The Committee met to consider and discuss the National Qualifications Framework Amendment Bill [B20-2018].
The Committee felt that since at least three stakeholders had bemoaned the definition of ‘authentic’ as being vague and creating confusion, it wanted to know whether the newly drafted definition covered all the possibilities of inauthenticity. It also agreed to ‘legally,’ in sub-clause 1 (a) (a) (iii), being replaced with ‘lawfully’
It asked whether the definition would cover institutions which facilitated qualifications through a secondary institution, which was not actually offering any qualifications themselves. Would the definition specify that the former institution would have to ensure that the latter -- and offering -- institution was registered and accredited? For example, an entity was being established in the telecommunications department which would offer information communication technology (ICT) skills through other institutions -- how would the NQF amendment compel that entity to ensure that it worked through accredited and registered institutions?
A provider had approached the Department wanting to use a syllabus drafted in England by one of the top skills providers in that country, to teach a skills course in SA, and the South African Qualifications Authority (SAQA) had provided all sorts of challenges to the local provider, as it had wanted to accredit the institution in England. Because of the whole situation currently in SA, someone with a qualification from that English institution would possibly be holding an inauthentic qualification because of sub-clause 1 (a) (b). Did the sub-clause mean that SAQA simply had to just have sight of the qualification, or did the word ‘evaluated’ mean SAQA had to accredit the institution which had offered the qualification?
The Committee also wanted to know whether the use of the word ‘ includes’ in the definition of ‘fraudulent qualiﬁcation or part-qualiﬁcation’ did not mean things that were listed, without excluding further things that were not listed in the definition. Moreover, there had been a suggestion that ‘declared’ be replaced with ‘confirmed’ within that same definition. Were the proposals necessary, or was the definition succinct?
National Qualifications Framework Amendment Bill [B20-2018]
Dr B Bozzoli (DA) said that three stakeholders had itaken ssue with the definition of ‘authenticity’, including the South African Qualifications Authority (SAQA) and Universities South Africa (USAf), formerly known as Higher Education South Africa (HESA); and had noted that the definition was vague and created confusion. USAf had said that several things which were not defined would fall under ‘authentic,’ including, fake, falsified, bogus certificates, qualifications obtained dishonestly, non-accredited institutions and institutions or organisation that sold bogus or fake qualifications. Did that definition cover all those possibilities of inauthenticity?
Ms J Kilian (ANC) said if the Committee wanted to redo proper phrasing of the definition of ‘authentic,’ it had to ensure it did not complicate the definition too much. She cautioned that she would prefer to deal with authentification of a document, and not who had issued it or who was presenting it.
Advocate Eben Boshoff, Chief Director (CD): Legislative Services, Department of Higher Education and Training (DHET), said the DHET believed that the definition of ‘authentic’ had to be as simple as possible, to focus on the face value of the instrument. It would be irrelevant who was presenting the document, but important would be a claimant who would be presenting a document which was misrepresenting or inauthentic, and this was the principle which the DHET sought to address.
Mr Mbulelo Ruda, Legal Advisor, Parliament, said he believed the concerns raised by the stakeholders were covered in the definition of ‘misrepresentation’. Subclause 1 (a) (a) covered three objective grounds for authenticity.
Adv Boshoff picked up on subclause 1 (a) (a) (ii) which spoke to registered and accredited education institutions, whereas public education institutions were not registered, but rather established or declared after mergers as well. The DHET would add that to the definition as well.
Ms Kilian asked whether the definition would cover an institution which facilitated through a secondary institution qualification, without actually offering any itself. Would the definition specify that the former institution would have to ensure that the secondary and offering institution was registered and accredited?
For example, an entity was being established in the telecommunications department which would offer information communication technology (ICT) skills through other institutions; how would the national qualifying framework (NQF) amendment compel that entity to ensure that it worked through accredited and registered institutions?
The Chairperson proposed that Ms Kilian’s concern be left to the Departments of Telecommunications and Communications.
Mr D Kekana (ANC) said his experience was that normally when someone trained others, the trainer looked for an accredited institution to offer the training so as to ensure authenticity of their qualifications at the end.
