Higher Education Amendment Bill [B36-2015]: Clause by clause deliberations

Higher Education, Science and Innovation

13 April 2016
Chairperson: Ms Y Phosa (ANC)
Share this page:

Meeting Summary

The Committee deliberated on the Higher Education Amendment Bill [B36-2015], going through on a clause-by-clause basis, with the Department of Higher Education and Training officials, legal advisers, and the Parliamentary Legal Advisers and State Law Advisers giving input.

The DA Members said at the outset that quite a number of the objections of this party were based on the fact that it did not agree with section 42 as outlined in the Bill. A number of the suggestions also went to the perception that the Minister may have too great a power over Higher Education Institutions (HEIs), but the rationale was explained by the Department. In clause 25(1)(a), the DA thus felt that the reference to “or any other report or information” should be deleted as this implied that the Minister could be allowed to deal with un-verified information or allegations such as media reports. The Department retorted that this would not be workable, since this phrase had been introduced to compensate for other omissions from existing enactments in clause 25(1)(b). It was also highlighted that there was a process in place that the Minister would have to follow, which consisted of a number of steps, so it was not merely an arbitrary decision, but also involved the council of a public higher education institution.

Members of the DA also requested the Department to provide motivations for a number of the provisions put into clause 28 , which was inserting sections 49F to 49J. There was a general understanding that there was a need to simplify and streamline the role, powers, functions and duties of the administrator, and these provisions were essentially inserted at the request of the university sector, who also wanted to see the administrative prescripts actually set out in the legislation to allow the Minister to more easily apply his or her mind, and for the administrator to be able to execute the designated functions.

Members suggested that the phrase “administrator’s report” should be inserted before “the Minister” in the proposed new section 49I(c), which would ensure that the administrator had put together recommendations to be implemented by the incoming council. The Department clarified that the intention was not for the Minister to immediately take the decision to issue a directive to the council from the very start of the process. The Minister could only act if there are reasonable grounds to believe that certain matters related to the effective functioning of the institution required attention and management. All the administrators would be compelled to make recommendations that would assist the new incoming council, and apprise them of the problems likely to be encountered.

The DA also noted that it had objected to the substitution of “institutions” with “colleges” and enquired as to the implications of this change. The Department felt that the issue was not so much the word used but the definition provided that was important.

Some Members expressed concern around the provisions in clause 36(1)(a), inserting a new section 65BA. They asked why the revocation of any degree, diploma, and certificate was limited to a period not exceeding two years after conferment, fearing that this could open loopholes, and wondered if there should not be a reference to “minor” error. The Department did not agree, saying that the presented wording was more easily interpreted, related to errors and not fraud, and would force institutions to look into erroneous entries.

Members discussed at some length whether clause 37(2), amending section 65D, implied that the Minister could force a public higher education institution to offer an education programme or trade and occupational learning programme such as was currently offered by Technical Vocational Education and Training (TVET) colleges. This could lead to change in the very nature and functioning of universities, some of whom were finding it difficult already to cope with their current mandates. The Department clarified that this did not relate solely to universities and that any decisions would be linked to clause 3 policy. It was highlighted that one possible solution could be to say that the Minister must develop policy under section 3, and that any institution identified must then comply. It was agreed that the Department would rework this wording.

Members adopted minutes of several meetings, some with technical amendments, between 10

Meeting report

Chairperson’s opening remarks
The Chairperson noted that the Committee would soon be receiving the National Qualifications Framework Amendment Bill, as it was being to Cabinet in June and to Parliament on 16 July. She noted apologies from Minister of Higher Education and Training, Dr Blade Nzimande, and Deputy Minister Mr Mduduzi Manana, as well the Director-General of the Department of Higher Education and Training (DHET), Mr Gwebinkundla Qonde.  

Prof B Bozzoli (DA) wanted to know if the Committee would be able to discuss the amendments that had been effected by the Department from the previous engagement.

The Chairperson responded that the Committee would be able to discuss all the amendments, including those that had been made recently by the Department. The purpose of the engagement today was to convince each other on what was to be put forward on each clause.

