Higher Education Amendment Bill:voting

Meeting report

EDUCATION PORTFOLIO COMMITTEE
12 September 2001
HIGHER EDUCATION AMENDMENT BILL: VOTING

Chair : Prof. Mayatula (ANC)

Documents handed out:
Proposed amendments to the Higher Education Amendment Bill (Appendix 1)
Higher Education Amendment Bill
DA's proposed amendments (Appendix 2)

SUMMARY
The Committee voted on the Higher Education Amendment Bill. The DA were not represented for much of the meeting, although their recommended amendments were noted. The Committee agreed that the Bill was ready to be presented to the National Assembly, with only the DA and the AEB opposing the passage of the Bill. The Chairperson was concerned about the division of support for the Bill. In answer, the DA noted its "fundamental opposition" to the move from parliamentary to ministerial control of higher education that it says is evident in this Bill and its principal Act. The DA was concerned that some of the Department's proposed amendments that had been rejected by the Committee the previous day were now being adopted.

MINUTES
The Chairperson noted that the purpose of the meeting was not to debate any further on the Higher Education Amendment Bill, but rather to vote on the issues. He proposed that each clause be voted on. He also made note of the fact that the DA (DP and NNP) were not present and expressed the hope that since their proposed amendments were in writing, this would be sufficient and remove the need to go back at a later stage.

Long title
This was unanimously passed.

Clause 1
An amendment was proposed to Clause 1 by Prof. Ripinga (ANC) that the chairperson of the Higher Education Quality Committee be included here so that he/she could enjoy remuneration in terms of Clause 17(b). This was voted on and agreed to.

Clause 2 was voted on and passed.

New clause
The department proposed that a new clause be included after Clause 2. This was voted on and passed.

Prof. Mayatula then asked if it would be necessary to use new numbers for the remainder of the discussion, and it was agreed that the old numbers were acceptable, and would be changed later.

Clause 3
Prof. Mayatula read the DA's proposal for an amendment to Clause 3.

Prof. Ripinga indicated that the ANC did not support this, it was voted on and rejected. Clause 3 thus stayed the same.

Clause 4 was passed unanimously.

Clause 5
Prof. Mayatula indicated that the DA had proposed an amendment to clause 5 which suggested that where 'must' appeared in the clause, it be amended to 'may'. The proposed amendment also recommended a recommendation for consultation with councils.

Mr. Aucamp (AEB) indicated that, while he did not support the first part of the proposed amendment, he agreed with the suggestion for consultation.

The clause was voted on, and remained unaltered.

Clause 6 was passed unanimously.

Clause 7
The DA proposed an amendment to Clause 7. Prof. Ripinga indicated that the ANC supported the clause as it stood. The vote on the clause was unanimous in favour of retaining the clause as it was, since the DA were not present.

Clauses 8 through 13 were passed unanimously.

Clause 14
Prof. Ripinga said that the ANC proposed that after "minister" the phrase 'and such period may not exceed two years' be included.

Mr. Aucamp stated that he preferred the clause as it was, to prevent situations such as the one occurring at UNISA. He thus felt the addition was an unnecessary limitation.

Prof. Mayatula recognised this, but the matter was voted on and the change was agreed upon.

Clauses 15 to 21 were all passed.

New clause
The Department recommended a new clause after Clause 21. This was voted on and agreed to.

Clause 22
The ANC proposed that the words "and research activities" be deleted from lines 29, 32 and 34. This was voted on, and the amendment agreed to.

Clause 23
Prof. Mayatula read the DA's proposal for clause 23, but this was not agreed to in the vote.

At this point, Mr. Geldenhuys (NNP) arrived and apologised for being late.

Clause 24
The Department proposed an amendment to Clause 24. This was voted on and agreed to.

Prof. Mayatula then indicated that the next area under consideration was Clause 25. Mr. Geldenhuys pointed out that the committee had agreed to the amendment, but had not voted on the clause as a whole. The members then voted on Clause 24 and it was passed.

Mr. Geldenhuys stated that it was his understanding that it was not necessary to go through all the Department's proposed amendments, since that had been debated in the previous day's meeting. He said that as the proposed amendments were not accepted the previous day, they had no status in this meeting.

