SUBMISSION BY THE UNIVERSITY OF SOUTH AFRICA ("UNISA")
TO THE PORTFOLIO COMMITTEE ON EDUCATION (NATIONAL ASSEMBLY) ON THE
HIGHER EDUCATION AMENDMENT BILL, 2001

16 AUGUST 2001

  1. PREAMBLE

In response to the Portfolio Committee’s invitation to participate in public hearings on the Higher Education Amendment Bill, 2001, the University of South Africa ("UNISA") has pleasure in making the following submissions:

1.1 AUTONOMY OF HIGHER EDUCATION INSTITUTIONS

Government has two functions in respect of the provision of higher education :

  1. It should establish a system for the provision of public higher education by creating institutions and demonstrating their objectives; and

(b) Make resources available in a fair and transparent manner to the public higher education system. This necessitates the introduction of control measures ensuring accountability, but it is not the function of government to administer the system, in all its ramifications from a control point.

Although there is a need for government policy on the objectives, the structure and functioning of the system of higher education, its administration should be the function of autonomous universities and technikons. Administrative efficiency can best be achieved by the meaningful devolution of authority to the institutions to control the functional aspects of their operations.

This position of necessity results in a tension between the claim to institutional autonomy and the limitations imposed by accountability to the government for the funding that it provides. A higher education institution’s claim to autonomy, in the sense of the power to manage its internal organization without external prescription or interference, rests on the ground that the proper exercise of academic functions depends upon adherence to the academic values of rationality, objectivity, free critical dialogue, openness to alternative views and perspectives and the honest assessment of all available evidence, well grounded judgement and the interrogation of ideas and conclusions. Such values can only prevail in an environment free of unnecessarily inhibiting circumstances and limiting constraints. A higher education institution needs the authority to exercise independent control over planning, management, administration and evaluation of the institution’s academic functions.

Higher education institutional autonomy cannot, however, be absolute. Any claim to absolute autonomy, maintaining that the institution is accountable solely to itself in all its decisions would ignore the reality of its existence as a social institution supported by public funds and donations from the private sector. Therefore higher education institutions recognize legitimate and reasonable restrictions on their autonomy.

1.2 HIGHER EDUCATION INSTITUTIONS AS LEGAL ENTITIES

Presently all public universities in South Africa are corporate bodies established by acts of parliament according to which their functions are stipulated as well as the powers of their governing bodies and the duties and responsibilities of their councils. Universities are creations of the state (which is a broader concept than the "government of the day"). This view lends itself readily to an extreme interpretation, whereby the university is seen as entirely subject to the will and actions of the political authorities to which it owes it existence. The implication of this is that the university is a mere instrument of government, there to do its bidding and further its interests. It also means that all the functions and processes of a university could be prescribed by the government of the day.

Such a narrow interpretation would negate the fact that the creation of a university takes place in most cases at the request of the community or on the grounds of a widely experienced need and appreciation of the activities of a university. In this respect the role of the government is no more than that of a bestower of legal status and guarantor of legal protection to a higher education institution that has its origin in the will, wishes and needs of the community.

Therefore, the view that a higher education institution is merely a corporation or legal entity, is balanced by the fact that it is also a community of scholars united by a common pursuit of knowledge and truth, and by a common recognition of the values, norms and methods required for the attainment of this ideal. According to this view it is not the juridical regulations that determine the character of a university, but rather the social values and dispositions it upholds.

A balanced approach to what a university is cannot be attained and maintained when there is unnecessary interference in the internal affairs of the institution. Over- regulation of the university by government endangers its functions as seeker of the truth and as conscience to the government and society in general. It endangers a university’s function to serve as a centre of excellence where basic questions can be asked and where the value issues of society can be drawn into the disciplined contest of rational enquiry and dialogue.

1.3 ACADEMIC FREEDOM

Over-regulation is a grave threat to the academic freedom of higher education institutions. This fear is compounded by experiences in South Africa of not many decades ago. The right to academic freedom is entrenched in our constitution terms of the freedom of conscience, religion, belief and opinion.

2. CONCERNS OVER ACADEMIC FREEDOM, INSTITUITIONAL AUTONOMY AND CONSTITUTIONALITY OF THE HIGHER EDUCATION AMENDMENT BILL, 2001

2.1 In the main, this comment deals with the impact of the Higher Education Amendment Bill, 2001 ("the Bill") on existing universities. It will be argued that the proposed amendments to the Higher Education Act 101 of 1997 ("the Act") will have a greater negative effect than necessary on the autonomy of universities in an open and democratic constitutional democracy. It will further be contended that the amendments may fall foul of the Constitution and the preamble of the Higher Education Act.