Clause 25: Amendment of section 49B
Prof Bozzoli suggested that “or any other report or information” in clause 25(1)(a), amending section 49B, should be deleted.

Ms S Mchunu (ANC) proposed that the current provision in clause 25(1)(a) should be retained as it allowed the Department to deal with any information that revealed financial or other maladministration of a serious nature, or serious undermining of the effective functioning of the public higher education institution.

Ms J Kilian (ANC) clarified that clause 25 was basically dealing with financial impropriety in public higher education institutions. The suggestion to delete “or any other report or information” in clause 25(1)(a) could mean that some important reports would not be dealt with by the Minister to determine the extent of financial impropriety in a particular institution.

Mr Y Cassim (DA) wanted to know the intention of clause 25(1)(a) as this was not clearly explained by the Department. The current provision in clause 25(1)(a) meant that the Minister could be allowed to deal with unverified information or allegations that are presented in the media. The Committee should consider the practical implications of that clause.
 
Mr Firoz Patel, Deputy Director-General: Planning, Department of Higher Education and Training, responded that the Committee needed to take into consideration the context of the amendments that had been effected in the Bill. The suggestion to delete “or any other report or information” in clause 25(1)(a) would impact on the omissions from existing enactments in clause 25(1)(b). The inclusion of “or any other report or information” was to cater for the deletion that had been made in clause 25(1)(b).

Prof C Msimang (IFP) said it was better to be more inclusive than be exclusive, as it was impossible to think about all the possibilities that may arise in the future.

Mr Theodore Hercules, Principal State Law Adviser: Office of the Chief State Law Adviser, responded that clause 25(1)(b) was amending section 49B of the principal Act and the main focus here was on the appointment of the administrator. There is already a process that the Minister must follow before arriving at the decision to appoint the administrator. This decision was not taken arbitrarily but also involved the council of a public higher education institution (HEI).

Prof Bozzoli expressed concern about the phrase “notwithstanding any other provision of this Act” in clause 25(1)(a). This seemed to imply that the Minister could arbitrarily take a decision without taking into consideration of any other provision of this Act.

Ms Vuyokazi Ngcobozi, Parliamentary Legal Adviser, explained that the Minister was only allowed to appoint an administrator after exhausting all the other options available. In essence, the Minister could not randomly appoint an administrator without consulting with the council of a public higher education institution. It would be important for Members to read clause 25 as a whole as there are subsequent additions and deletions that had been effected.

Mr Cassim pointed out that he was fully aware that Minister would need to take into consideration all the other steps before arriving at the decision to appoint the administrator. However, the question that was being asked specifically was whether it was correct to assume that the phrase “notwithstanding any other provision of this Act” implied that the Minister could in fact immediately put the institution under administration without actually going through the other steps, such as the appointment of the Independent Assessor (IA).

Ms Kilian urged that Members should not ignore the provisions of the principal Act when dealing with the Bill, since these would assist in the overall analysis of the Bill. It is quite clear that the amendments that had been effected in clause 25 are the improvements to the current Act. It was understandable that there was a discomfort with the wording “notwithstanding any other provision of this Act” but she pointed out that this was also contained in the principal Act.

Mr E Siwela (ANC) also supported the suggestion that the current provision in clause 25(1)(a) should be retained. There were no ulterior motivates for introducing these amendments. The Bill should be drafted  to not only accommodate the current situation as well as future unforeseeable circumstances.
Ms Kilian suggested that the Committee should correctly and accurately capture all the objections that had been raised, and the reasons that had been put forward.

Mr Cassim added that the best that his party could do would be to provide a written submission on all the clauses on which the DA had expressed objections.

Prof Bozzoli stated that the DA was opposed to clause 25(1)(b) precisely because it made reference to section 42, and the DA had already expressed its objection against this particular section. The best that the Committee could do is to amend section 42.

Mr Cassim proposed that the wording “he or she has reason to believe that” in clause 25(1)(c) should be deleted; this once again suggested that the Minister could arbitrarily appoint an administrator without cogent reasons to do so, or in order to promote a particular interest.

