Higher Education Amendment Bill [B36-2015]: deliberations

Meeting report

Clause 10: Amendment of section 34 (Declaration of business, commercial or financial activities)
Mr Firoz Patel, Deputy Director-General: Planning, indicated that the Department had taken into consideration of the submission that had been made by Universities South Africa (USAf) that clause 10(b)(ii) should be deleted and then clause 10(b)(iii) be renumbered as (ii). A further technical amendment is made in clause 10(b)(iii) with a deletion of “as contemplated in subparagraph (i) or (ii)”

Prof B Bozzoli (DA) agreed with the suggestion as this also answered issues that had been raised during the public hearing that this would place a huge burden to all universities, as they would be compelled to report annually on any of their business, commercial or financial undertaken for financial or other gain.
Members agreed with the suggestion.

Clause 12: Amendment of section 39
Prof Bozzoli suggested that “specified period” in clause 12 amending section 39(3B) should be replaced by within a “reasonable time”.

Ms Phumelele Ngema, Parliamentary Legal Advisor, responded that it was unclear as to whether the enabling provision as appeared in (3B) allowed the Minister to specify through the regulation and dictate the timeframe in which to request the council to comply with the provisions or conditions. In essence, the replacement of “specified period” by “reasonable time” would sound plausible as was consistent with Promotion of Administrative Justice (PAJA).

Mr Sisa Makabeni, State Law Advisor, responded that it was unclear that the “specified period” would be in the written request of the Minister. It would be difficult for the Committee to determine the reasonable time in which the Minister must request the council to comply with the provision or condition of the Act. The practical exercise that could be done would be for the Minister to talk to the council on the reasonable time in which to make a written request. The suggestion to include “reasonable time” could possibly create uncertainty and therefore it would be best for the Committee to retain the current drafting of (3B).

Adv Eben Boshoff, Chief Director: Legislative Services, DHET, also agreed with the State Law Advisor as “specified period” would provide a specific framework within which the information should be considered by the Minister in order for the funds to be allocated to the institution. The suggestion to include “reasonable time” was vague and could possibly create a lot of uncertainty. The current provision was not only bringing in legal certainty but it also supports the current framework within which the information should be considered by the Minister.

The Parliamentary Legal Adviser proposed that “may” in (3B) should be deleted and replaced by “must” in (3B) as this was also creating another uncertainty as to whether the “specified period” would be stipulated in the written request by the Minister.

The State Law Advisor replied that the problem with the proposal to insert “must” in (3B) is that the Minister would be required to make a written request in all instances.

Prof Bozzoli wanted to know what would happen if the institution and the Minister would decide together on the “specified time” in which to make a written request. She suggested that perhaps (3B) should rather stipulate “within a specified time period to be agreed upon between the Minister and the council”. This would be a better compromise than having to choose between “specified period” and “reasonable time”.

Mr Y Cassim (DA) said that the problem he had with the current drafting of (3B) was that at times councils would best place to know about certain circumstances which could prohibit the councils to immediately respond to the written request to comply with the provisions or conditions of this Act. He also supported the suggestion that perhaps (3B) should rather stipulate “within a specified time period to be agreed upon between the Minister and the council”. This would possibly outlaw the granting of the extended period of time that is unreasonable and also take into account of the specific circumstances that would exist at the institution of higher learning that may delay compliance in this regard.

Ms J Kilian (ANC) proposed that perhaps (3B) should be amended to include: “within a reasonable period as specified in the correspondence”. It is necessary to have clarity about the period within which the council should respond to the written request by the Minister to comply with the provisions or conditions of this Act as there may be queries that are related to the allocation of funding. The Committee should rather retain the concept of “specified period” and then find a way in which (3B) could be appropriately formulated.  

Mr Cassim reiterated that it would be important to take into consideration of any specific circumstances which could exist in the institution of higher learning that may possibly delay the compliance to the written request of the Minister. It must be highlighted that everyone was interested in ensuring that the council was able to comply with the provisions and conditions of the Act but this must also not to ignore the complexity of the situation when something wrong had taken place in the institution of higher learning.

Ms S Mbatha (EFF) commented that (3B) was dealing with institutional subsidy as the main funding instead of the extra ordinary amounts that are in the institutions of higher learning. The relationship between the ministry and the institution was mainly related to subsidy and the ministry had no authority to other supportive resources of the institutions of higher learning. The responsibility of the Committee was not to make an administrative but a legal determination on what could be construed as fairness in the allocation of funding to the universities.

Ms S Mchunu (ANC) indicated that the main concern of Members in (3B) was on what could be the consequences of including “reasonable time” in which the Minister may in writing request a council to comply with the provision or condition within a specified period. There are also concerns that the Minister may withhold the allocation of funds to the institutions of higher learning. The current provision in (3B) should be retained in order for the institutions to suffer the consequences for not adhering to departmental policies.

