The Committee received a presentation from the Parliamentary Legal Advisor on whether the amendments being affected carried the objects of the National Qualification Framework Amendment Bill. The briefing also looked at whether the Bill could possibly have any legal or constitutional challenges going forward. He then read through his presentation.
The Committee was informed that from a constitutional and legal perspective, the Bill is beyond reproach. The objects of the Bill and the amendments of the Bill are generally supported by the public and by the parties who made submissions to the portfolio committee. Although there is general support, there is still some concern, the concern is about the impact of the provisions of the Bill on matters relating to the capacity of the SAQA, verification services, autonomy and the relationships between public institutions.
Concern was also expressed around implications of the POPI Act on the various registers maintained by SAQA and the verification/evaluation process. According to the Legal Advisor, the legal issues pertaining to POPI Act and PAJA are adequately addressed in the legal opinion of the state legal adviser to the Committee.
The Committee was presented with two options:
-to pass the Bill as is,
Pass the Bill with amendments, in particular: tightening the definition of Fraudulent and Misrepresented qualification or part-qualification; -clearly explain the role of SAQA of reporting of Fraudulent and/or Misrepresented qualification or part-qualification to SAPS further; and how this will communicated to and role of QC’s, employers, skills development providers and institutions of learning and strengthen collaboration between the QC’s and SAQA
The Committee commented that:
- It was concerned that the Committee was being advised that only two options were available: to pass the National Qualification Framework Amendment Bill (NQFAB) as was or to amend it. Why was the third option of not adopting the Bill not promoted? The NQFAB would establish an onerous structure requiring costly commitment from employers, educational institutions which he believed was avoidable in achieving the Cabinet decision in instructing the Minister at DHET to find ways to curb misrepresentation of qualifications.
- It required a legal opinion on the current law regarding the establishment Council for Higher Education (CHE) and its perceived role, specifically its relative autonomy. It also required that opinion to speak to the NQFAB seeking to make the CHE a part of DHET through mandating CHE to report to SAQA.
- It required responses to whether the roles and responsibilities of SAQA and the QCs had been investigated
- Concerning was that the presentation referred to verification of qualifications as though that had been a mandate of the QCs before the NQFAB proposed; if that had been so in law before the NQFAB where had that provided for? It would be wrong to assume now that an assumed function of QCs which was to verify, would now be removed by the NQFAB
- Two grounds for which the NQFAB could be rejected could be on the capacity challenge at SAQA and unimplementability. ABSA had lobbied that strongly citing that it processed 46 000 vacancy applications per annum and it would be unfeasible for one company to have to submit such a number of applications for qualification verifications to SAQA, apart from the plus one million companies operating in South Africa (SA). Was it not bad law if a proposed law would be unimplementable?
The Committee adopted a motion of desirability to proceed with the Bill. The DA registered its opposition to the current draft of the Bill.
The Chairperson greeted and welcomed the Members noting that the previous days’ agreement was that the Committee would continue deliberating on the National Qualification Framework Amendment Bill (NQFAB) [B20-2018]. She would allow the Parliamentary Legal Advisor to brief the Committee on the issues which had been raised with him. She would allow the Committee to engage both Parliament’s legal Advisors and the Department of Higher Education and Training (DHET) delegation.
National Qualifications Framework Amendment Bill Objects V Amendments
Mr Mbulelo Ruda, Legal Advisor, Parliament, said the Chairperson had requested him to find out whether the amendments being affected carried the objects of the NQFAB. The brief also required the legal advisors to check whether the NQFAB could possibly have any legal or constitutional challenges going forward. He then read through his presentation.
Object of the Bill
The NQFAB introduced definitions on what would be authentication, misrepresentation and fraudulent qualifications.
It is an accepted international principle that, the essential defence against fraudulent and misrepresented qualifications or part qualifications is strong authentication and verification procedures.
