The Committee met to continue its consideration and deliberations on the National Qualifications Framework Amendment Bill, dealing with the contents clause by clause.
The Committee heard that the issue around the ‘data format being determined in consultation with SAQA’ was that there would be a possibility of a disjuncture between what the South African Qualifications Authority (SAQA) would have received from a Quality Council (QC) and SAQA’s systems. The provision for consultation between SAQA and QCs would ensure that the data between them would have been jointly determined through a consultation process so that all parties would be aware of the use of the data.
It also heard that ‘qualification’ had a much wider meaning than that contained in the principal Act, which included the matter of foreign qualifications, and that some of the qualifications, although within the NQF, were not according to standards but would be presented as qualifications. However, the process had to be allowed to proceed to determine the authenticity of a qualification or its falsehood. The NQF amendment bill was to deal with the fact that the face value of a certificate would be a qualification, and nothing else. A qualification based on the paper it was printed on was a document that had currency, and the amendment bill was providing that if a document was not compliant with particular standards, it had to be evaluated first without simply discarding the certificate. If a qualification had been awarded erroneously, that would be captured on a register as misrepresented, and if it was fraudulent it would go through the system where a finding would be made and the qualification would be withdrawn. The difficulty came when pre-empting the outcome before the process of evaluation was completed, and the certificate was called something else.
The NQF amendment bill was not dealing with non-formal learning, which the Department of Higher Education and Training (DHET) accepted, acknowledging that it happened widely and had to happen more in terms of skills development. Non-formal learning was defined in the NQF-pedia as planned learning activities, not explicitly designated as learning towards the achievement of a qualification or part-qualification. It was often associated with learning that resulted in improved workplace practice. Such non-formal learning would include continuing education, short education, adult education, continuing professional development (CPD), non-credit bearing courses or popular education.
SAQA had quite clear memoranda of understanding and policy regarding global standards. It would never declare a qualification fraudulent if an individual went to a skills provider to learn how to wire a house without necessarily getting a formal qualification certification of competence to do so. However, at any stage, if that individual wanted to formalise that experiential learning for credit, then recognition of prior learning (RPL) was already a practice that was in use. An example of a Member’s concern was the World Maritime University, which SAQA’s foreign qualifications policy had to date addressed, where in that particular case there was a United Nations (UN) recognised qualification. SAQA’s policy currently said that in such instances, the qualification was recognised unless the context indicated otherwise.
The Committee was concerned that since the NQF was a living document prone to change, qualifications could after a number of years be removed from the framework or be amended. Was it not prudent therefore to include qualifications that would have been previously registered on the NQF? It also recommended that ‘in consultation’ be replaced with ‘after consultation,’ to allow the Council for Higher Education (CHE) room to differ and disagree with SAQA on the NQF and the National Learners’ Record Database (NLRD).
It was contended that sub-clause 32A (1) would hinder employers from offering employment if the obligation was that every application presented to them had to be verified for authenticity through SAQA. It also had the potential to duplicate functions by tertiary institutions, which would be required to submit national senior certificate examination information to SAQA, which would already have received this information from Umalusi. The complete deletion of the sub-clause or the replacement of the term ‘must’ with ‘may’ was proposed. The Committee agreed to retain sub-clause 32A (1), with refinement in the wording and drafting to be included in the A-list and B-list of the NQF Amendment bill.
The Chairperson reminded the Committee that previously it had asked the State Law Advisor, the Parliamentary Legal Advisor and the Department of Higher Education and Training (DHET) legal advisor to draft a response document to the issues the Committee had raised.
Consideration of Definitions
Ms Aadilah Arnold, State Law Advisor, Office of the Chief State Law Advisor (OCSLA), took the Committee through the redrafted definitions, as per the Committee’s request.
She said that there had been disagreement between her and the DHET legal advisor over the definition of ‘skills development provider.’ Her view was that the Continuing Education and Training Act (CETA) did not provide for the registration of a skills development provider, but rather that the provider was accredited through the Skills Development Act (SDA) by the Quality Council for Trades and Occupations (QCTO), and registered with the DHET. The Higher Education Act (HEA) and CETA were not the Acts that provided for the registration of a skills provider, and if the Committee wanted to provide for the registration of a skills development provider, then the SDA would need to be amended to provide for that registration.