Mr C Kekana (ANC) mentioned that any reasonable person should know that the Minister would still need to fully apply his/her mind on any decision. He saw nothing unusual in the drafting.

Adv Eben Boshoff, Chief Director: Legislative Services, DHET, said that the Minister must have his/her own views when taking the decision on whether to put the institution under administration. The decision should be taken for reasons that are justified and consistent with administrative law, and amount to a rational decision.

Ms Mchunu also supported the explanation that had been provided by Adv Boshoff as it was indeed true that the Minister could not just randomly decide to put the institution under administration without providing justification for that decision. The Minister is also acutely aware that he/she could be in trouble if he/she had unjustifiably taken such a decision for no good cause.

Mr Cassim maintained that it was important for the Minister to take every decision based on credible facts, rather than opinions and beliefs. The best that the Committee could do would be to note the objection of the DA.

The Chairperson suggested that the Committee needed to reach finality on the issues that are flagged in clause 25, and the best that could be done was to move forward while noting the dissenting views.

Members agreed with the suggestion.

Clause 26: Insertion of section 49BA
Nothing had changed on this clause

Clause 27
Nothing had changed on this clause
Clause 28: Insertion of section 49F to 49J
Prof Bozzoli requested the Department to provide motivation for several provisions that had been put in place in clause 28, which was inserting new sections 49F to 49J. There is a general understanding that there was a need to simplify and streamline the role, powers, functions and duties of the administrator.

Adv Boshoff responded that the provisions that had been made in clause 28 came after the request from the university sector to simplify and streamline the role, powers, and functions of the administrator. It was also requested that the administrative prescripts should be set out in the legislation, to make it easier for the Minister to apply his/her mind on the matter and for the administrator to execute the designated functions.

Prof Bozzoli asked if the provision in clause 28 was simply repeating what was contained in the administrative justice law.

Adv Boshoff replied that the provision in clause 28 was indeed not the repeat of what was contained in the administrative justice law, but was applying the principles of this particular law. The emphasis was on ensuring that there is a clear responsibility of the administrator.

Section 49I: Directive to council appointed by administrator
Prof Bozzoli expressed concern that the provisions in section 49I seemed to give the Minister undue power over the administrator that had been put in place.

Dr Diane Parker, Deputy Director-General: University Education, DHET, responded that an enormous amount of work would have been done before putting the institution under the administration. The Minister did not have the ability to tell the administrator who had been appointed what he or she had to do in the future.

Mr Cassim said the main concern in section 49I was that there was less spoken about on the recommendations of the administrator. The other concern was that the directive of the council could be to serve the interests of the Minister than those of the institution of higher learning. It was clear that there was no need to have the council in the provisions contained in section 49I as this responsibility was supposed to be rather be taken by the Department. It would be important for section 49I to be amended so that the council could be compelled to adhere to and implement the recommendations of the administrator.
 
Mr S Mbatha (EFF) explained that there are administrative and legal activities that should be taken into context when analysing the Bill. It looked like the Department was trying to create both legal and administrative instruments in section 49I, and this is something that should be welcomed by Members.
Ms Kilian emphasised that Members must take into consideration that there is a consultation process between the Minister and the new incoming council.
 
Mr Cassim suggested that the phrase “administrator’s report” should be inserted before “the Minister” in section 49I(c). This would ensure that the administrator had put together recommendations to be implemented by the incoming council.

Ms Kilian mentioned that she was opposed to the proposal that had been made, as the Minister needed to abdicate his/her political responsibility for public higher education institutions. The Minister would still need to manage the institutions of higher learning from a distance in the situation where there is a new incoming council. It was, however, impossible to say that the Minister should not be involved in issuing a directive to the incoming council.

Mr Kekana also supported the retention of section 49I(c), as he believed it was strengthening the oversight responsibility of the Minister over public higher education institutions.

The Parliamentary Legal Adviser also proposed that the provision in section 49I(c) should take into consideration of the report of the administrator.