2.2 The focus of the submission will be on clauses 2, 3 and 4, which provide for interim structures (council and management) in the event of the establishment, declaration and merger of public higher education institutions (cf sections 20, 21 and 23 of the Act). However, our comments will best be understood in the context of the broader implications of the Bill.

2.3 If passed, the Bill will put a final end to a long tradition in the South African university environment, namely that Parliament by legislation brings life and death to universities. Henceforth this power will rest squarely with the Executive. Parliament’s direct say becomes indirect control via the accountability of the Executive to the Legislature.

2.4 As the Act stands, the establishment, declaration and merger of public higher education institutions are in the wide and sole discretion of the Minister, subject only to consultation with the Council on Higher Education (cf sections 20, 21 and 23 of the Act). The members of the Council on Higher Education ("the CHE") are appointed by the Minister (section 8(4). The Minister need not follow the advice of the CHE, provided written reasons are given to the CHE for non-acceptance of the advice (section 5(3)).

2.5 In view of this, and the fact that the Bill intends to repeal all existing university Acts, the virtually unfettered discretion of the Minister to decide the fate of public higher education institutions should be reconsidered. We submit that Parliament, in relinquishing its direct control over the establishment of universities, must provide the Minister with guidelines on the exercise of the ministerial discretion concerning the establishment, declaration and merger of public higher education institutions.

2.6 For Parliament to provide such guidance to the Executive would be in line with advice given by the Constitutional Court on more than one occasion where the constitutionality of legislation was questioned (see Janse van Rensburg NO and Another v Minister of Trade and Industry NO and Another 2000 (11) BCLR 1235 (CC) para 25; Dawood and Another, Shalabi and Another, Thomas and Another v Minister of Home Affairs and Others 2000 (8) BCLR 837 (CC) paras 42-48, in particular paras 47 and 48).

2.7 In the case of the establishment (section 20 of the Act) of a public higher education institution, no guidance is provided as provided in draft bill to when it would be advisable to take such a step. For the declaration (section 21) of a public higher education institution, provision is made for consultation, notice, reasons and representations (section 21(3). However, no indication is given under what circumstances an institution providing higher education may be declared a university, technikon or college. Similarly, section 23 which deals with the merger of public higher education institutions, contains certain procedural requirements (section 23(2)), but no guidelines with regard to the factors to be taken into account in making the decision to merge.

2.8 In our view, the shortcomings in the above procedure are highlighted by the proposed amendments contained in the Bill. The justification is simple: the Act gives the Minister the discretionary powers, but "is silent on the matter of governance during the process of establishing a new institution, declaring an institution as a Higher Education Institution or merger of Higher Education Institutions" (Memorandum to the Bill at 2.4). The procedure is similar in all three cases: the Minister appoints an interim Council of a chairperson and four members; the interim Council appoints an interim management (clauses 2, 3 and 4 of the Bill). The only difference is that in the case of a merger, the four members of the interim Council must be appointed from nominations submitted by the institutions to be merged. The Bill is silent on who appoint the Chairperson. We suggest that interim Council appoints its Chairperson and not the Minister.

2.9 Our main concern is that without proper guidelines for the exercise of the discretion, the proposed provision for an interim Council and management for institutions to be merged, fails to appreciate the institutional autonomy of public higher education institutions, and universities in particular; allows the Minister disproportionate room for interference in the governance of established institutions; and ultimately the possibility of abuse of discretion on the part of the Minister. What appears to be merely an administrative mechanism in the hands of the Minister, can easily turn into a powerful political weapon or an instrument of pressure.

2.10 Our apprehensions are strengthened by our understanding of relevant provisions of the Constitution and the preamble and some other provisions of the Act.

2.11 The provisions of the Constitution we have in mind relate to fundamental rights and cooperative government. In our understanding, a university finds itself in a dualistic position under the Constitution.