The Chairperson asked what Ms Arnold was proposing.
Ms Arnold replied that the skills development provider was currently defined in the principal Act, and her proposal was that the definition for such a provider be left unchanged until Parliament amended the SDA. Alternatively, the Committee could speak to the accreditation by the QCTO.
The Chairperson said the Committee would return to that clause.
Ms Arnold continued reading with the Committee.
The Chairperson interjected, noting that there had been a concern around whether the term ‘evaluation’ or ‘verification’ would be used in relation to the South African Qualifications Authority (SAQA) certificate of evaluation. The Committee would return to that concern as well.
Ms Arnold said that if the Committee wanted to substitute ‘evaluation’ with ‘verification,’ the drafters would have to ensure that in all places in the Bill where the former appeared, the latter would be substituted.
Clause 5 (c)
Adv Eben Boshoff, Chief Director (CD): Legislative Services, DHET, said that the issue around the ‘data format being determined in consultation with SAQA’ was that there would be the possibility of a disjuncture about what SAQA would have received from a Quality Council (QC) and SAQA’s systems. The provision for consultation between SAQA and QCs would ensure that the data between them would have been jointly determined through the consultation process so that all parties could be aware of the use of the data.
The Committee agreed with the proposal.
Insertion of sections 32A and 32B
The Chairperson asked Ms Arnold to explain the imprisonment period, as prescribed in proposed sub-section 32B (7)
Ms Arnolds replied that although not prescribed, the imprisonment period was determined based on particular factors already provided for. The Adjustments of Fines Act regulated how a fine would be determined. She requested that she be allowed to speak to the factors mentioned above when the Committee returned to the insertions.
There was a common law principle that was linked to section 35 (3) (l) of the Constitution of South Africa, which prescribed that there could not be an offence without a penalty.
Other suggested definitions
Adv Boshoff said that of the definitions suggested, and which had been discussed in the Committee and included in the list before the Committee, none would be included in the bill.
Consideration of NQF Amendment Bill [B20-B] clause by clause
Mr P van der Westhuizen (DA) said that “qualification” meant a registered national qualification in the principal Act, whereas his concern about qualifications that were not registered national qualifications, such as a standard industry-issued qualiﬁcation, remained outside of that definition. Was it not contradictory to speak about qualifications that were not registered?
Mr D Kekana (ANC) said the way he understood the issue was that not all qualifications would be nationally registered, and that was acceptable in terms of the NQF Amendment Bill.
Ms J Kilian (ANC) said that the essence of the NQF Amendment Bill was to differentiate between the many other certificates issued as qualifications and a registered national qualification.
Dr B Bozzoli (DA) said that what Mr Van der Westhuizen had been pointing out was that there were two definitions for a qualification – the one from the principal Act as already outlined above, and secondly in the NQF Amendment Bill. The registered national qualification had to be authentic and not just a registered national qualification. Therefore in the principal Act, the definition had to change and reflect the amendment in the NQF amendment bill.
Adv Boshoff said that ‘qualification’ had a much wider meaning than that contained in the principal Act, which included the matter of foreign qualifications, and that some of the qualifications, although within the NQF, were not according to standards but would be presented as qualifications. However, the process had to be allowed to proceed to determine the authenticity of a qualification or its falsehood. The NQF amendment bill was to deal with the fact that the face value of the certificate would be a qualification and nothing else. A qualification based on the paper it was printed on was a document that had currency, and the amendment bill was providing that if the said document was not compliant with particular standards, these had to be evaluated first without simply discarding the said certificate. If the said qualification had been awarded erroneously that would be captured on a register as misrepresented, and if the said qualification was fraudulent it would go through the system where a finding would be made, and the said qualification withdrawn. The difficulty came when pre-empting the outcome before the process of evaluation was completed, and calling the said certificate something else.