Prof. Mayatula indicated that was not his understanding of the issue, and that irrespective of the previous day's debate, members could have changed their minds and thus the proposals had to be voted on. He then proposed that the committee move on to a consideration of Clause 25.

Clause 25
After some initial confusion, Mr. Geldenhuys explained that his party's objection pertained to Clause 25(5), dealing with assets. He recommended that the Bill be amended so that the assets of the Certification Council for Technikon Education devolve to the CTP and not the CHE.

This amendment was not agreed to.

Clause 26 was passed unanimously, as was the short title.

Mr. Geldenhuys reiterated his apologies, saying that he was under the impression that the meeting was due to start at 11am. He also asked whether his objections to Clauses 3, 5 and 7 could be registered, which Prof. Mayatula agreed to.

Schedule
Mr. Boschoff from the Department recommended that the committee look at the attached schedule, just to vote on it.

Mr. Geldenhuys asked, since amendments were meant to replace the principal acts, how it was that there were hundreds of acts which needed to be repealed. He felt that repealing the 21 principal acts was sufficient.

Mr. Boschoff clarified this, by saying that, even though there were only 21 principal acts, the amendments remained on the statute books and as a result had to be repealed individually.

Prof. Mayatula asked the committee to vote on the schedule, and it was passed unanimously.

Voting on the Bill as a whole
While the majority of the members supported the Bill, Mr Geldenhuys and Mr Aucamp both voted against it. When questioned by the chairperson, Mr Geldenhuys explained that unlike the old system in which a committee stage existed to vote against each clause, because his party had objections to certain clauses, they had to vote against the Bill as a whole.

Prof. Mayatula disagreed, saying that debate over the Bill as a whole was to be done in Parliament, but that in this forum, the purpose was to vote on the clauses, and not the Bill as a whole.

Mr Aucamp expressed the opinion that the difference here was that the committee was voting to commend the Bill to Parliament.

A member of the ANC asked what the position would then be in Parliament.

Prof. Mayatula remarked that it was unfortunate that unnecessary divisions were being created.

Mr Mpontshane (IFP) proposed that the rules of Parliament were being followed and the feelings of individual members about how matters should be handled did not come into it.

An ANC member suggested that any complaints could be addressed to the Rules Committee.

Prof. Mayatula said that, in all the time spent in this committee, and of all the Bills passed, this was the first time that the Bill as a whole had been opposed.

Mr. Geldenhuys indicated that he was surprised at that, since he felt that his party had the fullest reason to oppose the Bill, the same reason that the principal Act had been opposed. He said that his party had a "fundamental opposition" to the move from parliamentary to ministerial control.

Prof. Ripinga indicated that he had a problem with Mr. Geldenhuys' suggestion that the Bill facilitated a move to ministerial control of higher education.

At this point, Prof. Mayatula quietened the meeting, saying that there was a danger that they would open up the debate of the previous sessions. He then asked whether he could sign the 'motion of desirability'. This he read aloud and then signed, at which point the meeting ended.

Appendix 1
PROPOSED COMMITTEE AMENDMENTS TO
THE HIGHER EDUCATION AMENDMENT BILL, 2001
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 1 7 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 Quality Committee, such additional remuneration,".

CLAUSE 14
1. On page 5, in line 45, after "Minister" to insert "and such period may not exceed two years".

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 22
1. On page 7, in line 29, to omit "and research".
2. On page 7, in line 32, to omit "and research".
3. On page 7, in line 34, to omit "and research".

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.".
2. On page 8, in line 49, to omit "of" and to substitute "in".

SUMMARY OF THE PUBLIC HEARINGS ON THE
HIGHER EDUCATION AMENDMENT BILL [B61-2001]
Introduction
The public hearings on the Higher Education Amendment Bill [61-2001] were held on the 30th of August 2001. Submissions were made by:
1. The South African University Vice-Chancellor's Association (SAUVCA).
2. National Education, Health and Allied Workers Union (NEHAWU).
3. University of South Africa (UNISA).
4. Committee of Technikon Principals (CTP).
5. Association of Vice-Chancellors of Historically Disadvantaged Institutions of South Africa (ASAHDI).
6. National Professional Teachers' Organisation of South Africa
(NAPTOSA).

