National Qualifications Framework Amendment Bill: consideration

Higher Education and Training

30 October 2018
Chairperson: Ms C September (ANC)
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Meeting Summary

The Portfolio Committee on Higher Education and Training considered the amendments made to the National Qualifications Framework Amendment Bill. It did not adopt the Bill because it wanted to the check the costs that were associated with it.

The Committee went through the Bill, clause by clause. It deliberated on the definitions; clause 4, which dealt with the verification of qualifications or part-qualifications; clause 5, which dealt with giving advice to the Minister and accreditation of skills providers; clause 6, where it was proposed there should be provision for multiple professional designations on the same register, because in future some professional bodies might want to register more than one professional designation; clause 7, where it was proposed that that the inserted 32A should be scrapped in its entirety, and that 32B be cleared of all grammatical errors and redrafted to state in a simple language what constituted fraud; and considered clauses 8 and 9 that dealt with the long and short titles, respectively.

The Committee agreed it would take ownership of the amendments.

Meeting report

The Chairperson took the Committee through the National Qualifications Framework Amendment Bill, clause by clause

Ms J Kilian (ANC) commented that the definitions were an improvement, making it clear the institutions had to be registered with the Department of Higher Education and Training (DHET) and be accredited by the Quality Council. She said some of the institutions had requested additions to the definitions. For example, the Durban University of Technology (DUT) had proposed specific definitions for ‘offering’ and ‘programme’ to be considered by the Committee. On clause 2 (2), she said the clause was limiting what the piece of legislation could cover.

Mr P van der Westhuizen (DA) suggested that qualifications should be listed on the learner records database.

Dr Shirley Lloyd, Director:  National Qualifications Framework (NQF) Directorate: DHET, said the learner record database was also providing assessors and programme as well, not only the learners' academic records.

Dr B Bozzoli (DA) said clause 2 was proposing that every private institution should be registered with the Department, but indicated that not all private institutions could be registered with the DHET.

Clause 4

Dr Lloyd said that section 4(b) suggested one must get registered on the list when one’s designation had been achieved and awarded, but if one had not received one’s designation, one would not be on the list.

Mr Van der Westhuizen remarked that one’s qualification would stay with one for the rest of one’s life. But with other fields like medicine, one could be removed by the relevant bodies if one had not paid one’s dues.

Dr Lloyd said once one was on the register, one remained there, but a regulatory professional body could remove one from the register on grounds of misconduct if it had been seen that one had tarnished the name of the profession.

Ms Kilian wanted to know what the reason was for removing the professional designation if section 6 was going to be removed.

Adv Eben Boshoff, Chief Director: Legal Services, DHET, said one’s qualification would always remain with one for the rest of one’s life, but the professional designation could be taken from one by the professional body.

Mr Van der Westhuizen said they needed to define what was meant by “learner achievement.”

Ms B Ndlovu (ANC) agreed with Mr Van der Westhuizen, because a learner could be a person from Grade R to Grade 12.

Adv Boshoff reminded the Committee the legislation was about qualifications, not about achievements. Achievements had to be linked with the achievement of a qualification, and one needed to comply with the standards of that qualification in order to achieve one’s qualification.

Mr Van der Westhuizen said certain institutions were qualified to award qualifications while others just provided training for assessment and the award was done by the Qualification Council.

Dr Lloyd said the Qualification Council was awarding certificates and qualifications for sector education and training authorities (SETAs), while Umalusi was awarding matric certificates.

Dr Bozzoli wanted to know if SETAs were not certificate-awarding institutions.

Adv Boshoff replied that the Quality Council for Trades and Occupations (QCTO) was the one awarding, but SETAs had accreditation from the QCTO to award the qualifications.

The Chairperson suggested the legal advisors should double check this matter.

Ms Kilian said section (c) wanted to make provision for three separate registers. The only issue she thought about, referred to maintaining the three separate registers, and there might be some delays. She said this item needed to be fine tuned.

Mr Van der Westhuizen said he had problems with section (e) of the South African Qualifications Authority (SAQA) and how it looked at the qualifications, because it had to consider other things. Some of the criteria were irrelevant and needed to be revised. For example, a PhD did not need attendance at classes.

Ms Kilian agreed with Mr Van der Westhuizen, stating that some of the criteria should be broken down into sub-sections. This item was clumsily drafted, and it was better to clean up the wording in this sub-section.