Adv Boshoff replied that if the provider or trainer was working in collaboration with a registered or public education institution, the certification for higher education would be in terms of the Higher Education Act (HEA). If the certification was for an occupation, then certification would be through the Quality Council for Trades and Occupations (QCTO). If it was an UMALUSI certification, the DHET would be responsible for certification. Certification therefore was linked to the offering through the institution regulated through those listed frameworks.
Ms Kilian said that it had been suggested by the DHET that at subclause 1 (a) (a) (iii), ‘legally’ be replaced with ‘lawfully,’ and she supported that substitution.
Ms Aadilah Arnold, State Law Advisor, Office of the Chief State Law Advisor (OCSLA), said the replacement and substitution sounded more semantic to her, as either term could work.
The Chairperson said the Committee would flag the proposal for later deliberation to clarify any ambiguities.
Adv Boshoff said ‘authenticity’ was quite linked to the outcome and because of that, if it was ‘lawfully’ obtained, then the said qualification was complaint with the prescripts of the law, whereas ‘legally’ could have a slightly different interpretation, which was why the DHET believed there was a difference in meaning, also depending on the context.
The Chairperson said her ruling remained unchanged -- the Committee would review and return to the sub-clause for further consideration.
Dr Bozzoli said the provider which had approached her had wanted to use a syllabus drafted in England by one of the top skills providers in that country, to teach a skills course in SA where SAQA had provided all sort of challenges to the local, as it had wanted to accredit the institution in England. Because of that whole fracas currently in SA, someone with a qualification from that English institution possibly would be holding an inauthentic qualification because of subclause 1 (a) (b). Did the sub-clause mean that SAQA simply had to just have sight of the qualification, or did the word ‘evaluated’ mean SAQA had to accredit the institution which had offered the qualification?
Adv Boshoff replied that in the current legislation, if a provider offered a qualification in SA, it was accredited by SAQA through a recommendation by the Quality Councils (QCs). If a qualification was offered outside of SA it would then be evaluated as an equivalent to a South African quallification. The difficulty was not whether it was accredited or evaluated, but where the actual offering was to have taken place; if it was a domestic institution which was offering, with content from an institution outside the country, then it was important to have the qualification evaluated for compliance with the standards and requirements of qualifications at the said level on the NQF within any of the sub-frameworks. Principally, there was no problem in the domestic provider presenting the offering for accreditation and offering in SA, but if it was offered by a foreign institution and certified by same foreign institution as an underlying qualification, that was very difficult to deal with. The issues arose when the institution was in England and the offering was over the internet, and where the evaluation was also in England currently, then that qualification was a foreign one because it would have been obtained there. The current law provided that the qualification would be evaluated against where on the NQF sub frameworks an equivalent could be found for recognition, and not as a qualification in SA, but recognised as a foreign acquired qualification.
Mr Mathews Mokhele, Senior Legal Administrative Officer, DHET, said that a reading of the definition of ‘authenticity’ as per subclause 1 (a) (b) spoke to foreign qualifications. When considering ‘evaluation,’ that meant that a qualification had to pass the test of authenticity as already outlined in sub-clauses 1 (a) and (b).
Dr Shirley Lloyd, Director: NQF Directorate, DHET, said the Department had dealt with City& Guilds (C& G): Vocational Education and Apprenticeships for some time. C & G had had qualifications which had been offered through SA education institutions, and the QCTO was the responsible quality council (QC), which was perfectly legal within the NQF Act. What had followed was that the England-based equivalent of SAQA had then started accrediting the SA office of C & G to be a fourth QC function, as a QC in SA, and accrediting providers in SA to deliver C & G qualifications. That fourth stream had no place in the NQF Act, and the DHET had requested C & G to design new qualifications in conjunction with the QCTO which would then have comparability in SA and abroad. That probably was where confusion had arisen, and the DHET had then suggested to the students who had gone through the C & G courses to go through SAQA’s foreign valuation directorate and submit their qualifications to get equivalent certificates as interim measures until the new qualifications had been designed. Those students had not been happy with the response, where unfortunately the legal framework could accommodate only that solution in terms of the authenticity of the qualifications. Certainly the qualifications were authentic in England and were offered elsewhere in the world, but evaluation in SA had to be procedurally processed.