This report gives a summary of the clauses that were discussed.

Clause 3
Clause 3 of the Bill deletes subsection 2 of section 20 of the principal Act. This subsection provides for Universities to be established by an Act of Parliament. This is sufficiently covered in subsection I of the principal Act which empowers the Minister, after consulting with the Council for Higher Education, to give notice in the Government Gazette when establishing a university, technikon or college.

New subsections are also added to allow the Minister of Education to establish an interim council for a period not exceeding six months. This council will consist of 5 members and 3 co-opted members without voting powers. The interim council has to perform functions relating to the governance of the institution. However the council is not empowered to make an institutional statute.

Comments:
1. SAUVCA recommends that the wording be changed, so that the Minister is only given discretionary powers to establish an interim council for a newly established institution.
2. NEHAWU recommends that the Minister must also consult Parliament when establishing a new college or university.
3. CTP proposes that the Minister should have the discretionary power to establish an interim council, therefore, the word 'must; should be changed 'may'.
They also argue that 'the exception to make rules' will hinder the functioning of the established institution.

Clause 5
Clause 5 adds a new subsection to section 23 of the principal Act, which deals with mergers of public higher education institutions. The Bill empowers the Minister of Education to establish an interim council for a period not exceeding six months. The council will consist of 5 members and 3 co-opted members without voting powers. The interim council has to perform functions of a single institution. However, the interim council is not empowered to make an institutional statute.

Comments:
1. SAUVCA: The organisation recommends that 'must' in the clause be replaced with 'may; when the Minister decides to appoint a council for merged institutions.
2. NEHAWU: The amendment needs to ensure maximum participation in decision making. They propose that the affected institutions should elect the interim council.
3. UNISA recommends that the Minister must consult with the councils of
the public higher education institutions

Clause 7
Clause 7 of the Bill amends section 27(1) of the principal Act to allow the Act and the institutional statute to be used in the governing of an institution. The Act currently provides for a council of a public higher education institution to govern an institution in terms of the Higher Education Act or by any other law and by the institutional statute.
The Bill also adds a new subsection that provides for a council of a public higher education institution to be regarded to have resigned if 75% or more of its members resign. Provision is also made for the statute of a public higher education institution to be used when a new council is constituted.

Comments
1. SAUVCA: The organisation suggests that the wording of the clause should read, " if 75% or more of the membership of the council of public higher education institution have vacated their seats for whatsoever reason, the council is deemed to have vacated their seats"
2. NEHAWU is concerned that this clause does not address a situation where a council abdicates its responsibilities. They propose that this should be included in the clause.
3. UNISA: UNISA 's comments does not refer to what the Bill seeks to amend.
4. CTP: The organisation's comment is the same as that of SAUVCA.

Clause 12
Clause 12 substitutes section 35 of the principal Act, which deals with the student representative council (SRC). This clause states that the institutional statute and the institutional rules must determine the establishment and composition, manner of election and other issues relating to SRCs.

Comment:
1. SAUVCA recommends that provisions for a Student Representative Council be determined either an institutional statute or an institutional rule.

Clause 13
Clause 13 amends section 35, which deals with disciplinary measures against students. Previously, disciplinary measures and procedures were determined by an institutional statute. If this Bill is passed into law, institutional rules will also be used.

Comment:
2. NEHAWU proposes that the existing section in the principal Act be retained, so that institutions can have uniform norms and standards, rather than each institution seeking to have its own institutional rules.

Clause 14
Clause 14 provides for the Minister to appoint an administrator to take over the authority of the council or the management of the institution if there is financial or other maladministration. This must be done after consultation with the council of the public higher education institution. The Minister will also determine the period within which the administrator can work at the institution.

Comments:
1. NEHAWU: suggests that the word Parliament should be inserted in line
41 after the word practicable'. This means that the Minister will also have to consult with Parliament when appointing an administrator to take over the authority of the council or the management of an institution.
2. SAUVCA: Recommends that the administrator should take over the authority of the council and/or the management.

