The South African Human Rights Commission (SAHRC) presented its transformation report to the Portfolio Committee on Higher Education. The presentation included the rationale behind conducting national hearings leading up to the report, key findings that were made and recommendations to institutions on how to accelerate transformation. Areas of concern included the lack of transformation at institutions in the last 20 years, exclusion on campuses, insufficient human right education at universities, a lack of intervention form the Department of Higher Education (DHET) in facilitating the process of transformation and inequality among former white and former black universities.
Some of the key recommendations made by the commission included greater monitoring by the Department, prioritisation of recruitment of underrepresented or previously disadvantaged staff and academics, implementation of early warning systems for students at risk, improving language accessibility at universities and increased emphasis on facilitating inclusivity for disabled students.
The Transformation Oversight Committee also commented on behalf of the Department on the state of transformation within the sector. The comments focused on ways in which the Department had attempted to address some of the issues outlined in the Commission’s report and outlined ways in which the Department had tried to work with the Commission.
Some Members of the Committee raised concerns about the relevance of the report given the radical changes which had taken place on campuses after its release while other Members praised it as a guideline by which to measure the progress that has been made. Members pointed to the lack of reference made to gender-based violence in the report as concerning and encouraged the SAHRC to work with the Gender Commission on the issues. The Committee asked the Department about the progress it had made in implementing the recommendations made by the Commission and whether guidelines were being formulated to assist institutions with implementation. The issue of initiation practices at universities was also discussed as well as the accountability that public universities have towards Parliament despite their autonomous nature.
The Chairperson welcomed the South African Human Rights Commission (SAHRC) to the Committee as well as members of the Department of Higher Education and Training (DHET). She noted apologies made by Mr N Khubisa (NFP), Mr A van der Westhuizen (DA) and Ms H Bucwa (DA). The agenda for the meeting was adopted.
Presentation by the Commissioner of SAHRC
Adv Andre Gaum, Commissioner, SAHRC, said he welcomed the request by Parliament to present before the Committee on its report. Both the Commission and DHET were accountable to Parliament; hence it had the power to ensure that the recommendations made in the report were taken seriously. He noted the presence of members from DHET as well as the chairperson of the Transformation Oversight Committee (TOC) which was critical in the monitoring of institutions. The report dealt with transformation at public universities in South Africa.
He said that following the Nkandla inquiry legislative changes have made the Commission’s findings regarding human rights violations binding and in future may even allow the Commission to issue directives. The need for a national hearing became clear after the death of a student at Stellenbosch University during an initiation event. Another incident in 2008 at the University of the Free State (UFS) known as the “Reitz Four” and the death of a first year at the University the North West during an orientation programme based on discrimination and racism further highlighted the issue. He mentioned that after the “Reitz Four” case the Commission’s recommendations led to the establishment of a Centre for Human Rights at that particular institution. Since 2012 the Commission had conducted interviews at 23 universities and realised that most of university policies placed focus on demographics and the number of students enrolled, but lacked proper consideration for integration.
In 2014 further accusations of racism came to light at the UFS when two white students drove over and assaulted a black student. The background underpinning the national hearing was incidents of racism such as these. The Commission was cognisant of past efforts made by institutions to address these cases. Though the hearing aimed to examine the effectiveness of transformation efforts at universities, it sought to determine whether transformation had taken place on all fronts e.g. race, gender, sexuality, class etc. and what some of the hinderances facing the process of transformation were.
One of the problems the Commission discovered was the lack of consensus on what transformation meant to different individuals and at various institutions. The Commission used international instruments as well as the Constitution to formulate a working definition. It defined transformation as,
“the creation of a system of higher education which is free from all forms of unfair discrimination and artificial barriers to access and success, as well as one that is built on the principles of social inclusivity, mutual respect and acceptance.”
Transformation should be seen in light of the founding provision, preamble and equality clause of the Constitution. The hearing was inquisitorial in nature rather than adversarial. The Commission had invited submissions from various stakeholders that were then evaluated along with evidence provided. Stakeholders included several universities, the DHET, the Higher Education Transformation Network, Universities South Africa, the Transformation Strategy Group, the TOC the Student Representative Councils (SRCs) and a number of other stakeholders.