Ms M Nkadimeng (ANC) also supported the suggestion that the current provision in (3B) should be retained in order for the Minister to be able to withhold funds to those institutions of higher learning that had failed to comply with policies of the Department.

Ms Kilian said that the Committee should retain clause 12 inserting (3B) in section 39 as currently drafted so that those institutions that had failed to comply with provisions or conditions of the Act are made aware that they had committed transgression.   

Mr C Kekana (ANC) also supported the retention of “specified period” especially when dealing with the issue of transformation. What could be reasonable time for the council could not necessarily be so to the Minister.

Prof Bozzoli mentioned that the main concern with (3B) was mainly on the number of days that would be given to the institutions of higher learning that had failed to comply with the provision and condition of this Act before their subsidies would be taken away. It must be highlighted that the institutions of higher learning are managed in a highly cooperative manner and they are not managed like government departments. Therefore, the length of time would need to be agreed upon between the university and the Minister, rather than being imposed by the Minister.

Adv Boshoff responded that the inclusion of “agreed upon between the council and the Minister” would be problematic, especially when one considers that the Department would be dealing with the situation where there had already been a failure to perform. It could be extremely difficult for the Minister to find a suitable agreement where there had already been a failure to comply with the provision or condition of the Act. Legally, an agreement is always sought before and not after the damage had been done-this is done to ensure that the whole process is able to run smoothly. The institution was within every right to take the Minister to court to review the decision that had been taken by the Minister.

Mr Patel added that the intention of (3B) was basically for the Minister to discontinue paying funds to institutions that had failed to comply with the provision and condition of this Act. The specified clause was beneficial to the institutions of higher learning in a sense that they could now utilise the conditional grant outside the financial period.

Prof Bozzoli appreciated the explanation that had been provided by Mr Patel as this was not clearly explained by both Parliamentary and State Law Adviser.

The Chairperson suggested that Members should continue with the deliberation on the Bill as the consensus was reached that “specified period” in (3B) should be retained.   

Mr Cassim proposed that clause 12(3D) should stipulate the timeframe of 30 days within which the Minister should table the report in Parliament, regarding any action taken under subsection (3B). This was to ensure that the process of tabling the report in Parliament around the reason for withholding payment of any funds to a particular institution was expedited.

Mr Mbatha wanted to know if the current provision in clause 12 inserting (3D) existed in the Act or was a new provision to be introduced in the amended version of the Bill. What is the inherent background for the introduction of (3D)?

Mr Patel replied that the question that had been asked around clause 12 inserting (3D) was related to the policy rather than legality. It must be highlighted that (3D) gives the Committee and Parliament an opportunity to look at why the allocated funds were not spent within the timeframe and the action that had been taken by the Minister in that regard. This could also empower Parliament to take any possible action to any institution that had failed to spend the appropriated funds. The suggestion that had been made by Mr Cassim to stipulate the timeframe of 30 days within which the Minister should table the report in Parliament, regarding any action taken under subsection (3B) could be accommodated.

Mr Mbatha pleaded that the current provision in (3D) should remain as it is as there was a need to have an empowered Committee and Parliament to perform oversight over the decisions that are taken by institutions of higher learning. The intention of the Bill was precisely to ensure that each and every decision that is taken by these institutions was for public good.

Prof Bozzoli interjected and said that Mr Mbatha had misunderstood the intention of DA’s proposed modification in (3D). The proposed modification was actually to strengthen the hand of Parliament by saying the Minister should table the report in Parliament, regarding any action taken under subsection (3B) within 30 days as to why he/she had withheld payment of funds to the institution that had failed to comply with the provision and condition of this Act. 

Mr Cassim also clarified that he had not change anything in (3D) except the proposal for the timeframe of 30 days for the Minister to report in Parliament. There are many public entities that had promised to provide the Committee with reports within a reasonable time but the Committee had not received those reports even today. The Committee had also not received the report on the “missing middle” that was promised by National Student Financial Aid Scheme (NSFAS). 

Prof Bozzoli suggested that perhaps (3D) should stipulate that “the Minister should report to Parliament within a reasonable time but not later than 30 days”. This was to allow the Minister to provide a report to Parliament as quickly as possible as but not later than 30 days.

Mr Mbatha reiterated that law making should not become an administrative component and the Committee was not at the discretion to make a provision of the timeframe for any action to be taken. 

Prof Bozzoli explained that “within 30 days” indicated that the Minister could provide the report to Parliament inside any period within 30 days.

Members agreed with the clarification.

