Higher Education Amendment Bill: hearings

Meeting report

EDUCATION PORTFOLIO COMMITTEE
30 August 2001
HIGHER EDUCATION AMENDMENT BILL: HEARINGS

Chairperson: Prof. Mayatula

Documents handed out
Association of Vice Chancellors of Historically Disadvantaged Tertiary Institutions submission
South African Universities Vice Chancellors Association (SAUVCA) submission
Committee of Technikon Principals submission
NEHAWU submission
University of South Africa submission
Higher Education Amendment Bill [B61-2001]

SUMMARY
The committee heard inputs from different stakeholders from the education sector, which included ASHADI, SAVCA, CTP, NEHAWU and the University of South Africa. A number of interesting issues emerged, such as the merger of teacher training colleges to universities and whether or not there was a need to establish Interim Councils.

MINUTES
Association of Vice Chancellors of Historically Disadvantaged Tertiary Institutions (ASHADI)
Prof Itumeleng Mosala noted that the Association has no difficulties with the amendments to the Act. It supports all the amendments including all technical corrections. One general concern was whether the Act will continue to be amended each time a specific problem arises in an individual institution. The Bill creates the impression that individual instances are dictating changes to the general framework of the Act.

Discussion
Mr Mponthsane (IFP) asked what is ASHADI’s attitude towards the repeal of the private Acts of the Universities.

Prof. Mosala replied that ASHADI supports the repeal of private University Acts. Private University Acts do not add anything and some aspects of these Acts contain provisions which contradict the principal Act. Of all education sector organizations, ASHADI believes it is the most married to government’s policy for higher education.

Mr Ntuli (DP) and an ANC committee member asked for clarity on ASHADI’s concern that some clauses refer to specific problems in specific institutions that ASHADI represents.

Prof. Mosala did not specify the specific clauses but replied that his experience has made him aware that there are specific problems in particular institutions such as Turfloop, Unisa, Technikon SA that do not require the amendment of the entire Act in order to deal with a localised problem. He said that University Councils have to be tackled if they cannot do their work. One need not change the legislation in order to enable the Minister to intervene. The Councils should have dealt with the problem. One should either have a good Council or one must get rid of it. The Minister cannot intervene and be the extension of the Councils. This is ASHADI’s principal objection.

Prof. S Ripinga (ANC) noted that some members of ASHADI are simultaneously members of the South African Universities Vice Chancellors Association. What is the difference in the interpretation because the latter has reservations regarding the question of the repeal of private Acts of Universities and also in respect of the autonomy of universities.

Prof. Mosala replied that the issue is not that ASHADI desires that private University Acts should stand. It feels that one could not protect the autonomy of Universities through private legislation. Autonomy was already entrenched in the White Paper on Higher Education. It is the government’s policy to allow institutions to have some autonomy and academic freedom. Autonomy and academic freedom cannot be kept by maintaining private Acts but can be done some other way.

Prof. Ripinga commented on the issue of continually amending the Act, saying that transformation is an ongoing process. As issues arise, the principles that are entrenched in the Higher Education Act will have to be clarified and elaborated by further amendments.

Prof. Mosala replied that the objection is not to the ongoing amendment process of the legislation as such but to whether a localised problem at a specific institution should necessitate the amendment of the Act.

Ms Njobe (ANC) said that the Explanatory Memorandum to the Bill states that extensive consultations have been held with all the relevant role-players, yet the submission seemed to be raising a concern about the issue of consultation with ASHADI. Was the organization not consulted prior to the drafting of these amendments?

Prof. Mosala replied that ASHADI appreciates the open door policy that it has with the Education Ministry and Department. ASHADI is a young organization compared to SAUVCA and CTP. ASHADI has been building relations with the government and with the Minister, the initiative emanating from ASHADI rather than from the Department. He concluded that there are very good relations between ASHADI, the Ministry and the Department.

National Youth Commission
Mr Bongani Mkhongi (Parliamentary Officer, NYC) stated that the Commission does not have any objections to the Bill. It supports all the amendments and will ensure that the amendments and their effect are understood by the youth on the ground. However, he noted that the Commission is not a civil society structure. There are other structures that should be making submissions such as the South African Students Congress, the Azanian’s Students Congress and other student organizations that are major stakeholders in educational matters.

South African Universities Vice Chancellors Association (SAUVCA)
Dr. Hugh Amoore (Registrar, University of Cape Town) noted that both his organization and the Committee of Technikon Principals had had the opportunity to make representations on an early draft of this Bill.

