General & Further Education & Training Quality Assurance Bill; Higher Education Amendment Bill; Education Laws Amendment Bill: b

Meeting report

EDUCATION PORTFOLIO COMMITTEE
21 August 2001
GENERAL AND FURTHER EDUCATION AND TRAINING QUALITY ASSURANCE BILL; HIGHER EDUCATION AMENDMENT BILL; EDUCATION LAWS AMENDMENT BILL: BRIEFING

Chairperson: Prof S Mayatula

Relevant Documents:
Higher Education Amendment Bill (see Appendix 1)
Education Laws Amendment Bill (see Appendix 2)
General and Further Education and Training Quality Assurance Bill

SUMMARY
Briefings were carried out on the three draft bills for which there will be public hearings on 29, 30 and 31 August 2001.

Higher Education Amendment Bill: the Department discussed the repeal of the Universities' private Acts and the effect of making all Higher Education institutions subject to the Higher Education Act. Certain members argued that this could affect the autonomy of the universities.

General and Further Education and Training Quality Assurance Bill: the Department explained that the General and Further Education and Training Quality Assurance Council would in terms of this Bill replace the South African Certification Council. They assured members that the quality control mechanisms would be applicable to all stages and levels of the education system.

When dealing with the Education Laws Amendment Bill, the role of the governing bodies was discussed. The provision preventing governing bodies from operating separate trust accounts led to concerns about the impact of this provision on S21 schools.

MINUTES
Introduction
The Chair announced that the Department would brief the Committee on the General and Further Education and Training Quality Assurance Bill, the Higher Education Amendment Bill and the Education Laws Amendment Bill. The Committee has advertised the public hearings, which will take place on 29, 30 and 31 August 2001. He pointed out that the General and Further Education and Training Quality Assurance and the Education Laws Amendment Bills were S76 Bills and proposed that these be dealt with in the NCOP first and then be dealt with as a joint venture between the Portfolio and Select Committees. The members agreed.

Higher Education Amendment Bill (Draft)
The Director-General (DG) of the Department of Education, Mr T Mseleku, explained that the Bill cleaned up the Act by focusing on issues such as governance and the smooth running of these institutions. More importantly, it dealt with the Private Acts and listed the Acts being changed by the Bill.

Adv E Boshoff, the law advisor of the Department, discussed the following clauses:
Clause 1: In terms of the principal Act (Higher Education Act, 1997) the Council on Higher Education (CHE) is responsible for quality assurance via the Higher Education Quality Assurance Committee. In 1998 the South African Qualifications Authority (SAQA) published regulations requiring bodies to be accredited in order to function as quality assurance bodies. The problem is that the Act had already created a statutory body (the Higher Education Quality Assurance Committee) to perform these functions. The regulations however made it possible for these functions to be withdrawn from the statutory body. This in effect nullifies an Act of Parliament. The Bill provides that the Higher Education Quality Assurance Committee is deemed to be accredited by SAQA as an Education and Training Quality Assurance body primarily responsible for higher education. This deeming provision provides that the statutory body is the only body that can perform its functions in terms of the Act.
Clause 2: This is merely a technical adjustment. It deals with bodies allowed to nominate the members of the CHE. The National Research Foundation now replaces the Foundation for Research Development.
Clauses 3-5: These amend Sections 20, 21 and 23 of the principal Act. They provide for the establishment of interim councils in cases where (1) a new technikon, university or college is being established or (2) an existing institution is to be declared as a higher education institution or (3) two or more institutions are to be merged. This had not been dealt with in the principal Act and the Bill addresses this vacuum. The interim council consists of a Chairperson and four other members and will exist for six months during which its main task will be to get the new structures in place. Ms N Badsha, the Deputy DG said that although the Minister appoints the members of the interim councils they can consist of internal and external parties.
Clause 7: Ms Badsha added that this clause amended S27. She explained that Clause 7(b)(8) was introduced since there had been two instances where Councils had abdicated responsibility but had not formally resigned. This had left a vacuum, as S27 had not dealt with this possibility. This vacuum was addressed by Clause 7.
Clause 14: The words 'or a private Act of Parliament' have been omitted from the Bill. The Minister has decided that private Acts will be repealed. One of the reasons is that the private Acts only deal with universities and there is no such legislation governing technikons and colleges. Secondly, there was much confusion with the existence of private Acts alongside the Higher Education Act despite the fact that the Higher Education Act was supposed to supercede the private Acts. Ms Badsha added that any provisions in the private Acts of specific institutions can be incorporated into the Institutional Statutes if they are not in conflict with the Higher Education Act.
Ms Badsha then referred to the period of appointment of the previous administrator which had been limited to six months and could then be reviewed for a further six months. The six-month limitation has been removed and the Minister can now determine the period. The reason is that a limitation to six months could prevent the administrator from being able to restore management and normality to the institution.
Clause 16: The term 'provisional registration' now replaces 'conditional registration'. The latter term had caused much confusion and the drafters therefore looked at what the intention of the Act had been. The section had been based on the premise that objective requirements should be set upfront for the benefit of all possible applicants. It had however been possible for the Registrar to conditionally register an applicant. These conditions are in terms of the Bill no longer determined by the Registrar but by the Minister via regulations. The Registrar may now register provisionally register an applicant who does not fulfil the requirements for registration if the Registrar believes that the applicant will be able to fulfill the relevant requirements within a reasonable period.
Clause 25: This provides for transitional arrangements where laws governing technical education have been repealed. All functions are to be taken over by the CHE so that there will be no vacuum when this legislation is repealed. The CHE will therefore take over the assets and liabilities and also retain all systems of these institutions (which include agricultural colleges). The CHE will take over certification of agricultural college training.
Clause 26: This provides a safety valve to ensure that there are no vacuums created by the repeal of the private Acts. Thus if an issue, which is not covered by the principal Act emerges in the next eighteen months the provision of the private Act will continue to apply until the vacuum is dealt with.

Discussion
Mr B Geldenhuys (NNP) referred to Stellenbosch University (which is in terms of the law is an Afrikaans medium university) and the University of Potschefstroom (which defines itself as an institution of Christian higher education). He asked how these universities would be impacted by the repeal of the private university Acts.

Mr Mseleku suggested that such issues be dealt with in regulations and rules determined by the university's council and not in a special Act. Including such issues in law would make the process of effecting changes to these policies very cumbersome as it would have to be done in Parliament. The religion or language of an institution were policy and not legislative matters. Adv Boshoff added that the language used in statutes were too rigid. Thus the fact that Stellenbosch University conducts certain lectures in English means that they are in fact breaking the law.

Mr Geldenhuys suggested that the Bill removed the autonomy of the universities.

Mr Mseleku explained that that there had been a bipolar system in the past, that is, universities on the one hand and technikons which were on a lower level. The Higher Education Act integrates these institutions without making either less autonomous. Adv Boshoff added that autonomy was given to an institution in legislation (irrespective if it comes from private Acts or the Higher Education Act). In any case where the private Act had conflicted with the Higher Education Act the latter had prevailed.

Mr Geldenhuys asked whether there were any concrete experiences where the limitation of the period of the administrator's office to six months had presented a problem.

Ms Badsha said that this had happened to UNISA and the University of the North. In the latter case the administrator had spent the first six months merely addressing the legal cases in which the University was involved and putting financial management mechanisms in place. The constitution of the new Council still has to be addressed and this will take time.

In answer to Mr R Ntuli (DP) noting that the Bill did not provide for checks and balances, the DG said that this could be included if the Committee wished.

Mr Ntuli added that the Bill did not say anything about colleges.

The DG said that the Bill referred to tertiary institutions in general. The form that the institution takes is a policy matter.

General and Further Education and Training Quality Assurance Bill (Draft)
The DG explained that SAQA had recognised the need for a quality assurance body especially with regard to public institutions. It was clear that the SA Certification Council was not performing this function effectively. The Constitution guarantees the right to quality basic and further education, which must be made available progressively. The quality of the education is therefore a constitutional matter and it is necessary to give effect to it through legislation. The State is therefore completing the process of making quality education available progressively by ensuring that Parliament provides a quality assurance body. In terms of the Constitution therefore constitutional obligation of quality assurance rests with the State. Thus if this right is violated in schools the State is the violator of the right and not the school itself.