The amendments support the objects of the Bill, through the:
-establishment of a transparent regulatory mechanism for authentication, verification and evaluation procedures for qualifications, part-qualifications and foreign qualifications; -introduction of mechanisms to deter and to punish unethical behaviour relating to qualifications and part-qualifications; and
-institution of an administrative process for qualifications, part-qualifications and foreign qualifications
Although there is general support, there is still some concern, the concern is about the impact of the provisions of the Bill on matters relating:
∙The capacity of SAQA to meet the obligations vested in terms of the Bill -
-Concern that SAQA might not be geared financially, human resource and system wise to meet the obligations of verification and evaluation.
∙Relationships between public institutions (DHET, DBE, SAQA and the three QC’s) and relationship between public institutions and other education and training service providers –
-It appears that the envisaged system of collaboration amongst public intuitions is not functioning at an optimum level.
-The DHET/DPME NQF Act Implementation Evaluation Report made several recommendations to further amend the NQF Bill and some of these recommendations will impact directly on the current proposed amendments, for example amendment of the Act to clarify roles and responsibilities and reporting and accountability lines of SAQA and the three QCs to the DHET; amendment of the NQF Act to include the roles and responsibilities of the DBE as they relate to the NQF etc.
-There appears to be a misconception about the collaborative role of QCs in the overall NQF.
-Verification of qualification is an income generating mechanism for the QC’s and the proposed centralisation of verification function to the SAQA will impact on their operations. QC’s provide that income generation is statutorily enabled or empowered.
∙Legal and constitutional issues
-There is a concern around implications of the POPI Act on the various registers maintained by SAQA and the verification/evaluation process.
-The legal issues pertaining to POPI Act and PAJA are adequately addressed in the legal opinion of the state legal adviser to the committee.
How the concerns addressed, will influence how the PC processes the Bill, the following options are available:
-to pass the Bill as is,
passing the Bill with amendments, in particular:
-tightening the definition of Fraudulent and Misrepresented qualification or part-qualification;
-clearly explain the role of SAQA of reporting of Fraudulent and/or Misrepresented qualification or part-qualification to SAPS further; and how this will communicated to and role of QC’s, employers, skills development providers and institutions of learning.
-strengthen collaboration between the QC’s and SAQA
Mr P Van der Westhuizen (DA) was concerned that the Committee was being advised that only two options were available: to pass the NQFAB or to amend it. Why was the third option of not adopting the Bill not promoted? He believed that the entire premise of the NQFAB was not the best one available. He would have preferred under labour law that employers be empowered to immediately dismiss a person who had been appointed on the strength of fraudulent qualifications. Moreover it would have helped to get a type of self control to help people to be honest when presenting qualifications. The NQFAB would establish an onerous structure requiring costly commitment from employers, educational institutions which he believed was avoidable in achieving the Cabinet decision in instructing the Minister at DHET to find ways to curb misrepresentation of qualifications. Was there not that third option as he had outlined?
Dr B Bozzoli (DA) said she required a legal opinion on the current law regarding the Council for Higher Education (CHE) and its perceived role, specifically its relative autonomy. Moreover she required that opinion to speak to the NQFAB seeking to make the CHE a part of DHET through mandating CHE to report to SAQA.
Mrs J Killian (ANC) said the principal Act established the NQF and role of SAQA and QCs, of which the CHE was one and it was responsible for a specific section of the NQF. There was no different hierarchy of QCs as far as she understood because the overarching responsibility had been given to SAQA as per the principal Act. The QCs were there to ensure that qualifications were accredited in their sub frameworks and to avoid situations for example, like Walter Sisulu University (WSU) allowing student to enrol for a course which had not been accredited and forcing Government to have to put urgent measures to intervene.
She required responses to whether the roles and responsibilities of SAQA and the QCs had been investigated. More concerning for her was that Mr Ruda referred to verification of qualifications as though that had been a mandate of the QCs before the NQFAB proposed; if that had been so in law before the NQFAB where had that provided for? It would be wrong to assume now that an assumed function of QCs which was to verify, would now be removed by the NQFAB as she believed that whatever income generation function the QCs had to date had not been provided for in law but had been assumed, and that was called ‘mandate creep’. Could the legal advisors clarify that for her as per current legislation?