Mr Kekana said that surely not all qualifications in England were the same, especially where the private sector was allowed to establish educational institutions. It could not be that just because C & G was from England that the SA government was expected to rubber stamp their qualifications as authentic. It was important that SA evaluated the foreign qualifications to see if they met SA standards.
Ms Kilian said it was astounding that some foreign institutions had the audacity to believe they were beyond reproach, but every country had a right to look after its qualifications framework. It was good that people had the assurance that the government would protect them from subscribing to curriculums that would result in certification that had no value in SA.
The Chairperson asked whether Adv Boshoff still stood by the proposal he had made regarding sub-clause 1 (a) (b).
Adv Boshoff replied it was important that no matter who claimed to have acquired the qualification they were presenting, the qualification had to comply with the NQF standards. After discussions and having received comments from USAf, the DHET still was proposing that the Committee should not accept the rationale of USAf, because the issue was that the standards were applied to the qualification and not the individual. The NQF Amendment Bill was dealing with misrepresented and fraudulent qualifications which did not comply with the standards in the NQF system.
The Committee accepted sub-clause 1 (b) without amendment.
Ms Kilian said a valuable comment had been made earlier, that the term ‘ranking’ had a different meaning in sub-clause 1 (c) and had to be substituted. The DHET had suggested that ‘ranking’ be substituted with ‘placement’ within the SA NQF, and she believed that made sense. She recommended that the Committee adopt the proposal by DHET in that regard.
The Committee agreed to adopt the substitution of ‘ranking’ with ‘placement’.
Foreign institution definition
Dr Bozzoli said that SAQA had indicated that there was no definition in the HEA or the Continuing Education and Training Act (CETA) for ‘foreign institution,’ but that definition was in the Further Education and Training Colleges Act (FETCA).
Adv Boshoff said that the FETCA had been amended to Further Education and Training Colleges Amendment Act 1 of 2013, with a name change as well to CETA, and therefore had been correctly reflected in the NQF amendment bill.
Ms Kilian proposed that the Committee retain the definition of ‘foreign institution,’ as outlined in the bill.
The Committee adopted the definition unchanged.
Fraudulent qualiﬁcation or part-qualiﬁcation
Ms Kilian asked whether the use of the word ‘ includes’ in the definition of ‘fraudulent qualiﬁcation or part-qualiﬁcation’ did not mean those listed things, without excluding further things that were not listed in the definition. Moreover, there had been a suggestion that ‘declared’ be replaced with ‘confirmed’ within that same definition, and she supported that. Were the proposals necessary, or was the definition succinct?
The Chairperson recalled that stakeholder input had been that the list within the definition had been too narrow, and excluded other awards.
Adv Boshoff replied that the DHET had noted in the presentations that there had been so called ‘historical qualifications’ which did not use the terminology used in the list -- like degree, diploma or certificate, and other unit standards -- which had been why ‘includes’ had been used, as it widened the list of unit standards or qualifications which were identified and recognised.
The Chairperson believed that ‘but not limited to’ would have sufficed, as the use of ‘includes’ would invite a whole plethora of categories of qualifications. Furthermore, the QCs repeatedly had reported on how their litigation bills had increased because of legal challenges on evaluations and accreditations.
Adv Boshoff replied that the aspect which the NQF amendment bill was addressing had to be an outcome of fraud which would have been dealt with by a court of law through a criminal law system. A criminal court system had no cost implications for SAQA, as it was a justice department within its budget outcome, and a misrepresented qualification remained misrepresented until a court declared it otherwise. Moreover fraud was a specialised crime dealt with by specialised security units.
Mr Ruda said his understanding was that someone would be presenting some form of document as a qualification, therefore ‘includes’ could be deleted completely and the included list of documents also did not need to be extended as use of ‘qualification or ‘part qualification’ covered the list of whatever document a holder would be presenting.
Ms Arnold agreed with Mr Ruda that ‘includes but not limited to,’ as was being proposed, extended the list of things that could be called ‘qualification,’ whereas a definition had to be succinct and precise.
Ms Kilian asked, whilst rephrasing, whether ‘fraudulent qualiﬁcation or part-qualiﬁcation’ was a degree, diploma or certiﬁcate that was forged or fraudulently obtained, as she agreed that the definition was not supposed to be expanded.