Dr Bozzoli said that was the reason Universities South Africa (USAf) had proposed that a disputed qualification be referred to as a ‘claimed qualification,’ since the amendment bill was providing for evaluation of the authenticity of a claimed qualification. The Committee had rejected using ‘claimed qualification’ in the bill, which she did not agree with.
Adv Boshoff replied that using ‘claimed qualification’ did not help, as the disputed document remained a qualification. The issue was about the definition of ‘qualification’. Even with USAf’s proposal and that of Professor Moore claiming a qualification meant the face value remained, and that the document remained a qualification until the end of the process of evaluation, where an outcome would say whether the document was a qualification or not.
Mr Van der Westhuizen maintained that everywhere the term ‘qualification’ was used in the amendment bill, then it had to mean the definition, as in the principal Act.
Ms Kilian said with the definition of qualification as per the principal Act, there had been an increase in misrepresented and fraudulent qualifications, so the NQF amendment bill was attempting to stem that tide of fraud being committed.
Mr Van der Westhuizen maintained that he believed that the way the problem of fraudulent qualifications was being addressed was completely wrong, and this was his biggest challenge with the amendment bill. The expectation which was being put on employers and education institutions would be a burden to fulfil, and his earlier proposal that legislation looking at both employer-employee and education institution-student relationships would have been a better option to explore, rather than trying to develop a database of each and every certificate a job applicant claimed to have when applying for work in SA.
The Chairperson said that she accepted the views of Mr Van der Westhuizen.
Dr Bozzoli said that if taken from the point of view of a job applicant applying for a job with a certificate he had obtained from college X, would the said applicant be designated fraudulent because the certificate did not appear as part of the definition of authentic as per the NQF amendment and the principal Act?
Mr Kekana said there was also the reality of qualified builders that had photographic as well as personal testimonies to the work they had produced without any formal qualifications. If the definition accommodated that category of experiential learning and employment, then he was satisfied with the definition of qualification which DHET had proposed through the legislation.
Adv Boshoff said that when dealing with a national qualification, that was what DHET had control over through legislation. When dealing with a foreign qualification which would not be registered on the NQF, SAQA in terms of the amendment bill, had a responsibility to evaluate the foreign qualification against the standards applicable to a similar qualification registered on the NQF. If a qualification had been erroneously awarded a verification certificate status, then that would be corrected after the evaluation before it could have the value attached, and SAQA would deal with that through its processes. If the document was found to be fraudulent, it would be destroyed. However, if the stem of the definition in the principal Act read that ‘this Act, unless the context indicates otherwise...,’ the definition therefore carried. That removed the uncertainty that a qualification would suddenly cease to be a qualification, since the context of the new clauses introduced through the amendment bill to the principal Act would, at a stage where there would be finality of the real status, be read in that particular context, as to why the definition for qualification would not be applying to that qualification being evaluated. He repeated that the law required that that process be run without pre-emptively determining that a qualification had been fraudulent or misrepresented, only to have a court of law declare that same qualification to not be fraudulent as there would have been irreparable harm already caused to the holder of the qualification.
Dr Shirley Lloyd, Director: NQF Directorate, DHET, said the NQF amendment bill was not dealing with non-formal learning, which the DHET accepted and acknowledged that it happened widely and had to happen more in terms of skills development. Non-formal learning was defined in the NQF-pedia as planned learning activities, not explicitly designated as learning, towards the achievement of a qualification or part-qualification. It was often associated with learning that resulted in improved workplace practice. Such non-formal learning would include continuing education, short education, adult education, Continuing Professional Development (CPD), non-credit bearing courses or popular education. As Adv Boshoff had noted, the principal Act had said that unless the context indicated otherwise, SAQA had quite clear memoranda of understanding (MoU’s) and policy regarding global standards. SAQA would also never declare a qualification fraudulent if an individual went to a skills provider to learn how to wire a house without necessarily getting a formal qualification certification of competence to do so. However, if at any stage this individual wanted to formalise that experiential learning for credit, then recognition of prior learning (RPL) was already a practise that was in use.