Ms S Mchunu (ANC) said that if it was agreed that there was a need to find ways of dealing with deliberate misrepresentation of qualifications; then regulatory means to address that misrepresentation were the promulgation of the NQFAB as one of those, she agreed with that process.
Dr Bozzoli said that one ground for which the NQFAB could be rejected could be on the capacity challenge at SAQA and unimplementability. ABSA had lobbied that strongly citing that it processed 46 000 vacancy applications per annum and it would be unfeasible for one company to have to submit such a number of applications for qualification verifications to SAQA, apart from the plus one million companies operating in South Africa (SA). Was it not bad law if a proposed law would be unimplementable?
Mr Ruda replied that common law was still applicable where employers could dismiss those found to have deliberately submitted fraudulent qualifications. The issue though, was that it appeared that common law was not a deterrent and the problem was becoming bigger instead. The NQFAB was being proposed to be a deterrent as the individual deliberately using fraudulent qualifications would be named and shamed, including those that had been sitting in jobs for many years with said fraudulent and misrepresented qualifications. Secondly the NQFAB would punish that offence whilst also proposing a way to administer the functions.
Whether it was a good policy choice to centralise verification within DHET or SAQA was for the legislature and Executive to decide and not a legal matter. DHET and SAQA had found that centralisation would enable easier management of the problem.
When the NQF was adopted and approved there had been a system of collaboration which had been envisaged between SAQA, CHE, UMALUSI and the other ones. That system had not matured to date but that did not make the QCs autonomous off the NQF and SAQA.
Whether the QCs had assumed responsibilities and powers which had not been legislatively allocated and provided to them, what was clear was that there would be budgetary implications to the implementation of the NQFAB. Probably there were those verification operations within CHE and UMALUSI which would be taken away; and that was something the Committee would have to apply its mind on; specifically how DHET would mitigate those implications.
Indeed an unimplementable law became bad law however; it was also a policy decision as well whether SAQA would be capacitated enough to do the function.
Adv Eben Boshoff, Chief Director (CD): Legislative Services, DHET, said it was important that it be considered that section 32 of the current NQF Act provided that SAQA had the power to delegate any of its functions to the QCs and any other body capable of performing that function but, amongst the qualifications provided for in that section was that, SAQA kept the responsibility. Additionally SAQA could perform the same delegated function as and when that became necessary. Furthermore SAQA and the QC would not be exempt from the responsibility accompanying that function. The delegations were set out with specific conditions so that proper monitoring could follow that function.
The capacity issue had to be read with the responses that DHET received from SAQA, as SAQA had indicated that it had short turnaround times for qualification verifications. Moreover the verifications were being done in-house at SAQA such that SAQA had further indicated that it would not even need to invoke section 32 of the NQF for the implementation of the NQFAB.
It was indeed important that the Committee deliberate and ventilate the substance of ‘misrepresentation’ versus fraudulent in the DHET system as currently the statement was made without any substance as to where the mischief originated.
Regarding verification as a function of the Quality Council for Trades and Occupations (QCTO), section 27 of the NQF Act provided the functions assigned to the QCTO, and there was no verification function listed there. Verification was assigned to SAQA as per section 13 of the same Act. Sometimes verification was used in a populist manner where that involved the functional role of a particular QC in dealing with a qualification and complying with the quality assurance function, which had an element of verification but pertaining to the specific qualification before the QC; and not general verification of qualifications across. Possibly the Committee could consider the matters in that regard.
Dr Shirley Lloyd, Director: NQF Directorate, DHET, said that the NQF Act required SAQA and QCs to develop and publish a system of collaboration which would guide the relationships and activities of both so that should anything go wrong in the relationship between SAQA and the QCs then interventions could be implemented. Indeed the current collaboration between SAQA and the QCs was not functioning optimally and the NQF Act implementation evaluation review research had made a finding and recommended that the system of collaboration had to be reviewed and strengthened which was work in progress. Recognising that that as the bodies established under the NQF had matured of the nine years, issues which would not have been seen and foreseeable earlier in the envisaged system of collaboration had arisen and were being addressed.
