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Department of Higher Education and Training

Department of Higher Education and Training Responses to public comments on the Higher Education Amendment Bill, 2015 Presentation to the Portfolio Committee on Higher Education and Training 24 February 2016. Introduction.

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Department of Higher Education and Training

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  1. Department of Higher Education and Training Responses to public comments on the Higher Education Amendment Bill, 2015 Presentation to the Portfolio Committee on Higher Education and Training 24 February 2016

  2. Introduction • In response to the submissions, the Department proposes to deal with presentations in a chronological order during the public hearings • For the sake of completeness, the Department deemed it prudent to accentuate both the positive points and the various concerns raised in these submissions

  3. South African Parastatal and Tertiary Institutions Union (SAPTU) SAPTU acknowledges that: • HEA Bill has been widely consulted • Most of the proposed amendments are necessary for more effective functioning of the higher education sector

  4. South African Parastatal and Tertiary Institutions Union (SAPTU) SAPTU concentrated its comments on: • proposed amendments – direct bearing on conditions of service of members of a trade union • Transformation Goals + Oversight Mechanisms [s.3(3)(b)] [clause 3] – is too broad, no definition. • Ministerial Directives + Appointment of an Independent Assessor (IA) and Administrator [s. 42-49J] [clauses 16-28] – too much power to Minister • Increased administrative burden [s 41 &34] [clauses 13 & 10] – in respect of declaration for Supply Chain Management

  5. Transformation Goals + Oversight Mechanisms [s.3(3)(b)] [clause 3] Department’s response: • Section 3(1) of the principal Act: is peremptory and therefore these amendments are not conferring new policies. • Section 3(1): The Minister MUST determine policy on higher education AFTERconsulting the Council on Higher Education (CHE) – Is in principal Act. Some said CHE has no role in amendments • The Department proposes an amendment to section 3(3)(b) to read as follows: ”(b) determine the scope and range of transformation goals and oversight mechanisms;” and remove “appropriate”

  6. Ministerial directives: Appointment of Independent Assessor and Administrator [sections 42-49J] [clauses 16-28] • Public Higher Education Institutions (PHEIs): state funded; public accountability; Minister’s power to appoint IA and Administrator in current Act; Provisions only restructured and strengthened • [s. 42 (1)( c); was s. 49A(1)(c )] [clause 16]: DHET accepts substitution of “unfair and discriminatory” with “wrongful”. Reference to “wrongful conduct” will encompass actions that are deemed “unfair and discriminatory”. Minister will exercise his powers within the context of established law, whereby the manner in which those powers are exercised can be tested in an independent legal forum against established legal principles

  7. Increased Administrative Burden on PHEIs [sections 41 and 34] [clauses 13 and 10] • Declaration of Interest: SAPTU acknowledges the need to regulate against corruption of individual self-interest in the context of employment within an organ of state • Onus is on employee to declare any business, commercial or financial activities undertaken for financial or other gain that may raise a conflict or possible conflict of interest with the PHEI concerned [s. 34(4)] [cl.10(b)] • Not all employees should declare their interest but only those employees with delegated functions and/or any members of council or committee of council [s. 27(7)(c) / cl. 8(e)], [s. 27(7C) / cl. 8(h)]; [s. 27(7E) / cl. 8(i)]

  8. Increased Administrative Burden on PHEIs [sections 41 and 34] [clauses 13 and 10] No omission of definition of ‘’relative” [cl.1(g)] “relative” in relation to any person, means: • the spouse of that person; • anybody related to that person or his or her spouse within the third degree of consanguinity or affinity; or • any adoptive child within the first degree of consanguinity

  9. Increased Administrative Burden on PHEIs [sections 41 and 34] [clauses 13 and 10] The DHET proposes an amendment to the definition of “spouse” as requested by the Universities South Africa (USAf) and North-West University (NWU): “spouse” means a person’s partner in a marriage- • recognised as such in terms of the laws of the Republic or a foreign country; or • concluded in terms of Islamic or other religious rites; or • in a same sex or heterosexual union which is intended to be permanent

  10. University of Cape Town (UCT) In order to separate the sections dealing with Public and Private HEIs, the Department proposes a revised definition for: “‘higher education college’ means a higher education institution providing higher education, but withalimited scope and range of operations,and which meets the criteria for recognition as a higher education college as prescribed by the Minister in accordance with section 3(3)(a) and; • section 20(5B) for a public higher education college; or • section 54(7) (b) for a private higher education college.”