The areas of investigation were the historical legacy of universities; institutional culture; language; role sport; student demographics; language policies; staff demographics; orientation programmes as opposed to initiation practices; curricula; the autonomy of universities; the residence system; transformation policies; complaint mechanisms; funding to students (which had subsequently been overtaken by the Presidential Commission); and the need for greater collaboration within the sector. The hearings consisted of a panel including at least 2 commissioners who would hear the evidence presented and then produce recommendations. The findings of the report focused on areas where there had been limited transformation from 1996 to 2016 in the relevant areas.
The main findings were that universities have not sufficiently transformed in the last 20 years. Systemic and structural discrimination as well as overt and covert racism remained an issue of the institutional culture at universities. Access to university spaces were still stratified along racial lines with no clear plans being presented on how this would be dealt with. There was a need for universities to review their orientation programmes to ensure they fostered inclusivity. Many orientation programmes also lacked a sufficient focus on human rights while dealing largely with finances and the workings of the university. In addition to human rights, he said there was a need for comprehensive diversity programmes that address the issue of initiation practices. He highlighted the importance of continued engagement between management and student structure on this issue as well as human rights education featuring more explicitly in the curriculum design. The Portfolio Committee could play a role in having a crosscutting model addressing human rights in all curricula. He said he had already spoken to a number of institutions including Universities South Africa and the Vice-chancellor of the University of Cape Town (UCT) on potentially having either a mandatory or incentivised module on human rights added for all students. As a point of departure such a programme could be offered online as well.
Adv Gaum said that there was a need for greater inclusivity and review of curricula to ensure its responsiveness to the context and needs of the economy and the country. Residence placement policies had failed to adequately consider the financial need of poor students or student with disabilities. Residences mostly function on the basis of quotas and academic merit but not going far enough to assisting the most marginalised students who are forced to seek private accommodation.
Following the release of the report, the Commission received a reply from the newly appointed Minister of Higher Education, Ms Naledi Pandor, regarding some of the recommendations made. He also acknowledged some of the progress made in addressing the findings however he went on to say that the DHET had not played a sufficient role in keeping institutions accountable for their transformation efforts. DHET was empowered by the Higher Education Act which had since also been amended allowing the Department even greater power to ensure accountability. The reports showed the need for a review of the governance models at universities so that they did not hinder transformation e.g. senates that consist only of full professors can be made more inclusive. Complaint procedures at universities were also heavily underutilised which showed dysfunctionality in the system because students were either not informed about these bodies and it was not accessible to them.
The sector remained underfunded which in turn contributed to slower transformation. The Department’s funding model had also favoured former white universities over black universities, further perpetuating structural issues. He mentioned the changes that were made to the funding model after the publication of the report. There was a need for more collaboration within the sector between former white and black institutions, the DHET and other stakeholders.
He then went on to present some of the recommendations made by the commission to the DHET and universities. The DHET must play a leading role in leading transformation and hold universities accountable. University councils should be required to report annual reports on the progress they had made at their respective institution. The oversight committee along with the TOC should produce a national report which would be submitted to Parliament and the Commission. All universities should have functioning SRC’s and trade unions that form part of the transformation plans and strategies and were able to monitor institutions to hold them to account. Universities had to ensure that their human resource policies prioritised the recruitment of underrepresented and/or previously disadvantaged persons, particularly academics and leaders in senior posts. This included developing policies to regulate the appointment of retired academics as academic consultants. This practice had to be restricted initiatives aimed at skills transfer programmes or in cases where the retention of expertise was necessary. One challenge that had been raised in the past against doing this was the reportedly small pool of black academics that universities had to draw on for appointments. This issue could be overcome if more young people were encouraged to pursue PhD’s.