Clause 13
Nothing changed.

Clause 14
Nothing changed.

Clause 15
Nothing changed.

Clause 16 Substitution of section 42 on Ministerial directive
Mr Cassim suggested that the word “unfair” in clause 16 amending section 42(1)(c) should be deleted and replaced by “wrongful manner” as it would be difficult for the Minister to prove that the institution had acted in an unfair manner. It would not pass the constitutional master for the Minister to just arbitrarily decide that a particular institution had acted in an unfair manner. The inclusion of the word “unfair’ could be further complicated by the fact that any individual could claim that a particular institution acted unfairly without any valid proof and the Minister would be compelled to issue a directive to that institution.      

Mr Mbatha said he was under the impression that section 42(1)(c) made it clear that the Minister may not necessarily be acting outside anything substantial. The Independent Assessor (IA) could always review the decision that had been taken by the Minister against the institution. The Department should perhaps brief the Committee on what was thought through when this particular clause was drafted.

Adv Boshoff replied that section 42(1)(c) clearly showed that the Minister was only giving a notice of intention to investigate the institution that has been accused of acting in an unfair, discriminatory and wrongful manner. The actual decision of the Minister to the institution would only be taken in section 42(4) where the Minister would appoint an Independent Assessor to come in and investigate the actual story in detailed. The proposal to delete “unfair” could mean that the Department would only be dealing with issues that are provided in the legislation and ignoring policy issues which might not be in the legislation. The Department was aiming to deal with unfairness and discriminatory nature of the act that is committed by the institution. The word “unfair” was also contained in the Constitution.

Mr Cassim clarified that he was aware that the Department was to deal with legislative and policy issues. The proposal to delete the word “unfair” was not to ignore any unlawful act that had been committed by the institution of higher learning.

Ms Mchunu maintained that the Committee should retain the phrase “unfair and discriminatory” as this was also contained in our Constitution. The intention should not be about trying to find smoother ways of putting things and everything should be categorised as it is.

The Chairperson admitted that indeed the phrase “unfair and discriminatory” was consistent with the Constitution of our country.

Ms Kilian commented that she could not understand the concern of Mr Cassim as section 42(3) still offered the institution an opportunity to explain on the issue that was being dealt with. The clause complied with PAJA as it was only in 42(4) that the Minister would take steps if the institution had failed to remedy the deficiency within a reasonable period of time.

Mr Cassim suggested that section 42(1)(c) should be amended to read as to follow: “has committed widespread or serious acts of unfair and discrimination”. This would encompass anything that had been included in the debate around clause 16.

Prof Bozzoli said she could concede with the retention of “unfair and discriminatory” but expressed concern about the issue of “reasonable grounds to believe” in clause 16 amending section 42(4) as this was once again substantially extending the Minister’s powers. The Minister merely needed to have reasonable grounds to believe that the council of the public higher education institution had failed to comply with the directive contemplated in this section. Essentially, this loosened up the control of the Minister quite substantially and extended his powers in an extraordinary manner. She believed that what was contained in the old Act was perfectly fine.

The State Law Advisor explained that there is a reasonable test that is put into the provision and that the Minister must based his/her decision on reasonable grounds or there should be a justification for putting the institution under administration.   

Prof Bozzoli maintained that “reasonable grounds” in law was not confined in substantial evidence and there is a possibility that subjective opinion could transcend legal evidence.

The Chairperson indicated that it was a standard principle for decision making by ministers was to exhaust all the other avenues before taking a decision.

Prof Bozzoli reiterated that the DA was totally opposed to the current drafting of section 42(4) and this opposition should be noted.

Members agreed with the suggestion.

Ms Kilian disagreed with Prof Bozzoli that what was contained in the old Act was perfectly fine as the current provision made it clear that the Minister should have reasonable grounds to believe that the council of the public higher education institution had failed to comply with the directive contemplated in this section. The Minister would need to exhaust all the other avenues before taking a decision as already highlighted by the Chairperson.

Mr Mbatha also agreed that the Minister would not arbitrarily take a decision without having reasonable grounds or substantial evidence to believe that the council of the public higher education institution had failed to comply with the directive contemplated in this section. 

Prof Bozzoli suggested the inclusion of “substantial or widespread financial impropriety” in section 42(1)(a) so as to prevent the situation where the Minister would be forced to intervene in a minor financial impropriety.

Adv Boshoff mentioned that it was pointless for the Committee to discuss a clause that had not been changed as it was the same exact wording as section 49A. He clarified that section 42(1)(a) was exactly as it is in the current Principal Act and it has not been changed but moved from one section to another.

