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EDUCATION AND RECREATION SELECT COMMITTEE
5 October 2001
HIGHER EDUCATION AMENDMENT BILL: BRIEFING & VOTING
Chairperson: Mr D Kgware
Higher Education Amendment Bill [B61-2001]
The Departmental Legal Advisor explained that the Bill addressed the following principles: (i) Private Acts (ii) Declarations and Mergers of Institutions (iii) Private Providers and (iv) Provisions that would strengthen the Higher Education Act.
The Committee agreed to the Bill without amendment, with objections from the New National Party and the Democratic Party.
Higher Education Amendment Bill: briefing by the Department of Education
Adv E Boshoff (Director: Legislation in the Department of Education) stated that as a s75 Bill the Higher Education Amendment Bill was still a competency of the National Department. It amends the Higher Education Act. It addresses the following principles:
Private Acts: In 1997 the White Paper had flagged this as being an issue to be dealt with in future. The Department had then obtained advice from the Committee on Higher Education (CHE) regarding the Private Acts. They had also consulted the SA Vice Chancellors' Association and the Committee of Technikon Principals. In addition, the opinions of stakeholders at public hearings had been taken into account before the Minister agreed to repeal the Private Acts. The Private Acts had applied to Universities, but not to Technikons. The Private Acts were mainly of symbolic value. The autonomy of the institution was derived from an Act of Parliament i.e. the Higher Education Act and such institution therefore had to function in terms of such Act of Parliament. Any protection received by such institution would have been granted by such Act of Parliament. The repeal of the Private Acts was therefore not an infringement on the autonomy of the university.
In 1997 conflict between the Acts had been envisaged. Thus, a supremacy clause had been built into the Higher Education Act. However there had still been much confusion because of the old terminology used in the Private Acts. The way in which the Private Acts dealt with the issue of composition was also in conflict with the Higher Education Act. Many persons were affected by the inconsistency between the legislation. It became evident that a single unified system was needed, which dealt with the different Acts under one simple piece of legislation. Because of the need for legal clarity the Department therefore decided to repeal the existing legislation and to replace it with one workable Act.
Declarations and Mergers of Institutions
Although this issue had already been dealt with in the Act there had been a vacuum in the legislation. No provision had been made for a person to steer such institution to become a functional institution again. There was thus no one to set up democratic structures to enable such institution to become functional again. A practical arrangement was then introduced in the form of an Interim Council. This Council would serve for six months, which could then be extended to a further six months. The Council would be responsible for the day-to-day running of the institution. It would be composed only of outside members, but would be responsible for appointing internal management, who would implement decisions of the Council. The provisions concerning the Council apply only to declared institutions that are substantive institutions in their own right. It does not apply to declared institutions which exist as a subdivision of an already-existing institution.
Last year a few amendments had been introduced in this regard. This year the Department had been approached by the Private Providers to revisit certain terminology. S53 deals with the requirement with which an institution has to comply in order to be registered. S54 states that an applicant can be registered if they will have the ability to comply with the S53 requirements within a reasonable period. S60 provides that the Registrar may add conditions to an applicant's registration.
Provisions that would strengthen the Higher Education Act
S65A, S65B and S65C were inserted after S65. S65A explains what a 'Seat of public higher education institution' is. S65B confers on a public higher education institution the right to award degrees, diplomas and certificates. S65C enables a public higher education institution to grant honorary degrees without examination to any person whom that institution deems worthy of such degree.
Transitional arrangements pertaining to the Certification Council for Technikon Education were included. This granted technikons with the window of opportunity to suggest amendments. Old legislation is deemed to still be in place until repealed or overridden by the principal Act in order to avoid a vacuum.
Clause by clause briefing on the Higher Education Amendment Bill
Clause 1: This is a technical amendment. It puts in place the Higher Education Quality Committee, which will regulate on all Education and Quality Assurance matters.
Clause 2: This is a technical amendment.
Clause 3: The Chair of the CHE will have the right to additional remuneration. One has to take into account the importance of the work this person does and the specific qualities s/he needs to possess. This happens with the approval of the Minister and the Minister of Finance.
Clause 4-6: This deals with the second principle mentioned above, i.e. that of declarations and mergers and the way in which the Interim Council will fill the vacuum.
Clause 7-8: Clause 8a is a consequential amendment resulting from the repeal of the Private Acts. Clause 8b creates legal certainty.
Clause 9-15: These are also consequential amendments resulting from the repeal of the Private Acts. Clause 12 creates legal certainty and serves to eliminate possible vacuums.
Clause 16-22: This deals with the third principle mentioned above, i.e. the issue of conditional and provisional registration. The Registrar sets out the conditions in terms of current legislation.
Clause 23: When a decision is appealed against, the Registrar's decision is suspended pending the outcome of the appeal.
Clause 26: The Bill repeals approximately 100 pieces of legislation. If the Act is amended the only Acts that will apply to higher education institutions are the Higher Education Act itself and the National Student Financial Aid Scheme Act
Mr Tolo (ANC) referred to the fact that decisions were suspended in the case of an appeal. He asked if the absence of time frames would cause paralysis of the institution, as the decision could then be suspended indefinitely.
Adv Boshoff said that although subsection 3 of S64 had been repealed, the rest of the section was still applicable. Thus, the time limit as set out in S64 (2) still applies. A shorter period had not been chosen, as this would have led to appeals being entered in a haphazard manner. In addition there would be attempts to obtain extensions through the submission of documents and by visits to court. This would however have gone against normal principles. It is normal practice for decisions to be suspended pending an appeal.
Ms J Witbooi (NNP, Western Cape) asked whether it had been absolutely necessary to repeal the Private Acts. She asked if it would not have been preferable to amend these.
Adv Boshoff stressed that there are two types of higher education institutions, i.e. universities and technikons. If the Private Acts had remained in place it would have meant that all institutions should be allowed to have them. Technikons would therefore have to be brought on board. It would also have meant that there would be 36 repetitions of what is already contained in the Higher Education Act. The decision to repeal them was therefore cost effective, as they would not be flooding the Parliamentary programme. In addition, the Private Acts served no purpose other than being of symbolic value for universities. It had no such value for Technikons, as it had never applied to them.
Finalisation of the Higher Education Amendment Bill
The Chair briefly mentioned each clause and asked members to indicate if they had any objections.
Ms Witbooi stated that the NNP had found it disturbing that only the Minister was involved in the appointment of the Interim Council. This made the process rather undemocratic.
The Chair asked the Committee if he could sign the Motion for Desirability or if there were any objections to the Bill.
Ms Witbooi indicated her objection to the Bill on behalf of the NNP. Mr N Raju (DP) indicated his objection to the Bill on behalf of the DP.
The Chair noted that the Committee accepted the Bill, with objections by the DP and NNP. He signed the report.
The Chair said that the Committee would be debating the Bill. He had however not checked with the Director-General whether this discussion would be combined in the same debate with the two S76 Education Bills.
Adv Boshoff stated that whereas the two S76 Bills would be dealt with as one, there was much uncertainty with regard to the Higher Education Amendment Bill. Although all three Deputy Directors-General believed that the three Bills could be included in one debate they had indicated that the Committee had to make the decision. The Committee therefore had to give the Department some clarity as to what approach they would take.
Mr Raju suggested that it should be handled separately from the S76 Bills, but on the same day.
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