Higher Education Amendment Bill [B36-2015]: public hearings Day 1

Meeting report

The Chairperson said Section 59(1) of the Constitution requires the legislature to facilitate public involvement. The Committee had received 15 submissions to date. Of importance was that some stakeholders had been consulted by Department of Higher Education and Training (DHET) in the drafting of the Bill. The Members’ role was to listen and ask questions of clarity.

South African Parastatal and Tertiary Institutions Union (SAPTU) submission
Prof Derek van der Merwe, Independent Consultant for SAPTU and Emeritus Law Professor at University of Johannesburg, said SAPTU’s comments on the Bill were limited to three main sections: transformation goals and oversight mechanisms; ministerial directives and the appointment of an independent assessor; and increased administrative burden on public higher education institutions.

The Bill proposes to extend the minister’s existing powers to determine higher education policy in the interests of higher education systems as a whole; determining transformation goals for the education systems and institute appropriate oversight mechanisms. No definitions were provided on the terms transformation, transformation goals, appropriate and oversight mechanisms. There was no legal precision to the term oversight. The Bill was silent on who engages in the oversight mechanisms, what powers those engaged in oversight of a particular institution have and what powers the minister has upon receipt of an adverse oversight report. Given the potential intrusiveness that can result from the imposition of transformation goals and the implementation of appropriate oversight mechanisms into the institutional autonomy and academic freedom of public higher education institutions, the dearth of the detail was cause for concern.

Transformation goals can refer to matters such employment equity targets, racial and ethnic composition of student body, race based pass, throughput and graduation rates and race based profiling of profiling of institutional or national research output which directly impact academic freedom and institutional autonomy. The determination of transformation goals and the institution of appropriate oversight mechanisms by the minister can in many respects go to the heart of the academic enterprise and impact severely on institutional autonomy and academic freedom. It raises serious questions about the justifiability of such potentially severe intrusions upon the acknowledged freedom and autonomy of institutions should enjoy in their relationship with the state. Relating the scope, nature and impact and execution of transformation goals and oversight mechanisms to the subordinate status of regulations cannot be acceptable. Therefore clause 3(3)(b) should be withdrawn, far more legislative clarity and detail needed to be provided in the act on transformation goals and oversight mechanisms and that transformation goals should be determined by the minister in consultation with university councils.

While power granted to the minister to appoint an assessor in certain circumstances cannot be disputed, the grounds upon which such appointments can be made as proposed in the Bill, can be questioned. Clause 42 allows a minister to issue a directive to a council of a public higher university if there are reasonable grounds that the institution was deficient on any of the six grounds laid out in 42(1). Five of the six grounds enumerated in 42(1) for issuing a directive were not contentious. The sixth was a cause of serious concern as the minister can issue a directive based on reasonable grounds that the institution has acted in an unfair, discriminatory or wrongful manner towards a person whom it owes a duty under this act or any other law. This provides ample opportunity for intrusion of political ideology into the decision making process. To be sure, unfairness, discriminatory nature or wrongfulness of the action must be measured against a duty imposed by the law. What counts in law as unfair, discriminatory was still very much an open question while wrongfulness on the other hand has far more legal precision. The openness of a society and its democratic nature was fundamentally determined within the context of the contested political ideology of a governing party. Conceivably, it allows a minister to declare a particular institution unfair or discriminatory on the grounds of its language policy, its academic exclusions policy or financial exclusions policy.

The Bill also increases the administrative burden on higher education institutions (HEIs) as the Minister was given the right to ask for information from council beyond the preceding year. Declaring of any business, commercial or financial activities for financial or other gain annually, places an onerous burden on institutions. No definition of a relative was given and requiring an employee not to contract on behalf of the institution with him or herself or relatives, requiring the institution to determine whether a contractual arrangement exists with the relatives of an employee was an onerous burden.

Discussion
Mr M Mbatha (EFF) asked if the amendments were driven by the slow pace of HEIs in self-transformation over time. If there was clear guidance on issues raised in the submission, there was no need for amendments. There was difficult in knowing when HEIs will realise a transformed South Africa

Prof van der Merwe replied many universities have self-directives and have done what was expected of them. Of course some did not yield the desired impact. The reforms were broad that each university was expected to implement according to the transformation goals set by the minister and no consultation need to take place between the minister and councils. It was supposed to be an open approach not as a closed approach as proposed in the Bill.