An example of what Mr Van der Westhuizen was concerned about was the World Maritime University, which SAQA’s foreign qualifications policy had to date addressed, where a qualification in that particular case was a United Nations (UN) recognised qualification. Therefore SAQA’s policy currently said in such instances the qualification was recognised, unless the context indicated otherwise.
Dr Bozzoli said that as Dr Lloyd had referred to the NQF-pedia, why was that not in the NQF Amendment bill or the principal Act.
The Chairperson recommended that the Committee should let the discussion on non-formal learning stand over.
Adv Boshoff said that Dr Bozzoli’s concern had been addressed in the principal Act in section 13 (h) (i), in that the NQF-pedia was policy and criteria made by SAQA to clarify the principal Act, which made the pedia part of the Act.
Ms Kilian cautioned against confusing non-formal education with formal education. She also noted some grammatical errors and improvements in the draft NQF amendment bill.
Dr Bozzoli said she did not recall a discussion where the Committee had agreed that a ‘foreign institution’ also had to be registered as a private higher education institution or college in terms of the Higher Education Act (HEA) and Continuing Education and Training Act (CETA). Did that mean that Oxford University was not a foreign institution, seeing that the definition spoke to institutions registered in SA?
She still maintained that the term ‘claimed’ had to be inserted between ‘fraudulent’ and ‘qualification’ in the definition of ‘fraudulent qualification,’ as the point was that the qualification would have been claimed as legitimate, when it was not.
The Chairperson replied that she recalled the discussion on ‘foreign institution’ needing to be registered as a private higher education institution or college.
Dr Lloyd, as previously, explained about the City and Guilds functioning as a foreign institution, and the NQF definition prescribing that a qualification had to be offered and registered in SA. Therefore a provider like Monash University could exist, and although from Australia it had registered its qualifications on the NQF. The challenge lay where a foreign qualification, registered and accredited outside of SA, was being offered by a foreign provider. SAQA’s process in its reviewed policy was to have individuals with such qualifications having the qualification going through the normal evaluation process of SAQA’s foreign qualifications evaluation directorate.
Dr Bozzoli said that she understood what Dr Lloyd had said, but the fact remained that there was no definition for a foreign institution whose qualifications were not registered on the NQF, and where the institution was also not registered in SA.
Dr Lloyd said that SAQA’s policy also made room for providers such as Yale University when they did not offer anything in SA. When evaluating someone who came with a Yale degree, SAQA would confirm with the United States (US) whether Yale was an authentic institution in the US, and whether the degree being presented was recognised by the US’s equivalent of the NQF.
Ms Kilian referred to the definition of ‘foreign juristic person’ in the HEA, noting that in the NQF amendment bill the only addition to that HEA definition was that ‘foreign juristic person’ had to be registered as a private higher education institution or college in terms of the HEA. Government wanted to ensure that South Africans were not lured to degree mills posing as foreign institutions within SA, whilst not registered and recognised by the NQF. She was comfortable with the definitions, and did not see Dr Bozzoli’s concerns as being outside the amendment bill.
Ms Arnolds said that regarding the earlier skills provider clause, the Committee could either just speak about accreditation or leave the provision as it was in the principal Act.
Adv Boshoff interjected that there were a lot of consequences to the proposal by Ms Arnolds. The challenge with private skills providers was linked to the constitutional principle contained in section 29 (3) (b) and (c) of the SA constitution, which stipulated that: everyone has the right to establish and maintain, at their own expense, independent educational institutions that are registered with the state; and maintain standards that are not inferior to standards at comparable public educational institutions. The CETA already had identified that there was currently no public skills provider in the Skills Development Act (SDA) due to the difficulty that had existed when the SDA was developed and instituted by the Department of Labour (DoL). The white paper which the Minister of the DHET had tabled had since been accepted as Government policy, and the Minister had identified that skills programmes would be dealt with by public colleges. The CETA had been amended in section 43 (5): that a public college could apply to a QC for trades and occupations established in terms of section 26G of the SDA for accreditation as a skills development provider in order to offer qualifications; and registered on the sub-framework for trades and occupations. With the current NQF amendment, the private skills development provider who currently offered qualifications and who complied with the prescripts of the constitution, was through the referenced section 43 (5) provision required to be registered. The SDA would be the last law to be reviewed and cleaned up.
