SAUVCA’s Submission to the Parliamentary Portfolio Committee on Education on the Higher Education Amendment Bill, 2001 on Thursday 30 August 2001
SAUVCA supports the policies and principles embedded in the Bill. While SAUVCA has reservations about the repeal of Private Acts, because of the symbolism involved in their repeal and the effect of this symbolism on university autonomy, SAUVCA accepts that there are both good practical reasons for changes and also that the level of autonomy public higher education institutions enjoy (which is not absolute) is provided by the constitution and the Higher Education Act, and not by Private Acts.
The following submissions, therefore, are aimed at improving the Bill and are largely technical in nature:
Clause 3 of the Bill (a) If enacted, this clause would require the Minister to appoint an interim Council.
Situations, such as the merger of Colleges of Education at the start of 2001, did not call for new, interim Councils for the Universities and Technikons involved. It would not have been appropriate, for example, for the Minister to have appointed interim Councils for the Cape Technikon, The University of Pretoria, or the University of Natal following the incorporation (mergers) of teacher training colleges this year.
We recommend the substitution of may for must in line 1 of the proposed Subsection (6) of Section 20 of the Principal Act.
(b) The proposed subsection (6) gives the interim Council all the functions except the function to make an interim institutional statute .
We believe that this is wrong. The standard, or default institutional statute contemplated in Section 33 (c) is by definition generic and bland. A new institution created by mergers will inevitably require special provisions in its Council’s composition, in its Senate’s composition, and most particularly in the composition of its Institutional Forum. The interim Council’s task should be to consult all internal structures on the form of the institutional statute, which will be the basis of the governance structures that replace it.
Only where it fails, for whatever reason, to do this should the default institutional statute be used for the constitution of a council and the other structures concerned: these will be the Senate, the Institutional Forum and the Students Representative Council.
We recommend that the proposed Subsection (6) be amended accordingly.
Clauses 4 and 5 For the reasons given in 3(a) above we believe that the Minister should have a discretion to establish an interim Council, and that for this reason must should be replaced by may.
For the same reason as in 3 (b) we believe that the interim Councils should frame institutional statutes.
Clause 7 (a) The proposed Subsection (8) is impractical, and illogical.
For example: this requires these resignations at a meeting (and would not apply if they resigned before a meeting) and refers to the members when it should refer to the membership. We propose that the following be substituted:
(8) If 75 per cent or more of the membership of the Council of a public higher education have vacated their seats for whatever reason, the Council is deemed to have resigned.
(b) Section 27 of the Act gives rise to practical problems Subsection (6) provides that:
(6) At least 60 per cent of the members of a Council must be persons who are employed by, or students of, the public higher education institution concerned.
We strongly support the governance principles behind the provision. However, the absence of a provision in the Bill relating to casual vacancies means, however, that, where the constitutional balance is 60:40, or close to it, a Council can be rendered impotent by the deliberate act (e.g. resignation) of an external member and remains impotent until the vacancy is filled. If the body responsible for making the appointments is deliberately or unavoidably delayed in making the appointment, the impotence continues. We therefore propose the addition of the following subsection:
" (10) Provided a quorum is maintained, casual vacancies in a Council’s membership shall not affect its operation or the validity of its decisions." Clause 12 The provision for the Students Representative Council should be determined by the institutional statute or (not and) the institutional rules.
Clause 14 The administrator should take over "the authority of the Council and/or (not or) the management ……".
Clause 20 Clause 20 transfers functions to the Registrar of Private Higher Education Institutions. We support the transfer of these functions from the Minister to the Registrar. However, we are concerned that the proposed provisions, read together with the provisions of Subsection (7) of Section 54 and Section 66 are inadequate protection of the public from organizations giving out, when they are not, that they are technikons or universities or that they provide higher education, or that they confer degrees. This effect is considerably less than that provided by Section 28 bis of the repealed Universities Act.
We wish to point out that Subsection (7) operates against independent schools and other private education institutions. It does not operate against others, whether individuals, corporations or public bodies. There is thus no prohibition on a university masquerading as a technikon, a life insurer masquerading as a university, or an individual offering a one-day MBA.
We recommend that this be amended by a suitable amendment to Subsection (7) of Section 54. The following is a possible replacement provision:
" (7) No person, no independent school as defined in the South African Schools Act. 1966 (Act No. 84 of 1996), and no other private or public education institution may call itself a university or a technikon or confer a professorship or a degree or an honorary degree or use the title of rector, vice-chancellor or chancellor, unless it is a university or a technikon respectively, or unless it is registered as a private higher education institution in terms of Chapter 7 and the word "university" or "technikon" respectively appears in its name." Clause 22 We support the principle implicit in the proposed Section 65A. But we have two concerns: the … ……interpretation of what "carrying out its…research activities" means, is likely to be difficult; and we believe there needs to be a mechanism for affected public higher education institutions to be consulted on the definitions of the seat of a particular institution.
In regard to the first: a geologist doing research may be working in the southern oceans, or the Karoo, or any other remote site. He or she could be said to be carrying out research activities beyond the seat; but this would not be a case with which the Minister would wish to be concerned.
Secondly, we believe that a university with a seat in Johannesburg, for example, should be consulted should a university in Cape Town or Pretoria propose to define its seat as including any area of Johannesburg covered by the first university’s seat.
Clause 26 The transitional provisions are wholly inadequate. First, there is a need to provide beyond doubt that the structures in place, at the time of the repeal of the Private Acts, continue until their terms of office expire and they are replaced by new structures, for example, the Council of a University instituted the terms of a repealed Private Act, must remain the valid Council.
Secondly, there are provisions in a least one Private Act that will be required beyond the two-year period. These are not directly related to the Higher Education Act, cannot be provided for in Institutional Statutes, and should be retained by explicit reference in the schedule.
Revised 28 August 2001