Mr C Kekana (ANC) said Prof van der Merwe have a broad understanding of what transformation entails. Transformation in a simple sense means changing for a better integrated society than having many nations within a nation. As an academic, he likes debating concepts. Abstract concepts like oversight and public accountability, and institutional autonomy were not tangible for measurement. Those that favour autonomy will always feel challenged when challenged that they were not transforming. He was not sure what kind of definition on transformation should be included in the Act. If there was a dispute, it can be resolved in the courts. Oversight in the simple sense was making sure changes were implemented. Oversight, public accountability and transformation were words difficult to define in the Act.

Ms J Kilian (ANC) said the current section 42 provides the minister with powers to intervene in consultation with the university council and the Council on Higher Education (CHE). The proposal in the Bill was to clarify the different phases and specifics of intervention. If the concern was about political and ideological intrusions, these could creep in under the current provision in the Act. Unfair discrimination can be measured against the equality clause in the Constitution. She asked if this was not a safeguard about what the minister can do.

Dr B Bozzoli (DA) thanked SAPTU for an excellent submission which was insightful on the need to balance accountability and autonomy. She asked if universities were not currently determining their transformation goals in consultation with the minister. Each university has a transformation plan agreed by council and management. The CHE was designed for the crucial element to oversee how universities were working including transformation

Prof van der Merwe replied that on definitional vagaries, in the 1960s a US Supreme Court judge was seized with a matter on pornography and said he knows it when he sees it, but cannot define it. This was probably the same for concepts like transformation and public accountability. No sector of society has devoted more intellectual endeavour on issues of transformation than academia. There were reams and reams of documents on transformation and how a definition can be constructed. The same holds true for public accountability and oversight. It was members of the public who go around saying these were concepts for which there was no definition. Every person in South Africa ought to know what transformation is, why it was needed and why HEIs funded by the state should be accountable for the manner in which they transform. Clarity was needed because students demand that the curriculum of university should be decolonised and Africanised which were weighty issues a ministerial directive cannot decree. It was supposed to come from academics and students themselves in constructing and imparting knowledge in the way they see the pedagogical and epistemological issues involved. This was the heart of academic enterprise. Performance bonuses were about transformation. Inherent in the human condition, we balance one and the other. Within the higher education sphere words like unfair discrimination, open and democratic society were terms that have not been subjected to rigid jurisprudential analyses. Universities were currently under severe pressure and the minister and university managers were seeking answers. It was time to define concepts on which there was broad agreement. “Open” and “democratic” was the cornerstone of the Constitution, but it was under debate every day in parliamentary sessions. The academics who bear the brunt of the pressure must be given the satisfaction that whatever was implemented was done under a recognisable framework in which disputes can be resolved, and are accepted legal norms within the higher education context. The CHE will speak of their role in higher education.

University of Cape Town submission on Higher Education Amendment Bill
Dr Max Price, UCT Vice Chancellor, said UCT appreciates the granting of the minister additional power in relation to transformation. UCT agrees that the pace and scope of transformation in the system of higher education institutions be accelerated and as such, the minister should have powers to set goals for the system. UCT was concerned with the proposed introduction by way of legislation without adequate policy that underpins a new landscape for public higher education in which there will be universities, university colleges and higher education colleges. The reference made on the role of the Public Finance Management Act (PFMA) in the Bill which does not apply to public higher education institutions should be omitted. Clause 20(5) must be reviewed so as not to unnecessarily limit the ability of public universities to profit from the beneficiation of its intellectual property. The minister does not need to issue a directive if the institution has acted in a wrongful or discriminatory manner towards an individual as an individual has other remedies in law. The minister must not take the position of the courts. UCT was concerned that the Bill in clause 37 proposes to give the minister power to compel HEIs to issue trades and occupations which do not ordinarily form the curriculum of a university.

Discussion
Mr Kekana said the minister would intervene at a university if there was discrimination. Any institution has internal mechanisms to resolve internal issues. If every institutional problem were to go to court, it was unfair by not starting with mechanisms internally. The decision of the minister may be more favourable and acceptable than taking every matter to court. He thought this was to relieve the pressure on the courts. He does not see a problem with the minister compelling HEIs to issue trade and competitions. Japan has 750 HEIs and the majority of them were Technical Vocational Education and Training (TVET) institutions. Developed nations were training more in trades. An engineer needs about eight artisans and four technicians.

Dr Bozzoli said a law must not be made on the assumption that a minister will always be benevolent. It must be made on the assumption that a nasty minister, nastier than the current, will be in office. Yesterday it was reported that the Nigerian president summarily fired 13 vice chancellors and one can think the same thing may happen here if the ministerial discretion was extended as in the Bill.