The Parliamentary Legal Advisor said the amendment that had been effected in clause 16 should be welcomed by the Committee as this would enable more scope to the Minister to bring in administrative justice and be able to properly go through all the processes of intervention. The inclusion of “reasonable grounds” implied that the Minister could not wilfully act without proving reasons and justification of the interventions that would be undertaken. The proposal to include “substantial or widespread financial impropriety” in section 42(1)(a) meant that the Minister should wait until the problem has expanded before bringing in the intervention.

Prof Bozzoli maintained that she was not convinced by the explanation that had been provided by Adv Boshoff and the Parliamentary Law Advisor and therefore pleaded that the objection of the DA should once be noted.

The Chairperson suggested that the deliberation on the Bill should be done out of maximum objectivity. Members should refrain from trying to advocate on behalf of the universities and consider what would be in the best interest of the country.

Members agreed with the suggestion.    

Mr Cassim wanted to know what would happen to the specific sections that were “parked” in order to be dealt with in the next engagement and these included the definitions of “university” and “University College”. The Committee seemed to have deviated from the previous method of proceeding and this should be clarified by the Chairperson.

The Chairperson replied that there are other matters that would be “parked” in order to allow both the Parliamentary Legal Advisor and State Law Advisor to apply their minds on some of the matters that still needed to be fine-tuned.          

Ms Kilian added that the Committee would only “park” those matters where there was a multiparty agreement that they should be reworked. The Committee would still going through formal adoption of the Bill on a clause-by-clause basis. It would not help for the Committee to “park” the entire amendment Bill.

Mr Kekana also supported the proposal that the Committee should continue with the finalisation of the Bill instead of being stuck on one point. Everyone had a democratic right to agree or disagree on the matter that was presented. It was always the case that Mr Cassim would agree with Prof Bozzoli and the Committee could not just “park” the entire amendment Bill.

Mr Cassim interjected and requested the Chairperson to ask Mr Kekana to withdraw his last statement as it was not his role to decide that he would always agree with Prof Bozzoli.

The Chairperson once again urged Members to deal with the Bill with maximum objectivity and not to be clouded by emotions and partisan. She requested Mr Kekana to withdraw his last statement.

Mr Kekana apologised if Mr Cassim viewed his statement as offensive. 

Mr Mbatha asked if the Department was impressed with the discussions that the Committee had had at the moment around clauses that still needed further clarity. It must be highlighted that consensus would on the Bill would be reached by the majority of Members.

Prof Bozzoli said that the intention of introducing proposed amendments was not to stall the process but to ensure that all legal processes were followed in the adoption of the Bill. The disagreement to some of the clauses could not be viewed as deviating from what was expected.

The Chairperson noted that nothing had been changed in clauses 17 to 23.

Clause 24 Substitution of section 49A “Indemnification of independent assessor”
Mr Cassim expressed concern about clause 24 amending (49A)(b) as it implied that the Minister could recover any loss or damage suffered by another person even if the Independent Assessor had taken just a class of wine or taken a medication, which is also a medical drug-as it is not specified whether this was an unlawful drug or not. The proposal was that clause (49A)(b) should be deleted and replaced by the following: “under the influence of alcohol or illegal narcotic at the time the relevant conduct occurred”. He also suggested that “recklessly or intentionally” in (49A)(d) should be replaced by “intentionally reckless”. The Department should also rework (49A)(e) as the current provision implied that the Independent Assessor could be liable for any damage suffered by another person even if he/she was performing whistle-blowing, which according to the current provision, could not in the best interest of higher education.

Adv Boshoff clarified that the issue of the indemnification of the Independent Assessor was not in the current Act. The importance of the credibility and integrity of the Independent Assessor was raised by USAf and other role players in the public higher learning institution. The role that was played by the Independent Assessor was critically important and clause 24 was basically to ensure that the Independent Assessor was able to perform the functions diligently without the use of illegal drugs or alcohol at the time the relevant conduct occurred.      

Ms Mchunu proposed that the current provisions in (49A)(b),(d) and (e) should be retained without any amendments.

Ms Nkadimeng supported the proposal to retain the current provisions in (49A)(b), (d) and (e).

The Parliamentary Legal Adviser explained that the words “intentional and “reckless” are used in the criminal sanction or criminal prosecution. The act is considered reckless if the individual is forced by circumstances to act in an unlawful way, for example, when you kill someone while under the influence of alcohol. The act is also considered intentional if the individual knowingly and wilfully commits an unlawful act, for example, drinking and driving.

The Chairperson pointed out that the majority of Members are proposing that the current provisions in clause 24 amending section (49A)(b), (d) and (e) should be retained but the Committee would note the dissenting views. The Committee would continue with the deliberation on the Bill in the next meeting.

The meeting was adjourned.