  11. University of Cape Town (UCT) The Department proposes a revised definition for: “‘university’ means a higher education institution providing higher education, but withascope and range of operations,including undergraduate and post graduate higher education programmes, research and community engagement, which meets the criteria for recognition as a university prescribed by the Minister in accordance with section 3(3)(a) and; (a) section 20(5B) for a public university; or (b) section 54(7) (b) for a private university.”

  12. University of Cape Town (UCT) The Department proposes a revised definition for: “‘university college’ means a higher education institution providing higher education, but withalimited scope and range of operations,and which meets the criteria for recognition as a university college as prescribed by the Minister in accordance with section 3(3)(a) and; (a) section 20(5B) for a public higher education college; or (b) section 54(7) (b) for a private higher education college.”

  13. University of Cape Town (UCT) “The new types University College “and Higher Education College” not consulted. • “College” is defined in Act, not a new term; • Urgency of being constitutionally compliant, affected consultative process regarding the different higher education institutions (HEIs) • Newly established university can seldom operate ab initio in the same manner as a fully fledged university. Difficult to have the same scope and range of operations, including undergraduate and postgraduate higher education programmes, research and community engagement, which meets the criteria for recognition as a university • University of Mpumalanga and other new universities

  14. University of Cape Town (UCT) • Litigation risk: s. 29 of the Constitution and private HEIs • If an established or registered university does not meet the criteria for recognition as a university anymore: convert to a type of HEI for which it meets the set criteria, such as a university college • Similarly, if an established or registered university college does not constitute a university college anymore, because it does not meet the criteria therefore, but it meets the set criteria for a higher education college, then conversion is an option • The Department concurs with the removal of the definition of PFMA – it was a typo

  15. University of Cape Town (UCT) • The Department accepts substitution of “unfair and discriminatory” with “wrongful” [s. 42 (1)( c); was s. 49A(1)(c )] [clause 16] Reference to “wrongful conduct” will encompass actions that are deemed “unfair and discriminatory • Ground in clause 16: “has failed to comply with any law” (section 42(1)(d)). The Department does not concur with the recommendation by UCT to amend the clause to read as follows: “a substantial contravention of or failure to comply with any law”.

  16. University of Cape Town (UCT) Clause 36 [section 65BA(1) and (2)], although the Department concurs with the recommendation that the disciplinary provisions applicable to students as set out in the Institutional Rules may make provision for the withdrawal and revocation of any degree, diploma, certificate or other qualification on other grounds after due legal processes are followed, it is for the higher education institutions to incorporate such in their respective Institutional Rules. This amendment is purely to rectify an error by an institution. This amendment is extended to Private HEIs. The Department also recommends that if qualifications are revoked ,the relevant Quality Council and SAQA to be informed so as to amend the National Learner Record Database if necessary

  17. University of Cape Town (UCT) Clause 37 [section 65D]: Qualifications registered on National Qualifications Framework (NQF) S.65D(2): Any public HEI identified by the Minister in accordance with policy determined under section 3, MUST offer an education programme or trade and occupational learning programme… hence the Minister can compel institutions to offer an educational programme and in the Department’s view that cannot be taken arbitrarily and capriciously. The issue of funding as well as other consideration will certainly have to be taken into account

  18. Higher Education Transformation Network • The Higher Education Transformation Network(HETN) is of the opinion that the statutory amendments contained in the Higher Education Amendment Bill, 2015 are necessary and in the national interests of the Republic of South Africa, to assist the country to attain its National Development Plan goals and objectives • HETN supports the legislative amendment that the Office of the Auditor-General is involved in the external audit functions of all publicly funded higher education institutions • Most of the comments from HETN, although relevant to the higher education sector, fall outside the scope of the current Higher Education Amendment Bill, 2015. However, their research and analyses points to the need for transformation

  19. Council on Higher Education (CHE) • The CHE acknowledges the intention and spirit of the provision for the Minister to determine the transformation goals for the higher education systemand institute oversight mechanisms as contemplated in clause 3 [section 3(3)(b)]. • An oversight mechanism of the nature intended will ensure that the matter receives adequate attention and rises above the radar in terms of accountability and measurable progress while mitigating the effects of volatility and upheaval instigated from time to time by vocal and militant constituencies which perceive progress to be too slow