Ms Kilian said the Bill was trying to address public accountability and preparing students for the work place. Here comes the debate on institutional autonomy, academic freedom and public accountability. What does UCT conceive as a proper balance for all this. Why was UCT contending against HEIs offering trades and occupations? How does UCT describe a ministerial intervention in creating a balance between HEIs playing their role and institutions accounting for public money.

Mr Y Cassim (DA) said Clause 42(1) of the Bill states the minister may issue a directive to the council. He asked if UCT’s understanding of this was the minister was being a judge in determining the law was broken and asked if it was an intrusion on the principles of justice. Is this particular clause constitutional when an individual can issue a directive that a law was broken?

Dr Price replied that all internal mechanisms in an institution must be exhausted before going to court. A person applying to be a vice chancellor, may not have such internal mechanisms, because he is not yet an employee. If someone has applied to be promoted to professorship and was unsuccessful, he can appeal to the dean, vice chancellors, council, CCMA and the courts. This Bill states that the minister can say the institution acted unfairly and issue a directive to promote the person to professorship. In its current form, it is the opinion of the minister that counts and if the council disagrees with the minister, the minister can suspend the council. It was wrong in law and infringes autonomy.

Dr Price said that there was a clear distinction in the post school system on trades which were offered by colleges and diplomas and degrees which were offered by HEIs. The amendment was saying the minister can come to UCT, UFH and UFS and compel them to offer trades and occupations. This was not possible because it was not part of their curriculum. The new university colleges and HEI colleges were new in the Bill and he does not know what kind of animals these were. Public accountability was done by other ways such as looking at how many graduates were employed within 18 months of graduating. UCT graduates employed within 18 months after graduation was around 95% and an overall average of 70% across all universities in South Africa. Public accountability can also be done in the number of spin off companies, research output, patents and productivity and new knowledge were produced. These were things submitted to DHET in the annual report. The money spent by HEIs was well monitored as external auditors were approved by the auditor-general. Using the money well includes looking at how long it takes for a student the graduate. He agrees that a priority was to grow TVET skills as this was needed in the economy. Clause 42(1d) should be changed to say the minister can intervene if there was substantial infringement of the law.

Mr Kekana said let us assume there was autonomy of a university and there was public accountability which was the minister. Something that cannot be exhausted through internal mechanism can be referred to the minister. He does not want to see vice chancellors continually appearing in court rather than teaching.

Dr Price said he was very conscious not to provide mechanisms that will end up in court. At UCT, there was the ombud which reports to the council and not to him. It receives between 200 to 400 visits a year. UCT was conscious to use alternative dispute resolution mechanisms. Nobody can stop a person writing to the minister at any given time. The amendment was saying on reasonable grounds the minister can issue a directive which makes the minister a judge which was unsustainable in the legal framework.

Higher Education Transformation Network submission on Higher Education Amendment Bill.
Dr Ingrid Tufvesson, Chairperson, HETN, said there was a need for strong state regulatory intervention in HEI because of the poor will to support government by higher education managers, negligible progress in attaining NDP targets, poor implementation of transformation plans by vice chancellors, decline of managerial and academic quality standards, disproportionate hiring of black academics and rehiring of retirees as consultants, and discriminatory workplace practices. There was unilateral disregard of national interests and imperatives by vice chancellors and university councils. There was an absence of female South African professors in institutions of higher learning. HEIs which were able to amass large reserves from apartheid state subsidies need to declare these reserves back to the state for equal distribution in the national fiscus. The statutory amendments were critical due to the need for accountability by university council and vice chancellors, to remove the hidden power of Universities SA, and the attainment of the NDP vision, among others.

Discussion
Dr Bozzoli asked for clarification on the privatisation of university assets - whether it was illegal or it was just a slogan of the accusatory language and disproval of the HEIs which were doing their best to solve most of the problems. It has lot of implications: that vice chancellors were dishonest and that Universities SA was an evil body with hidden power. The whole document was puzzling and such revelations were worrying as the DHET was actively involved with HEIs.

Mr Cassim was disappointed by the submission as it was unclear which amendments it approves and which it does not. There were university councils who do not discharge their duties in a manner in which they should be discharged, he agrees this happens. In the current Higher Education Act, there were conditions for which interventions can be made. He asked if her suggestion was for accountability to rest in the office of one person, the minister, to look after the interests of higher education. Accountability does not mean accountability to the minister as HEIs can also account to Parliament as Members were public representatives. There was a desperate need for money by HEIs in terms of refurbishing student residences and the inability of HEIs to raise the necessary funding on the financial market and the inability by the DHET to provide the necessary grant funding, forced universities to seek investments. There may be instances where investment agreements were made without the public knowing, but this does not necessitate throwing the child out with the bath water. There was no alternative to investments.

