Higher Education Amendment Bill:deliberations

Meeting report

EDUCATION PORTFOLIO COMMITTEE
11 September 2001
HIGHER EDUCATION AMENDMENT BILL: DELIBERATIONS

Relevant documents:
Higher Education Amendment Bill [B61 - 2001]
Summary of the public hearings on the Higher Education Amendment Bill (email [email protected] if document required)
Proposed technical changes by the Department of Education (See Appendix)

Chairperson: Prof S M Mayatula

SUMMARY
The Committee commenced informal deliberations on the Bill, bearing in mind the public submissions that had been made on the Bill.

MINUTES
The Chairperson, Prof Mayatula, asked the Committee to raise issues on those clauses that were of concern to them. He noted that he would allow discussion only on issues relevant to the Bill.

Higher Education Amendment Bill
Clause 3: Amendment of section 20 of Act 101 of 1997
The clause makes it obligatory on the Minister to form an interim council where two higher education institutions have merged so as to prevent friction between the two existing councils. This is to facilitate the governance of the newly combined institution.

Mr B Geldenhuys (NNP) referred to Clause 3(6) and proposed that the word "must" be replaced by the word, "may". He also proposed that the last portion of the clause, which reads "except the making of an institutional statute" be deleted.
The clause would read as follows:
" The Minister may [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 an institutional statute].

Prof S Ripinga (ANC) stated that the ANC opposes the proposal. He felt that the Minister's power would be discretionary if the word, "may" is used. The removal of the last portion of the clause would give the interim council the power to formulate a statute, which was clearly not the intention of the legislators.

Prof L Mbadi (UDM) and Mr A Mapontshane (IFP) shared the sentiments of the ANC.

The Chairperson, Prof Mayatula said that it seemed that the majority of members felt that the clause should remain as is. He asked the Department for clarity on the functions of councils of higher education institutions.

Adv E Boshoff, legal adviser to the Department of Education, noted that one of the most important functions of a council is to draft statutes. It is a form of supplementary legislation, which encompasses all the principles of the Higher Education Act without the inclusion of excess detail.
He emphasised that the function of an interim council is mainly to see to it that members of the actual council are elected. Adv Boshoff stated that it was never the intention for the interim council to have the capacity to make laws. It was evident that the interim council was merely a temporary body that would facilitate the formation of a more permanent council.

Clause 5: Amendment of section 23 of Act 101 of 1997
The clause essentially places an obligation on the Minister to form an interim council to perform the functions relating to the governance of the single public higher education institution. It also sets out the interim council's structure and its functions.

Mr Geldenhuys proposed the following insertion into Clause 5(5):
" The Minister must in the notice contemplated in subsection (1), and in consultation with the councils and their subcommittees of the single public higher education institution concerned, 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 institution contemplated in subsection (1), except the making of an institutional statute."

Mr Mapontshane stated that the process for consultation has already been provided for in the Act.

Adv Boshoff said that provision for consultation in the appointment of interim council members has already been provided for in Clause 5(8).

Prof Ripinga stated that the ANC do not wish to engage in a debate over the interim council and stated that they support the clause as it stands.

Prof Mbadi referred to Clause 5(8)(b) and stated that if members of the interim council could not be appointed from "staff" members then from where should they be appointed.

Adv Boshoff said that the general principle is that 60% of councils are often made up of outsiders not attached to the institution. If "staff" were appointed to a council they would have vested interests and this was not desirable.

Clause 7: Amendment of section 27 of Act 101 of 1997
Mr B Geldenhuys suggested a technical change to Clause 7(8) in that the word "members" should be replaced by the word, "membership".

Adv Boshoff stated that the Department had considered the use of the word, "membership" but that they had found it inappropriate to use. He said that members often do not turn up at meetings of the council and in many instances vacancies are not filled. The use of the word "membership" implies a strict requirement that a certain percentage of the council must be present at a meeting for decisions to be taken. This was impractical given the reasons as outlined by Adv Boshoff. The use of the word, "members" allows for persons who are present at meetings to make decisions if a quorum is present.

Clause 12: Substitution of section 35 of Act 101 of 1997
The clause makes provision for the establishment of a student representative council in terms of institutional statute and the institutional rules.