Adv Boshoff said it was important that they deal with this to provide a clearer draft for the Committee to consider.

The Chairperson said they had indicated before that this should be changed, taking into consideration the changing nature of education.

Mr C Kekana (ANC) felt it was impossible to say everything in an Act, but an indication of how to improve things should be provided.

Dr Bozzoli said this section had aroused a great deal of response among the submissions. SAQA had stated this section fitted better in the regulations than in the law. She suggested the section be deleted and be dealt with in the regulations.

Dr Lloyd said they would look into this matter and report back to the Committee.

Mr Van der Westhuizen commented that when they looked at foreign qualifications, they needed to ask themselves if the qualifications were recognised in the country of origin and if the university that offered that qualification was recognised in its country of origin. The same should be applied to local qualifications. The issue of paying money should not be the main thing.

Ms Kilian said there should be clear indications of what the outcome should look like.

Adv Boshoff said they would provide better wording and make changes to the section. The intention was to provide a framework where an institution or employer could go to the register and see if the qualification was authentic or compliant to the standards of SAQA. The intention was not to paint the certificate holder as a fraudster if there had been misrepresentation of the certificate by the institution.

Mr Van der Westhuizen asked why the qualification could not be registered instead of the name of the certificate holder, because it was the institution that was supported to be listed in the register.

Ms Kilian suggested it was important to find a balance between the institution and the individual, because sometimes institutions failed the individuals by offering a qualification that it was not accredited to offer.

Adv Boshoff said it was unfortunate, because they were dealing with a document which was in the hands of a holder. One could not delink the holder from the problem. One had innocent people who were caught up in the problem. The problem they were trying to address was the qualification that was not complying with the standards. The individual and the qualification must be addressed. The intention was to provide for the integrity of the NQF to register the qualification.

Mr Mbulelo Ruda, Parliamentary Legal Adviser, said the registers were trying to address the misrepresentation of certificates issued erroneously, and the individual misrepresenting the qualification.

Dr Bozzoli suggested the Committee needed to define the word ‘misrepresentation’. If a person was seen to be misrepresenting the qualification, then that meant that person was a fraudster.

Ms Kilian proposed the Committee should try to find a way of combining ‘misrepresenting’ and ‘unauthentic’. There was a need to protect people who worked hard to obtain authentic qualifications. She suggested ‘authentic’ should be used in the body of the legislation.

Mr Van der Westhuizen indicated that a ‘fraudster’ in this case was the educational institution that took people’s money and their dreams, only to discover that three years down the line that certificate was going to be useless. There must be severe punishment for CEOs of institutions that offered qualifications that were not accredited.

The Chairperson stated there were particular steps that were not in the legislation that were supposed to address the problem. The legal advisers of the Department and Committee should approach this matter from different angles.

Mr Martin Mulcahy, Ministerial Advisor: DHET, said the conversation was pointing out there were certain areas that needed to be protected - the institution and the individual/victim.

Dr Lloyd said the discussion had highlighted that the onus issue should be carefully tackled, because it was both public and private institutions that offered bogus qualifications and there was a person who was caught up in the process.

The Chairperson said the discussion was stating there was no comfort in this area, and this required further formulation which would take into consideration the intention of the Bill.

Ms Kilian indicated they did not have an issue with the principle, but they wanted to ensure they fought the mischief and protected the NQF and did not get into the trap that all who came with misrepresented qualifications were innocent. It was important to look at the details and see how the points raised could be resolved.

Dr Bozzoli indicated the NQF should address those who offered unauthentic qualifications and there should be a clause in the Bill about that.

Adv Boshoff said the issue was to make it clear the functions of evaluating and verifying what the responsibilities of SAQA were.

Clause 5

Dr Bozzoli said she had concerns with (f). She had objected earlier that it was not SAQA’s responsibility to advise the Minister, because SAQA could give the Minister different advices. She was not sure if “in consultation with SAQA” meant just an engagement.

Ms Kilian said SAQA’s responsibility was to manage the NQF. There was a very clear hierarchy that had been established about the different institutions in relation to SAQA.

Adv Boshoff said when one was dealing with collaboration, one needed to have a system that spoke to one another. If one relayed an advice that came from different sources to the Minister and discovered the advice did not gel, it would then put the Minister in a bad light. Cohesion was very important. This amendment was dealing with matters related to theNQF, not the Higher Education Act. This amendment was not encroaching on the Higher Education Act.