The CETA amendment currently in force had been introduced in 2013 to deal with qualifications provided by a public college as a skills development provider. In terms of section 65 B (a) of the HEA, a university which offered trades and occupations qualifications had to comply with that provision.
For many years, the DHET had dealt with the registration of colleges registered as skills development providers through the CETA, meaning that there had to be a formal registration because otherwise a number of persons could simply provide skills development without registration. Therefore he did not agree with Ms Arnolds that skills development providers could simply be accredited to provide qualifications.
The Chairperson asked for a proper reference of where ‘skills development provider’ was defined.
Dr Lloyd replied that in the principal Act, a “skills development provider” meant a skills development provider contemplated in section 17 of the Skills Development Act. In the SDA, a 'skills development provider' meant a provider of occupational learning. The principal Act further provided that the NQF Act applied to education programmes or learning programmes that lead to qualifications or part-qualifications offered within the Republic by education institutions and skills development providers. Regarding the registration of the private providers in the transition between the SAQA Act to the NQF Act, because of the establishment of the QCTO there had been a transitional period, given that occupational qualification providers did not yet have to be registered by the state at that time. Now that the QCTO was up and running, the mechanism to register private providers was in place.
Mr Van der Westhuizen said that his understanding was that because the NQF was a living document prone to change, qualifications could after a number of years be removed from the framework or be amended. Was it not prudent therefore to include qualifications that would have previously been registered on the NQF?
Adv Boshoff replied that so called ‘historic’ qualifications were registered on the NQF and would remain qualifications, but would be reflected as historic qualifications. There were also unit standards for learning that did not lead to qualifications, such as non-formal learning achievements, which the NQF differentiated. A qualification had a qualification statement which would be retained, even for historical qualifications.
Dr Lloyd said the national learners records database (NLRD) had many categories, amongst which was ‘qualifications and unit standards that had passed their registration end date.’ That category spoke to the concern of Mr Van der Westhuizen. The category said the qualifications were those that had been registered on the NQF and had subsequently expired, including qualifications and unit standards that had been replaced by others.
Dr Bozzoli recommended that ‘in consultation’ be replaced with ‘after consultation,’ to allow the Council for Higher Education (CHE) room to differ and disagree with SAQA on the NQF and the NLRD.
Ms Kilian disagreed with the proposal by Dr Bozzoli, as the NLRD was the responsibility of SAQA and all the QCs sub-mandates and responsibilities had to feed into the system. She was comfortable that there was ‘in consultation’ to avoid prescription of the format of the NLRD by one body.
The Chairperson asked Adv Boshoff to reiterate the role and responsibilities and differentiation of the CHE from SAQA.
Adv Boshoff recalled that the CHE had raised an issue that the NQF amendment bill would prejudice its right in terms of the HEA to give advice to the Minister on broader education issues. The NQF amendment bill therefore limited the advice that the CHE could give to the Minister to only NQF matters, and the DHET felt that the concern raised had not been justified. The DHET’s position was that advice in relation to the NQF, and the system of collaboration envisaged, required that all different role players in the space to work together, so ‘in consultation’ had been the wording used.
Dr Bozzoli disagreed, and did not accept the explanation of the DHET.
Ms Kilian referred to the HEA amendment Act of 2016, section 2, noting that the role of SAQA in terms of the NQF was clearly described in this Act.
Mr Van der Westhuizen was content that there had been a time limit prescribed for Quality Assurers (QA’s) to submit to SAQA, including the change from cost to charge, but the DHET had struggled with the certification of learners from Technical and Vocational Education and Training (TVET) colleges, and he was wondering whether the 30-day period was achievable looking at the history of DHET in keeping to timelines in providing qualification certification. He was concerned that the time period was something even the DHET would not achieve, considering the Nated (N) courses where learners previously had waited up to three years for certification of their qualifications.