Mr Mbatha agreed that some university councils were engulfed by greed, economic opportunities and connections. There was a decline in moral leadership in some university councils. Some were appointed to be vice chancellors because of connection to university councils. He asked what was in the submission that talks to the Bill.

Ms Kilian believed that the submission supported transformation of universities. The HETN submission will necessitate amendments to the PFMA. If corruption exists, what prevents people from reporting corruption for the accused to be brought to book?

Dr Tufvesson replied North West University was an example of illegal behaviour and the council met to rectify the behaviour retrospectively. What was done by council was secretive as council minutes were not available to the public. HETN’s intention was to create a concern because insight was limited into the operations of the universities. HETN in looking at the Bill was finally seeing the light in that it could have a voice which was not possible before. HETN had been taking universities to court and it uses mainly pro bono lawyers. HEIs were not in the PFMA, this was the time for them to get into the PFMA. HETN was definitely in support of the Bill as it was.

Council of Higher Education (CHE) submission on Education Amendment Bill
Prof Themba Mosia, Chairperson, CHE, welcomed the intention and spirit of the provision for the minister to determine the transformation goals of public education systems and institute oversight mechanisms thereon. The general sentiment was that progress made by institutions on transformation, require sustained monitoring because if left to their own devices, HEIs may not accord these key goals the urgency that they deserve. CHE supported the amendment and subsequent clarification of various constructs such as ministerial directive, independent assessor and administrator which serve to strengthen the accountability of institutions in terms of good governance without interfering with the autonomy and academic freedom of higher learning. CHE supports the provision for private higher education institutions that fulfil all the necessary requirements to register and operate as universities or university colleges. CHE welcomes the inclusion of provisions for the withdrawal and revocation of degrees, diplomas and other qualifications that public institutions may award erroneously or fraudulently.

The CHE said the National Qualifications Framework Act was to be amended in the next years and the fact that the Higher Education Act will be subordinate to certain provisions of the NQF Act creates uncertainty. The NQF Act recognises CHE as a quality council while the Bill establishes the CHE as a body to advise the minister. Section 13(1)(h)(iii) of the NQF Act of 2008 confers the South African Qualifications Authority (SAQA) the responsibility to develop policies and criteria for assessment, recognition of prior learning and credit accumulation and transfer. The Bill was giving the minister the power to do so which was in contradiction to the NQF Act. The Act recognises the Senate as the highest decision making body of a public university. However, the Bill does not stipulate if private universities would also be required to have senates as the highest decision making body. The provision of university to withdraw degrees was not extended to private education institutions. The period given for the withdrawal “in a period not exceeding two years” was too short as this might take more than two years to discover.

Catholic Institute of Education on Higher Education Amendment Bill
Mr Kenny Pasensie, Parliamentary Liaison Officer, Sothern African Catholic Bishops Conference, was concerned with the additional powers granted to the minister, for example, in setting transformation goals and the composition and functioning of university councils. The extent to which these powers impact institutional autonomy and academic freedom of public universities will require careful scrutiny and monitoring. The Bill must define transformation goals and refer to appropriate legislation whether these goals were defined.

Discussion
Dr Bozzoli was concerned that CHE was not consulted by the minister in the drafting of the Bill. She asked CHE’s opinion on the risks associated with ministerial intervention, directives by the minister and setting of transformation goals by the minister. She asked CHE’s opinion on acting as the vehicle of ministerial intervention. She asked if CHE was in support of a super act that will govern all higher education affairs as CHE has pointed to the the various contradictions in acts governing higher education. She thanked CHE for pointing out the NQF Act and role of SAQA which was never raised before and for pointing out the Bill seems to concentrate on post school education instead of higher education.

Ms Kilian asked CHE’s view on reconfiguring the mandate of the CHE or strengthening its role so that CHE can play an important role if there were queries by the minister. She asked for CHE’s position on amending the Bill to ensure there was no ambiguity or even changing the name of the Bill.

Ms S Mchunu (ANC) asked why CHE thinks the window period of two years for withdrawal of degrees was too short.