SAUVCA has a sentimental reservations about the repeal of the Private Acts. It understands and accepts the practical reasons for the repeal of Private Acts and the regulation of university activities through institutional statutes in the Higher Education Act. It also accepts that the level of autonomy that institutions enjoy is provided by the Constitution and by the Higher Education Act and that this is not infringed by the repeal of private legislation.

The organization supports all the principles embodied in the Bill. Its submission is largely technical in nature. Some substantive issues it raised are:
- In Clause 3, SAUVCA’s concern is that it makes the appointment of the Interim Council mandatory. Its proposal is that the Minister should have a discretion to appoint the Interim Council by replacing the word "must" with "may".
- In Clause 7, SAUVCA supports that a council, where 75% membership have resigned, should be deemed to have resigned in total. However, it provides alternative wording. SAUVCA has a problem with the current section in the Act as it creates practical problems – as it might render the Council incapacitated due to the resignation of some of the members. They have suggested an amendment for this.
- It is concerned that Clause 20 does not give the public adequate protection from organizations masquerading as technikons or universities.

Discussion
Mr Geldenhuys (NNP) asked if a provision that is currently in the Private Act be taken up in the statute of a University once the Private Act falls away. He gave the example of the University of Stellenbosch which provides that the language of instruction is Afrikaans in the Private Act. Can this be taken up in the statute?

Dr Amoore replied that the first part of the question related to whether there are issues in the Private Acts that cannot be accommodated in the institutional statute. SAUVCA believes that that there is nothing relating to the regulation of higher education - that is not inconsistent with the Constitution – that cannot be incorporated in an institutional statute if the Minister and the Council of the institution so determines. This is not to say that a provision in an existing Private Act will necessarily have the support of the Minister and the Council of that institution. Regarding the medium of instruction at Stellenbosch University, there is nothing in theory that can prevent the University from approaching the Minister of Education to retain the status quo, but whether the Minister would concede was not a matter for him to answer. He added that the medium of instruction there has changed to include the English language.

Mr Moonsamy (ANC) asked as a matter of curiosity why SAUVCA is having regrets about the repeal of private University statutes.

Dr Amoore replied that it could be described as a matter of clinging to the past. Institutions that have had private legislation regulating them have had a feeling of regret at not having an Act of Parliament of their own.

Mr Mpontshane based his question on Clause 7 and asked what was the difference between the words "members" and "membership".

Dr Amoore replied that the reason that SAUVCA has proposed the word "membership" in place of "members" is for clarity. He gave the example of a council of 40 members but with 8 vacancies. This means that there would be 32 members, whereas the actual membership is required to be 40. SAUVCA believes that the 75% should operate in respect of the number 40, the total potential membership rather than the actual members at that particular time.

Prof. Ripinga asked about mergers of teacher training colleges to universities or technikons (Clause 3). Would a merger of an institution such as a college of education with a faculty of a University be properly recognized as a merger of two institutions? An appropriate merger is a merger of two independent institutions with autonomous Councils forming one co-ordinated institution. The word "must" which SAUVCA has suggested is supporting a merger of a college of education to a faculty of a University. He believed that this could not be considered as an appropriate merger.

Dr Amoore replied that SAUVCA believes that the Minister should have the discretion to decide whether to appoint an interim council. SAUVCA envisages that both the institutions would be content that the council of a larger established institution be maintained or be the one that assumes authority. Most institutions have never had a problem with this such as the incorporation of a college of education into the University of Pretoria. There was no need to establish an interim council for the new institution as there was consent among all the parties.

Committee of Technikon Principals (CTP)
Dr M Balintulo stated that CTP supports the objects of the Bill and that its proposed amendments are of a technical nature and were very similar to those of SAUVCA. It also proposes that the Minister be given a discretion regarding the appointment of an interim council. It mirrors SAUVCA’s submission on the resignation of Council. Regarding the repeal of Private Acts, it recommends that the expression "any other law" be retained to emphasise the importance of taking into account other relevant legislation.

CTP submits that the assets of SERTEC (Certification Council for Higher Education)
were built up virtually entirely from the levies paid by technikons on all certificates, diplomas and degrees issued by technikons. CTP believes that these assets should be assigned to CTP as it is a representative body of technikons. The use of these assets should be determined by CTP for the benefit of technikons in terms of their quality assurance and capacity building.

Discussion
Mr Mpontshane asked a question which he admitted to be a fishing expedition question, that what would have been the motivation of the amendment of section 20 of the Act where the council is given all the functions of the council except that of making an institutional statute. What would have been the motivation to have this stipulation?

