervene.
Adv Boshoff added that the Minister is responsible for providing overall guidance on policy matters, hence he was asked to intervene.
Mr Cassim asked what role does SAQA play which it is not currently doing.
Mr Patel replied that SAQA’s role is ensuring that qualifications are not fake and SAQA’s role isnot the effective management of universities. The RPL matter is not a quality assurance-related matter either.
Clause by clause consideration of Higher Education Amendment Bill
Dr Bozzoli suggested that they should end with the Preamble. She suggested the need for amendments to the definitions of Section 1(g), (h), (i) and (m); the definition of (i) does not match the definition of (h). She added that the definition of Section 1(i) is too detailed and vague.
Ms Kilian said a suggestion was made at the public hearings that many of the sections of the Bill simply need rewording. She added that the definition of “higher education” on page 7 of the Higher Education Act 101 of 1997 is more acceptable.
Dr Bozzoli said that the definition of “higher education” is the same in both documents.
Mr Siwela said that he supports the comment made by Ms Kilian.
Adv Boshoff replied that the definition of “higher education” in the Higher Education Act 101 of 1997 has some implications for RPL.
The Chairperson asked the Committee if they agree with the amendment proposed by Ms Kilian.
Dr Bozzoli replied that she does not agree with the amendment.
Mr Cassim proposed that the definition of “higher educationcollege” be defined as: “A higher education college is any higher institution due to be established or declared as a higher education college under this Act”
Ms Vuyokazi Ngcobozi, Parliamentary Legal Advisor, suggested that the Committee goes through the Bill clause by clause. If there are disagreements amongstMembers about a particular clause then the clause should be flagged for further deliberations at the next meeting.
Mr Mbatha said DHET should give its own explanation of what it believes is a ‘higher education college’.
Mr Cassim said that the definition of “higher education college” should definitely be made simpler.
Mr Mbatha added that there is a difference between higher learning and a higher learning institution. Before the definitions can be drafted, the Department should consider what constitutes higher education.
Prof T Msimang (IFP) said he supported the procedure the Chairperson was taking with the deliberations.
Dr Parker said there were three new definitions in the Bill which had an effect and limited the scope of the definition for “higher education college”.Hence, if one of the definitions is changed then the others will have to be changed as well.
Ms S Mchunu (ANC) said she supports Prof Msimang’s suggestion. The Committee cannot make new submissions for amending the Bill. The deliberations should only be for the consideration of the submissions made during the public hearings.
Dr Bozzoli disagreed with Ms Mchunu, saying the public submissions will be taken into consideration whilst the Committee can make its own submissions as well.
Mr Patel replied that there are problems with the current Bill because there is no suitable definition for “higher education college”. The Minister will firstly have to establish a policy which allows a college to become a university.
The Chairperson said that it is important that the Committee considers the submission made by USAf as well during the deliberations.
Mr Mbatha remarked that USAf should not be given priority because USAf members could be serving their own interests as well.
Dr Bozzoli reminded the Committee that the Department had suggested that the reference to Public Finance Management Act (PFMA) and PAJA in Section 1(m) be removed from the Bill because the universities do not use the PFMA.
Mr Makabeni said that the Department should also note all the flagged clauses.
Ms Kilian said that the submission about the definition of “spouse” should be considered.
Ms Ngcobozi, Parliamentary Legal Advisor, said before the Committee can consider which definition is suitable for “spouse” they should consider the different types of spouse. For example, there are civil marriages and there are people who decide to co-habit and not get married.
Mr Cassim suggested that the legal advisors should re-look at the definition of Clause1(i). Also, civil unions are not covered under the definition of “spouse in Clause 1(r)(a).
Ms F Nkadimeng (ANC) suggested that the phrase“intended to be permanent” in Clause 1(r)(c) be deleted from the definition of “spouse” because it cannot be defended in court that the couple was intending on making their union permanent.
Mr Cassim also suggested that the word “intended” in Section 1(r)(c) should be revised by the legal advisors. He added the definitions in Clause 1(i), (t), (u) should be flagged and a consideration should be made to define “adverse finding”.
Ms Kilian asked if the separation of the different kinds of spouse should not be made in the Bill because it would help to minimise the loopholes.
Mr Makabeni asked what the purpose of defining “adverse finding” would be if the context in which the word is used is the same asin any other context, and the definition is the same as the one in the dictionary.
Adv Boshoff said if the department decides to define “adverse finding” then it would indicate that the word has a different meaning from the one that is already in the dictionary.