Dr Bozzoli said a degree from a place that was neither certified to teach, or pretended to teach one for a few months and awarded a master’s degree afterwards, was from what were generally known as degree mills. This raised a different question -- did such degrees or certificates not need their own definition?
The Chairperson recalled reiterating that the stakeholders had bemoaned the list within the definition being too narrow and excluding other awards. She required that whatever the Committee did would be explicit and would not open the bill to any further interpretation ambiguities.
Adv Boshoff replied that degree mills were places where learning would have occurred, but which were non-compliant with NQF standards. Secondly, such misrepresented qualifications would then be short of criminal intent, which was what the NQF amendment bill would have regarded as deliberately deceiving someone. That outcome, however; was something that a court would determine. The DHET was proposing that the Committee accept the definition of misrepresented qualification or part-qualification as had been presented by SAQA, as it was simpler and it read: ‘a qualification or part-qualification would have been misrepresented if it had not been authentic or the SAQA certificate of evaluation had been erroneously awarded or altered in any way’. That definition dealt with authentification and the non-compliance with NQF standards.
Ms Kilian felt that the principal Act covered a definition of a qualification where it read: ‘‘qualiﬁcation’’ means a registered national qualiﬁcation. Additionally, she felt that the NQF amendment bill also spoke to the other awards which the stakeholders had felt had not been covered, because an award of a learning programme could also be described as a part-qualification. She proposed that the Committee accept the earlier proposal from the drafters which could read: ‘fraudulent qualiﬁcation or part-qualiﬁcation’ was a degree, diploma or certiﬁcate that was forged, or fraudulently obtained’.
Dr Bozzoli maintained that she required a provision defining degrees and certificates from degree mills, as it was incomprehensible that someone acquiring such a document could not be described as not having a criminal intent, and only the provider would be seen as criminally liable, apart from the buyer of such a document. ‘Fraudulent’ had to include inauthentic for the passage to read: ‘fraudulent qualiﬁcation or part-qualiﬁcation’ includes a degree, diploma or certiﬁcate that is forged, fraudulently obtained or ‘inauthentic,’ awarded in contravention of this Act.
The Chairperson said she would allow the Committee to debate the principle first on Dr Bozzoli’s proposal.
Mr M Wolmarans (ANC) agreed with the principle to criminalise those who willingly bought bogus certificates, together with those that sold them. However; he said there was a thin line between those persons and those that would have been duped into believing they were reading for a qualification --inauthentic as it would turn out later, but that would have to be determined by a court. Certainly the institutions selling inauthentic qualifications had to be criminalised.
Ms Kilian asked whether ‘fraudulently obtained’ had not already covered Dr Bozzoli’s concern, and that intent would have been shown before and determined by a court.
The Chairperson said in general it was known what grades constituted basic education in SA. It was further known by South Africans what post-matric studies entailed, though the Sector Education Training Authorities’ (SETAs’) accredited qualifications were lesser known. At what point would someone not have known which way to go in acquiring a particular qualification?
Mr Ruda replied that indeed, if someone was buying a certificate out of a car boot to present to an employer, the institution was committing a crime and that was covered in the HEA. However, the DHET probably was differentiating that from someone who would have attended a course at an institution for six months of more for a master’s degree, hence the use of the terms ‘fraudulently obtained’ and ‘misrepresented’ qualification. That individual would not have intentionally wanted to defraud anyone, but could have been misled by the provider to believe the course was accredited and authentic. The definition of fraudulent qualiﬁcation or part-qualiﬁcation, as it currently was, covered all of that, he believed.
Ms Arnold said fraud was intentional by its conception and as per the subclause 1 (c), it would have been declared by a court of law that a qualification was fraudulent.
Adv Boshoff said the difficulty DHET had with degree mills was that there was no clear understanding of the extent of their existence. An example was the application for a vice-chancellor position by a well known academic at a public university in SA, who had presented a doctoral qualification the individual had acquired from a public university in the Bahamas. When SAQA had evaluated that doctorate, its equivalent status was a Masters degree, and the issue was that the evaluation was not on the time taken to acquire the qualification or similar ones, but that it fell short of NQF standards. Many people were attempting shortcuts thinking they were legal, when in fact they were non-compliant with the requirements and standards of particular qualifications.