  20. Council on Higher Education (CHE) • CHE supports amendments in clauses 15 to 29 [sections 41A to 49W] as well as subsequent clarification of various constructs such as ‘Ministerial directive’, ‘Independent Assessor’ and ‘Administrator’ • CHE agrees with the Department that these amendments serve to strengthen the accountability of institutions in terms of good governance, without interfering with the autonomy and academic freedom of institutions of higher learning. It has become imperative for speedy intervention in dysfunctional institutions or those in protracted crisis so that remedial action can be taken timeously, and long before irreparable damage is done to an institution and the value of its qualifications

  21. Council on Higher Education (CHE) • The Department concurs thatthe oversight will be consistent and transparent to all the parties • The fact that the Higher Education Act prevails, subject to section 34 of the National Qualifications Framework Act, 2008,over provisions of other legislation that regulates higher education and related matters in the Republic, and that is materially inconsistent with the objects or a specific provision of the Higher Education Act, does not have a dilatory effect on the independent advisory and monitoring functions of the CHE • The Department does not concur with the proposed amendments to stipulate that the private universities would also be required to have Senates, as the highest decision making structures on academic and research matters. This is a corporate governance function

  22. Council on Higher Education (CHE) • With regards clause 36 [section 65BA(1) and (2)], dealing with the “Withdrawal and revocation of degree, diploma or other qualification”, the two year period is a prescription period which shall only apply if error(s) are made by the higher education institution. The provision does not only apply to public higher education institutions but is also applicable to private higher education institutions. Subsection (3) will be inserted to indicate that the provisions of subsections (1) and (2) shall mutatis mutandis apply to private higher education institutions, subject to the necessary changes.”

  23. Council on Higher Education (CHE) • The Higher Education Qualifications Sub-Framework (HEQSF) is defined in the Bill, but the Department omitted to amend section 65D(1) and consequently the acronym HEQF has not been substituted by HEQSF, as it should have been • Also made point that amendment to 3(3) does not include consultation with CHE, however it is a requirement in section 3(1) • With regards section 65B, which deals with degrees, diplomas and certificates: the Department admits that the current provision is silent on a private higher education. The Department concurs that same provisions must mutatis mutandis apply to private higher education institutions, subject to the necessary changes, hence the insertion of a new section 65BB to that effect is recommended

  24. Council on Higher Education (CHE) • With regards clause 37, The Department’s position is that there is nothing erroneous with this provision. The concern that the Minister can compel institutions to offer an educational programme can, in the Department’s view not be taken arbitrarily and capriciously. The issue of funding as well as other considerations will certainly have to be taken into account

  25. Catholic Institute of Education (CIE) With regards the setting of ‘transformation goals’ [clause 3; section 3(3)(b)]: The Minister has the right and responsibility to determine policy “in the interest of the higher education system as a whole” (section 3). Section 3(1) of the Act makes it peremptory for the Minister to determine policy on higher education after consulting the CHE Taking all the comments into consideration, the Department proposes an amendment to the current clause 3: [section 3(3)(b)], to read as follows: (b) “determine the scope and range of transformation goals and oversight mechanisms; and”

  26. Universities South Africa (USAf) Clause 1: Section 1 – Definitions • The Department is amenable to the amendments of certain definitions to address the concerns raised to include private higher education institutions and proposes the rephrasing of the definitions currently in the Bill with the following definitions: • “’higher education college’ means a higher education institution providing higher education, but withalimited scope and range of operations,and which meets the criteria for recognition as a higher education college as prescribed by the Minister in accordance with section 3(3)(a) and; • section 20(5B) for a public higher education college; or • section 54(7) (b) for a private higher education college.”

  27. Universities South Africa (USAf) • “‘university’ means a higher education institution providing higher education, but with a scope and range of operations, including undergraduate and post graduate higher education programmes, research and community engagement, which meets the criteria for recognition as a universityprescribed by the Minister in accordance with section 3(3)(a) and; • section 20(5B) for a public university; or • section 54(7) (b) for a private university.”

  28. Universities South Africa (USAf) • university college’ means a higher education institution providing higher education but with a limited scope and range of operation and which meets the criteria for recognition as a university college as prescribed by the Minister in accordance with section 3(3)(a) and: • section 20(5B) for a public university college; or • section 54(7) (b) for a private university college.”

  29. Universities South Africa (USAf) • Clause 1: Section 1 (r) – definition of ‘spouse’ The Department notes and welcomes the proposed amendment to this definition to include the following phrase, “(c) in a same sex or heterosexual union which is intended to be permanent.”