The Department of Labour, together with DHET and Employment Equity Commission had to initiate a consultative process through which reforms in respect to human resource policies at universities could be strengthened, beyond quota driven targets. The Commission also recommended that universities and faculties implemented adequate and effective early warning systems which could identify students requiring additional support early on, with the view of improving success rates and decreasing attrition rates. Students were usually left to approach the support structures on their own volition but that a system of referral was needed.
Adv Gaum also said that the report recommended the DHET, in collaboration with the TOC and other relevant stakeholders assess the impact of language policies on institutional culture and social integration. Draft guidelines or best practices would assist universities in implementing language policies in a manner that promoted integration and access. He highlighted that language policy issues were pertinent and he mentioned the case of High School Overvaal. The Commission would be having a colloquium to look into application of the right to language in relation to section 29 of the Constitution. The simulations translation services used at universities like NWU were viewed as more effective than paramedium or duel medium approaches that have also been tried as the latter promoted further racial stratification within classrooms. He pointed out that at UFS the Constitutional Court found that in practice the paramedium method led to unfair discrimination. The Commission also recommended that greater credence be given to the inclusion of African languages when providing interpretation services. Students should be required to enroll in programmes that require them to interact with a diverse community and both staff members and students should be encouraged to take African language courses. Language also had to specifically accommodate persons with disabilities, including but not limited to persons who were deaf, partially sighted and blind persons, to ensure that access to higher education was not inhibited to persons with disabilities.
The Commission recommended that the DHET closely monitor the occurrence of initiation practices and take strong measures to curb such practices. In addition to this he added that institutions had to implement greater monitoring mechanisms aimed at preventing transgressions and holding persons accountable, while student representative bodies needed to play a central role in monitoring and reporting on incidents. All universities had to incorporate human rights and diversity training during orientation programmes to particularly educate students on the prohibition and impact of initiation practices.
The Commission recommended university departments and academics regularly review the content of curricula to ensure that the content, as well as the method of teaching, were socially relevant and responsive to the development needs of the country. In addition, DHET, in consultation with National Treasury, should give attention to the need to develop the existing stock of student residences for all universities with particular focus on historically disadvantaged universities, when allocating budgets. Moreover, the DHET needed to engage with private sector stakeholders and the Department of Human Settlements (DHS), with a view to developing additional, decent and accessible student accommodation off campus. The culture of residences had become an increasingly important factor of university life. It was necessary to ensure students felt included and welcome and to abolish old traditions that are exclusionary from persisting. These practices were not in line with human rights or the new democratic dispensation of the country.
He was also concerned about the influence of alumni in decision making within the residences. Academics should not be the sole consideration for residence allocation but other factors such as the financial needs of students or their ability to access private accommodation also had to be considered in the process. Persons with disabilities also needed to be given priority because even in the schooling system there was not enough attention being given to support materials and strategies for these pupils.
He went on to say that the DHET, in consultation with all relevant stakeholders, should be required to identify standard performance indicators, with a view of measuring the transformation progress of institutions. The TSG should facilitate increased collaboration between historically white and historically black universities to build capacity share and resources.
Since the hearing process and the release of the report several developments had taken place on campuses around the country including the #FeesMustFall movement and other student led protest actions as well as the Fees Commission. The Commission was strongly considering doing a follow up report given the events that transpired. However, the Commission still believed that the findings and recommendations of the report were still relevant. Since 2016 a new set of commissioners had been appointed and in the Commission’s 2018/19 Annual Performance Plan it has committed to follow up on recommendations made. There has been a need for greater follow up being done and the Commission was determined to fulfill that mandate. He appealed to the Committee to assist in ensuring that the recommendations were implemented as the DHET was accountable to Parliament.