Adv Boshoff explained that the General and Further Education and Training Quality Assurance Council ("the Council") would in terms of the Bill replace the SA Certification Council. The fact that the statutory body responsible for quality assurance had presented problems did not mean that one could neglect the basic right to quality education.

The providers are deemed to be the provincial education departments, in terms of the Bill. They have to adhere to the Council's criteria for accreditation. The Bill requires substantial compliance with these criteria. If the provincial department fails to adhere substantially, the Council and relevant department must try and resolve the problem. Failure to do so means that the Minister should facilitate the process and provide guidance.
Clause 2: It is important to look at the definition of a 'school', 'further education and training institution' and an 'adult basic education and training institution'. Adv Boshoff defined these loosely as programmes that lead to qualifications in these areas.
Clause 5: This is a deeming provision which has sparked much interest as it affects the powers of Parliament i.e. Parliament should be able to revoke accreditation to this body.
Clause 6: The Council consists of fifteen members who are nominated by various role-players and appointed by the Minister. The Minister also appoints the Chairperson from among these members.
Clause 11: In terms of Clause 11(1) the Minister appoints the Chief Executive Officer (CEO) of the Council. Cabinet had decided to amend the section. The decision was based on the fact that the CEO is a member of the Council, all of whom will be appointed by the Minister. The clause therefore ensures consistency and emphasises that the CEO is an employee of the Council and not of the Minister.
Clause 13: The Council is a national public entity and is therefore subject to the Public Finance Management Act.
Clause 16: The Council has wider functions than its predecessor and provides quality assurance in a broader sense. The Minister plays an important role in setting policy. The Council has to stick to the SAQA regulations as closely as possible. Clause 16(3) provides that the Council will take over its functions progressively under the approval of SAQA and the Minister. Clause 16(4) to (7) lists the functions of the Council, which repeats the SAQA regulations almost verbatim.
Clause 17: This clause aims to deal with continuous assessment, which had previously never been dealt with.
Clause 18: When the DG receives information regarding an irregularity, he reports it to the Minister who institutes an investigation. The other provisions remain the same.

Chapter 3- Accreditation of Providers
Adv Boshoff explained that a distinction had to be made between public and private providers when dealing with the effect of their failure to comply substantially.
Clause 22: This clause deals with public providers. If such provider fails to comply substantially (1) the Council notifies the department of its failure and gives it a reasonable period in which to comply, (2) failing which the Council informs the Minister. (3) The Minister will require the MEC for Education of the province to report on reasons for this failure. (4) The Minister will then consider the various factors and advise the department and the Council as to what reasonable steps to take to solve the problem.
Clause 23: This clause deals with private providers. If such provider fails to comply substantially (1) the Council notifies the department of its failure and gives it a reasonable period in which to comply, (2) failing which the Council evaluates steps taken by the provider to comply and considers any submissions. (3) The Council may then affirm or withdraw its accreditation.

Clause 28: This allows the Council to delegate powers and assign any of duties to other bodies. Previously the SAQA approach had been based on agreements. It had however been very difficult to get parties to agree. Even where this had been possible it was difficult to co-ordinate agreements. The Bill introduces an approach used with regard to Higher Education i.e. The responsibilities belong to the Council who can then delegate their different programmes to different bodies.
Clause 29: Clause 29(4) provides for transitional arrangements. Since the SA Certification Council will no longer exist, its assets and employees now belong to the Council. The employees are regarded as having had continuous uninterrupted service.
Clause 30: Although the Minister was not happy with the name of the Bill, the DG felt that the name indicated the responsibilities of the Council. He added that it was important to be specific so that there can be clarity in the minds of the public.

Discussion
Mr I Vadi (ANC) argued that the name of the Bill had to be changed if there was to be clarity in the public minds. He suggested that instead of having different bodies dealing with quality control for the different levels of education, the Department could introduce a single quality control body, which could then have a subcommittee dealing with, for example, higher education (instead of having a separate Higher Education Quality Committee).

The DG said that this would be difficult practically, as there are different providers for the different provinces. It was however not impossible.

Mr Vadi said that where examination papers are leaked or other such irregularities are exposed the Department then always appoints a structure to investigate. He suggested that the Council should have a built-in investigative component.

The DG said that this is provided for within the framework of the Bill. There are measures for quality assurance at all levels and stages of the education system. Adv Boshoff added that the Council would have the duty to ensure that there are no irregularities. They have to report irregularities to the DG. The language of the Bill indicates that the Council has to investigate such irregularities despite the fact that the formal investigation is done by the DG.

Mr Vadi said that the different provinces have different standards of matric examinations. This could be used to manipulate the pass rate in a province. He asked who moderates these papers.

The DG replied that the examinations for the academic stream would in future differ from other streams. The academic stream is the only one that will have an across the board examination. There is also a body that will provide for the quality assurance aspect. The notion of a single matric examination will no longer exist.

Mr Ntuli asked if the quality assurance mechanisms would filter down to all levels.

The DG responded that it would not have to filter down as the mechanisms are designed to serve the entire system.

Mr Ntuli asked what the role of Parliament in the process was. He enquired whether the Council had to report to Parliament annually.

The DG said that the Council reports to Parliament in terms of the Public Finance Management Act. Chapter 3, Part 1 deals with the issue of compliance and is linked to the National Education Policy Act in terms of which the Minister expects compliance with the national norms. Should a body fail to comply the Minister will report such failure to Parliament. Parliament's role is therefore implied in the Bill.

Mr K Moonsamy (ANC) asked who determines if a provider has complied 'substantially'.

The DG replied that the Council forms an opinion, which it then has to motivate.

Mr A Mpontshane (IFP) asked why the Minister appoints the Chairperson while the members appoint the Deputy-Chair.

Adv Boshoff explained that the Portfolio Committee had dealt with such a situation and had accepted the Minister's explanation in a meeting last year. As the Committee had accepted this approach then, the drafters opted to follow the same approach now. He added that the Deputy-Chair was merely a stand-in.

Education Laws Amendment Bill (Draft)
The DG stated that many of these amendments had emerged from practical situations.
Clause 1: There had previously been dual representation of learners at schools, i.e. a representative council of learners and the prefect system. In terms of the amendment a representative council of learners would be the only recognised representative body of learners at a school.
Clause 2: Adv Boshoff explained that the Bill clarified the functions of the governing body, which had previously been misunderstood.
Clause 4: This clause amends S25 and deals with the situation where a governing body ceases to perform. The clause distinguishes between the case where it fails to perform at all and where it merely fails to perform specific functions. In the latter case the persons appointed to take over such functions temporarily must build the necessary capacity to ensure that the governing body can resume its functions.
Clause 5: This clause prohibits a governing body from entering into loans or overdrafts to supplement the school fund without the written approval of the MEC. This brings schools in line with the PFMA. In addition it puts pressure on moneylenders by providing that if they sidestep the relevant authorities their loans will not be recoverable.
Clause 6: Every school must open a banking account. Previously schools were only allowed to open one account. In terms of this Bill a school may, with the approval of the MEC, invest surplus monies in another account. Clause 6(a) (3) is therefore an enabling clause.
In terms of Clause 6 (b) money from the school fund of a public school may not be paid into a trust or used to form a trust. Previously schools had created separate legal entities using school fees. The problem is that because a trust is a separate entity it is no longer under the control of the governing body but of the trustees. In addition the trustees can change the trust deed at any time. Thus trustees can also change the beneficiary of the trust by saying that the school will no longer be the beneficiary of the trust funds.
Clause 7: The budget will no longer be based on guidelines provided by the MEC as this allowed for too many different approaches.

