Higher Education Amendment Bill [B36B-2015]: DHET briefing

Meeting report

Higher Education Amendment Bill: briefing by Department of Higher Education and Training

Adv Eben Boshoff, Chief Director: Legal Services, DHET, indicated that the Higher Education Amendment Bill [B36B-2015] was striving to align the provision of higher education with the priorities of government as announced in the President’s State of the Nation Address and the National Development Plan. The Bill amends the Long Title and the way the Act is arranged; inserts new definitions; and provides for the determination of transformation goals for the public higher education system and oversight mechanisms; the development of articulation and recognition of prior learning frameworks; conversion of public higher education institutions; issuing of Ministerial directives; indemnification of an independent assessor; indemnification and termination of the term of office of an administrator; different categories of registration of private higher education institutions; withdrawal and revocation of qualifications by public higher education institutions.   

Adv Boshoff highlighted that the focus of clauses 3 and 35 was to extend the power of the Minister to determine policy applicable to higher education institutions, in particular, the transformation goals and the articulation and recognition of prior learning. The amendments provide authority to the Minister to change the type and scope of a higher education institution in accordance with policy.

The focus of clauses 5, 6 and 7 is on the configuration of institutional types; the amendment removes the mention of a technikon as an institutional type and adapts the description of a college. Three types of institutions are provided for, namely a university, university college and higher education college. These types can be distinguished as defined in terms of the scope and range of their activities.
 
The focus of clauses 8 and 10 is on the functions of council and the power of council to determine language policies is subject to policies determined by the Minister and in compliance with the Use of Language Act. The amendments relating to the re-election of council members adversely implicated by the independent assessor in the findings, is redrafted and gives the Minister the power to disregard the disqualification and allow the member affected to continue as a member of council. In the case of a conflict of interest, the powers and obligations of committees, delegated authorities and staff are clarified.

The focus of clauses 12 and 13 is on the Minister’s power to withhold allocations, is amended by clarifying the correct process to be followed in performing this function. The technical amendments are relating to record-keeping of external audits.

Adv Boshoff pointed out that these  amendments to the Higher Education Act constitute adjustments to existing provisions, which are already contained in the system but clarify important constitutional principles linked to decision-making functions of the Minister of Higher Education and Training. The implications of implementing the Higher Education Amendment Bill of 2015 are negligible to departmental organisational structures. The policy framework must be developed to clarify the roles and responsibilities between higher education colleges, university colleges and universities and the required co-ordination between the new institutional types.

Discussion
The Chairperson welcomed the amendments effected by the Department on the Higher Education Amendment Bill. It was also good to hear that some of the amendments would be seeking to clarify constitutional principles that are linked to the decision-making powers of the Minister to intervene in tertiary institutions. It is concerning that there are many cases where amendments to legislation are effected, only to find that they are not constitutionally compliant. The Department should make every possible effort to ensure that the Bill was constitutionally compliant.

Mr C Hattingh (DA, North West) expressed concern about the wide interpretation of the term “transformational goals” in the Bill. It would be helpful if there could be a definition of “transformational goals” under definitions so as to understand exactly what is meant by this term. The use of the term “reasonable grounds” in clause 16 was ambiguous and there is no mechanism in place that could test “reasonable grounds” except by judicial review. Clause 16 also seemed to be giving far reaching powers to the Minister to act even on untested allegations.   

Ms L Dlamini (ANC, Mpumalanga) asked if the Higher Education Amendment Bill was a section 75 or 76 Bill. It must be commended that it would now be the role of the Minister of Higher Education and Training to intervene on matters of tertiary institutions. The Department should provide more explanation about the difference between a higher education college and a university college. It was also unclear as to which universities would be clustered and grouped together according to the Bill.

Mr M Khawula (IFP, KwaZulu-Natal) asked the Department to provide explanation on how it was planning to deal with transformation within institutions of higher learning as this affected institutional autonomy. What was the border between accountability and institutional autonomy? Transformation was also related to matters of interventions and administrators and it would be important to be briefed on the instances where administrators are allowed to intervene and the extent of that intervention. It was concerning that the presentation was particularly silent on the Technical Vocational Education and Training (TVET) colleges as they are also part of higher education. The Department should be regulating the certification and issuing of qualifications in order to avoid instances where bogus institutions are awarding false qualifications. The awarding of false qualifications had also degraded the quality of qualifications in the country. How far was the Department in preventing this situation from recurring in the future?