Comments by the DHET
Prof Andre Keet, Chairperson, TOC, said that the Department wanted to play a constructive role in overseeing transformation at institutions. The Commissioner following the release of the report to discuss possible collaborations and ways in which resources and objectives could be shared. These strategies had been included into the action plan of the TOC. The Department had released a document of all recommendation made since the mid-2000’s, clustering them together to identify synergies between various reports in the system. Such a clustering could potentially help alleviate the reporting fatigue that many institutions in the system complain about. The main function of the TOC was to provide advice to the Minister and the key areas of focus were the transformation charters on a national level as well as key performance indicators for identifying shifts in transformation. It also plays a key role in policy formulation for transformation in institutions. Given the challenge of both autonomy of universities and accountability, the TOC aimed to issue guidelines to universities to assist in self-evaluation. An area of concern in the sector was instructional culture. If this issue was adequately addressed many other problems within the system would fall into place. If the core mandate of the university was changed then peripheral issues would also be affected. He also agreed with the Commissioner that the limited number of black academics was a hindrance to realising equity at all levels of the academy and that project such as New Generation of Academics Programme (nGAP) were attempting to address this. However empirically there had been a great shift post-1996 in the numbers within the system. He asked that the Committee call on the TOC to assist in any oversight that may be required around transformation at institutions.
The Chairperson asked that the documents that were referred to be given to the Committee as well.
Prof B Bozzoli (DA) said that the recommendations were standard and were already being implemented at most institutions and the Department was in the process of dealing with the issues raised. The report was outdated; some points were redundant and overtaken by other developments such as the Fees Commission. Student protests had shifted the ground on campuses entirely. There needed to be more included in the report on balancing the quality of education while also ensuring transformation. She recommended that the DHET and SAHRC broaden its view and approach to human rights issues on campuses. Some abuses were not directly related to just the transformation of institutions. She pointed out that the report made no mention of gender-based violence issues on campuses such as rape and sexual assault. She mentioned a case of a recent rape at Walter Sisulu University where the student could not access the necessary healthcare after the attack as well as murders which had taken place in other institution. It also failed to address the conditions of some residences which in some cases amounted to a violation of human rights of students. The treatment of entering applicants by universities also needed to be considered. As transformational initiatives became imbedded into the system other human rights issues also needed to be given attention. She suggested that the Commission consider these matters more closely. She asked whether the Commission had considered recommending ombudsmen at institutions or the Department to investigate these issues more deeply.
Ms J Killian (ANC) said that the focus of the report was to determine the transformation success at universities to assess deeper than simply figures. Human rights abuses by criminal and syndicates or by staff who disregard the human rights of student should form part of a separate investigation which would help transformation issues. Many of the recommendations were still relevant. From site visits conducted by the Committee it was clear that some institutions ticked all the boxes but failed to create an inclusive culture on their campuses. This highlighted the need to develop specific guidelines that would assist institutions in doing so. Students felt excluded economically, financially and based on prior level of schooling. Academic exclusion was highly underestimated and that some pupils simply found it easier to adjust to university based on the type of school they attended prior to entering higher education. Issues of language made it even more difficult. She asked if the Commission would be following up their report since the Department had already had sufficient time to address some if the issues raised in it. She asked the DHET if the TOC had developed implementation plans around the findings of the report and if there were there any hindrances to oversight that the Department had identified. Would the university statutes prevent proper oversight? Academic autonomy should not be confused with the need to ensure public accountability. She asked to what extent have the DHET had moved on the nGAP program, what hindrances had been faced and what could be done to speed up the programme. She asked whether a transformation charter would have legal power to compel institutions to comply or simply make recommendations. Lastly, she asked whether the DHET had developed any guidelines for the implementation of section 29 as well as other clauses on language and culture that would help foster accessibility at institutions.
Mr C Kekana (ANC) expressed confusion about what Prof Bozzoli meant by “broadening” the focus of human rights investigations. He said that what she was referring to had already been accounted for. Rape was already addressed within the scope of the legal system, Constitution and checks and balances.