Regarding the CHE, there were NQF roles ascribed to that QC as set out clearly in the NQF Act and in relation to SAQA. The operative word although possibly amended was in ‘consultation’ with SAQA CHE would advise the Minister at DHET around NQF matters. There were a few instances the CHE had not ‘consulted’ the SAQA, one being on some of the CHE policies which were currently misaligned and creating some challenges.
The Higher Education Act (HEA) gave CHE quite specific roles as well in terms of its work as the quality assurer in that space and SAQA did not interfere in that.
Mr Van der Westhuizen said that the challenge with misrepresented and fraudulent qualifications was that common law did not protect employers enough. He proposed that the NQFAB provide that should it be found through SAQA that a qualification had been misrepresented, said employment/ bursary/ admission contract be immediately cancelled as if it never materialised in the first placed. He sincerely believed that would decentralise, deter and increase self regulation and curb the conduct the NQFAB sought to curb. Was that possible?
Dr Bozzoli was not convinced that the HEA had less supremacy than the NQF Act as it established the CHE, and established as juristic person: the CHEs was a dual function body whereas the other two QCs were only quality assurance bodies. The main job of the CHE was to advise the Minister on any aspect of higher education at the request of said Minister. That advice could include qualifications, quality promotion, quality assurance, research, the structure of the system, planning for the system, a mechanism for the allocation of public funds students financial aid, students support services, governance of higher education and language policy. The Minister had to consider the advice of the CHE and provide reasons in writing if the advice was rejected by said sitting Minister. Her concern was that the NQFAB would restrict the CHE to being a quality assurer only and encroached on the primary mandate of the CHE by providing that the CHE had to consult SAQA before advising the Minister. Moreover her understanding was that the CHE was meant to be outside the DHET.
Ms Killian said the Committee was dealing with the NQFAB and not an amendment to the HEA and section 24 of the principal Act under quality councils, chapter 5: UMALUSI was the QC for general and further education and training. QC for higher education as per section 25 of the principal Act was the CHE as established by the HEA. As far as the NQF was concerned they were all listed there as well. Her reading of clause 5 of the NQFAB provided section 27 of the principal Act could be amended only through inserting ‘in consultation with SAQA, CHE to advise the Minister in matters relating to the CHE sub-framework’. There was no diminishing of the CHE’s role in that respect as far as she understood and overriding that was protection of the NQF.
It was accepted that there was a serious challenge and people were occupying important positions with fraudulent and misrepresented qualifications. Indeed people could be dismissed after it had emerged that a qualification may have been misrepresented but that still needed to be verified first: it was important therefore to have a verification authority, which was the whole point of the exercise undertaken by the Committee.
Section 32A of the NQFAB provided for the capacity challenges which Dr Bozzoli argued could be reason enough to not adopt the NQFAB but there currently were serious challenges with the South African Police Services (SAPS) but that did not mean Government would fold its arms. SAPS needed capacity which was being done so that it fulfilled its mandate. Section 32A provided that ‘all employers, education institutions, skills development providers and QCs must check if the qualification or part qualification which was presented to them for purposes of study, employment, appointment or any other related purposes, that the qualification was registered on the national learners records database’. If the qualification was not there, only then could these bodies approach SAQA, that did not mean every individual appointment had to now clog SAQAs system. If the public and private institutions would not have checked the qualifications and had them verified then they also would suffer some consequence as the responsibility was being given to them as well to employ persons with real qualifications.
Mr Ruda replied that he understood Mr Van der Westhuizen’s view on self regulation to mean that regulation had to be managed between the employer and employee and the common law already provided that if an employee had been found to have lied about their qualifications, then the employer upon finding out could immediately dismiss the employee. In that respect, self-regulation was inbuilt into the employment contract between employee and employer. The NQFAB sought to enable because employers were not generally obliged to verify qualifications submitted to them, by reviewing the National Learners Records Database (NLRD). Thenceforth employers and public institutions would be obligated to first ensure that qualifications submitted to them were recorded in the NLRD, if the qualification was not in the NLRD, then the qualification had to be submitted to SAQA for verification.