Dr Balintulo replied that it was difficult to say what might have been the rationale behind this stipulation. However, he presumed that it was meant to limit the kind of ambit of determination by an interim council.

National Education, Health & Allied Workers Union (Nehawu)
Mr Mark Sweet (Parliamentary Officer, Nehawu) stated that the Bill must seek to advance the transformation agenda contained in White Paper 3, which serves as government’s policy on the transformation of higher education.

Three fundamental issues arise out of the restructuring process of higher education:
a) The struggle for a new value system through restructuring
b) issues of equity
c) the human impact of restructuring.

The impact of the Bill, whilst applying to all institutions, will differ. This is a contradiction of White Paper 3. Therefore, the clauses of the Bill should be evaluated against this policy paper.

Nehawu supports the repeal of Private University Acts but Parliament should also be consulted before the establishment of new institutions because this would have major financial implications.

Nehawu considers that mergers of higher education institutions will cause contention (Clause 5). Nehawu submits that the proposed clause to address this must enhance greater participation during the merger process. There must be consultation with the councils and the subcommittees of the higher education institutions concerned.

Nehawu’s opinion is that Clause 7(b) is weak because it does not address a situation where a council abdicates its responsibility. It proposes the insertion of an additional subclause.

Mr Sweet regretted that students were not present to speak regarding the issue of discipline (Clause 13). Nehawu’s proposal is that Section 36 in the principal Act be retained as it is because disciplinary measures in higher education institutions are specific.

Nehawu supports the critical Clause 14 which deals with finances of the institutions. It believes that Parliament has a role to play in regard to this as this would facilitate a greater consultation process.

Nehawu is of the view that once the Bill is passed Universities will flock to change their institutional statutes in order to incorporate as much as is possible from their old private Acts. This would undermine the intention of the amendment Bill. Nehawu proposes that there must be an additional clause that states that "the incorporation of sections of a Private Act into an institutional statute, will only be admissible under exceptional circumstances and with the approval of the Minister and Parliament".

Discussion
Mr Moonsamy asked what would be the exceptional circumstances envisaged by Nehawu.

Mr Sweet replied that such circumstances need to be discussed within the Ministry and with the Council for Higher Education (CHE). He was not clear what these circumstances should be but said that the Ministry would apply its mind to what might amount to exceptional circumstances.

A Member (ANC) required clarity on their concern about the nomination process by various institutions from which the Minister makes an appointment to the interim council.

Mr Sweet replied that that nominations are provided for but a subclause immediately thereafter excludes significant role-players within the institutions from being nominated. This is the problem because the Bill seeks to exclude relevant stakeholders within an institution from being nominated to the interim council.

University of South Africa (Unisa)
Adv. Mc Caps Motimele commented that the Higher Education Act is a good statute but there was a need for its amendment. Before anyone could amend any statute one has to ask what was the amendment designed to achieve or to prevent. The amendment of the Higher Education Act was precipitated by the objective of transformation, both in terms of personnel staff and national imperatives. These are also stated in the White Paper on Education.

Prof. Dawid van Wyk (Unisa) wholeheartedly supported the Bill. He commented on the repeal of Private University Acts submitting that if the Bill is passed it will put a final end to a long tradition in the South African university environment: that Parliament by legislation brings life and death to universities. Henceforth this power will rest squarely with the Executive. Parliament’s direct say becomes indirect control via the accountability of the Executive to the Legislature.

He submitted that the concept of a "university seat" is the geographical location where the institution normally operates. However, this should not be applicable to Unisa as it is a distance education institution which undertakes activities throughout and beyond the borders of the country.

Mr Matsobane Lebelo (President, National Students Representative Council) commented on the purpose of the Bill. It creates guidelines for the implementation of the Higher Education plan and that it should be understood within that framework. He expressed concern about the absence of national students organization at this hearing. He commented that the Bill also seek to exclude some of the relevant stakeholders from the Interim Councils. This is a sharp contradiction to the principal Act and the spirit of co-operative governance.

Discussion
Mr Kgwele (ANC) referred to a point that was made that Parliament should formulate guidelines for the Minister to exercise his discretion. Was this because of doubt that the Minister would not be able to exercise discretion that is fair to the parties involved? He noted that the Committee has an oversight function regarding this matter as it keeps the Executive accountable to Parliament.

Adv. Motimele replied that the question related to the jurisdictional fact of exercising discretion. If an Act of Parliament says that the Minister "may", the question is, is that discretion unfettered or should that discretion be exercised judiciously? Whatever is an Act of Parliament should be exercised judiciously.

The meeting was adjourned.