Discussion
Mr Geldenhuys referred to the prohibition on school funds being placed into trust. He asked if other moneys other than school fees could be placed in trust. He argued that if the Bill was passed S21 schools would be adversely affected as they receive no state subsidies and have to pay their own way.

The DG argued that it did not make sense to distinguish between school funds and trust funds. He said that it was not just fees that could not be placed in trust but all school funds. He did not understand why a trust should generate more funds than the school itself as there was no difference in donating money to a trust or to the school.
There is in fact no need to have a separate trust.

Mr Geldenhuys asked if the prefect system now falls away or if the council takes over the functions of the prefect system.

Adv Boshoff responded that the learner representative council could accommodate the functions of the prefects.

Mr Geldenhuys asked if the Bill has removed any of the governing bodies' existing functions.

Adv Boshoff replied that the Bill merely provides clarity on their functions but does not affect the functions they already have.

Mr L Kgwele (ANC) referred to special schools with management bodies or management councils (not provided for in terms of the Act). He asked how these would be dealt with.

The DG said that all schools (including special schools) are governed by the SA Schools Act, 1996. Any structures, which are not provided for in terms of this Act, are therefore illegal unless they take the form of a subcommittee.

Mr Kgwele asked if the Department has the capacity to monitor submissions of financial reports which emanate from schools. Are there systems in place to monitor if all schools and bodies are performing their functions?

Mr Mseleku responded that these were questions dealing with administrative capacity and were dealt within the legislation. Despite the fact that there is the obligation in law to perform these functions, it is important to note that not all provincial departments have the same capacity.

The meeting was adjourned.

Appendix 1:
HIGHER EDUCATION AMENDMENT BILL

[B - 2001]

GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
___________ Words underlined with a solid line indicate insertions in existing enactments.

B I L L
To amend the Higher Education Act, 1997, so as to provide that the Higher Education Quality Committee is deemed to be accredited as an Education and Training Quality Assurance Body; to provide for the establishment of interim councils for new, declared or merged public higher education institutions; to provide for the dissolution of the council of a public higher education institutions if 75 per cent or more of the members resign, and for the constitution of a new council; to provide for a seat for a public higher education institution; to provide for the conferring of degrees and honorary degrees by a public higher education institution; to provide for the repeal of the Certification Council for Technikon Education Act 88 of 1986, the Universities' Private Acts and certain obsolete Acts; to make certain textual alterations; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

Amendment of section 7 of Act 101 of 1997
1. Section 7 of the Higher Education Act, 1997 (Act No. 101 of 1997) hereinafter referred to as "the principal Act" is hereby amended by the insertion after subsection (1) of the following subsection:
"(1A) The Higher Education Quality Committee is deemed to be accredited by SAQA as an Education and Training Quality Assurance body primarily responsible for higher education.".

Amendment of section 8 of Act 101 of 1997
2. Section 8 of the principal Act is hereby amended by the substitution for subsection (6) of the following subsection:
"(6) The Minister must appoint six non-voting members of the CHE nominated respectively by the Director-General, the Provincial Heads of Education, the Director-General of the Department of Arts, Culture, Science and Technology, the Director-General of the Department of Labour, [the Foundation for Research Development, established in terms of the Research Development Act, 1990 (Act No. 75 of 1990), the Centre for Science Development of the Human Sciences Research Council, established in terms of the Human Sciences Research Act, 1968 (Act No. 23 of 1968)] the National Research Foundation established in terms of the National Research Foundation Act, 1998 (Act No. 23 of 1998), and SAQA.".

Amendment of section 20 of Act 101 of 1997
3. Section 20 of the principal Act is hereby amended—
(a) by the deletion of subsection (2); and
(b) by the addition of the following subsections:
"(6) The Minister must in the notice contemplated in subsection (1) establish an interim council for a period not exceeding six months, to perform the functions relating to the governance of the institution, except the making of a institutional statute.
(7) The Minister may extend the period referred to in subsection (6) once for a further period not exceeding six months.
(8) The members of the interim council contemplated in subsection (6) are appointed by the Minister and consist of—
(a) the chairperson; and
(b) four other members.
(9) The interim council must co-opt three members of the interim management contemplated in subsection (10)(a) and these co-opted members have no voting powers.
(10) Apart from the functions contemplated in subsection (6), the interim council must in particular—
(a) appoint an interim body to manage the day to day activities of the institution;
(b) ensure that a council is constituted in terms of the standard institutional statute contemplated in section 33(3); and
(c) ensure that such other structures as may be determined in the standard institutional statute contemplated in section 33(3) are constituted.
(11) Any decision of the interim council which may affect the right of any structure of the public higher education institution, may only be taken after consultation with such structure.".

Amendment of section 21 of Act 101 of 1997
4. Section 21 of the principal Act is hereby amended by the insertion after subsection (3) of the following subsection:
"(3A) Section 20(6) - (11), with the changes required by the context, applies to a declaration referred to in subsection (1)(a).".

Amendment of section 23 of Act 101 of 1997
5. Section 23 of the principal Act is hereby amended by the addition of the following subsections:
"(5) The Minister must in the notice contemplated in subsection (1) establish an interim council for a period not exceeding six months, to perform the functions relating to the governance of the single public higher education contemplated in subsection (1), except the making of an institutional statute.
(6) The Minister may extend the period referred to in subsection (5) once for a further period not exceeding six months.
(7) The members of the interim council contemplated in subsection (5) are appointed by the Minister and consist of—
(a) the chairperson; and
(b) four other members.
(8) The four members contemplated in subsection (7)(b)—
(a) must be appointed by the Minister from nominations received from the public higher education institutions concerned; and
(b) may not include any member of staff, or student, from the public higher education institutions concerned.
(9) The interim council must co-opt three members of the interim management contemplated in subsection (11)(a) and these members have no voting powers.
(10) Apart from the functions contemplated in subsection (5) the interim council must in particular—
(a) appoint an interim body to manage the day to day activities of the institution;
(b) ensure that a council is constituted in terms of the standard institutional statute contemplated in section 33(3); and
(c) ensure that such other structures as may be determined in the standard institutional statute contemplated in section 33(3) are constituted.
(11) Any decision of the interim council which may affect the right of any structure of the public higher education institution, may only be taken after consultation with such structure.".

Amendment of section 26 of Act 101 of 1997, as amended by section 3 of Act 55 of 1999
6. Section 26 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) Subject to subsection (4) a structure referred to in subsection (2)(a), (b), (e), (f) and (g) must elect a chairperson, vice-chairperson and other office-bearers from among its members in the manner determined by the institutional statute [or an Act of Parliament].".

Amendment of section 27 of Act 101 of 1997
7. Section 27 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection:
"(1) The council of a public higher education institution must govern the public higher education institution, subject to this Act[, any other law] and the institutional statute."; and
(b) by the addition of the following subsections:
"(8) If 75 per cent or more of the members of the council of a public higher education institution resign at a meeting of council, it is deemed that the council has resigned.
(9) If a council resigns as contemplated in subsection (8) a new council must be constituted in terms of the institutional statute of the public higher education institution.".

Amendment of section 28 of Act 101 of 1997
8. Section 28 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection:
"(3) The number of persons contemplated in subsection (2)(b), (c), (d), (e), (f) and (g) and the manner in which they are appointed or elected, as the case may be, must be determined by the institutional statute [or an Act of Parliament].".

Amendment of section 29 of Act 101 of 1997
9. Section 29 of the principal Act is hereby amended by the substitution for subsection (4) of the following subsection:
"(4) The composition, manner of election, functions, procedure at meetings and dissolution of a committee and a joint committee are determined by the institutional statute [,] or institutional rules [or an Act of Parliament].".

Amendment of section 31 of Act 101 of 1997
10. Section 31 of the principal Act is hereby amended—
(a) by the substitution in subsection (2) for paragraph (a) of the following paragraph:
"(a) the management, as determined by the institutional statute [or an Act of Parliament]; "; and
(b) by the substitution for subsection (3) of the following subsection:
"(3) The number of persons contemplated in subsection (2) and the manner in which they are appointed or elected, as the case may be, are determined by the institutional statute [or an Act of Parliament].".