Dr Bozzoli wanted to understand if “in consultation” meant one agreed with what was being said, or if one just listened and stuck with one’s views.

Dr Lloyd said it meant that all parties had to be in agreement about what was discussed.

Mr Van der Westhuizen said that by adding b (iv), they were adding more responsibilities to SAQA and Quality Councils. The function of accrediting institutions was a formidable challenge, and that meant one would have to cover the rest of SA. Some of the institutions were not issuing certificates, but only providing skills training to students on behalf of other institutions. His concern was that they were stepping into daunting territory. For example, if he showed somebody how to weld, then he should be able to do welding. What would count against him, was when the person he had shown how to do welding did not pass the assessment, and then he is told he could not show people how to weld because he was not accredited.

Ms Kilian disagreed with Mr Van der Westhuizen, saying there was no function being added for Quality Councils. All they were saying was to clarify what their main purpose or role was, of accrediting the institutions or skills providers because they were the custodians of quality within their sub-frameworks.

Dr Bozzoli wondered if the 21 SETAs were included in these processes, because one SETA had 23 providers. She was aware that the process of addressing the SETAs had begun.

Dr Lloyd said that the Assessment Quality Partners (AQPs) were accrediting formal training providers, and non-formal training providers were not accredited by the QCTO, though it had the responsibility for looking after the SETAs. If a QCTO was taking that responsibility of providing formal training, 10% of administration money from the SETA system would go to the QCTO for providing that function. The SETAs were included in the process. What was important was to link educational institutions with qualifications compliant to the standards.

Dr Bozzoli suggested the insertion of “formal” before “provider.”

Mr Mulcahy said that all qualifications and part-qualifications were formal already. The adding of “formal” was not adding any value to the clause. The issue here was that if one was offering a qualification or part-qualification, the Higher Education Act says one can offer a trade and occupational qualification, but one must be accredited by the QCTO because there were different sub-frameworks, and an institution was accredited by the sub-framework that dealt with the qualification of that Quality Council. That accreditation had to comply with the sub-framework.

Mr van der Westhuizen asked who said all training providers should be accredited. He wanted to knnopw if there was a need to accredit a person who was helping somebody to do a trade test.

Mr Mulcahy said if there was a school down the road offering trade and occupational qualifications, that evaluation would be considered by Umalusi because the accreditation of a qualification was part of the NQF. This was not something new. Whoever was dealing with qualifications, the Quality Council had to ensure the qualification was compliant to the standards.

Mr Van der Westhuizen pointed out they were their biggest enemies, because they kept on blaming the institutions for not being in touch with what the industry was doing. His concern was that they were bringing something that was going to limit people’s chances of being trained and certificated to prove they were capable of doing work.

Mr Kekana agreed with Mr Van der Westhuizen that in their communities there were electricians who gained work experience by working with qualified electricians. The qualified electrician would access the work of the unqualified person and give him the go-ahead to do work independently.

Mr Van der Westhuizen said the issue here was that when one was providing a service to someone else, one had to be compliant. Skills providers were educational institutions. The experience of the person who got a skill from his father or a qualified electrician could be culminated into a formal qualification, but still that person had to be assessed by a formal structure in order to get to the formal stage. When one dealt with accreditation, one wanted to show the world the formal outcome. Skills development was talking of theory, practical workplace experience, and a certificate. The employer provides workplace training and is also accredited to provide the formal outcome. The main thing was to strengthen the different pieces of legislation to be consistent with one another to avoid mischief.

Clause 6

Mr Mulcahy informed the Committee that they had a single NQF which dealt with the registration of qualifications and the registration of professional designations. He said that a professional designation was not a qualification. Putting a professional designation in a National Qualifications Framework was to give expression to the NQF, and the professional designation was a separate register from the NQF.

Mr Van der Westhuizen proposed there should be provision for multiple professional designations on the same register. In future, some of the professional bodies in SA might want to register more than one professional designation, if that was not already happening, because it was done in the USA.

Ms Kilian seconded the proposal, stating that the Department had agreed to reword the phrase suggested by SAQA.  

Clause 7 (Insertion of 32A and 32B)

Ms Kilian suggested the insertion of “a” before “Referral of qualifications.”

Mr Van der Westhuizen wanted to know the kind of employees that would be exempted by the Minister, and suggested that the employees must be checked against a learner database. He suggested the whole paragraph should be removed.