2.12 On the one hand, it is a juristic person (section 20(4) of the Act), entitled in terms of section 8(4) of the Constitution to "the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person". Apart from other rights, the university could claim academic freedom (section 16(1)(d) of the Constitution) and its concomitant institutional autonomy in order to enjoy academic freedom, and the right to administrative justice (section 33 of the Constitution, as further amplified by the Promotion of Administrative Justice Act, 2000). Any limitation of a fundamental right will have to be justified by the Minister in terms of section 36 of the Constitution. Not involving an existing institution from the very start and in terms of fair and transparent procedures could well amount to an unconstitutional limitation.

2.13 On the other hand, the definition of "organ of state" in section 239 of the Constitution is wide enough to cover a university (". . .any . . . institution . . exercising a public power of performing a public function in terms of any legislation"). The implication of this is twofold: on the one hand, as an organ of state in the national sphere of government, the university, like the Minister, is subject to the principles of cooperative government in Chapter 3 of the Constitution. On the other, in terms of section 8(1) of the Constitution, the university is bound by the provisions of the Bill of Rights in its dealings with other persons. For present purposes, the latter implication is not of direct relevance.

    1. The preamble to the Act contains the following statement: "Whereas it is desirable to . . . establish a single co-ordinated higher education system which promotes co-operative governance . . .". It is our contention that the proposed amendment for the implementation of the merger of existing universities falls short of the constitutional requirements of cooperative government: Section 41(1)(h) requires all spheres of government and all organs of state within each sphere to "cooperate with one another in mutual trust and good faith" by doing a number of things, amongst others "fostering friendly relations" and "informing one another of, and consulting one another on matters of common interest". The power and procedure for the merger of universities shows little of this spirit of cooperative government. On the contrary, the balance is heavily in favour of the Minister.

2.15 While it is arguable that this latitude is acceptable where new institutions are to be created, the true spirit of cooperative governance would allow for formal procedures in terms of which existing public higher education institutions can have their say in their own right (ie, not merely via the CHE) in the establishment (and for that matter the declaration in terms of section 21) of public higher education institutions.

2.16 However, in the case of the merger of existing institutions, in particular where a university is involved, allowing the Minister the degree of initiative envisaged by the Bill, is unacceptable and a serious inroad into the institutional autonomy of the university.

2.17 It is, therefore, our firm proposal that the discretionary powers of the Minister to establish, declare and merge public higher education institutions require circumscription. In particular, we propose a two-tiered set of guidelines. The one must apply to each of the three kinds of action (establishment, declaration and merger). Included here should be the basic reason or reasons which should inform every decision to establish, declare or merge. The other set should be a "sliding scale", giving more latitude where a new institution is established, less where an existing institution is declared a public higher education institution, and the least where existing institutions are to be merged. In the last mentioned case, a high degree of input and agreement from the existing institutions must be required, with appropriate deadlock-breaking mechanisms where the process is stalled due to unwillingness of one of the players involved, or for another reason.

    1. We further propose that consideration be given to amending section 69 of the Act to provide that the Minister must make regulations to set out the full procedure for the establishment, declaration and merger of public higher education institutions. At present, whether regulations should be made or not is left to the discretion of the Minister. In drafting the regulations, the full impact of the Promotion of Administrative Justice Act of 2000 must be reflected.
    2. Following the suggested road would not only comply with the advice to the legislature by the Constitutional Court, but it would also give effect to the requirement of section 41(2) of the Constitution (relating to legislative institutionalisation of intergovernmental relations and the settlement of intergovernmental disputes).
    3. We have taken the liberty to suggest wording to the Bill in order to accommodate some of our concerns, which is annexed, hereto marked "A".
  1. THE SEAT OF A HIGHER EDUCATION INSTITUTION
    1. In terms of the bill "the seat of a higher education institution is the geographical location within which the institution normally operates".
    2. The introduction of this concept will assist in bringing order to a unified higher education system.
    3. Without the approval of the Minister a public higher education institution should not be allowed to conduct its activities beyond its "seat".
    4. However, the restriction of a "seat", should not be applicable to Unisa as Unisa is an open and distance education institution which by its nature undertakes activities throughout and beyond the borders of the country.

4. CONCLUSION

4.1 The Portfolio Committee is in the ideal position to address the situation and comply with its constitutional obligation to provide clear guidance to the Executive in the exercise of its discretionary powers.

    1. The University would appreciate an opportunity to amplify its written
    2. submission during the public hearings before the Portfolio Committee

      orally.

    3. We look forward to sharing our views with you on this matter because of

the nature and importance thereof.