  30. Clause 3: Section 3(3)(b) – Transformation goals and oversight mechanisms • The Department has noted and acknowledges the difficulties that may be presented by the proposed amendment. It, however, believes that the Minister has the right and responsibility to determine policy “in the interest of the higher education system as a whole”. Section 3(1) of the Act makes it peremptory for the Minister to determine policy on higher education after consulting the CHE

  31. Universities South Africa (USAf) • Taking all the comments into consideration, the Department proposes an amendment to the current clause 3: section 3(3)(b), to read as follows: “(b) to determine the scope and range of transformation goals and oversight mechanisms; and

  32. Clause 16: Section 42 – Ministerial directives • Higher education institutions, as organs of the state as defined in article 239 of the Constitution, are state-funded and fulfil public responsibilities, hence must be held to public account and the power of the Minister to appoint an Independent Assessor or Administrator is perfectly acceptable • These provisions are existing in the current Act, the only difference is that these provisions in the Bill are strengthened and their positions within the Act are rearranged

  33. Clause 16: Section 42 – Ministerial directives • The Department does not agree with the proposal to delete section 42(1)(c). However, it is amenable to delete the terms “unfair” and “discriminatory” and to substitute that with “wrongful conduct” as proposed by SAPTU and to restrict it to substantial contravention of or failure to comply with any law

  34. Clause 36: (insertion of section 65BA – Withdrawal and revocation of degrees, diplomas, certificates and other qualifications • With regards clause 36 [section 65BA(1) and (2)], the inclusion, in the amendments, of provisions for the withdrawal and revocation of degree, diploma, certificate and other qualifications that public institutions may award erroneously or fraudulently, but the amendment effectively states that public universities have the obligation to withdrawal or revoke degrees, diplomas, certificates and other qualifications that they may award erroneously or fraudulently. However, this obligation is not extended to private higher education institutions. The CHE is of the view that private higher education institutions should also be obliged to withdraw or revoke qualifications that they may award erroneously or fraudulently. The amendment will include reporting to the relevant QC and SAQA to amend the National Learner Record Database if necessary

  35. Clause 36: (insertion of section 65BA – Withdrawal and revocation of degrees, diplomas, certificates and other qualifications • The proposed two year period is a prescription period which shall only apply if error(s) are made by the higher education institution. The provision does not only apply to public higher education institutions but is also applicable to private higher education institutions. If there is misrepresentation, fraud or plagiarism, THERE is no time prescription. See Section 66

  36. Clause 37: Amendment to section 65D) • The concern regarding this proposed amendment is that it unduly extends the ministerial powers and encroaches upon institutional autonomy and academic freedom • Whilst the Department notes this concern, it believes that such a decision by the Minister cannot be taken arbitrarily and capriciously. Before the Minister can take such a decision, he/she will have to do so in terms of Section 3. Furthermore, the issue of funding as well as other considerations will certainly have to be taken into account

  37. COSATU and NEHAWU • Both these organizations are in strong support of the Bill • They view the Bill as striking the balance between ensuring accountability of public higher education institutions and the protection of their institutional autonomy as well as academic freedom • Regarding investment of public higher education institutions funds, the Department has noted COSATU/NEHAWU’s concern. However, the Department believes that the proposed amendments adequately address this concern, at least at this stage, as it will be impossible to legislate all possible unforeseen circumstances

  38. COSATU and NEHAWU • On the issue of accountability by public higher education institutions directly to Parliament in the form of submission of annual reports, the Department believes that the accounting mechanisms currently in place are adequate for public institutions to account to the Minister and/or the Department • On the issue of council nominations, the Department believes that these mechanisms currently in place are addressed by the Act and need no further amendment at this stage

  39. Independent Institute Of Education (IIE) • IIE welcomes the Bill in general and the introduction of the new institutional types proposed in the Bill • Clause 3: Section 3(3) – the Department has noted this concern however, it submits that this concern will be adequately clarified by the policy to be determined by the Minister • Clause 31: (amendment to section 51 of the Act) The Department does not see any incongruity between the heading and content in this provision. The Department acknowledges that the Bill does not deal with support centres that the Distance Education Policy requires and admits that this latter issue needs to be looked into

  40. Independent Institute Of Education (IIE) • Clause 32: (amendment to section 53) – subsection (b)(i) The Department submits that there is no anomaly with this provision. The standards referred to are determined by the Minister in terms of the policy contemplated in section 3(1) of the Act • Clause 35: (insertion of section 65AB) The Department has noted IIE’s concern regarding this provision. In order to address this concern, the Department proposes an insertion of subsection (3) to indicate that the provisions of subsection (1) and (2) shall mutatis mutandis apply to private higher education institutions, subject to the necessary changes