Amendment of section 32 of Act 101 of 1997
11. Section 32 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph:
"(a) an institutional statute, subject to section 33, to give effect to any [law relating to the public higher education institution and to promote the effective management of the institution in respect of matters not expressly prescribed by any law] matter not expressly prescribed by this Act; and".

Substitution of section 35 of Act 101 of 1997
12. The following section is hereby substituted for section 35 of the principal Act:

"Students' representative council
35. The establishment and composition, manner of election, term of office, functions and privileges of the students' representative council of a public higher education institution must be determined by the institutional statute and the institutional rules.".

Substitution of section 36 of Act 101 of 1997
13. The following section is hereby substituted for section 36 of the principal Act following section:

"Disciplinary measures
36. Every student at a public higher institution is subject to such disciplinary measures and disciplinary procedures as may be determined by the institutional statute[, subject to section 32(2)(d)] or the institutional rules.".

Substitution of section 41A of Act 101 of 1997
14. Section 41A of the principal Act is hereby substitution for subsection (1) of the following subsection:
"(1) If an audit of the financial records of a public higher education institution, or an investigation by an independent assessor as contemplated in section 47, reveals financial or other maladministration of a serious nature at a public higher education institution or the serious undermining of the effective functioning of a public higher education institution, the Minister may, after consultation with the council of the public higher education institution concerned, if practicable, and notwithstanding any other provision of this Act [or a private Act of Parliament], appoint a person as administrator to take over the authority of the council or the management of the institution and perform the functions relating to governance or management on behalf of the institution for a period [not exceeding six months] determined by the Minister.".

Amendment of section 53 of Act 101 of 1997, as amended by section 8 of Act 55 of 1999 and section 7 of Act 54 of 2000
15. Section 53 of the principal Act is hereby amended by the substitution in subsection (1) for paragraph (c) of the following paragraph:
"(c ) complies with any other reasonable requirement [determined by the registrar which may include a requirement that none of the words or any derivatives of the words 'university' or 'technikon' may appear in the name of the applicant] prescribed by the Minister.".

Amendment of section 54 of Act 101 of 1997, as amended by section 8 of Act 54 of 2000
16. Section 54 of the principal Act is hereby amended—
(a) by the substitution for subsections (3) and (4) of the following subsections, respectively:
"(3) Notwithstanding subsection (1), the registrar may [conditionally] provisionally register an applicant, other than a foreign juristic person, who does not fulfill the requirements for registration [other than a foreign juristic person] contemplated in section 53 if the registrar believes that the applicant will be able to fulfill the relevant requirements within a reasonable period.
(4) If the registrar [conditionally] provisionally registers an applicant under subsection (3) the registrar must—
(a) determine the period within which the applicant must satisfy the requirements for registration;
(b) enter the applicant's name in the appropriate register of private higher education institutions;
(c) issue a certificate of [conditional] provisional registration, stating the terms and the duration of such registration;
(d) provide the certificate of [conditional] provisional registration to the applicant; and
(e) as soon as practicable after the decision, publish the certificate of [conditional] provisional registration in the Gazette."; and
(c) by the substitution in subsection (6) for paragraph (b) of the following paragraph:
"(b) fails to satisfy the requirements for registration specified by the registrar, the applicant's [conditional] provisional registration lapses.".

Substitution of section 55 of Act 101 of 1997
17. The following section is hereby substituted for section 55 of the principal Act:

"Certificate of registration
55. (1) A private higher education institution must conspicuously display—
(a) its certificate of registration or [conditional] provisional registration or a certified copy thereof on its premises; and
(b) its registration number and an indication that it is registered or [conditionally] provisionally registered on all its official documents.
(2) If the registrar has cancelled the registration or [conditional] provisional registration of a private higher education institution under section 62, the private higher education institution must return the original certificate of registration or [conditional] provisional registration to the registrar within 14 days.".

Amendment of section 58 of Act 101 of 1997
18. Section 58 of the principal Act is hereby amended by the substitution for the words preceding paragraph (a) of the following words:
"A private higher education institution may apply to the registrar to amend its registration or [conditional] provisional registration—".

Amendment of section 59 of Act 101 of 1997
19. Section 59 of the principal Act is hereby amended by the substitution in subsection (3)(a) for subparagraph (i) of the following subparagraph:
"(i) amend the certificate of registration or [conditional] provisional registration accordingly;".

Amendment of section 60 of Act 101 of 1997
20. Section 60 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) The registrar may impose any reasonable condition, which may include a condition that none of the words or any derivatives of the words "university" or "technikon" may appear in its name, on a private higher education institution in respect of—
(a) its registration;
(b) its [conditional] provisional registration; or
(c) any amendment of its registration or [conditional] provisional registration.".

Amendment of section 62 of Act 101 of 1997
21. Section 62 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) Subject to section 63, the registrar may, on reasonable grounds, cancel any registration or [conditional] provisional registration in terms of this Act.".

Insertion of sections 65A, 65B and 65C in Act 101 of 1997
22. The principal Act is hereby amended by the insertion after section 65 of the following sections:

"Seat of public higher education institution
65A. (1) The seat of a public higher education institution is the physical location of the institution, as contemplated in sections 20(3)(c) and 21(2)(c), where an institution carries out its teaching and research activities and must be defined in the institutional statute.
(2) Subject to the approval of the Minister, a public higher education institution may conduct its teaching and research activities beyond the seat contemplated in subsection (1).
(3) If the teaching and research activities contemplated in subsection (2) fall within the seat of another public higher education institution or at a place where the teaching and research activities of another public higher education institution are conducted, the Minister's approval is subject to consultation with such other public higher education institution.

Degrees, diplomas and certificates
65B. (1) A public higher education institution may, subject to its institutional statute and this Act award diplomas and certificates and confer degrees.
(2) Save as is provided in section 65C, no diploma or certificate may be awarded and no degree may be conferred by a public higher education institution upon any person who has not—
(a) been registered as a student of such public higher education institution for the period prescribed by the senate of such institution; and
(b) completed the work and attained the standard of proficiency determined through assessment as required by the senate of the public higher education institution, subject to section 7.

Honorary degrees
65C. (1) Subject to its institutional statute, a public higher education institution may, without examination, confer honorary degrees of master or doctor in any faculty upon any person whom the public higher education institution may deem worthy of such a degree.
(2) The award of a degree contemplated in subsection (1) does not entitle the holder to practise any profession.".

Amendment of section 72 of Act 101 of 1997
23. Section 72 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) Any university established or incorporated by a Private Act of Parliament continues to exist [in terms of such Private Act] and is deemed to be a university established in terms of this Act, notwithstanding the repeal of such Private Act by the Higher Education Amendment Act, 2001.".

Repeal of laws
24. The laws listed in the Schedule are hereby repealed.