Since it was accepted that there was a problem, it was within the Executive and legislative ambit to create an authentification verification and evaluation mechanism, which was what the NQFAB did. It was within the powers of the Executive to create the policy, and it was within Parliament’s powers to pass such laws as the need had been identified.
In the functioning of the NQF, it appeared from the submissions received for the NQFAB from stakeholders including the QCs themselves that the envisaged collaboration between SAQA and the QCs was not optimally effective. Improvement of that collaborative effort would make implementation of the NQFAB that simpler.
Dr Bozzoli asked if DHET had assessed the scale of fraudulent qualifications in SA; how big statistically was the problem. Had DHET researched how much capacity would be required if the NQFAB was adopted and enacted? Would it be a valid use of funding to increase the staff complement of SAQA?
Of the two types of misrepresentation one probably would be where someone would have said to a university that one had a PhD from Yale University whereupon the university after verifying would have found that the individual had lied. Would that PhD from Yale be fraudulent and would Yale University be named and shamed; how would that work? How would that envisaged system curb lying about international qualifications seeing that it would be dealing with local qualifications? With that type of common sort of fraud at university level would probably not enter into that envisaged NQFAB system.
Secondly would be the kind of misrepresentation where someone would have created a non-existing qualification from a non-existing international university and probably that also would not appear on that envisaged system as it would be locally focused.
Was there really a need to make a new law for three institutions that were not collaborating when they were supposed to; because passing a new law to foster such collaboration when DHET could simply enforce collaboration seemed excessive?
Prof N Khubisa (NFP) asked whether all digital qualifications and possible misrepresentation involving online studies were catered for at clause 4 (e) of the NQFAB. Would those qualifications be recorded in the NLRD?
Ms Killian recalled that the Committee had also in the recent past passed the HEA Amendment Bill, with specific reference to the role of the CHE. That HEA Amendment Act (HEAA) applied to higher education and related matters in SA and prevailed subject to section 34 of the NQF Act over any provision of other legislation that regulated matters referred to in paragraph A of the NQF Act and which were materially inconsistent with the objects or a specific provision of the NQF Act. It was important to recall that in the process of developing the higher learning system, the sector had to go through some of those uncertainties, role confusions until such stage when all the QCs knew their specific focus and duties were and what legal or regulatory, statutory powers were as well. Moreover the QCs and SAQA also knew that they were legally obliged to report to Parliament. The HEAA had also clarified that the NQF Act was superior Act as far section 34 was concerned as well as QCs were concerned.
Ms Mchunu said she realised that not the entire Committee grasped the severity of the damage done by fraudulent and misrepresented qualifications in the higher education sector therefore she also wanted the statistics in that regard as well. What damage was the issue having on SA as a country as well?
Ms B Ndlovu (ANC) said that understanding that the Committee agreed on the need for a solution to the problem of fraudulent and misrepresented qualification, the disagreements which were emerging could not be the reasons the Committee could not pass the NQFAB because that would show Government to be quite uncaring. The NQFAB would curb that problem as it was, she believed.
The Chairperson asked DHET why the NQFAB had to have clause 27.
Adv Boshoff replied that clause 4 related to amending section 13 of the principal Act which was the functions of SAQA. Regarding online and digital qualifications, the NQFAB was not dealing with delivery of qualifications but a certificate which was being presented. If the certificate indicated that it had been obtained with online tutelage but was acquired in SA and was being presented within the country then it would be dealt with as a national qualification. The provider of that qualification would have to be been registered as a private higher education and training provider so that SAQA could deal with it appropriately. For qualifications acquired abroad the NQFAB and the NQF Act already covered those providing that; foreign qualifications presented would be verified, evaluated, compared, ranked and receipt of advice from SAQA on equivalence of said foreign qualification against a national qualification. In recent years DHET had a case of a person applying for a post at a SA university and presented a PhD acquired online from a university in the Bahamas. SAQA at that point already had the capacity to evaluate and after said evaluation and verification had concluded that the PhD at most had actually been equivalent to a Master’s qualification in SA; and the court had also accepted that evaluation and verification as credible. Of course international and foreign qualifications, after evaluation and verification had been done and found to be fraudulent or misrepresented would be placed on the same fraudulent register in the country.