Mr Kekana said the two years for withdrawal of qualifications was right because if it was medicine, the person will have been killing people in the theatre by using a fraudulent qualification. The two years was to make universities work hard to settle a matter as soon as possible than giving a long time.

Prof Mosia replied CHE looked at the provisions of ministerial intervention flowing from the spirit of cooperative governance. CHE was acutely aware that the directives or interventions by the minister were necessitated by dysfunctional institutions for whatever reason. It was difficult to legislate for different reasons for different circumstances for institutions. CHE welcomes there should be an intervention, but that intervention must not happen in a draconian manner. There should be checks and balances which this Committee must put in place. The CHE was an independent body with a particular mandate and it must endeavour at all times possible to remain independent. It will welcome being a vehicle before a ministerial intervention was done, because its duty was to advise the minister for handling the matter in a particular way. CHE welcomes identifying contradictions in various acts, but this does not mean it was in support of a super act.

Prof Narend Baijnath, CHE CEO, replied the CHE can play a constructive role in mediating on issues that have various interpretations otherwise there will be protracted contestations which will not help the sector. CHE will put its view on invitation or upon its own discovery to the minister. A super act may not be solution, but in the short term, there was need to look at the contradictions which have come to its attention. It was good to invite a group of legal experts to look at these contradictions and articulate on these. The Higher Education Act was a mirror of the White Paper of 1997. The situation now was the 2013 White Paper was for post school education. There was need to look critically if the Amendment Bill gave sufficient consideration to the matters raised in the white paper which focuses on post school education. If a qualification was fraudulent, it was fraudulent whether discovered after thirty years and the door should be left open.

Mr John Mubangizi, Chairperson for Quality Control, CHE, replied the amendment was necessary for withdrawal of degrees. The withdrawal may be a result of the error of the HEI or some fraudulent act on the part of the candidate. A fraudulent degree was fraudulent and time does not make it mature to be an honest degree. The two year time frame legitimises the degree after two years. CHE’s thinking was that the time should be timeless as there was nothing to rectify a fraudulent degree. His institution has come from an experience where the Supreme Court ruled against it that it should not have withdrawn a degree because there was no provision for that in legislation.

Ms Kilian asked the CHE opinion on institutional autonomy and academic freedom that will be infringed upon by ministerial intervention and setting of transformation goals.

Mr Kekana said the two years was more appropriate than leaving it wide open as institutions do not have a good history in dealing with withdrawal of these.

Prof Mosia said the CHE understands its role even in the post school education white paper. If it was possible for the role of the CHE to be strengthened or expanded, it was ready to step up the challenge. Having many structures was not helpful for the country. CHE does not see the amendment as a threat to academic freedom and institutional autonomy and the inputs given by other stakeholders was in anticipation as to what will happen should there be another minister. The public accountability aspect was the one linked to threat to academic freedom. He does not see that happening because unless the Constitution was amended in terms of academic freedom. Institutional autonomy was not prescribed in the Constitution which was where the contestation may come. The Committee was not in any way going to pass a draconian law that will take higher education to the past. It was true there was no definition on transformation in the Bill. The White Paper 3 outlines how transformation issues can be set. Due to emotions related to transformation, our creativity may become tainted as transformation sometimes become individualised.

Mr Mubangizi replied there was a difference between a degree and a certificate. Certificate was the paper given upon completion while degree was the status. When a degree was withdrawn, it was the status that was withdrawn. It takes time to identify fraud in a degree. If the fraud was plagiarism; universities now digitise theses and it takes four or five year for the public to reference the work of a student and that was when plagiarism was detected. The longer the period does not justify the fraudulent degree.

Prof Baijnath replied CHE was very mindful of academic freedom and institutional autonomy. CHE’s reading of the Bill was that where there was corruption, mismanagement, collusion and dysfunctional institutions to the detriment of students and the alumni, and the Bill can be an enabling framework for intervention by the minister. The current provisions of the Act only allows one to see it without acting and by the time one acts, the damage done will be severe

An official from DHET said that the two year period was for withdrawal of qualifications when the HEI itself has made an error. There was no time on the clause about fraud on the part of the student.

The Chairperson thanked DHET for listening to the submissions, Members for meaningful and relevant questions and they now have deeper insight. She thanked all stakeholders for acceding to the call by the Committee for submissions and bringing clarity on matters that needed further clarification. The Committee has listened to the submissions and there were common areas of concern raised by the stakeholders. The DHET, state law advisor and parliament legal advisor will respond to the submissions next week. On conclusions of submissions, the Committee will discuss the submissions with DHET.

The meeting was adjourned.