  41. Transformation Stellenbosch (TS) Proposal for the inclusion of “Racial Equality” definition in the Bill • This proposal was noted however, the Department is not convinced that it is crucial for this definition to be included in the Bill • The Department is of the view that the provisions of the Constitution, the Higher Education Act and various other legislation, e.g. Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No.4 of 2000) provides adequate measures designed to protect individuals against various forms of discrimination including racial discrimination

  42. Transformation Stellenbosch (TS) Clause 16: Section 42 – Ministerial directiveSubstitution of the word ‘directive’ with ‘instruction’ • The Department does not agree with the proposal to substitute the word ‘directive’ with the word ‘instruction’ • The Department shares the view expressed during public hearings that the word ‘instruction’ is as good as ‘directive’ and both words have a synonymous meaning

  43. Inadequate consultation with students on the Bill • The Department noted this concern, but believes that the voice of the students was heard during public hearings on the Bill through both written and oral submissions by their respective organizations, e.g. the South African Union of Students (SAUS) and the Congress of the People Student Movement (COPESM)

  44. Congress of the People Student Movement (COPESM) • COPESM in general, welcomes and supports the Bill with minor concerns • Its submission was mainly focused on Chapter 6A of the Bill which deals with the National Institutes for Higher Education • In its submission, COPESM argued for the deletion of this Chapter in its entirety. It contended that there was no cogent reasons for the establishment of these bodies as they are basically a duplication of the CHE • The Department has noted the submission by COPESM however their proposal is not the subject of the current amendments

  45. South African Communist Party (SACP) • The Department welcomes the support from the SACP, whom confirms that the process to develop this Amendment Bill has been highly consultative and inclusive, and is testament to the principle of co-operative governance between institutions and the State, which underpins the governance of higher education in South Africa • The Department concurs with the SACP that this Bill is long overdue, should be welcomed by all and urges all Members of Parliament to speedily pass it • The Department concurs with the SACP that the intention of this Bill is to strike a better balance between institutional autonomy and public accountability, so as to deal with outdated aspects and create coherence

  46. South African Communist Party (SACP) • The Department is in agreement with the SACP that the principles of institutional autonomy, academic freedom and public accountability are upheld in this Bill. The additional fundamental proposals with regards to the Bill, seeks to achieve important and progressive changes in the public higher education sector with regard to much needed transformation of public higher education institutions and will provide for the accountability and good governance of these institutions. According to the South African law as it stands right now, the Minister of Higher Education and Training is prevented from making administrative, governance and curriculum decisions in, and for universities, as a result of the regime of institutional autonomy and academic freedom that has been conferred to higher and further learning institutions

  47. South African Communist Party (SACP) • The SACP raised a few concerns, but although relevant to the higher education sector, these concerns fall outside the scope of the current legislative amendments and are not directly linked to the HEA Bill, 2015. The Department will take those concerns into consideration when future amendments to the Higher Education Act are deliberated

  48. Durban University of Technology (DUT) • DUT welcomes and supports the Bill albeit with certain reservations. The concerns raised by DUT are mostly similar to those raised by USAf which can be summarised as follows: • Omission of Universities of Technology (UoTs) in the Bill; • Fear that the autonomy of the higher education institutions will gradually erode as additional accountability is sought by the Bill; • That the amendments seem to conflate institutional autonomy and accountability; and • The additional powers sought to be given to the Minister are not clearly defined, e.g. transformation objectives

  49. Durban University of Technology (DUT) • The Department submits that UoTs are covered under the definition of ‘university’ and thus it was not necessary to define them in the Bill • The concern regarding institutional autonomy and academic freedom of higher education institutions has already been addressed in the Department’s preceding responses • The same goes with the concern regarding transformation objectives contemplated in section 3(3)(b)

  50. North-West University (NWU) • NWU welcomes the Bill and acknowledges that public higher education institutions are socially accountable and that matters of failure of governance should invite ministerial scrutiny, and if necessary intervention • That accountability by public higher education institutions should be balanced against institutional autonomy and academic freedom • The concerns raised by NWU in its submission are analogous to those already raised by other public higher education institutions and USAf and briefly relate to: • threat to institutional autonomy and academic freedom of the higher education institutions;

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