Having the register was to inform the general public and the public good was the value and integrity of that qualification practically.
The HEAA already provided through section 34 that; when there was any conflicting provision for the CHE, the NQF Act superseded the HEAA. The alignment with the HEAA had been strengthened in that regard, as it was already cast in law.
Regarding the impact of fraudulent or misrepresented qualifications; a qualification was a document that had to have integrity, and the broader public had to have a value for the efforts flowing from that piece of paper. The NQF Act was amongst the first pieces of law on education enacted after 1996 and provided a solution to the then problem of qualifications which had differing values and esteem. The standards which every qualification had to comply with had to provide an outcome which protected the integrity and esteem of each qualification, in terms of fraudulent and misrepresented qualifications, it was doubtless that without regulating that properly; that would affect the essence of the NQF legislative framework. A qualification had to be presented by a holder entitled to the benefits of said qualification because if that was not the case, that had to be addressed by way of appropriate action.
The reason to amend section 27 of the NQF Act was firstly that the amendments to the NQF Act were quite few. Secondly the issue centred on consultation, that originated from SAQA having to consult the QCs but when the QCs where dealing with NQF related matter, they were not obliged to consult SAQA and that had created a problem in the system. The NQFAB was to rectify that and there was no other hidden agenda behind that and DHET had a system of collaboration where it sat on numerous Committees. It became problematic when dealing with a policy from a QC which had been presented to the Minister without the policy having been seen by SAQA. Addressing the issue of consultation was not adding any extra costs or would result in delays as it was part of the system.
Corollary to that, the NQFAB sought to deal with accreditation of education or skills development providers which complied with the requirements to offer a qualification or part qualification. A common problem was the colloquial language used since the legislation spoke about registration with the Government; but one had to get accreditation of that qualification as part of that registration process. Some of the amendments brought by the NQFAB sought to strengthen the accreditation component of the qualifications. Private service providers sometimes believed that having registered with the QC; they would have complied with the NQF legislative framework, whereas the qualification also had to be accredited.
The last amendment of the NQFAB was to submit at no cost the data determined and in consultation with SAQA for recording on the NLRD; DHET had discovered that UMALUSI had been selling-off the data, providing the information passed the due date or not at all to SAQA which affected the integrity of the NLRD. The national legislature had determined that a NLRD was an integral part of the NQF system as it provided certainty and enhanced integrity and having an updated NLRD was quite important. The NLRD had always resided within SAQA and it had been created to standardize qualifications and also make it possible when the need to verify or evaluate arose that there was a database to compare qualifications against.
Amending section 27 was to simplify the system, practicalities driven and had no additional requirements.
Dr Lloyd replied that in the recent past the former and current Ministers had requested SAQA to provide the Executive Authority (EA) with reports every two months about what fraudulent or misrepresented qualifications were being reported and handed over to SAPS. DHET had been receiving the reports from SAQA and the statistics also came in the same report. Currently in the QCTO space about 8000 certificates both foreign and local or national qualifications had been misrepresented. SAQA also reported to the Minister on international qualifications and within only the Southern African Development Community (SADC) region in the 2016/17 financial year, the number of misrepresented qualifications doubled; that is a jump of 500 qualifications that had been found to have been misrepresented in SA. Within the broader African continent and internationally misrepresented qualifications in SA, the number stood at about 2000 and it was increasing. The DHET would and could provide the latest statistics to the Committee after SAQA had submitted and DHET had requested the additional detail of SAPS cases referred by SAQA, where currently the number stood at 105. There had been an escalation in certain qualification levels in particular, specifically the school leaving qualification as it had a lot of importance for people seeking work internationally and those coming into SA, therefore NQF levels 4 and 5 qualifications seemed to have a lot of misrepresentation happening there. There was also quite a lot of misrepresentation happening at the Master’s and PhD levels, especially in Masters of Business Administration (MBA’s) and Masters of Business Leadership (MBLs) where people were applying for senior positions in companies within the country. In the SADC misrepresentation of qualifications seemed to be common.