The Chairperson asked the DHET who was being referred to in that clause regarding the time period of 30 days.
Dr Lloyd replied that UMALUSI was the QC for N1-N3 -- the national certificate (vocational). There were two issues at stake. Firstly, many learners did bits and pieces of particular programmes and could be certificated only when the full results for that certificate had taken place over a number of years. Often a learner would remain in the process of acquiring the credits for the full programme, but would apply for certification. Important in the clause which Mr Van der Westhuizen had concern about, was the rest of the clause which read: ‘within 30 days after complying with all requirements applicable to quality assurance’. All the backlogs referred to had been cleared.
Dr Bozzoli asked if the QA’s would then be subject to five years’ imprisonment if they failed to adhere to the deadline.
Adv Boshoff said the issue was interpretation of complying with all requirements applicable to quality assurance, and consolidation and verification of all the different exam results was part of getting to finality, because once that was done certification would not be a problem. He was not aware where criminality arose in getting to finality for certification purposes.
The Chairperson added therefore that there would be no imprisonment for such delays.
Dr Bozzoli asked why the provision had been put into the NQF amendment bill. Was that provision not better suited to be set into the regulations?
Ms Kilian said the provision gave clarity to those who would be administratively and unfairly adversely affected by delays, and the possible lengths that could result if the provision was not there. The provision would ensure compliance by QCs and QA’s, and would allow objections.
Mr Van der Westhuizen did not believe the provision would address delays, but would address the new requirement where once a body had decided that an individual met the requirements, that same body had to submit to SAQA the relevant information for certification to occur.
Dr Bozzoli recommended that clause 32A (1) be scrapped entirely, as it was unenforceable and was an intervention by Government in the business of private employers and who they employed. It was inserting more red tape into business already hindered by red tape. Alternatively, ‘must’ could be replaced by ‘may’ in the sub-clause.
Mr Van der Westhuizen supported Dr Bozzoli, further noting that UMALUSI submitted the results of the national senior certificate examination to universities in electronic format. Once the university received that information, SAQA would simultaneously be receiving it, so he questioned why a university had to inform SAQA of the same information already in the possession of SAQA.
Why did clause 32A (1) start by: ‘Except for those categories of employees,’ but then the clause continued 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?
Ms Kilian asked for an alternative draft provision from Dr Bozzoli or Mr Van der Westhuizen which would still capture the principle of clause 32A (1).
The Chairperson said that she recalled the Committee had spent time discussing different views on the clause previously.
Ms B Ndlovu (ANC) said each time the Committee went through the clauses, at the following meeting it felt like there had been regression in the intervening time, and she saw no problem in making it obligatory for the listed stakeholders to submit SAQA qualifications for verification.
The Chairperson ruled that the Committee would move on to the following clause, having agreed to disagree on the sub-clause.
Mr Van der Westhuizen asked that the Committee at least contemplate improving the wording of the clause as it was at that time. His understanding was that, for example, if an individual approached a TVET college wanting to read for NQF N2 and had a grade 9 certificate from a previous institution, the college would then have to submit to SAQA a list of 100 people wanting to enrol for an N2 programme, whereupon then SAQA would have to trace the various schools or district education offices the 100 people came from, as his perception was that grade 9 results were not part of the NLRD. SAQA would therefore have to determine whether the 100 learners had indeed passed grade 9. Was his example an incorrect perception?
The Chairperson said indeed it was, as the earlier discussion had spoken to that example and many similar instances involving clause 32. She maintained that the Committee had agreed to disagree on the sub-clause, but she would allow Dr Lloyd to attempt to respond to Mr Van der Westhuizen.
Dr Lloyd said the intention probably was that when if someone applied at Eskom, for example, claiming to have a BSc Engineering, and Eskom decided to hire that individual, it would then have to verify that qualification before appointing the person by going on to the NLRD, or the person could do so as well, without SAQA. If the qualification was not on the NLRD, then Eskom would ask SAQA for assistance. Therefore there was no expectation that all applicants at the beginning of the recruitment process would need to have their qualifications verified.