The ordinary understanding of a qualification mill was wherever a provider could provide a qualification in a shorter time and market it as such, compared to the normal route and time that ordinarily would be taken. However; because there was no better definition of degree mills and their extent, it was clear the DHET had chosen rather not to define qualification mills, as that would have required clear content understanding, and had preferred to draft the provision as it appeared -- to deal with fraud, as that was accompanied by intent.
Dr Bozzoli disagreed that the subclause 1 (c) covered everything through the term ‘fraudulently obtained,’ because in the examples given there was the group that offered a Masters degree at six months and there were those that sold it off the street as well. In between those would be X university of the Bahamas, where one could attend classes for a period of less than six months and, according to the rules of that institution, would have complied with the minimum standards for a master’s degree. This was clearly a fraud job and in some instances the student would be deliberately participating in the acquisition of an inauthentic qualification.
Ms Kilian requested the legal arguments for or against including ‘inauthentic’ in the provision. Was the NQF amendment bill adequately capturing institutions and individuals under offences? Could offences and penalties not be brought in at clause 32 (B) of the NQF Amendment bill, as she was not convinced that that had been done to date?
Dr Lloyd replied that ‘inauthentic’ was quite useful, since currently ‘authenticity’ meant compliance by an institution through accreditation by either one of the QCs, or a relevant body in its country of origin. Private providers had to be registered in SA. However; at a recent conference she had attended on open learning, there was emerging a new trend. Where previously there had been a clear definition of degree mills, the current open learning and online courses offered by Harvard, the Massachusetts Institute of Technology (MIT), Stanford and others, had created a difficulty in terms of selling on street corners of qualifications, or even completion of a qualification. That also had an impact on the recognition of prior learning (RPL) or a credible assessment in an RPL process. Therefore she supported the proposal by the Committee to possibly differentiate between a genuine offerer of online courses, and chancers selling bogus qualifications.
The Chairperson suggested that the current debate on ‘fraudulently obtained’ should stand over, because the matter came up again in clause 32B of the NQF amendment bill.
Ms Mchunu agreed with the proposal.
Subclause 1(f): ‘Misrepresented qualification or part-qualification’
Ms Kilian said she supported SAQA’s submission, and had been surprised that DHET was opposing it as the recommendation was a simplification. If an administrative error occurred in the awarding of the SAQA certificate of evaluation, that was what had occurred and that could not then be fraudulent. Could the DHET clarify why it did not support the recommendation by SAQA?
Mr Kekana said there had to be caution exercised in the sub-clause, since alteration of a SAQA evaluation certificate could also be erroneously done by an individual or a provider. He was satisfied with the provision remaining unchanged.
The Chairperson replied that the DHET had said the recommendation from SAQA was verbose. She wanted to know how that was so, as she agreed with the sentiments of Ms Kilian.
Dr Lloyd said SAQA’s original definition had been quite lengthy, opening itself up for interpretation, whereas a simpler, shorter plain language one as had been drafted, was succinct.
Adv Boshoff said that if the intention of misrepresented qualifications was what had prodded it, the key principle was the authenticity of the qualification, where the alternative was that there had been an error. If the two principles were the focus and the initially drafted wording was kept, it would be apparent that individual and other conduct had been included in the definition, instead of dealing with the document which would be presented. That had been why the DHET had relented to the SAQA definition as currently captured within the draft bill.
The Chairperson proposed that because the Committee had been processing only clause 1 of the NQF amendment bill the whole morning, it would probably need to request that it be allowed a whole day to process the bill instead of attending plenary sessions.
Ms Kilian supported the proposal, noting that if there were no Members in the Committee who were also on the Justice Committee, the Committee could start the following afternoon to consider the bill for the rest of the day.
The Committee agreed that the Chairperson should seek permission to proceed as proposed.
Ms Kilian said DHET had suggested a simplification for the ‘national learners’ records database’ definition.
The Chairperson suggested that the Parliamentary legal advisor, together with DHET and state law advisors, would have to redraft the definitions to be in line with the concerns, specifically when the Committee was to consider clause 32(A). She said the staff would communicate with the Committee about the following meeting date.
The meeting was adjourned.
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