SAQA had dealt with misrepresentation by persons claiming to have acquired qualifications from reputable universities. Universities would not be those listed on the fraudulent and misrepresented qualification national register but the individuals directly.
SAQA currently had a unique Memorandum of Understanding (MoUs) with SADC through the SADC Qualification Verification Network with all 15 member states. Other agreements included the African Qualification Verification Network (AQVN) and the Groningen Declaration Network. Beyond the MoUs for information swap and exchange, SAQA had cooperation agreements with individual countries on verification which were not part of the networks. SAQA would therefore check the credibility of the institution, including whether it existed, had the presenter of the certificate in SA actually acquire the certificate from the said institution. If the institution did not recognise the qualification then SAQA would go to the equivalent of the NLRD in the said country where the qualification would have been said to have been acquired from. SAQA therefore currently evaluated and verified foreign, international and national qualifications.
SAQA had presented its annual integrated report recently to DHET and focusing on the foreign qualifications directorate within SAQA; there were 68 people employed there and SAQA had also piloted the e-certificate online platform as well. Most applications currently for verification of international qualifications were being submitted on SAQA’s online system. The local verifications directorate had 13 people working within it and also were piloting an electronic platform within turnaround times of same day verifications at a cost and two days to five days for standard verifications and it was 20 days turnaround for bulk verifications.
The open learning association had raised through DHETs open learning chief directorate the concern with NQFAB clause 4 (e) (1A) (b) with her. She suggested that after little or no attendance of classes; “except in the case of open learning”. Alternatively the clause could be deleted completely as the concern had been raised that DHET had to simplify the language in that context.
The NQF Act held the Minister at DHET responsible for upholding the public credibility of the NQF and with the rise in incidence of fraudulent and misrepresented qualifications, not only was DHET being affected negatively but SA as country was being affected and DHET believed there was a need to intervene with punitive measures in that regard.
DHET said that the Protection of Personal Information Act (POPI) permitted that personal information included information relating to education; furthermore because the NQFAB did not prohibit SAQA from delegating any of its functions to any other body for purposes of capacity. POPI referred to operators who could be persons acting on behalf of a responsible body, in which case that would be SAQA; and if SAQA entered into an agreement with an operator for processing (receiving, collecting and disseminating or retrieval ) of information, that was permissible. SAQA would remain custodian of the information and not the operator.
Ms Aadilah Arnold, State Law Advisor, added that clause 4 (e) did require the Committee to contemplate every possible scenario of open learning. Section 38 of POPI provided an exemption in respect of certain functions. It said that personal information processed for the purpose of discharging a relevant function was exempt from section 11 (3) and (4), 12, 15 and 18. In any case to the extent to which the application of listed provisions to the personal information would be likely to prejudice the proper discharge of the relevant function. Section 38 also spoke to dishonesty, malpractice or other serious improper conduct by or the unfitness or incompetence of persons authorized to carryon any profession or any other activity. It could therefore be argued that presenting a fraudulent qualification made one incompetent to carry out a professional activity.
Dr Bozzoli said the requirement that all employers, education institutions, skills development providers and QC’s must check if the qualiﬁcation or part-qualiﬁcation which is presented to them for purposes of study, employment, appointment or any other related purpose, is registered on the national learners’ records database and if not, refer such qualiﬁcation or part-qualiﬁcation to the SAQA for veriﬁcation or evaluation; if that was to be law how would it be enforced? How would DHET check whether each employer was checking the NLRD? Did that not the law weak as she could not see how DHET would enforce the NQFAB?
Mr Van der Westhuizen said the complete list or characteristics that SAQA in clause 4 (e) had to verify or evaluate against seemed negative as if when SAQA did the evaluation it had to look for disadvantages only. For him, if an institution was globally recognised as well as recognised in its country of origin to provide learning that was something to be considered as priority one when verifying a foreign qualification. The pros and cons had to be considered and not to query only the negatives; and did not that make it bad law to do that.