The Chairperson asked whether the Minister had the prerogative to prevent someone who is not adequately qualified to serve on the council. It was a concern that there were instances where some private universities were offering registration but the courses offered had not been certified by the South African Qualifications Authority (SAQA). The Department needed to ensure that the qualifications issued by private institutions are certified by SAQA. It was concerning that the language policy in tertiary institutions was not accommodating of every racial group in the country as the Constitution is very clear that “tuition could be given in any official language or a language of the student’s preference”. How does the Act address the language policy in institutions of higher learning? It was unclear if universities and colleges would be subjected to rigorous auditing as other institutions are that are responsible for public funds.

Adv Boshoff responded that ”transformational goals” was an important aspect and a lot of thought had already put into the matter. It must be highlighted that transformation in its nature is a very complicated issue and the Department aimed to deal with transformation through policy-making. The Minister would not “wake up one day” and randomly formulate policies as it is a prerequisite for the Minister to consult the Council of Higher Education (CHE). The Minister would also be required to provide reasons for instances where he/she had deviated from the advice of the CHE. The approach of the Department in dealing with this very important concept of “transformational goals” is in a holistic manner through a dedicated framework and providing a structure within which institutions should operate. The CHE would play a prominent role in dealing with the process of transformation within the institutions of higher learning.

Adv Boshoff clarified that clause 16 is dealing with the intervention of the Minister in an institution of higher learning and that intervention is based on issuing a directive. The Minister is providing an opportunity to the institution to resolve whatever problem has been identified by the Minister and it is the responsibility of that particular institution to resolve the problem identified. The Minister could only appoint an Independent Assessor to investigate a case that had not been resolved by a particular institution. It is not the Minister that would be an administrator as an administrator is identified by the CHE. Essentially, it is not the Minister who gives a directive to the administrator enforcing the administrator to perform his/her functions. The administrator would have the same functions as that of the council for the period of time that had been assigned by legislation during the time of the appointment of the Independent Assessor. The Minister would have the power of issuing a directive to the new council after the administrator’s term had come to an end. The amendments that had been effected to the Bill came about through the consultation with the higher education sector, CHE and previous administrators. It must be indicated that it is very difficult to determine the “reasonable grounds” as this would depend on the particular circumstances. It would almost be impossible to be able to define “reasonable grounds” in a manner that would encompass every case. The concept of “reasonable grounds” is also used in our Constitution and it could not be reduced to a definition. The reasonableness is not only on substance but also on procedure, so if a proper procedure is not followed then this would also affect the reasonableness. The Act was supported by the Promotion of Administrative Justice Act (PAJA).

Adv Boshoff responded that the Bill is a section 75 bill as it is dealing with higher education. The Bill is also dealing with the autonomy of institutions of higher learning. It is unfortunate that there are cases where it has been said that the Bill gives the Minister too much power over tertiary institutions. The Bill is very clear on the procedure that must be taken by the Minister when taking a decision. The concept of an intervention by the Minister limits the autonomy to a large extent especially when looked at in the context of a governing structure. However, it must be highlighted that it was not the Minister who is taking over the powers of a university as the Minister would only identify someone independent to take over the role of the governing structure for a short period of time to correct whatever problem had been identified by the Minister. The legislation did not provide for the difference between higher education college and the university college. The Bill was now defining the concept of a college so as to be narrowed to higher education college. It must be clarified that “university college” is not a new concept as even the University of Pretoria (UP) was previously known as Transvaal University College and the institution developed into a university.

Adv Boshoff replied in relation to intervention and administration, that the intervention is usually for a very short period of time, with a maximum period of three years to turn the institution around and the intervention by nature is not to be permanent. It must be highlighted once again that intervention is not to affect the autonomy of the institution as it is not the Minister that is taking away any autonomy. The intervention is just providing the Minister with necessary tools to assist the institution to come back to full functionality and comply with statutory requirements applicable to all universities and institutions of higher learning. It is important to note that section 2 of the Act highlights that this Act would be applicable and supersede any other legislation subject to the provisions of National Qualification Framework Act. The National Qualification Framework Act puts an obligation on each qualification that is purported to be a qualification to be registered on that framework and this registration could be done on any of the three respective sub-frameworks.  

Adv Boshoff clarified that the Minister also acknowledges that there are non-formal qualifications that are issued by private institutions. The formal qualifications, on the other hand, should comply with the required standard and follow the proper registration process. Language policy is critically important and the Minister of Higher Education and Training still has the power to determine the language policy for an institution, in the broader sense. However, the individual institution language policy and admission policy would remain with the specific institution but would be subject to policy determined by the Minister. All the policies would be subjected to the Official Language Act that promotes the use of all official languages in the country. The institutions of higher learning would be audited by private auditors and the reason for using private auditors is precisely because the Auditor-General of South Africa (AGSA) does not have the capacity to deal with all the education institutions.

The meeting was adjourned.