Amendments to the Higher Education Act must seek to advance the transformation agenda as captured in the White Paper 3, which serves as government’s policy on the transformation of the higher education sector.

The Portfolio Committee needs to seriously consider that whilst there seems to be annual Amendments to the Act, there are huge areas of the White Paper 3, which to-date, have not been covered both in the Act and neither by subsequent amendments. The White Paper states "all existing practices, institutions and values need to be viewed anew and rethought in terms of their fitness for the new era."

Two glaring examples of this are the lack of equity between higher education institutions, as well as an outdated labour relations system existing in the higher education sector. Both these directly contribute to disfunctionalities institutionally as well as a duplication of resources.

Whereas in other sectors since 1994, progress has been made on these fronts in the higher education sector this is not the case.

Future Amendments to the Act needs to address these issues.

Our submission on the Higher Education Amendment Bill of 2001 must be seen in the context of our ongoing engagement with the objective and subjective conditions that confront our members and leadership in the restructuring of Higher Education.

Objectively: - the nature of the restructuring informed by the National Plan on Higher Education, budgets and resources, the struggle for a new value system and its relationship to an industrial strategy for the country, and the intentions of international private capital to reshape higher education in our country to fit the agenda of globalisation.

Subjectively:- the massive impact of restructuring on human resources in the higher education institutions, which has already seen massive retrenchments.

Clearly this Amendment Bill seeks both to deal with what has been designated in the National Plan on Higher Education in terms of the restructuring of Higher Education, but equally pre-empts the outcome of how the Minister will deal with the recommendations of the National Working Group.

In our submission last year on the Amendment Bill of 2000, we cautioned against this, since discussions with the National Working Group are ongoing and the recommendations of the National Working Group may well result in significant shifts having to take place within the framework of restructuring.

Three fundamental issues arise out of the restructuring process of Higher Education and whilst this Amendment Bill cannot seek to address all of these, it is the influence of these objective conditions that have a bearing upon what Parliament would finally agree in this draft Amendment Bill.

a) The nature and content of the value system we are striving to bring about through restructuring. This relates to the ideological development of students, and the nature of graduate that would be produced through the higher education system. In addition the development and application of knowledge at higher education institutions how this relates to the development of an industrial strategy for the country.

b) issues of equity, although where institutions have already been designated in the National Plan this would not apply

c) the human impact of restructuring, an aspect which has been largely ignored

Having said this, we need to equally remind ourselves that this amendment bill will, because of objective conditions outlined above, not have an equal impact on higher education institutions. Those designated by the National Plan and those who shall be affected by recommendations of the National Working Group, are in the main historically disadvantaged institutions.

Whilst the amendment bill will apply universally across all higher education institutions, its impact will differ greatly. This we submit is a contradiction to the White Paper 3. The point we make here is that the policy document calls for new values for a new higher education system.

The amendment bill proposals therefore, need to be evaluated against whether or not it will contribute to a new value system, and what that value system it will be based upon.

The problem of creating a new identity for Higher Education institutions goes beyond merely dropping the labels "historically advantaged" and "historically disadvantaged" institutions.

We are busy with this Amendment Bill restructuring the landscape of higher education without identifying the controlling intellectual forces and how they are reconstituting the higher education both in our country and globally. Manifestations of racial diversity at "historically advantaged institutions" in the form of increasing numbers of black students, is not a qualitative manifestation of dealing with social and class stratification in our country today.

The Bill seeks to focus on issues of governance and smooth running of higher education institutions, and critically to deal with Universities’ Private Acts. It does however pre-empt what may be the outcome of the National Working Group recommendations, when addressing the establishment of interim councils for new, or merged institutions. Whilst this could be seen as anticipating an outcome of a process and trying to ensure that there is no vacuum, Parliament should evaluate whether you pass legislation in advance of final recommendations or rather the final recommendations and Ministers comments inform the final draft Bill.

Our comments only relate to those clauses where we propose change.

Where the submission is silent on a clause, this denotes support for that particular clause.

Whilst it is well understood that one of the main functions of the Amendment Bill is to repeal the Private Universities’ Acts, which Nehawu strongly supports, parliament needs to seriously look at its role in relation to the establishment of new institutions of higher education.

The establishment of any new institution of higher education carries with it major financial implications and has a direct impact of the national revenue. Parliament has oversight in respect of the expenditure of state revenue, but currently has no powers to amend the budget. Therefore Parliament needs to ensure that whist under the Higher Education Act the Minister must consult the CHE and place a notice in the Government Gazette, this consultation should be extended to Parliament.

This however should not need an Act of parliament, and hence Nehawu’s support for the Amendment of 20 (2) in the Act.

Insert "and Parliament" after CHE.

The merger of public higher education institutions is obviously going to be a contentious process. The Amendment Bill needs to ensure that it allows for maximum participation in decision making, within the National Framework. Attempts by the Amendment Bill to fast track the process will only lead to conflict. The fact that the Amendment Bill excludes participation from within the affected institutions in the interim council is dangerous and cannot be supported.

Whilst we support the Bill in assigning powers to the Minister to establish the interim council and extend its period, the members of the interim council should be elected by consensus between the affected institutions.

We also need to distinguish between consultation and negotiation within the National Framework. Nehawu therefore makes the following proposals:-

subsection (5) line 43:- insert after the words "subsection 1"
" and in consultation with the councils and their sub-committees of the public higher education institutions concerned".

subsection (7) Line 50:- delete "appointed by the Minister"

insert "elected by consensus from the affected

institutions"

subsection (8) Delete whole subsection

subsection (11) Line 16:- delete entire line

New line 16 :- Insert

"negotiations and consensus with such structure within the National Framework".

This clause does not address a situation where a council abdicates its responsibility and in doing so becomes dysfunctional, but does not resign.

"if in the opinion of the Minister, and in consultation with the CHE, it can be shown that the Council has abdicated its responsibilities, but has not resigned, it is deemed that the Council has resigned. The provisions of clause 7 subsection (9) will be applicable in this case."

This clause seeks to move from specific to generality. 32(2) (d) of the Principle Act is specific and leaves no room for doubt. Given that disciplinary measures and procedures are a daily fact of life at higher education institutions, we believe that it is better to move towards uniform norms and standards rather than each institution seeking to have its own institutional rules.

Retain the existing clause 36 as it is in the Higher Education Act .

Whilst Nehawu supports this clause, we believe that the consultation by the Minister as reflected in the clause cannot only be with the very council who has failed to exercise control over the finances of the institution.

Again these are public funds and parliament has a role to play in this.

In such a situation standards clearly would not have been sustained and CHE should be consulted as well.

Given that the subsection uses the words, "if practicable", in line 41, this leaves no room for consultations to take place.

In line 41 insert: - after "practicable":- "the CHE and parliament"

Clearly there has to be transitional arrangements pertaining to universities given the proposed repealing of the Private Acts.

However what is clear and what parliament needs to apply its mind to, is the fact that once this Bill is enacted, Universities will flock to change their institutional statutes in order to incorporate as much as is possible from their old Private Acts. This can easily undermine the intention of this Amendment Bill.

Clause 33 of the Higher Education Act lays down provisions that must be met in order to change an institutional statute.

It would be Nehawu’s submission that the Higher Education Act is sufficient for this purpose, and the Amendment Bill 26 (2) covers any difficulty that may arise at institutional level.

"That the incorporation of section(s) of a Private Act into an institutional statute, will only be admissible under exceptional circumstances and with the approval of the Minister and Parliament."