Ms Killian said the details raised by Mr Van der Westhuizen would still be considered by the Committee as the process was not final at that stage.
Adv Boshoff said DHET believed the NQFAB was very necessary as the NQF was a high risk area where SAQA already operated regarding fraudulent and misrepresented qualifications. If verification was not sanctioned through an Act of general application as the NQFAB sought to do, verification would be affected by POPI as SAQA otherwise would have to get consent as it would not be able to rely on any other justification that was by a legal occupation. It was a desirable piece of legislation.
The Chairperson said Dr Bozzoli probably would have to clarify as probably she was not talking to the response DHET had just given.
Dr Bozzoli said her question spoke to the NQFAB requiring every employer to check every application for work received as to whether each certificate presented was on the NLRD. That would require a person in the employ of ABSA to look at the NLRD verifying whether the submitted qualifications of the 150 plus people applying for a specific vacancy were on the NLRD or not. How would that be enforced?
Dr Lloyd replied that all learner achievement records, irrespective of whether the individual was employed or not were recorded on the NLRD, there were 94 million unit standard records, 18 million individual full qualification learner records and currently the QCs were undertaking a big digitization project to look at pre-1992 qualifications and bringing them onto the NLRD. The QCTO had gone back as far as 1922 big books with SAQA at pre-1994 teacher education qualifications.
The Chairperson interjected that Dr Bozzoli’s concern was that DHET was bringing additional obligations upon SA and employers specifically.
Dr Lloyd said DHET acknowledged that indeed the obligations were there but, such was the severity of the problem as there currently were four pieces of legislation in operation which referred to fraudulent and misrepresented qualifications without the NQF. Therefore DHET intended to have companies, and the general public to have the good intention to be certain that fraudulent qualifications were curbed effectively.
Adv Boshoff read NQFAB clause 32A. (1) Except for those categories of employees who are speciﬁcally exempted from the provisions of this section by the Minister by notice in the Gazette.
- With the implementation phase the Minister at DHET could limit which qualifications the employers checked and verified and there were two reasons for that. First was to ensure that the learner qualifications database was all inclusive as currently that was one of the problems. A proper system could only exist when one had a mechanism to ensure that every record was populated on the database. If a bottleneck arose the Minister could then provide categories to be excluded. DHET was satisfied that because of the directive given to the public service all those employers could already be excluded.
- Secondly if an employee ran the risk of presenting a fraudulent qualification even if an employer would not check, the potential employee would not know that the employer would verify the qualification or not and that alone would serve as a deterrent. DHET believed employers would verify as the process to logging onto the NLRD to verify had been quite simplified and the NQFAB was no unimplementable DHET believed.
The Chairperson summarised the process up to that point the Committee had undertaken regarding the NQFAB. She would allow the Committee to suggest a way forward.
Ms Killian said in terms of rule 286 subsections 4 (i) and 6 (b) of version 9 of Parliamentary rules book, she was moving for the adoption of desirability of the NQFAB after having considered the principle and objects of the NQFAB.
Ms Mchunu seconded the motion by Ms Killian.
Mr Van der Westhuizen said although he supported the purpose of the NQFAB, the approach to curbing fraud related to qualifications would require so many amendments to the NQFAB to make it desirable that the DA could not support the desirability of the NQFAB in its current form.
Dr Bozzoli reiterated and supported Mr Van der Westhuizen on the non desirability of the NQFAB as it was and proposed that motion of desirability be put to a vote.
The Chairperson said she was confused by what the members of the DA were actually saying.
Mr Van der Westhuizen replied that his political party believed that the NQFAB had to be redrafted anew completely; hence its rejection to the desirability of the NQFAB but it would certainly continue participating in the process going forward.
Mr M Wolmarans (ANC) said he also supported the adoption of desirability of the NQFAB.
The Chairperson noted that the motion of desirability for the NQFAB had been passed by the Committee and the bill would proceed and read the motion.
The Committee would go into clause by clause deliberations in future and reviewed the following meetings work.
The meeting was then adjourned.