Clause 20
Clause 20 substitutes section 60 (1) of the Act, which deals with conditions of registration. In terms of this Bill, the registrar may impose any reasonable condition, which may include a condition that none of the words or derivatives of the words university or technikon may appear in a name of a private higher education institution.

Comments:
1. SAUVCA: The organisation feels that there is no prohibition on a university that masquerades as a technikon, a life insurer that masquerades as university, or an individual offering a one-day MBA. SAUVCA thus recommends that the clause should say:
'no person, independent school and no other private or public education institution may call itself a university or a technikon or confer a professorship or a degree or an honorary degree or use the title rector etc, unless it is registered as a private higher education institution in terms of chapter 7'.

Clause 22
Clause 22 provides for a new section (section 65) to be inserted in the principal Act. Section 65(A) deals with the seat of a public higher education institution. The Bill provides for the seat of an institution to be the physical location of the institution. The Bill also provides for institutional statutes to be used to define where an institution carries out its teaching and research activities. This is however approval is also needed research activities within institution.
Section 65(B) deals with the awarding of diplomas and certificates as well as the conferring of degrees. Section 65(C) gives permission for a public higher education institution to use its statutes to confer honorary degrees without examination. The Bill also says that the award does not entitle the holder to practice any profession.

Comments:
1. UNIS: The institution proposes that the restriction imposed by clause
22 should not apply to UNISA, as it undertakes its activities throughout and beyond the borders of South Africa.
2. SAUVCA: The organisation is concerned about the interpretation of what "carrying out its research activities" means. They also say that there needs to be a mechanism for affected public higher education institutions to be consulted on the definitions of the seat of a particular institution.

Clause 25
Clause 25 provides for transitional arrangements regarding the Certification Council for Technikon Education (Sertec). The Council for Higher Education will take the responsibilities of Sertec.

Comments
1. CTP suggests that the assets of SERTEC should devolve upon CTP as a representative body of the technikons.
2. NAPTOSA: Clause 25 refers to the Council for Higher Education as a body that will responsible for accrediting agricultural colleges. NAPTOSA states that the Bill needs to clarify who is deemed to be an accredited as the Education and Training Quality Assurer, whether it's the CHE or the Higher Education Quality Committee.

Clause 26
Clause 26 deals with transitional arrangements relating to universities. Institutional statutes of universities that existed before the commencement of this Act will continue to exist. Those matters contained in the private Act and that are not dealt with in the principal Act or institutional statutes will remain in the private Act for a period no longer than 2 years. These matters should however be regarded as indispensable for the effective running of a university.

Comments:
1. SAUVCA: The organisation feels that the provision in clause 26 is inadequate. They propose that structures that are in place must continue until their terms of office expire. They also suggest that provisions in the private Acts that cannot be provided for in the institutional statutes remain in the Act (This is partly covered in clause 26(2)).
2. NEHAWU: Proposes that the incorporation of certain sections of Private Acts into institutional statutes be admissible under exceptional circumstances and with the approval of the Minister.

Appendix 2
PROPOSED AMENDMENTS: HIGHER EDUCATION AMENDMENT BILL
DR BL GELDENHUYS: NNP
MR RICHARD NTULI : DP

PROPOSED AMENDMENTS:
1 Clause 3(6)
"Must" be substituted by "May"
except the function to make the institutional statute" be deleted.

2 Clause5
"Must" be substituted by "May"
After Subsection 1, insert the following words: "and in consultation with the councils of the public higher education institutions concerned".

3 Clause 5(7) (a)
Insert the words: "elected from among its members".

4 Clause 5(8)
Delete the words after 7(b) and insert the following words: "elected by consensus between the affected institutions".

5 Clause 7(b)(8)
"Members" substituted by "membership". The words "at a meeting" be deleted.

6 Clause 23
It should be made clear that the provisions of this clause do not apply to
UNISA.

7 Clause 24
Insert the following words after "hereby": "amended to meet the requirements of the Higher Education Act and the constitution".

8 Clause 25(5)
The words after "Technikon Education" be deleted and be substituted by the following words: "should be devolved to the CTP".