Adv Boshoff responded that the intention was not for the Minister to invoke the decision of issuing a directive to the council from the very start of the process. The Minister could only do so if there are reasonable grounds to believe that certain matters related to the effective functioning of the institution required attention and management. All the administrators would be compelled to make recommendations that would assist the new incoming council, and highlighted the problems to be encountered when exercising their functions. It was very difficult to anticipate how the new incoming council would act in the new position. That was why the word “reasonable” was actually very important in this specific section.

Mr Hercules proposed the insertion of the phrase “after taking into account the administrator’s report” at the beginning of section 49I(a). This was to highlight that the Minister was to take into account whatever findings had been forwarded by the administrator to the council.

Prof Bozzoli still objected to the proposed amendments that had been made.

The Chairperson suggested that the Committee should  move, noting the dissenting views.

Members agreed with the suggestion.

Section 49J: Indemnification of administrator
Nothing had changed in this new section
.
Clause 29 : Section 49K: Establishment of national institute for higher education
Nothing had changed in this new section.
Section 49L: Functions of national institute for higher education
Nothing had changed in this new section.
Section 49M: Governance, composition of board and committees
Nothing had changed in this new section.

Section 49N: Terms of office of chairperson and members
Ms Kilian wanted clarity on the duration of service as a chairperson or a board member of the National Institute of Higher Education.

The Chairperson replied that the chairperson and a board member are allowed to hold office for a period of four years and may only serve a maximum of two consecutive terms.

Section 49O: Vacation of office
Nothing had changed in this new section.
Section 49P: Filling of vacancies
Nothing had changed in this new section.
Section 49Q: Delegations
Nothing had changed in this new section.
Section 49S: Funds of national institute for higher education
Nothing had changed in this new section.
Section 49T: Annual audit
Nothing had changed in this new section.
Section 49U: Annual report
Nothing had changed in this new section.

Section 49V: Ministerial interviews
Mr Cassim objected to section 49V on the basis that the DA had already objected to the sections 42 to 49J that were referred to.
.
The Chairperson said the Committee would take note of the objection of DA.
 
Section 49W: Disestablishment of national institute for higher education 
No changes were noted.

Clause 30: Amendment of section 50
No changes were noted.

Clause 31: Amendment of section 51
Adv Boshoff said that the Department had decided to omit the word “private” from clause 31, page 20, in line 45. This clause amended section 51 to provide that no person or a person with delegated authority of another person, or acting as an agent of another person, may perform one or more of the functions to provider higher education unless that person is authorised to do so in accordance with subparagraphs 1(a) to (d).
 
Members agreed with the proposed amendment.

Clause 32: Amendment of section 53
No changes were noted.

Clause 33: Amendment of section 54
Adv Boshoff mentioned that the Department had decided to omit the word “institutions” from clause 33, on page 21, in line 33 and replaced it with “colleges”.

Prof Bozzoli wanted to know the likely implications for substituting the word “institutions” with “colleges”, as the DA had already objected to these new terminologies.
 
Mr Patel responded that the main contest was not on the terminologies but on the definition provided for these terms.

Members agreed with the proposed substitution.

Clause 35: Insertion of section 65AB
Adv Boshoff indicated that there should be omission of “(3)(1)” and “20(5)(b)” on page 21, in line 52, and their substitution with “3(1)” and “20(4)”.

Members agreed with the substitution.

Adv Boshoff also further proposed that on page 22, after line 2, the following subsection should be inserted: “(3) The provisions of subsections (1) and (2) shall apply to registered private higher education institutions, subject to the necessary changes required by the context”.

Members agreed with the proposed addition.

Clause 36: Insertion of section 65BA
Adv Boshoff said that the Department was proposing that on page 22, after line 30, it should add the following subsections:
“(3” The provisions of subsection (1) and (2) shall apply to registered private higher education institutions, subject to the necessary changes required in the context.
(4) In the event that any degree, diploma, certificate or other qualification that was awarded is withdrawn or revoked, the relevant Quality Council responsible for the qualification or part-qualification and SAQA must be informed, so as to amend the National Learner Record Database, if necessary”.