Transitional arrangements pertaining to Certification Council for Technikon Education
25. (1) For the purposes of this section—
(a) "agricultural college" means an agricultural college administered by the Department of Agriculture;
(b) "agricultural college training" means higher education provided partly or in full at or by an agricultural college with a view to the obtaining of a certificate for agricultural college training, and which is aimed at—
(i) the advancement, application, development and transfer of agricultural technology;
(ii) the provision of community services relating to farms; and
(iii) the undertaking of research relating to agriculture;
(c) "certificate for agricultural college training" means an education certificate or diploma that may be obtained as a result of successful study at an agricultural college, including a certificate of success in a subdivision of a higher education programme;
(d) "Council" means the Certification Council for Technikon Education established by section 2 of the Certification Council for Technikon Education Act, 1986 (Act No. 88 of 1986); and
(e) "repealed Act" means the Certification Council for Technikon Education Act, 1986 (Act No. 88 of 1986), as it existed immediately before its repeal by section 25.
(2) The CHE must ensure that certificates for agricultural college training issued by the CHE and the relevant agricultural college, represent the required standard of education and training.
(3) (a) An agricultural college that was accredited as an examination body by the Council prior to the commencement of this Act continues to operate as an examining body.
(b) The norms, standards and conditions contemplated in section 9(1)(b) of the repealed Act which existed in respect of the accreditation of an examining body immediately before the commencement of this Act, remain of full force and effect until repealed or overridden in terms of the principal Act.
(c) The CHE may withdraw the accreditation contemplated in paragraph (a) if the higher education programme in question no longer complies with the norms and standards, or if the examining body does not comply with the conditions—
(i) referred to in paragraph (b); or
(ii) determined by the CHE.
(4) The CHE, in conjunction with an agricultural college, must issue certificates for agricultural college training, in the form prescribed by the CHE in conjunction with the agricultural college, to candidates who have complied with the norms and standards for higher education.
(5) From the date of commencement of this Act, all assets, liabilities, rights and obligations of the Council immediately prior to the commencement of this Act, devolve upon the CHE.
(6) As soon as possible after the commencement of this Act all records, documents and electronic information pertaining to any function performed by the Council must be handed to the CHE.
(7) The CHE is responsible for the safe-keeping of all records, documents and electronic information received in terms of subsection (6).

Transitional arrangements pertaining to universities
26. (1) The institutional statutes of universities that existed prior to the commencement of this Act continue to exist and are deemed to have been made under the principal Act.
(2) If there is a matter contained in a Private Act but not dealt with in the principal Act or the relevant institutional statute, and which is indispensable for the effective functioning of a university, such provision in the private Act is deemed to remain in force for a period not longer than two years, despite the repeal of such private Act.

Short title
27. This Act is called the Higher Education Amendment Act, 2001.

SCHEDULE
Laws repealed (section 24)
Rhodes University (Private) Act, 1949 (Act No. 15 of 1949);
University of the Orange Free State (Private) Act, 1949 (Act No. 21 of 1949);
University Laws Amendment Act, 1953 (Act No. 23 of 1953);
University of the Witwatersrand, Johannesburg, (Private) Act, 1959 (Act No. 15 of 1959);
University of South Africa Act, 1959 (Act No. 19 of 1959);
University of the Orange Free State (Private) Act Amendment Act, 1959 (Act No. 36 of 1959);
Universities Amendment Act, 1959 (Act No. 82 of 1959);
Rhodes University Act Amendment (Private) Act, 1960 (Act No. 6 of 1960);
Universities Amendment Act, 1961 (Act No. 46 of 1961);
University of the Orange Free State (Private) Act Amendment (Private) Act, 1962 (Act No. 29 of 1962);
University of Port Elizabeth Act, 1964 (Act No. 1 of 1964);
University of South Africa Amendment Act, 1964 (Act No. 13 of 1964);
Rhodes University (Private) Act Amendment Act, 1965 (Act No. 7 of 1965);
University of Port Elizabeth Amendment Act, 1965 (Act No. 40 of 1965);
Universities Amendment Act, 1965 (Act No. 43 of 1965);
Rand Afrikaans University Act, 1966 (Act No. 51 of 1966);
University of Port Elizabeth Amendment Act, 1967 (Act No. 31 of 1967);
University of South Africa Amendment Act, 1967 (Act No. 53 of 1967);
Universities Amendment Act, 1968 (Act No. 24 of 1968);
University of the Witwatersrand, Johannesburg, (Private) Amendment Act, 1968 (Act No. 32 of 1968);
University of Fort Hare Act, 1969 (Act No. 40 of 1969);
University of Zululand Act, 1969 (Act No. 43 of 1969);
University of the North Act, 1969 (Act No. 47 of 1969);
University of South Africa (Private) Amendment Act, 1969 (Act No. 62 of 1969);
University of Port Elizabeth (Private) Amendment Act, 1969 (Act No. 66 of 1969);
Universities Amendment Act, 1969 (Act No. 67 of 1969);
Rand Afrikaans University (Private) Amendment Act, 1969 (Act No. 70 of 1969);
Rand Afrikaans University (Private) Amendment Act, 1970 (Act No. 84 of 1970);
University of Fort Hare Amendment Act, 1971 (Act No. 28 of 1971);
University of the Orange Free State (Private) Amendment Act, 1971 (Act No. 70 of 1971);
Black Education Account Abolition Act, 1972 (Act No. 20 of 1972);
Rhodes University (Private) Amendment Act, 1972 (Act No. 81 of 1972);
Black Universities Amendment Act, 1973 (Act No. 6 of 1973);
Rhodes University (Private) Amendment Act, 1973) (Act No. 21 of 1973);
University of South Africa (Private) Amendment Act, 1973 (Act No. 22 of 1973);
University of the Orange Free State (Private) Amendment Act, 1974 (Act No. 69 of 1974);
Universities Amendment Act, 1975 (Act No. 67 of 1975);
Medical University of Southern Africa Act, 1976 (Act No. 78 of 1976);
University of Port Elizabeth (Private) Amendment Act, 1976 (Act No. 114 of 1976);
Black Universities Amendment Act, 1977 (Act No. 57 of 1977);
Universities Amendment Act, 1977 (Act No. 65 of 1977);
University of Natal (Private) Amendment Act, 1977 (Act No. 66 of 1977);
University of the Orange Free State (Private) Amendment Act, 1978 (Act No. 108 of 1978);
Universities for Blacks Amendment Act, 1979 (Act No. 52 of 1979);
Rhodes University (Private) Amendment Act, 1979 (Act No. 62 of 1979);
University of Natal (Private) Amendment Act, 1979 (Act No. 71 of 1979);
University of Port Elizabeth (Private) Amendment Act, 1979 (Act No. 86 of 1979);
University of the Witwatersrand, Johannesburg, (Private) Amendment Act, 1980 (Act No. 37 of 1980);
Rand Afrikaans University (Private) Amendment Act, 1980 (Act No. 49 of 1980);
Universities for Blacks Amendment Act, 1982 (Act No. 14 of 1982);
Rand Afrikaans University (Private) Amendment Act, 1982 ( Act No. 93 of 1982);
Technikons (Education and Training) Amendment Act, 1983 (Act No. 48 of 1983);
University of Port Elizabeth (Private) Amendment Act, 1983 (Act No. 68 of 1983);
Rhodes University (Private) Amendment Act, 1983 (Act No. 69 of 1983);
University of Natal (Private) Amendment Act, 1983 (Act No. 71 of 1983);
University of the Western Cape Act, 1983 (Act No. 78 of 1983);
University of Durban-Westville Act, 1983 (Act No. 81 of 1983);
Universities Amendment Act, 1983 (Act No. 83 of 1983);
Rand Afrikaans University (Private) Amendment Act, 1983 (Act No. 107 of 1983);
Universities, National Education Policy and Technikons Amendment Act, 1984 (Act No. 75 of 1984);
Technikons (Education and Training) Amendment Act, 1984 (Act No. 77 of 1984);
Tertiary Education (Education and Training) Act, 1984 (Act No. 92 of 1984);
University of the Orange Free State (Private) Amendment Act, 1984 (Act No. 97 of 1984);
University Staff (Education and Training) Amendment Act, 1985 (Act No. 28 of 1985);
Universities and Technikons for Blacks, Tertiary Education (Education and Training) and Education and Training Amendment Act, 1986 (Act No. 3 of 1986);
Universities Amendment Act, 1986 (Act No. 86 of 1986);
Certification Council for Technikon Education Act, 1986 (Act No. 88 of 1986);
Technikons (National Education) Amendment Act, 1986 (Act No. 89 of 1986);
Rhodes University (Private) Amendment Act, 1986 (Act No. 99 of 1986);
Universities (Education and Training) Amendment Act, 1987 (Act No. 34 of 1987);
Rand Afrikaans University (Private) Amendment Act, 1987 (Act No. 44 of 1987);
Education Laws (Education and Training) Amendment Act, 1987 (Act No. 95 of 1987);
Education Laws (Education and Training) Amendment Act, 1988 (Act No. 31 of 1988);
Technikons (National Education) Amendment Act (House of Assembly) Act, 1988 (Act No. 33 of 1988);
University of Port Elizabeth (Private) Amendment Act, 1988 (Act No. 98 of
1988);
Rand Afrikaans University (Private) Amendment Act, 1989 (Act No. 33 of 1989);
University of the Orange Free State (Private) Amendment Act, 1989 (Act No. 34 of 1989);
Universities Amendment Act, 1989 (House of Assembly) (Act No. 64 of 1989);
Universities and Technikons (Education and Training) Amendment Act, 1990 (Act No. 41 of 1990);
University of Pretoria (Private) Act, 1990 (House of Assembly) (Act No.106 of 1990);
Universities and Technikons Advisory Council Amendment Act, 1991 (Act No. 24 of 1991;
University of the Witwatersrand, Johannesburg, (Private) Amendment Act, 1991 (House of Assembly) (Act No. 78 of 1991);
Universities Amendment Act, 1991 (Act No. 123 of 1991);
University of the Orange Free State (Private) Amendment Act, 1992 (House of Assembly) (Act No.68 of 1992);
University of Port Elizabeth (Private) Amendment Act, 1992 (House of Assembly) (Act No. 69 of 1992);
University of Stellenbosch (Private) Act, 1992 (House of Assembly) (Act No. 107 of 1992);
University of the North Amendment Act, 1992 (Act No. 150 of 1992);
Universities Amendment Act, 1993 (Act No. 21 of 1993);
University of Durban-Westville Amendment Act (House of Delegates), 1993 (Act No. 51 of 1993);
University of South Africa (Private) Amendment Act (House of Assembly), 1993 (Act No. 54 of 1993);
University of the Witwatersrand, Johannesburg, (Private) Amendment Act, 1993 (House of Assembly) (Act No. 78 of 1993);
Potchefstroomse Universiteit vir Christelike Hoër Onderwys (Private) Act (House of Assembly), 1993 (Act No. 80 of 1993);
University of the Orange Free State (Private) Amendment Act , 1993 (House of Assembly) (Act No. 81 of 1993);
University of Pretoria (Private) Amendment Act, 1993 (House of Assembly) (Act No.158 of 1993);
Rhodes University (Private) Amendment Act (House of Assembly) Act, 1993 (Act
No. 159 of 1993);
University of Natal (Private) Amendment Act, 1993 (House of Assembly) (Act No.
163 of 1993);
Certification Council for Technikon Education Amendment Act, 1993 (Act No.185 of 1993);
University of North-West (Private) Act, 1996 (Act No. 17 of 1996);
University of Zululand (Private) Amendment Act, 1996 (Act No. 80 of 1996);
University of Transkei (Private) Act, 1996 (Act No. 81 of 1996);
University of Durban-Westville (Private) Amendment Act, 1996 (Act No. 82 of 1996);
University of Port Elizabeth (Private) Amendment Act, 1996 (Act No. 83 of 1996);
University of Venda (Private) Act, 1996 (Act No. 89 of 1996);
University of the Witwatersrand, Johannesburg (Private) Amendment Act, 1997 (Act No. 21 of 1997);
Medical University of Southern Africa (Private) Amendment Act, 1997 (Act No. 25 of 1997);
University of Durban-Westville (Private) Amendment Act, 1997 (Act No. 32 of 1997);
University of Cape Town (Private) Act, 1999 (Act No. 8 of 1999);