Ms Kilian said the Committee needed to know what the drafters had in mind when they drafted the paragraph. If one looked at the public and private employers, this had to be phased in in the new appointments. She wanted to know what mischief the Department wanted to curtail with the paragraph.

Dr Lloyd said they would look at re-wording the paragraph.

The Chairperson said the ‘elephant’ in this section was the word “‘must.” She asked what difference it would make if it was substituted by “may.”

Adv Boshoff explained the intention behind this was to provide a safety net. In the end, the rationale was to ensure they got an NQF learner database that was functional and prepared for a rollout of this database with fine records. This would clean up the system and ensure that people were offered valid and authentic qualifications.

Mr Van der Westhuizen remarked this was a breach of personal information, because to check one’s qualifications one had to have one’s identity number and name, and have access to the database. That should rather be done by SAQA. He suggested “must” should be replaced with “may.” He did not support the paragraph in its current format. The legislation must make it easier for people in this country to find employment.

Ms Kilian said she took note of Mr Van der Westhuizen’s concerns. She felt there would be administrative challenges. They had examples of individuals who claimed to have qualifications that were non-existent. It had happened in Tshwane, where an official had been appointed without proper qualifications and this had been a huge embarrassment to the DA. She did not think there would be anybody who would be against tightening controls, and this would not in any way prevent people from finding jobs. The paragraph needed to be reworked, and they should not spend time discussing whether to use ‘must’ or ‘may’. She suggested that when they thought of categories of employees, they needed to start at all public institutions. For example, how did one explain a history teacher becoming a financial manager of a municipality? The legal minds, she suggested, should resolve the paragraph without taking the compulsory nature of this piece of legislation.

The Chairperson indicated a matter had been discussed where a person was getting two salaries from two provinces, though he was not a medical doctor. The Bill was guarding against such fraudulent activities which were rampant in the public service.

Ms Kilian suggested that all grammatical errors in 32B should be fixed so that it was clear to everyone that fraud was punishable. She did not have problems with the principle regarding fraud. There should be fines applicable to fraud. This clause was clumsy and required redrafting to state in simple language what constituted fraud and indicate it was punishable so that it was clear when one had done wrong, one would be punished for fraud.

Dr Lloyd said this section was not dealing with fraud per se, because fraud had a specific intent which had to be justified before a court of law. In this section, they were dealing with and identifying specific actions or offences related to a presented qualification which was not compliant. In this case, people were not fraudsters, but had chosen to take short cuts to enter a profession without complying with the qualification needed for the profession. That was why the different offences were comparable to fraud.

The Chairperson asked if the intent was to make this a criminal Act. She wondered if the sanction was consistent with criminal law, because this section was talking of a fine or conviction that would be imposed by a court.

Adv Boshoff said what was listed there constituted criminal offences. Every crime required a sanction. He would double check the matter.

Ms Kilian said guidance regarding this matter could be taken from the PFMA.

The Chairperson said she would not like the Committee to create a criminal law that was non-existent, but people should be punished for wrong actions. She asked the legal advisors to relook section 7 (a) and (b) and advise the Committee.

Clause 8 - Long title

The Chairperson said there were concerns about the long title, especially the exclusion of the Quality Councils.

Ms Kilian said the title was clarifying the extended or added functions of the Quality Councils and SAQA which had already been there. They were not providing functions, but only extending them.

Mr Van der Westhuizen said the Committee was now amending the title of the Principal Act. The Principal Act of 2008 provided for Quality Councils and SAQA. The Quality Councils were not there before. In that respect, he differed from his colleagues.

Mr Kekana said when an Act was being amended, it was only certain clauses that changed. Amendments did not mean the whole Act changed. There was no need to worry about amendments.

Mr Ruda said grammatical errors would be looked at, and indicated that additions or amendments to the Act had been underlined.

Adv Boshoff stated the long title was a reflection of the amendments made to the Bill.

Clause 9 – Short title

Members agreed with the short title.

Mr Kekana recommended that the Department should be allowed to make the amendments suggested by Members and report back to the Committee for further adoption.

The Chairperson proposed that the Parliamentary Legal Advisor should take the leadership and consider all the proposals discussed by Members and make amendments accordingly, while working jointly with the state law advisors. She indicated they would not pass any legislation where finances had not been checked. Any piece of legislation must have financial implications. She recommended the Committee take ownership of the Bill.

The meeting was adjourned.
 

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