Mr Cassim expressed concern that the revocation of any degree, diploma, and certificate was limited to a period not exceeding two years after conferment. He said that this could open up a loophole where a qualification that had been issued erroneously was able to stand for a period of two years, and he asked the rationale behind choosing that period.

Mr Patel responded that the concern here was not in relation to a qualification that had been issued fraudulently, but merely to one issued erroneously. The intention was not to punish a person for an error that had been committed by the institution. The two years was a limited period that was given to the institution to at least revoke any qualifications that had been issued erroneously.

Prof Bozzoli suggested that perhaps the clause should be slightly modified to accommodate “minor error in the issuing of qualification”.
 
Adv Boshoff objected to that proposal, saying that it could be subject to differing interpretations and it was difficult to draw the line on what could be considered to be a minor error.
Members agreed with the clarification.

Clause 37: Amendment of section 65D
Adv Boshoff stated that there was a proposal on page 22, from line 33, to omit the words “section 65D of the principal Act is hereby amended by the substitution for subsection (2) of (a)(1) and (b)”.

Prof Bozzoli expressed concern about the fact that clause 37(2) seemed to imply that the Minister could force a public HEI to offer an education programme or trade and occupational learning programme. This could lead to change in the very nature and functioning of universities. This concern had been expressed by University of Cape Town (UCT) during the public hearing.

Mr Cassim said that some of the universities were not in a position to offer an education programme or trade and occupational learning programme, as offered by Technical Vocational Education and Training Colleges (TVETs). Universities are already struggling with their primary mandates at the moment.

Mr Mbatha also objected to clause 37(2) as it was not the primary responsibility of universities to offer an educational programme or trade and occupational learning programme.
 
Mr Kekana commented that universities could potentially offer both academic and technical qualifications. The Minister could decide that some of the universities should dually offer academic and technical qualifications, in the interests of the broader community.

Ms Kilian added that there are indeed institutions that are already offering both academic and technical qualifications. The rearrangement of the higher education system would be able to deal with the challenges of lack of adequate infrastructure and available resources. It would not make sense to build more TVET colleges while there were universities that could be used to offer trade and occupational learning programmes. She asked what the intention of the Department had been in introducing this clause.

Mr Patel replied that the amendments in the Bill are primarily linked to the integration of the higher education system. Most of the higher education institutions are in agreement with offering trade and occupational learning programmes and qualifications. It must be highlighted that the legislation did not previously allow the institutions to offer this kind of qualification. Therefore, there was always a question whether those institutions that had been offering both the academic and technical qualifications were doing so legally and in compliance with the Constitution. The HEIs could now approach the Minister and request permission to offer dual academic and technical qualifications. The intention of the Department when introducing clause 37(2) was, as correctly pointed out by Ms Kilian, to deal with the challenges of lack of adequate infrastructure and available resources. It would not make sense to build more TVET colleges while there were universities with premises that could use already existing infrastructure to offer trade and occupational learning programmes.

Adv Boshoff added that there are already institutions like University of South Africa (UNISA) that are offering both academic and technical qualifications. He confirmed that the intention of clause 37(2) was to now make it legal for HEIs to offer both an academic and technical qualification.

Prof Bozzoli agreed that there should be some institutions of higher education who were offering both academic and technical qualifications. However, her main concern on clause 37(2) was the fact that the Minister would be the one to identify institutions that would offer these kinds of programme. She suggested that clause 37(2) should be retained, as it had been drafted, in the principal Act.

Ms Kilian suggested that perhaps the Department needed to rework clause 37(2) so as to deal with the need for integration of the higher education system. Any institution who was offering both academic and technical qualifications should be allocated an adequate budget to ensure smooth operation and integration. The Minister should properly consult the institution on the intention to offer both academic and technical qualifications, rather than the decision being left to the discretion of one person.

Mr Mbatha agreed with the suggestion on a proper and rigorous consultation process. There should be due diligence done at the university, on the practicality of offering both academic and technical qualifications and every decision should be taken in the interests of the institution and the general public.

Prof Bozzoli warned that forcing universities to teach at a level below their statutory level would engender a lot of backlash from the university sector.