MEMORANDUM ON THE OBJECTS OF THE HIGHER EDUCATION AMENDMENT BILL, 2001

1. INTRODUCTION
This Bill seeks to amend the Higher Education Act, 1997 (Act No. 101 of 1997).

2. REASONS FOR AND SUBSTANCE OF BILL
Repeal of the Private Acts
2.1 (a) In the Education White Paper 3 it was indicated that the Minister of Education will request the Council on Higher Education "to investigate and consult upon ... and provide advice on the desirability or otherwise of perpetuating Private University Acts, in the absence of such Private Acts for Technikons and Colleges".
(b) This was necessary as the Higher Education Act created the legal basis for the establishment of a single, national higher education system and replaced previous legislation dealing with higher education. However, it left intact the Private Acts of universities. This is anomalous as the Higher Education Act supersedes the Private Acts, and as technikons are not governed by Private Acts.
(c) The CHE advised that the repeal of the Private Acts should depend on the outcome of the broader process for the restructuring of the higher education system. The latter is not, however, dependent on the continued existence of the Private Acts.
(d) The Institutional Statutes of all higher education institutions have been brought into line with the Higher Education Act in terms of the composition and functions of councils, senates and institutional forums. As the Private Acts have not been amended, the old composition and functions of councils and senates are still in place in the Private Acts. Thus, the majority of the universities' institutional statutes are not in compliance with their own Private Acts, which causes confusion. Furthermore, although the Higher Education Act supersedes the Private Acts, there are matters that are contained in the Private Acts on which the Higher Education Act is silent.
(e) A number of obsolete Acts relating to higher education are still in force and should now be repealed.

Repeal of the Certification Council for Technikon Education (SERTEC)
2.2 The Higher Education Quality Committee (HEQC) of the Council on Higher Education has been recognised as the Education and Training Quality Assurer for Higher Education by the South African Qualifications Authority (SAQA). It will therefore take over the functions currently being performed by the Certification Council for Technikon Education (SERTEC) in the case of Technikons. Given this, the SERTEC Act will be repealed and the assets of SERTEC will be dealt with through transitional arrangements in the Amendment Bill. As the HEQC will in future perform all the functions SERTEC had performed, SERTEC's assets and liabilities will be taken over by Council on Higher Education. Transitional arrangements to ensure that the certification and accreditation functions of SERTEC with regard to Agricultural Colleges are also taken over by the HEQC, are included in the Bill.

The dissolution of institutional councils
2.3 The Higher Education Act does not provide for the dissolution of institutional councils. However, as councils of two higher education institutions have in the recent past dissolved, it is important to provide the necessary legal framework for such dissolution. The amendment therefore provides for the dissolution of an institutional council if 75 per cent or more of the members of a council resign at a full meeting of the council.

The establishment of interim councils for new, declared or merged public institutions
2.4 The Higher Education Act does not provide a governance framework where a new university, technikon or college is to be established or where an existing institution is to be declared as a higher education institution or where two or more institutions are to be merged. The Bill seeks to address this vacuum. The amendment provides for the establishment of a small interim council with specific functions (i.e. the establishment of the council in terms of the institutional statute) by the Minister.

Provisional Registration
2.5 The current terminology regarding registration in terms of section 54(3) of the Act is confusing. The Act provides that if an applicant does not comply with the "requirements for registration" but has the potential to comply, the Registrar may "conditionally register" such an institution. The proposed change to section 54 makes it clear that the requirements are those contemplated in section 53.

Seats of institutions
2.6 There is a need to bring legal certainty to the operational areas of higher education institutions, given the proliferation of satellite campuses and the implications thereof for the establishment of a single co-ordinated system of higher education. The seats of universities were prescribed by the Private Acts which are to be repealed by the Bill. There is no prescription of operational areas for technikons in any current legislation. The amendment will ensure that higher education institutions operate within prescribed policy.

Degrees, diplomas and certificates
2.7 The repeal of the Private Acts of universities and the Certification Council for Technikon Education Act necessitates an amendment to ensure that higher education institutions can confer degrees, diplomas and certificates. This amendment is in line with existing practice in higher education.

3. CONSULTATION
Extensive consultations have been held with all relevant role players (Council on Higher Education, SAUVCA and CTP), on the above issues. The Bill was published for the public to make comments on any of the provisions of the Bill.

4. FINANCIAL IMPLICATION
No additional costs are foreseen as result of these amendments.

5. PARLIAMENTARY PROCEDURE
The State Law Advisers and the Department of Education are of the view that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.

Appendix 2:
EDUCATION LAWS AMENDMENT BILL

[B - 2001]
___________________________________________________________________

GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.