Mr Cassim said the definition of “adverse finding” should be within the context of the current Bill. He suggested that “adverse finding” can be defined as follows: “A finding made by an assessor in the report in which he/she produces under Section 47(1)(b) stating explicitly that the person in question is not fit to sit on the public higher education council, and that person was togetherwith other persons, or alone, responsible for financial maladministration of a serious nature or the serious undermining of the effective management of a public institution which is subject to the assessor’s report”
Mr Mbatha said he supports the suggestion made by Mr Cassim.
Ms Kilian said the legal advisors will have to explain whether “adverse finding” should be defined, however, she does not agree with Mr Cassim’s suggestion.
Mr Patel said there has been a proposed rewording of Section 3. If one looks at the current Bill as it is, it states that “The Minister may, in terms of the policy contemplated in subsection (1) and in the interest of the higher education system as a whole (a) determine the scope and range of operations of”. The proposed amendment will read as follows: “The Minster must determine policy for higher education after consulting the Council for Higher Education (CHE)”. This new proposed amendment will bring in the critique which suggested that the CHE was left out from the section. He added that the definition of “university” has in the past been problematic, however, the definition of ‘university’ can be removed to avoid further complications.
Ms Kilian asked what concerns the Democratic Alliance has with the definition of ‘university’. She asked the Department whether there will be implications for the Bill if the definition is removed.
Mr Cassim said that the DHET seems to be sleeping because there were suggestions for amending Section 7 of which the Department has not reminded the Committee.
The Chairperson asked Mr Cassim to retract his statement about the department ‘sleeping’.
Dr Bozzoli asked what the purpose of including the Use of Official Languages Act is.
Adv Boshoff replied that dealing with language at universities is important, especially with the uproar over language policies at Stellenbosch University and the University of Pretoria.
Mr Cassim said the inclusion of the Use of Official Languages Act will not make any difference because the Act itself must be separate in order for it to have meaningful impact.
Mr Makabeni said the intention of Clause 8 amending Section 27 is for universities to act within the parameters of the Use of Official Languages Act.
Dr Bozzoli said the Use of Official Languages Act does not indicate that universities should comply with the Act; this section of the Bill will open up a lot of legal challenges.
The Chairperson replied that the inclusion of the Use of Official Languages Act was to prevent the Minister from acting outside the parameters of the Use of Official Languages Act.
Mr Patel explained that the insertion on the Use of Official Languages Act is not intended for the Council or university, but for the Minister when he creates policies.
Ms Kilian disagreed saying that Section 27 does not read as if it is referring to the Minister, but to the Council. She suggested that instead of inserting the Use of Official Languages Act, the Bill should rather replace it with Section 6 of the Constitution.
Mr Patel replied that perhaps the Department should revise the wording of Section 27.
Mr Cassim agreed with the suggestion made by Ms Kilian to include Section 6 from the Constitution.
Prof Msimang said he agrees with Dr Bozzoli that Section 27 is ‘weird’ and it would be better to use Section 6 from the Constitution if the aim is to make the efforts of the Minister more visible.
Mr Makabeni responded that if the Use of Official Languages Act is removed then Section 27 will not capture the sentiments it was meant for.
Ms Ngcobozi said she agrees that Section 6 from the Constitution can replace the Use of Official Languages Act.
Mr Cassim said that he is disappointed that the State Law Advisor is reading Section 27 differently from how the Committee reads it. He added that Section 6 from the Constitution would be a better fit because it also speaks about equity with regards to the use of languages.
Mr Siwela said, regarding the appointment of convicted individuals to the university council, that anyone found guilty of misconduct should not be re-appointed to the council.
Adv Boshoff responded that administrators who sit on the Council have the right to appeal a decision; hence provisions were made for this sort of matter wherein the case that a mistake could have been made against the administrator. Also, the appeal process is meant to be internal and conducted by the university itself instead by the Minister.
Dr Bozzoli said it seems as if the assessor is given high legal authority over the university management.
Ms Kilian asked if an appeal mechanism is created, which one would be best suited for the university.
Dr Bozzoli said she does not agree with the appeal process. She would not want to sit on a Council with members who have pending judgements against them.
The Chairperson said the Committee would continue with the deliberations on Tuesday 15 March. She reminded the Committee about their visit to Stellenbosch University on Wednesday 16 March. The aim of the visit is to ensure that there is stability on the campus. Also, a delegation from New Zealand will be visiting the Committee next week and they will also be joined by the Basic Education Committee.
The meeting was adjourned.
Phosa, Ms YN
Bozzoli, Prof B
Cassim, Mr Y
Kekana, Mr CD
Kilian, Ms JD
Mbatha, Mr MS
Mchunu, Ms S
Msimang, Prof CT
Nkadimeng, Ms MF
Siwela, Mr EK
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