Adv Boshoff said the mischief could probably be lying in the phrase, ‘Except for those categories of employees who are specifically exempted from the provisions.’. The exemption probably had to be the ‘categories of employers, education institutions, skills development providers and QCs,’ instead of the reference to employees only. Certainly that could be addressed, but the intention was to ensure that whoever was walking around with a qualification had it verified against the NLRD. The practicalities to address the mischief could be problematic -- to give room when a problem arose. The provision would then allow the Minister to identify specific categories for exemptions within a particular timeframe to clarify whatever blockage that would have arisen.
Ms Kilian proposed that the drafters be allowed to consult and return to the Committee, having differentiated between employees, employers and educational institutions in terms of the provision in clause 32A (1). She agreed with Dr Lloyd that the NQF Amendment was for verification to be done only before appointment of employees and the registering of students.
Mr Van der Westhuizen asked whether the suggestions from the Committee on redrafting sub-clause 32A (1) had been accepted for consideration before moving onto sub-clause 32B? Could a decision be made on record as to what the Committee was deciding regarding sub-clause 32A (1)?
Mr T Mavunda (ANC) said that Ms Kilian had made a proposal which the Committee had not decided on. If Mr Van der Westhuizen had an alternative proposal he could recommend it for the Committee to consider.
The Chairperson asked the drafters if there was some redrafting worth doing on sub-clause 32A (1).
Mr Arnolds replied in the affirmative.
The Chairperson said she had been proceeding to sub-clause 32B so that if similar issues arose, in addition to the outstanding matters as raised regarding sub-clause 32A (1), then the Committee would decide how to move forward. She asked if the Committee had input on sub-clause 32B.
Mr Van der Westhuizen said if sub-clause 32B (1) - (3) was read with the definition of ‘qualification’ in the principal Act was what was being proposed in the NQF amendment bill, then he was satisfied.
Were the only punitive measures imprisonment, as per sub-clause 32B (7) (c) for the offences listed in the sub-clause 32B, as currently the innovations were a move away from imprisonment and sentences like community services and other measures?
Ms Arnold said what had been considered were the total implications of the offence -- the possibility that a sentence would serve as a deterrent, and the possibility of persons being charged and being able to pay a fine and reform of offenders. Moreover the measures also spoke to restorative justice.
Adv Boshoff said that other measures could be considered, but it remained that there had to be a sanction for offences.
Ms Kilian said she noted a new addition to the sub-clauses that spoke to submitting to the registrar of the educational institution. She wanted to know from DHET where the new addition featured, and how?
Ms Arnold replied that the endorsement in sub-clause 32B (8) and the submission to a registrar of the educational institution was new, as it was not in the amendment bill and there was no legal challenge to it.
The Chairperson said that though there was no legal problem with that new addition, the NQF amendment bill could proceed without sub-clause 32B (8) and (9). Moreover, she was sceptical about prescribing which court legal challenges arising from the NQF amendment bill could go to, as the court process was hierarchical.
Adv Boshoff said the issue around those sub-clauses was dealing with criminal intent and looking at the severity in terms of the punishment. This fell within the magistrates court jurisdiction and not the higher courts, and therefore the two clauses had been added. Removing the two sub-clauses would not change anything, but the matters provided for there would still go the magistrates court.
The Chairperson maintained that there was no need to overemphasise the point though, and the sub-clauses need not be added.
Dr Bozzoli asked the DHET what would happen if Absa Bank received 44 000 job applications and those were not checked against the NLRD -- what would be the penalty for not doing that?