B I L L
To amend the South African Schools Act, 1996, so as to provide for the representative council of learners as the only recognised learner body at a school; to make further provisions on the failure of a governing body to perform its functions; to provide for the prohibition of public school from raising money by means of loans or overdraft or paying moneys into a trust; to effect textual corrections; to amend the Employment of Educators Act, 1998, so as to effect textual corrections to existing provisions; to amend the Further Education and Training Act, 1998, so as to provide for further provisions on loans and overdrafts; to effect textual corrections to existing provisions; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

Amendment of section 11 of Act 84 of 1996, as amended by section 3 of Act 100 of 1997
1. Section 11 of the South African Schools Act, 1996 (hereinafter referred to as the principal Act), is amended by—
(a) the substitution for subsection (1) of the following subsection:
"(1) A representative council of learners at the school must be established at every public school enrolling learners in the eight grade or higher, and such council is the only recognised and legitimate learner body at the school."; and
(b) the substitution for subsection (2) of the following subsection:
"(2) A Member of the Executive Council [may] must, by notice in the Provincial Gazette, determine [guidelines] the functions and the procedures for the establishment[,] and election [and functions] of representative councils of learners.".

Substitution of section 15 of Act 84 of 1996
2. The following section is substituted for section 15 of the principal Act:

"Status of public schools
15. Every public school is a juristic person, with legal capacity to perform [its] only such functions and obligations and exercise only such rights as are provided for in terms of this Act.

Amendment of section 20 of Act 84 of 1996
3. Section 20 of the principal Act is amended by the substitution for paragraph (i) of subsection (1) of the following paragraph:
"(i) recommend to the Head of Department the appointment of educators at the school subject to the [Educators Employment Act, 1994 (Proclamation No. 138 of 1994)] Employment of Educators Act, 1998 (Act No. 76 of 1998) and the Labour Relations Act, 1995 (Act No. 66 of 1995);".

Amendment of section 25 of Act 84 of 1996
4. Section 25 of the principal Act is amended by—
(a) the substitution for subsection (1) of the following subsection:
"(1) If a governing body has ceased altogether to perform [its] functions allocated to it in terms of this Act or has failed to perform one or some of such functions, the Head of Department must appoint sufficient persons to perform [those] all such functions or one or some of such functions, as the case may be, for a period not exceeding three months.";
(b) the substitution for subsection (3) of the following subsection:
"(3) If a governing body has ceased altogether to perform its functions, [The] the Head of Department must ensure that a governing body is elected in terms of this Act within a year after the appointment of persons contemplated in subsection (1)."; and
(c) the addition of the following subsection:
"(4) If a governing body fails to perform any of its functions, the persons contemplated in subsection (1) must build the necessary capacity within the period of their appointment to ensure that the governing body performs its functions.".

Amendment of section 36 of Act 84 of 1996
5. Section 36 of the principal Act is amended by the numbering of the existing section as subsection (1) and by the addition of the following subsections:
"(2) Despite subsection (1), a governing body may not enter into any loan or overdraft agreement so as to supplement the school fund, without the written approval of the Member of the Executive Council.
(3) If a person lends money or grants an overdraft to a public school without the written approval of the Member of the Executive Council, the State and the public school will not be bound by the contract of lending money or an overdraft agreement.".

Amendment of section 37 of Act 84 of 1996
6. Section 37 of the principal Act is amended by—
(a) the substitution for subsection (3) of the following subsection:
"(3) The governing body of a public school must open and maintain one banking account, but a governing body of a public school may, with the approval of the MEC, invest surplus money in another account.";
(b) the insertion after subsection (6) of the following subsections:
"(7) (a) Money from the school fund of a public school may not be paid into a trust or be used to establish a trust.
(b) If a trust was established from a school fund of a public school or if such money was paid into a trust prior to 1 January 2002, such trust or payment is invalid and the money must be paid back into the school fund.
(c) A governing body of a public school may not collect any money or contributions from parents to establish or fund a trust, and if any money or contributions of parents were paid into a trust prior to 1 January 2002, the trust must pay such money or contributions into the school fund.".

Substitution of section 38 of Act 84 of 1996
7. Section 38 of the principal Act is amended by the substitution for subsection (1) of the following subsection:
"(1) (a) A governing body of a public school must, each year, prepare a budget as prescribed by the MEC and such budget must be published in a Provincial Gazette.
(b) The budget must show the estimated income and expenditure of the school for the following financial year.".

Amendment of item 2 of Schedule 2 to Act 76 of 1998
8. Item 2 of Schedule 2 to the Employment of Educators Act, 1998, (hereinafter referred to as the principal Act) is amended by the substitution for subparagraph (iv) of paragraph (d) of the following subparagraph:
"(iv) have the right to appeal against [any decision] a finding or sanction contemplated in section 25(2);".

Amendment of item 4 of Schedule 2 to Act 76 of 1998
9. Item 4 of Schedule 2 to the principal Act is amended by—
(a) the substitution for paragraph (f) of subitem (4) of the following paragraph:
"(f) If[,] during the six-month period[,] the educator is subject to disciplinary action, the written warning and the written objection or additional information contemplated in paragraph (g), may be taken into account in deciding on an appropriate sanction;". and
(b) the substitution for paragraph (f) of subitem (5) of the following paragraph:
"(f) If[,] during the six-month period[,] the educator is subject to disciplinary action, the final written warning and the written objection or additional information contemplated in paragraph (g), may be taken into account in deciding on an appropriate sanction;".

Amendment of item 5 of Schedule 2 to Act 76 of 1998
10. Item 5 of Schedule 2 to the principal Act is amended by the substitution for paragraph (e) of subitem (2) of the following paragraph:
"(e) information on the rights of the educator to representation by a legal representative, if the [employer] presiding officer so directs; and".

Substitution of Forms A, B, C and D of Schedule 2 to Act 76 of 1998
11. Schedule 2 to the principal Act is amended by:
(a) the substitution for Form A of the following Form:

"FORM A
WRITTEN WARNING
[DATE]
[NAME OF EMPLOYEE]
[PERSAL NO.]
[PERSONAL DETAILS OF THE EMPLOYEE]
This is a written warning in terms of the disciplinary procedure. Should you engage in further misconduct, this written warning may be taken into account in determining a more serious sanction.
The written warning will be placed in your personal file and will remain valid for a period of six months from the date of the written warning.

If you object to the warning or wish to furnish additional information, you may lodge a written objection or additional information which will be filed together with this warning.


The nature of the misconduct is:

SIGNATURE OF REPRESENTATIVE OF EMPLOYER
DATE

SIGNATURE OF EMPLOYEE
DATE

SIGNATURE OF WITNESS (if applicable)
DATE";
(b) the substitution for Form B of the following Form:
"FORM B
FINAL WRITTEN WARNING
[DATE]
[NAME OF EMPLOYEE]
[PERSAL NO.]
[PERSONAL DETAILS OF THE EMPLOYEE]

This is a final written warning in terms of the disciplinary procedure. Should you engage in further [transgressions] misconduct it could lead to formal misconduct proceedings being instituted against you.

This final written warning will be placed in your personal file and will remain valid for a period of six months from the date of the written warning.

Should you wish to do so, you may lodge a written objection to this final warning, or provide additional information which will be filed together with this final warning.

The nature of the misconduct is:

SIGNATURE OF REPRESENTATIVE OF EMPLOYER
DATE

SIGNATURE OF EMPLOYEE
DATE

SIGNATURE OF WITNESS (if applicable)
DATE";

(c) the substitution for Form C of the following Form:
"FORM C
NOTICE OF DISCIPLINARY MEETING
[DATE]
[NAME OF EMPLOYEE]
[PERSAL NO.]
[PERSONAL DETAILS OF THE EMPLOYEE]

You are hereby given notice to attend a disciplinary hearing in terms of item 6 of the Disciplinary Code.