Ms S Mchunu (ANC) asked why initiation practices had been prominent at historically white institutions and continues to happen despite policies that prohibit them. She also pointed out that the DHET had been providing funding to universities to better assist disabled student. She asked if the Commission felt that this has been sufficient and whether universities had been doing enough to address the issue. The Higher Education Bill allowed the Minster to work with the Council on Higher Education (CHE) on developing policies around transformation, though there had been resistance from universities; hence she asked the DHET what progress had been made in developing such a policy. She further asked what the role of the commission was when certain groupings attempted to thwart the efforts of universities to transform. She mentioned the example of legal action taken against the University of Stellenbosch, UFS and the University of Pretoria (UP) when these institutions attempted to change their language policies. She also asked why the University of Stellenbosch did not participate as a stakeholder in the report and what the Commission did about the exclusive Afrikaans residences at UP. She asked whether the Commission was able to take action in these cases or only make recommendations.
The Chairperson said the Department should give a more detailed response on its work with the Commission and going forward the DHET was mandated by legislation to report to the Committee on these issues aside from the reports made by the SAHRC. The SAHRC and the Gender Commission should look into gender issues on campuses, because during protests women faced the most oppression. Higher education institutions are microcosm of general issues facing South African society. She emphasised women development in education required that the two commissions worked together. At institutions there was a silent suffering of women which called on the Committee to voice their concerns more vividly. She noted cases of intimidation and rape which she had received from various students. However, she welcomed the launch of the SAPS academy which involved students in the process of combating these issues. She asked the DHET to comment on the Campus Safety Cadet programme which had been implemented. The rate of gender based violence was unacceptable. She asked the Commissioner to comment on housing at institutions and the grading committee which had been established for private accommodation. There was no refence to the Institutional Forum (IF) at universities which was formed as a link between the council, unions, students and other stakeholders. The IF was one of the weakest bodies at universities and she asked why the recommendations did not include greater emphasis on the IF. Reports show a decline in the number of students from those who complete their studies at universities. Going forward she asked what the Commission was doing to address issues hindering completion for example infrastructure that was not conducive to the safety of students.
Response from the DHET
Ms Thandi Lewin, Chief Director: Institutional Governance and Management, DHET, said that the SAHRC report came at a time when the Minister had hosted the 2nd annual summit of transformation. She said that as Committee Members had mentioned many areas had been addressed since the release of the report. Most universities had clamped down on initiation practices. There had also been enormous progress in efforts to go beyond the numbers. DHET had been working on a national policy framework focusing on gender based violence which would be launched later in the year and the Department would keep the Committee informed. Some universities had advanced systems in place to deal with gender based violence cases and the problem remained to make implementation consistent across the board. A lot of work has been done on a new transformation plan with guidance and input from Minister Pandor. The mechanisms available to the Department were putting in place policy guidelines for system as well as the funding framework which has been used to steer transformation progress. The increase of funding for foundation programmes and university capacity development grant have had a positive effect and continue to do so. Quality assurance mechanisms and reporting regulations provide the Department with a measure of oversight and these needs to be streamlined. She said that through these reports all institutions report on grants given and transformation.
In its APP the Department has highlighted monitoring and oversight as a key focus. She said that the nGAP had been stimulatory to getting new academics into the system however the grants provided to it were just a drop in the ocean and the prgramme was unable to ensure the massive influx required. However, she said that the perception that black students did not want to become academics was not true and the discourse needed to shift. The Department needed to identify institutions that were succeeding in this area and see how that could be replicated and supported. The nGAP forms only part of a larger support structure for staffing South African universities. Work is also being done on how retired academics can be brought in to support the system. DHET was in the process of finalising a draft for an inclusion framework for the entire postschool training sector, as well as a draft policy for disabled students. She said that a lot had been done on disability inclusion but that more needed to be done to address structural accessibility. She said that she was not aware of the SAPS programme that the Chairperson referred to but that she would follow up. The revised Education Act has given IFs a clearer role and if institutions do not implement recommendations made by the body it is required to give a reason. However, she said that there were universities where the IF played an important role, particularly as a dialogue breaking mechanism, but that more work was necessary.