Adv Boshoff reiterated that the legal obligation remained, and it was to deal with a mischief. Moreover, the amendment bill was dealing with a specific legal implication of a criminal offence. It was the responsibility of every citizen to comply with a legislative provision. When one was dealing with the integrity of qualifications and that was not linked to criminal offences, it would be almost impossible to ensure the effectiveness of the NLRD and the implications of the offences. Similar to legislation for traffic offences, it was impossible to ensure that every driver of a vehicle on the road would keep to the speed limit, but the existence of a penalty made it a criminal offence to drive beyond that speed limit. Traffic legislation did not become improper because irresponsible citizens were not compliant, or complete enforcement was difficult. The outcome of Absa Bank breaking the law would be determined by a magistrates court.
The Chairperson asked the drafters whether in the interim they had managed to deal with the concerns around sub-clause 32A (1) and others. She would allow the drafters to give input.
Dr Lloyd said the Committee had to decide whether the original sub-clause could perhaps not be revisited, as the obligation there had been placed on the employer to go and check with SAQA, even after having employed someone, when it appeared that something was amiss with the employee’s qualifications. In the original clause, there had been a phrase,‘and if not’.
Ms Joanne Isaacs, the new Parliamentary legal advisor assigned to the Committee, said the sticking point for the Committee seemed to be when SAQA must be approached to verify, and if the Committee could allow the drafters more time to apply their minds to that, then certainly a redraft could be possible.
Mr Van der Westhuizen said a political decision had to be taken, whatever the drafters would be allowed to think about. For example, in the instance where a university had awarded an undergraduate degree and the receiver applied to study for an honours degree at the same university, the university then had to involve SAQA when the person was simply continuing with their studies. Was the action reserved for shortlisted people only, or was the verification only when there was a suspicion that some mischief was under way or had already occurred?
Dr Bozzoli asked whether it was normal to place the obligation on the employer to detect criminality about the applicant’s qualifications. Moreover, if the job offerer did not then check the authenticity of the applicant’s qualification, were they liable for punishment? Was the employer also obliged to check whether an applicant had a criminal record? If not, what about the NQF amendment making it special to criminalise an employer for not checking the authenticity of an applicant’s qualifications?
Ms Kilian reiterated that the intention was to punish a claimer of an inauthentic qualification who, after being found to have a fraudulent qualification, would be unable to simply resign and go to another employer with the same fraudulent qualification. The unmasking of fraudulent qualifications and having a NLRD was to prevent a proliferation of such instances, in the same manner as banking legislation also had provisions to unmask fraud. She agreed with Dr Lloyd that the removal of ‘and if not’ in the original draft of sub-clause 32A (1) had indeed changed the intention somewhat. Also missing in that sub-clause 32A (1) was that ‘prior to appointment’ or ‘immediately after appointment,’ verification with SAQA had to be done. Mr Van der Westhuizen’s concern about a person progressing from undergraduate to honours could certainly be part of the categories for exemptions the Minister had the power to gazette.
Mr Mavunda said a similar example of how the NLRD was envisaged was how the National Student Financial Aid Scheme (NSFAS) database worked, where funding was allocated only to students who had proof of acceptance to study at a registered or recognised tertiary institution before being funded to study.
The Chairperson said the Committee had to decide what to do with sub-clause 32A (1). Dr Bozzoli had proposed that it be deleted in its entirety, or ‘must’ should be replaced with ‘may’. Alternatively, the sub-clause could be left as it currently was, and Ms Kilian had proposed a redrafting to include ‘prior to appointment’ or ‘immediately after appointment’.
The Committee was against deleting sub-clause 32A (1), and also rejected replacing ‘must’ with ‘may’. The sub-clause would be retained as it was, because whatever remained outside of the NQF amendment bill could and would be captured in the regulations of the same law.
Adv Boshoff said the recommendations from the Committee could and would be followed and redrafted into sub-clause 32A (1), and could possibly be returned to the original wording.
The Chairperson said the new recommendations for redrafting and the remaining contestation would be put on to the NQF amendment bill A-list and the B-list for the next meeting the following day.
Mr Van der Westhuizen asked that the Committee be e-mailed the redraft (A-list) by the end of business on the same day so that by the next meeting Members would have familiarised themselves with the document.
The Chairperson said that was agreeable, and the meeting was adjourned.
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