Adv Boshoff said that there seemed to be some contestation around the word “must” in clause 37(2), and the identification of the institution to offer both academic and technical qualification. However, he wanted to point out that this was not only a reference to universities, but to HEIs in general. The decision by the Minister would be linked to the policy determined in section 3, and one solution might be to indicate specifically that the Minister would develop policy in terms of section 3, and that any public higher education institution that had been identified through that policy must then offer both academic and technical qualification. Section 3 provides for the whole process of consultation and also involves the Council on Higher Education (CHE) before any policy could be made, as well as then making it compulsory for an institution to adhere to policy made. Chapter 5 provides, through policy, how the money would be spent in order for the institution to be able to perform the function of offering both an academic and technical qualification.

Prof Bozzoli maintained that it was still of concern that the Department had not provided a prior policy that informed everyone how the new landscape would look. The current provision in clause 37(2) was still giving the Minister discretion to decide on what institution should offer both academic and technical qualifications. The current provision in clause 37(2) was still problematic. She recommended that it should be deleted altogether and that the Committee should opt to retain what was contained in the principal Act. A possible compromise position could be to delete “must” and replace it with “may”.
 
Adv Boshoff responded that the proposal to delete “must” would be contradictory to section 3. which  highlighted that any policy determined by the Minister must be adhered to by the institution. Her proposal would amount to making a legal conundrum.

Mr Cassim proposed that perhaps the best that could be done to solve this legal conundrum was to delete section 3.

Adv Boshoff replied that this would create another conundrum. It was the Minister’s responsibility to make a determination on the policy framework within which the higher education system should operate.
 
The Parliamentary Legal Adviser added that the inclusion of section 3 was more legally sound. It accommodated the checks and balances and it was clear that the Minister could not just arbitrarily take a decision to identify an institution that was to offer both academic and technical qualifications, without proper consultation.

The Chairperson proposed, and Members agreed, that the Department should be given an adequate time to rework clause 37(2) to accommodate the concerns that had been flagged by Members.

Clause 38: Amendment of section 66
No changes were noted.
Clause 39: Amendment of section 68
No changes were noted.
Clause 40: Amendment of section 69
No changes were noted.
Clause 41: Repeal of section 70
No changes were noted.

Clause 42: Substitution of Long Title of Act 101
Prof Bozzoli pointed out that the Long Title of the Bill should be reworked in light of all the changes that had been effected.

Members agreed with the proposal.

Clause 43: Amendment of the Arrangement of Sections of Act 101
No changes were noted.

Clause 44: Transitional arrangement
No changes were noted. 

Clause 45: Short title and commencement
Adv Boshoff said that the Department  proposed to omit “fixed by the President by proclamation” in clause 45, on page 24, from line 52, and substitute “to be determined by the Minister by notice”.

Members agreed with the substitution.

The Chairperson indicated that the Committee had finalised the clause-by-clause consideration.

Mr Cassim indicated that the DA would submit a written submission on all the clauses that were still problematic and on which the DA had expressed objections.

Ms Kilian stated that the Committee would need to request permission from the National Assembly if there was an intention to introduce extensions and amendments that would go beyond the parameters of the original Bill.

Other Committee Business:
The following sets of minutes were adopted by the Committee, after having gone through the drafts page by page:

10 February 2016 – with no amendments

16 February 2016 minutes – with no amendments

17 February 2016 minutes – adopted with some technical amendments

24 February 2016 minutes - adopted with some technical amendments

09 March 2016 minutes - adopted with some technical amendments

15 March 2016 minutes – adopted without amendments

05 April 2016 minutes - adopted with some technical amendments

06 April 2016 minutes – adopted without amendments

07 April 2016 minutes - adopted without amendments

Adoption of the Draft Strategic Plan of the Committee
The draft report was adopted without amendments.

Adoption of the Draft Public Hearings report
The Chairperson indicated that the draft Public Hearings report could not be adopted today as the Committee was still waiting for additional inputs from Members. The Committee would deliberate on the Bill at its next meeting, taking into consideration the written amendments suggested.

The meeting was adjourned.

Download as PDF

You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.

See detailed instructions for your browser here.

Share this page: