National Qualifications Framework Bill, General & Further Education & Training Quality Amendment Bill, Higher Education Amendment Bill: Department’s response to Provincial Negotiating Mandates

NCOP Education and Technology, Sports, Arts and Culture

14 October 2008
Chairperson: Mr. B J Tolo (ANC)
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Meeting Summary

The Department of Education responded to the concerns that had been raised by the Provincial Committees in their negotiating mandates to the Select Committee. The Chairperson noted that the majority of these concerns were not made in support of any concrete proposals for amendments, save for the technical amendments proposed by Gauteng province. Notwithstanding this, however, the Department’s response was needed to ensure progress and the proper legislative procedure. The Department noted that the majority of the concerns raised were superfluous, in light of the extensive deliberations and discussions that had occurred on the very same issues during public hearings, as well as in the process of reviewing the National Qualifications Framework over a seven year period. In its detailed responses to each of the concerns raised, on a province-by-province basis, the Department noted that many of the recommendations were already encompassed in the current legislation, and that no further amendments were needed. For instance, the Department had rejected a proposal by the Gauteng province to insert a definition for the term ‘standards’ in the legislation on the basis that the use of ‘part qualifications’ was adequate and avoided the ideological difficulties that might arise with the use of the word ‘standards’. The Department acknowledged the value of the suggestion by the Gauteng province that the South African Qualifications Authority (SAQA) ought to develop a set of National Qualifications Framework (NQF) navigational tools to aid understanding and provide career guidance to learners in the education system. The implementation of a specific legal provision compelling SAQA to develop the NQF navigational tools would be unwise, however, given the unpredictable nature of the costs associated with such initiatives and the burden that could potentially be placed on the Department’s financial resources. Several other recommendations had been made concerning the composition of SAQA’s board and that organisation’s functions and collaborative relationship with the Quality Councils that would be established in terms of the proposed legislation. Save for Gauteng’s proposal for technical amendments in terms of numbering and ordering of certain sections of the legislations, there were no other principal changes that needed to be made. However, the Committee did discuss in some detail the need to verify both local and foreign qualifications in light of the increasing incidence of fraud by potential employees. The meeting adjourned with the agreement that the provinces should be permitted an opportunity to receive the Department’s responses to their concerns before the legislation could be finalised, which should take place before the close of Parliament for the year.

Meeting report

National Qualifications Framework Bill (NQF Bill), General & Further Education & Training Quality Amendment Bill (GFETQA Bill), and Higher Education Amendment Bill (HEA Bill): Department of Education (DOE) responses to comments made in Negotiating Mandates
The Chairperson began by providing a re-cap of the legislative procedure followed to date, noting that the Committee was now at the stage of consideration of the negotiating mandates on the NQF Bill and the GFETQA Bill. He noted that whilst all the Republic’s nine provinces had given their mandates, a few of them had raised certain concerns. The Chairperson questioned the correctness of the practice of submitting mere concerns as opposed to concrete proposals for amendments. However, since it had become a regular practice, the Committee would allow these concerns to be responded to by the Department of Education, although in future this would not be permissible. The purpose of the present meeting was therefore to consider the concerns that had been raised by the provinces in their negotiating mandates. Some provinces that were awaiting the responses to their concerns before they could submit their final mandates so that the proposed legislation could then be finalised.

Ms J Masilo (ANC, North West) and Mr M Thetjeng (DA, Limpopo) pointed out that some of the concerns were concrete proposals for amendments.

The Chairperson agreed that any concrete proposals for amendments would be dealt with as the Department’s response to them was heard.

Department of Education’s Response to Negotiating Mandates from KwaZulu-Natal
Mr Duncan Hindle, Director-General, Department of Education, presented the Department’s responses to the concerns raised by various provinces in their negotiating mandates to the Select Committee on the NQF Bill. He was assisted in his presentation by Chief Director, Advocate Elan Boshoff and Ms Vivian Carlelse, Deputy Director-General of the DOE.

Mr Hindle expressed his appreciation to the members of the provincial Legislatures and the Select Committee for their sterling contribution throughout the progress of the proposed legislation. He submitted that the NQF Bill and the GFETQA Bill were the product of a review of the National Qualifications Framework (NQF) that had been undertaken over a period of seven years. There had been, therefore, an extensive period of discussion and deliberation between the Department and various stakeholders such as the Ministry of Labour. Many of the concerns raised were therefore a repetition of matters that had been discussed already. It was necessary to arrive at some conclusion of these debates as opposed to re-opening them, considering the pressure of time and the need to finalise the legislation.
 
Mr Hindle responded to two queries that had been raised by the Kwazulu-Natal (KZN) province. In supporting the NQF Bill, the Provincial Standing Committee on NCOP matters had firstly proposed that South African Qualifications Authority (SAQA) board members should be representing and reporting to recognised structures. Mr Hindle responded that evidence from practice had shown that the need for mandated representation had been one of the stumbling blocks within the current SAQA Board. The Board had been unable to reach decisions in an effective way because each time they had to defer meetings to acquire mandates. There had been a very strong push; therefore, supported by those working in SAQA, to emphasise an independent structure. Mr Hindle pointed out that the composition of SAQA did give, through the National Assembly process, adequate recognition of certain constituencies, which he listed. There were also provisions around a labour constituency, which was recognized as a particular constituency that would have to feature in the SAQA board.

Secondly, with regard to the Bill’s explanatory memorandum, the KZN provincial legislature had expressed its reservations concerning the issue of financial implications. It stated that in principle reducing SAQA’s functions would result in savings that would offset the cost of adding functions. The extent of the offset was, however, unknown. There was a concern that this was going to be one of the factors that would hinder the implementation of the legislation. Mr Hindle responded that there had already been extensive engagement between SAQA and the two existing Quality Assurance institutions (that would soon become Quality Councils) around the reshuffling of personnel and the delegation of responsibilities. The Department would ensure that the process would not affect the functioning of these bodies.

Discussion
The representative of the KZN legislature said that as much as KZN did not want to see the work of SAQA hindered in any way, there was a concern that there might not be sufficient opportunity for those constituencies to liaise with their representatives in SAQA. There was a need for some assurance that this danger could be averted.

Mr Hindle responded by making references to the clauses listing the constituencies that the Minister was required to nominate, from which representatives would be selected. He submitted that this process addressed the concerns expressed by KZN.

DOE response to Negotiating Mandates from Gauteng
Mr Hindle observed that most of the concerns raised by the Gauteng province were valid, but that they had been dealt with in different parts of the legislation. The first proposal related to the portability and recognition of qualifications at different levels on the NQF between the different councils. Mr Hindle responded that this was a matter which lay at the heart of the Bill’s objectives and was therefore adequately addressed as the overall purpose for the legislation. The Bill set up a National Qualifications Framework. The whole purpose of that framework was to ensure that wherever people learnt or acquired qualifications there would be comparability across the different NQF levels. This was not an entirely simple process. For instance a decision had to be made about how a qualification obtained in a workplace context compared to one that had been obtained at an institution of learning. The intention of the Bill was quite clear, however, as set out in its objects.

Gauteng Province had also proposed that the Bill should mandate the different councils to set up the policy frameworks to ensure alignment between the Quality Councils so that high standards were maintained. Mr Hindle responded that SAQA was an apex organisation at the top of the pyramid with the Quality Councils operating beneath it. SAQA played an important rule in terms of overall co-ordination and alignment of the work of the Quality Councils. He referred the Committee to Clauses 27(d) and 13(f), in terms of the collaborative relationship between SAQA and the Quality Councils.

The Province had also recommended that the word ‘standards’ should be included under definitions in order to provide articulation between the education as well as the training sector. Mr Hindle submitted that the debate over the use of the word ‘standards’ had come a long way, and had repeatedly been raised at the public hearings. Despite several perspectives around this term, the Department had opted for a definition that referred to ‘part qualifications’. According to the Bill’s definition section, a ‘part qualification’ was an assessed unit of learning that was registered as part of a qualification. This definition had the same meaning as ‘standards’. The Department preferred to use the former term to avoid the introduction of subjective emotive elements that could arise with the use of the word ‘standards’, such as the question of whose ‘standards’ were being applied. The Department was of the view that the term created unnecessary ‘ideological baggage’, should be avoided in legislation, and, because no reference was made to this word in the Bill, it was not necessary to insert a definition.

The province then proposed that the Bill should clarify the role of SAQA in terms of quality assurance and allow SAQA to give input in terms of quality assurance, in consultation with the Quality Councils. Mr Hindle pointed out that this was precisely what was being done in the clause that spoke about the objectives of the NQF. It was also clearly specified in the provisions dealing with the functions of SAQA. There were Quality Assurance Frameworks that would be established and they would be registered by SAQA to provide mechanisms by which the Quality Councils would work.

The province suggested that, in terms of their advocacy role, the Bill should also provide for SAQA to develop a set of NQF navigational tools that would enable learners to understand and make informed choices as to the kind of learning pathways they needed to follow in order to reach their career objectives. Mr Hindle commented that SAQA had been advocating this over a long period of time and was keen on the idea, which it planned to implement in several ways. Although there was nothing in the Bill expressly forbidding SAQA from doing this, the Department had some reservations over whether legislation should expressly allow it to do this. He submitted that the Department would want to first obtain an indication of the cost implications of developing these navigational tools, to allow discretion in terms of the budget. A situation where legislation made it mandatory to develop the NQF navigational tools without proper interrogation could lead to negative financial consequences. The use of money was best left to be determined by a business plan as opposed to legislative direction.

Gauteng had then recommended that the role of SAQA as set out in Clause 13(n)(i) should be done jointly with the Quality Councils, and the words “by a coordinated communication strategy” should be included after “inform the public about the NQF” in order to ensure that there was a streamlined communication strategy. Mr Hindle said that the DOE had no fundamental opposition to this proposal. He was not entirely sure that it required spelling out in the Bill, since SAQA was by nature a coordinating structure that would collaborate with the Quality Councils in most of its functions. The system of collaboration in the Bill would provide for communication strategy and it would thus be unnecessary to specify this in a clause. The Department would endeavour to ensure that SAQA understood the need for a coordinated communication strategy.

Gauteng had noted that although the Ministers should cooperate in discharging their functions, this was not actually set out in the Act, and recommended that this be inserted. Mr Hindle noted, however, that the DOE had consulted its legal advisers, who felt that it was not desirable to include a provision in legislation that Ministers should cooperate in discharging their respective responsibilities under the Act, nor could one instruct the other how to act.
 
Gauteng had also suggested a number of technical amendments and recommended that the numbering as captured in “Page 2 Amendments Agreed To” should be corrected to reflect the numbering in the Bill:
Clause 4 line 45 should read line 44
Clause 5 line 50 should read line 49
Clause 9 1 line 40 should read line 33
Clause 9 2 line 41 should read line 34
Clause 9 3 line 43 should read line 36
Clause 9 4 line 43 should read line 36
Clause 9 5 page 5 should read page 4
Clause 9 5 line 7 should read line 53
The DOE accepted all of these suggested amendments, and resolved to reflect these changes in a revised form of the Bill.

Discussion
The Chairperson observed that members had not been furnished with a copy of the corrections made to the Bill and requested the Department to make these available as soon as possible.

DOE response to the Limpopo Provincial Legislature’s Mandate
Mr Hindle noted that Limpopo Province had suggested that in Clause 4 the notice for the nominations for the appointment of members of the Board should be advertised in two local papers, in addition to the Government Gazette. He responded that this would prove expensive in practice and involved complexities such as how to determine what constituted a local paper. In any event, it was accepted in practice that such notifications were made in the Government Gazette, and there seemed to be no compelling reason to add other publications, especially considering the additional costs that this measure would involve. When such notifications were placed in the Gazette, the Department would then write to the different constituencies that were set out in the Bill to bring the notification to their attention.

There was also a proposal that Clause 13(1) (m) should also provide for the verification of foreign qualifications. The Department responded that this was not in the domain of SAQA, as it was not equipped to verify foreign qualifications and could only evaluate them to determine their comparability with those obtained in South Africa. The verification of the validity of foreign qualifications was the responsibility of an employer or academic institution. Adding the verification of qualifications to SAQA’s mandate and functions would involve significantly high costs, applying as it would to all sectors since SAQA was a national body. He suggested that perhaps this matter could be taken further through discussions with an appropriate office in government to determine a feasible mechanism for the verification of foreign qualifications. At present, the verification of qualifications was being done by other bodies, who were mostly private sector corporations.

Discussion
Mr M Thetjeng (DA, Limpopo) asked the Department to suggest which government institution could undertake the verification of qualifications. He noted that there had been a proliferation of fraudulent qualifications and cited the example of a foreign national who had misrepresented to a government department in Mpumalanga that he possessed essential skills, although it was finally discovered that his qualifications were false. It was not sufficient therefore, to simply evaluate qualifications, especially in the case of foreign nationals who sought employment in South Africa. It was necessary for the verification function to lie somewhere within the National Qualifications Framework. Perhaps the DOE could set up a specialised unit for dealing with foreign qualifications in terms of evaluating and verifying them as a way to prevent fraud.

Mr Hindle responded that the verification of qualifications was primarily an employer’s responsibility. SAQA did not possess the kind of expertise required to carry out this function. If the suggestion was that this should be undertaken by a state agency, then this would require a bigger discussion between government and other constituencies such as labour and the private sector. It would certainly be inappropriate for this function to be handled by SAQA.

The Chairperson agreed that the Department of Education should take the matter up, so that at some stage it could be known where this function could be located within government. It was important to speedily close the loopholes that would allow bearers of fraudulently-acquired qualifications to remain undetected in the labour force.

Other members intimated the need to ensure that learners in the education system were protected from the bearers of fraudulent qualifications, as this could negatively impact on the quality of their education. Employers had to be particularly vigilant and had to have reliable mechanisms for the verification of qualifications.

Mr Thetjeng submitted that the current legislative process was an ideal opportunity to consider the implementation of a verification mechanism in the NQF. There were real dangers of fraud that made South Africa vulnerable.
Mr M Sulliman (ANC, Northern Cape) responded to Mr Thetjeng’s comments, saying that while he agreed that the verification of qualifications was important, these did not belong in the present legislation. It was necessary to look at the cost implications of instituting these particular mechanisms. At best, this Select Committee could only make recommendations to government.

Mr Hindle pointed out that the DOE had a policy of verifying qualifications and the danger of fraud was thus covered. He submitted that SAQA did not just serve the public service but also served the private sector. If a verification framework was to be put in this legislation, it would be saying that this must be done for the entire nation and not just for government. The Department would therefore take a position that this matter would be taken up for discussion in government to gather information about current practices in different departments. Once government had made its own resolutions, it would still be necessary to consult with the private sector to enable national consensus on the issue.

The Chairperson agreed that this debate would be deferred for the moment, but should be re-opened early in 2009, when the Department could provide feedback on the thoughts of government on this matter.

DOE response to mandates from the Northern Cape Provincial Legislature
In its negotiating mandates the Northern Cape Provincial Legislature had highlighted the issue of standard qualifications and the monitoring of private qualifications. The Department submitted that these matters were addressed in the Higher Education Act, GFETQA and the Further Education and Training Act that provided for the registration of private institutions. It was therefore unnecessary that the current Bills cater for the same issues.

Northern Cape had also raised similar concerns to those of KwaZulu Natal about references to the Minister in the legislation, and Mr Hindle’s response given earlier applied to these as well. 

Concerns were expressed that SAQA may not have capacity to contribute to the development of the country’s human resources. Mr Hindle pointed to the collaborative relationship with the Quality Councils as an initiative for development.

DOE response to the Western Cape Provincial Legislature’s Mandate
The Western Cape had registered its concern regarding conduct of board meetings, their frequency, and the required quorum, which it suggested was not sufficiently spelt out in the Bill. It recommended that the SAQA board convene at least four times during the year and that a quorum of at least 50% plus 1 should be stipulated in the legislation. The DOE responded that the conduct of meetings was well established and was best left to be decided by SAQA, in accordance with their conventions and practices. It would be difficult for legislation to dictate the precise manner in which meetings could be conducted.

The Committee raised other general issues of concern in Education, not specifically related to this Bill, such as the service conditions for relief teachers and problems with schools that had generated huge amounts of debt for utilities such as electricity and water.

Members then agreed that the Provincial Legislatures should be afforded an opportunity to peruse the DOE responses, and the suggested technical amendments to the numbering, before they submitted their final mandates.

It was noted that this should be done in time for the Bill to be finalised before the end of the Parliamentary session.

The meeting was adjourned.

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