The alleged misconduct [and the available evidence] is based on the following evidence:

[A DETAILED DESCRIPTION OF THE ALLEGED MISCONDUCT MAY BE ATTACHED.]
The hearing will be held at [PLACE] on
[DATE] at [TIME]. If you do not attend and cannot provide reasonable grounds for failing to attend, the hearing will be held in your absence.

A fellow employee or a representative of a recognised union may represent you at the hearing. If the presiding officer so directs you may also be represented by a legal representative.

You may give evidence at the hearing and adduce evidence in the form of documents or through witnesses. You are entitled to question any witness called by the employer.

If the presliding officer finds that you are guilty of misconduct, you may present any relevant circumstances which you wish to be taken into account by the presiding officer in determining the sanction.

SIGNATURE OF REPRESENTATIVE OF EMPLOYER
DATE

ACKNOWLEDGMENT OF RECEIPT BY EMPLOYEE
DATE

SIGNATURE OF WITNESS (if applicable)
DATE"; and
(d) the substitution for Form D of the following Form:
"FORM D
SUMMONS TO APPEAR AT DISCIPLINARY HEARING
DATE:
TO: ...................................................................................................................................
(Name and residential address of person summoned)
You are hereby summoned to appear personally on the .................... day of......... 20 ....... at ......................................... (time) ....................................... at .....................................
(place) before the presiding officer of a disciplinary hearing in terms of Schedule 2 to the Employment of Educators Act, 1998 (Act No. 76 of 1998), for the purpose of giving evidence regarding the following misconduct:

and to submit the following book, document or object in your possession, custody or control, which may have a bearing on the matter;


(specify the book, document or object)

SIGNATURE OF REPRESENTATIVE [OR] OF EMPLOYER".

Amendment of section 8 of Act 98 of 1998
12. Section 8 of the Further Education and Training Act, 1998 (hereinafter refined to as the principal Act), is amended by the deletion of subsection (5).

Amendment of section 20 of Act 98 of 1998
13. Section 20 of the principal Act, is amended by the numbering of the existing section as subsection (1) and by the addition of the following subsection:
"(2) If a person lends money or grants an overdraft to a public further education and training institution without the approval of the Member of the Executive Council, the State and the institution will not be bound by the contract of lending money or an overdraft agreement.".

Amendment of section 49 of Act 98 of 1998
14 Section 49 of the principal Act is amended by the addition of the following subsections:
"(4) Institutions contemplated in subsection (1) may not raise money by means of loans or overdrafts without the approval of the Member of the Executive Council.
(5) If a person lends money or grants an overdraft to an institution contemplated in subsection (1), without the approval of the Member of the Executive Council, the State and the institution will not be bound by the contract of lending money or overdraft agreement.".

Short title
15. This Act is called the Education Laws Amendment Act, 2001.

EXPLANATORY MEMORANDUM ON THE EDUCATION LAWS AMENDMENT BILL, 2001

1. INTRODUCTION
The Bill provides for the amendment of the South African Schools Act, 1996; the Employment of Educators Act, 1998; and the Further Education and Training Act, 1998.

2. BACKGROUND
The Acts are amended so as to make the necessary technical adjustments and to close loopholes apparent in the Acts.

3. DISCUSSION
3.1 The South African Schools Act, 1996
3.1.1 Section 11 is amended so as to make the representative council of learners the only recognized and legitimate learner body at public schools. The word "guidelines" is omitted because it makes room for alternatives. The amendment gives the Member of the Executive Council the authority to determine the function and the procedures for the establishment and the election of members to the council. This will provide a uniform approach in all public schools in a province. It will also ensure that the council in a school takes its rightful place in the school system.
3.1.2 Section 15 is amended to bring legal certainty by ensuring that the governing body acting on behalf of a public school, may only perform the specific functions as prescribed by the Act. The act is based on the principle of partnership between the State and the school community. However, the approach of the Act is to specify the functions of the governing body of the school and all other functions are to be performed by the provincial education departments. This amendment seeks to bring legal certainty to the role of the governing body in the school system.

3.1.3 Section 20 is amended for technical adjustment. It refers to Educators Employment Act, 1994, an Act which has been repealed by the Employment of Educators Act, 1998.
3.1.4 Section 25 has been amended so as to allow the intervention of the Head of Department not only in cases where the governing body is unable to perform all its functions, but also in cases where it is unable to perform one or more of its functions. Furthermore, persons who are appointed to perform such functions of the governing body are also required to build the necessary capacity to ensure that the governing body is able to perform its functions.

3.1.5. Section 36 is amended so as to prohibit the governing body from applying for overdrafts or to raise money by means of loans without obtaining prior written approval from the Member of the Executive Council. The intention of the Public Finance Management Act, 1999, is that all statutory bodies must perform their functions within their budgets and that there can be no deficit balances in such budgets. Loans or overdrafts must be limited as far as possible. Despite the fact that public schools are not listed as public entities in this Act, the principles contained in the Act are sound and must apply to public schools. It is further to be noted that if a public school cannot comply with its obligations or liabilities, the State will be liable to compensate claims against the public school (see section 60 of the Schools Act).

3.1.6 Section 37 is amended to make it clear that a public school should maintain a single bank account. A tendency has developed where public schools have various accounts, some of which are in the name of structures without any legal personality. This has the potential of stashing money away, an act which may mislead parents about the real financial position of the school when compulsory school fees are determined. Section 37 is further amended so as to prohibit the governing body from establishing a trust from school funds or to pay school fees into a trust. The intention of the South African Schools Act, 1996, by establishing a public school as a juristic entity with a protected school fund, was to create an entity similar to that of a trust. A tendency has developed where public schools establish trusts which falls outside the ambit of the South African Schools Act, 1996. This has the potential of diverting away potential compulsory school fees into that trust. A trust deed can be amended by the trustees at any stage, including the beneficiary. There is no control by the State on any of such trusts as the trustees are appointed by the persons or bodies who established the trust. Therefore, such trust may lead to abuse.

3.1.7 Section 38 is amended so as to omit the word "guidelines" because governing bodies may follow the guidelines at own discretion which may not always be consistent with the Act. It is crucial that the budget of a public school must conform to the standards set by the State to all public schools. This will ensure that budgets reflects specific budget items which will be in the format which all parents can understand when approving the budget of the school. It will also ensure that all the income and the source of income of the school are reflected in the budget. The budget will indicate the number of posts and the way it is to be funded as required by section 20(9) of the Schools Act. This amendment seeks to ensure that there is uniformity of budget standards in a province.

3.2 The Employment of Educators Act, 1998
3.2.1 Item 2 of Schedule 2 is amended because an educator does not have the right to appeal against any decision but only to a finding or sanction made by a presiding officer in a disciplinary hearing. There is no right for appeal against any finding and sanction in the informal disciplinary process. This amendment addresses the ambiguity apparent in the current legislation.

3.2.2 Item 4 of Schedule 2 is amended so as to allow the presiding officer to consider a written objection or additional information by the educator to the written warning or final written warning by the supervisor of the educator.

3.2.3 Item 5 of Schedule 2 is amended to make technical adjustment because it is the presiding officer who must decide whether or not the accused educator should have a legal representative and not the employer. This is consistent with the provisions of the Promotion of Administrative Justice Act, 2000.

3.2.4 Forms A to D have been amended so as to indicate the authority that must sign the forms.

3.3 The Further Education and Training Act, 1998
3.3.1 Section 20 is amended so as to prohibit public institutions from raising overdrafts or loans without the approval of the Member of the Executive Council. If a person grants such an overdraft or loan without the said approval, the institution or State will not be bound by the agreement.

3.3.2 Section 49 is amended so as to prohibit existing public institutions such as technical colleges from raising money by means of loans or overdrafts without the approval of the Member of the Executive Council. The same reasons which are mentioned in paragraph (3.1.5) apply to the further education and training institutions.

4. FINANCIAL IMPLICATIONS
None.

5. PARLIAMENTARY PROCEDURE
The Department of Education and the State Law Advisers are of the opinion that the procedures contemplated in sections 73 and 76 of the Constitution should be followed.