The Chairperson asked what the implications would be if in the last line of the clause, the word, "and" is replaced by "or".

Adv Boshoff replied that they had considered the use of the word "or" but after discussing if with the Council of Higher Education (CHE), it was felt that the legal principles governing the formation of the student representative council should be captured by both the institutional statute and the institutional rules.

Clause 14: Substitution of section 41A OF Act 101 of 1997
The clause provides that in the event that there is maladministration at a public higher education institution, the Minister may after consulting the council of the institution appoint a person as administrator to perform the functions relating to governance for a period determined by the Minister.

Prof Ripinga proposed that the period for which an administrator may be appointed should be limited to two years.

Mr Geldenhuys and Mr Mbadi supported the proposal by the ANC.

Mr Mapontshane on the other hand suggested that the period be limited 12 months.

Adv Boshoff said that the Department had considered limiting the time period to one year but had decided against it.

Clause 22: Insertion of section 65A, 65B and 65C in Act 101 of 1997
The clause deals specifically with the seat of public higher education institutions.

Mr Geldenhuys pointed out that the University of South Africa (UNISA) had in their submission asked to be excluded from the provisions of this clause.

Ms Badsha stated that the decision for a university to offer distance education is a policy decision to be taken by the Minister.

The Chair noted that the Committee would discuss the issue at another time.

Clause 24: Repeal of laws
Mr Geldenhuys raised the point that many universities had in their submissions asked that private acts of universities should not be scrapped but rather that they should be amended to bring them in line with the Constitution.

The Chair stated that the Committee needs to know exactly which universities had made such requests. He felt that universities were mainly trying to hang on to their private acts because of its symbolic value. If it is for any other reason then it could not be allowed. The Higher Education Act is supposed to be the all-encompassing law guiding higher education.

Adv Boshoff stated that there need not be concern over the autonomy of institutions. Their autonomy is guaranteed by an Act of Parliament. The Higher Education Act gives each institution its own autonomy.

Clause 25: Transitional arrangements pertaining to Certification Council for Technikon Education
Mr Geldenhuys referred to Clause 25(5) which provides that from the date of commencement of the Act, all assets, liabilities, rights and obligations of the Council would devolve to the CHE. He stated that the Committee of Technikon Principles (CTP) felt that all the assets of the Council should devolve to them and not the CHE.

Ms Badsha stated that when a functionary is transferred, then it follows the function.

Clause 26: Transitional arrangements pertaining to universities.
The clause provides that institutional statutes that existed prior to the commencement of this Act continue to exist as if they were made under the principal Act. Furthermore if a private act contains a provision that is indispensable for the functioning of the institution but it is not covered by the principal Act or an institutional statute, then the private act is deemed to remain in force for no longer than two years.

Mr Geldenhuys proposed that institutional statutes should receive Ministerial as well as Parliamentary approval.

Adv Boshoff stated that the Higher Education Act is the cornerstone of the system. If there is a vital provision in a private act a period of two years has been set aside to amend the Higher Education Act in order to make provision for it. He said that statutes were a way in which the Higher Education Act could maintain its flexibility. If Parliamentary approval is required for subordinate legislation ie statutes, then its flexibility is lost. The oversight function of Parliament is still in place as the Minister is still accountable to Parliament.

The Department introduced three technical amendments to the committee. For detail on the proposed amendments, please refer to the attached document.

The meeting was adjourned.

Appendix
NEW CLAUSE
1. That the following be a new Clause to follow Clause 2:

Amendment of section 17 of Act 101 of 1997
3. Section 17 of the principal Act is hereby amended by the substitution for paragraph (b) of the following paragraph:

"(b) in the case of the chairpersons of the CHE and the Higher Education Ouality Committee, such additional remuneration,".

NEW CLAUSE
1. That the following be a new Clause to follow Clause 21:

Amendment of section 64 of Act 101 of 1997
22. Section 64 of the principal Act is hereby amended by the deletion of subsection (4).

CLAUSE 24
1.On page 8, from line 16 to omit Clause 24 and to substitute:

"24. (1) The laws listed in the Schedule are hereby repealed.

(2) Notwithstanding subsection (1), section 3(4) to 3(6) of the University of Cape Town (Private) Act, 1999 (Act No.8 of 1999) continue to exist as if the Act had not been repealed.".