Prof Keet said that research particularly in the UK and USA shows a correlation between socially just transformation at universities and the quality of education. Transformation is thus a quality enhancer. He agreed that there needed to be a broader approach to human rights and mentioned that the DHET had a gender task team working on the policy framework. DHET was looking into the efficacy of ombudsmen. The trend around complaints and governance was the appointment of deputy Vice-Chancellors of transformation at universities. He said that there were six such ombudsmen at universities at the time and the Department would look into the efficacy of implementing such a strategy nationally. The issue of syndicates at institutions must be dealt with through systemic interventions so universities could focus on academics. He said that institutional culture remained one of the most difficult but important areas to tackle. However, he said there had been a national discourse on accountability which kept the institutions in line even though they are still autonomous. This showed how modeling accountability stimulated discourse and the transformation charter needed to be formulated based on already existing constitutional principles.
The policy and legal architecture of the sector already presented the outline of a charter which would then also support the mandate of the charter. There were still pockets of initiation practices which needed to be dealt with. In 2001 a report released following the death of a student at Stellenbosch University set the scene for the eradication of this practice and it was now easier for law enforcement to deal with cases of initiation practices as they are few and far between. The TOC was working on the issue of human rights issues independently from the Commission as well. The Gender Commission had had hearings with several universities in 2017. He suggested that the Commission bring those findings to the table as well via parliamentary processes. He agreed with that the struggle of women in higher education institutions was linked to challenges in broader society but said that universities needed to interface better with community and society. There was a rental tribunal if students felt that they had been excluded and after testing the mechanism he mentioned that it was effective.
Response from SAHRC
Adv Gaum said that the advocacy part of the Commission’s work was focused around the promotion of human rights through school curricula or human rights related projects. The second aspect of its work was around systemic hearings based on complaints received by the SAHRC. After complaints had been launched an investigation would follow and thereafter produce finding, directives and in extreme cases may refer the case to the equality court. However due to budgetary factors the Commission was limited in its ability to have national hearings; hence the Commission needed to prioritise the various issues at specific times. Issues on gender, student treatment, residence etc. could each form the subject of their own investigation which would be impractical however this did not stop individual complaints from being brought to the Commission. On Afrikaans only residences, he said there were complaints but in certain cases if the Commission feels another body would be more appropriate to deal with an issue then the case is referred there. He agreed with Ms Killian that most of the recommendations in the report were still relevant despite the developments which had taken place. Addressing the Chairperson, he said that the Commission recommended that DHET develop best practice guidelines for governance structure, of which IFs form part. In the Minister’s response to this she mentioned that IFs are ineffective in stimulating dialogue and in some institutions, they are marginalised and entirely deteriorated. The Minster told the Commission that the DHET would be creating guidelines for IFs to deal with transformation issues as envisaged in the White Paper and the Higher Education Act. In addition to this the DHET aimed to establish a community of IF chairpersons as an avenue by which to share best practices and strategies.
On language policies, he said that in the Minister’s response to the report she said that the DHET had conducted a review of its language policies in 2016 which resulted in a new draft policy which was submitted to the Minister for approval. This revised language policy would seek to promote multilingualism that will facilitate inclusivity, social cohesion and meaningful participation by all students by focusing on previously marginalized languages. As had been pointed out by Prof Keet, transformation and quality were not mutually exclusive. The report showed that areas which lacked transformation such as funding or secondary school education hindered student performance. On the issue of black academics, he said that the University of Johannesburg had experienced an increase in black academic staff from 140 to 420 within the first decade of its merger. Much still needed to be done there was already marked progress. The report showed that initiations were based on tradition and culture at institutions like UFS and Wits. Racism has also been identified as a driver behind some of the practices and the report made recommendations on how to deal with these matters.
The Chairperson thanked the Commission for its presentation and said that it would assist the Committee in its own oversight of institutions. She asked that the DHET inform the Committee when it publishes a gazette. The Committee attempted as far as possible to attend colloquiums hosted by the Department as it helped the Committee in its work. The Committee would follow up on the Gender Commission and their hearings on gender based violence were a key focus of the Committee. The Committee would also request the DHET’s response to the SAHRC report and particularly what had been done in relation to the recommendations made.
The meeting was adjourned.
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