ANNEXURE "A"

PROPOSED WORDING FOR THE HIGHER EDUCATION AMENDMENT BILL, 2001

1. Section 1

This section seeks to amend section 1 of the Higher Education Act No 101 of 1997 by the insertion of new definitions as follows:

These definitions relate to private higher education institutions and do not raise any particular concerns.

2. Section 20

Section 20 relates to the establishment of public higher education institutions. This is the establishment of a new university, technikon or college. In terms of this amendment the Minister must, when establishing a new university, technikon or college, establish an interim council for a period of six months to perform the functions relating to governance except the function to make the institutional statute. The Minister may extend the period referred to in subsection (6) once for a further period not exceeding six months. The amendment also governs the composition of the interim council.

We have in the main body of our submissions suggested that the Act should enjoin the Minister to promulgate regulations which must be published, before promulgation, to circumscribe the discretion of the Minister in establishing public Higher Education Institution.

3. Amendment of section 21 of Act 101 of 1997

Section 21 deals with the declaration of education institutions as public higher education institutions. In terms of this section, the Minister has the power to declare an existing institution providing higher education as a university, technikon or college or subdivision of a university, technikon or college.

This amendment is similar to the amendment to section 20 in that it provides for the establishment of an interim council.

Our comments regarding the duty of the Minister to promulgate regulations apply in regard to this section as well.

4. Amendment of section 23

Section 23 governs the merger of public higher education institutions. The amendment seeks to give the Minister the power to establish an interim council for the merged institutions for six months to perform the functions relating to governance except the function to make the institutional statute. The Minister may extend the six months period once for a period not exceeding six months.

This amendment represents a "top down" approach and runs counter to the spirit of the Higher Education Act and the institutional statute of Unisa. The amendment seeks to give the Minister the power to establish interim councils without catering for the interests of the stakeholders of the institutions to be merged. The Higher Education Act provides for a democratic establishment of governance structures. There is no reason why a similar democratic process should not be followed in establishing interim governance structures.

The National Plan on Higher Education is sensitive to the possibility of failure of mergers of institutions. In order to ensure the success of a merger, it is critical that the communities of the concerned institutions being merged should be involved in the establishment of both the interim and final governance structures. The process of merging should not be driven solely by Ministerial appointees.

The interim governance structures must be representative not only of the constituencies of the institutions e.g. academic staff, students, but should also be representative of the institutions being merged.

The amendment provides that the interim council shall consist of the chairperson and 4 (four) members. The 4 (four) members are appointed by the Minister from nominations from the merging institutions. The 4 (four) members may not include any member of staff or student from the merging institutions. This may pose a problem. Any person appointed to the interim council will need to acquaint themselves with the workings of the concerned institutions. It may well take the person 6 (six) months to acquaint themselves with the institutions. It is imperative that persons who are employed or are students of the concerned institutions should form part of the interim governance structure. There needs to be continuity.

Sections underlined here-under reflect our suggested changes:

Amendment of section 23 of Act 101 of 1997

4. Section 23 of the principal Act is hereby amended by the addition after subsection (4) of the following subsections:

"(5) The Minister must in the notice contemplated in subsection (1) and in consultation with the councils of the public higher education institutions concerned establish an interim council for six months, to perform the functions relating to governance except the function to make the institutional statute.

(6) The Minister may extend the period referred to in subsection (5) once for a further period not exceeding six months.

(7) The interim council contemplated in subsection (5) shall consists of:

(a) a chairperson elected from among its members; and

(b) such number of members as shall be determined by the Minister in consultation with the councils of the public higher education institutions concerned.

(8) The members contemplated in subsection (7)(b) must consist of:

  1. not more than 2 (two) persons appointed by the Minister;
  2. such number of members of the councils of the concerned public higher education institutions as agreed by the councils concerned, shall not be less than five (5) and not more than seven (7) per institution.

(9) [delete]

(10) The interim council must co-opt such number of members of the interim management contemplated in subsection (11)(a) as it deems fit and these co-opted members have no voting powers.

(11) The interim council must perform the functions relating to governance, and must in particular: -

(a) appoint an interim management;

(b) ensure that a council is constituted in terms of the standard statute contemplated in section 33(3); and

(c) ensure that all the other structures are constituted in terms of the standard statute contemplated in section 33(3).

(12) Any decision of the interim council that may affect the right of any structure of the public higher education institution, may only be taken after consultation with such structure."

5. Amendment of section 26

The amendment of this section is inconsequential and aimed at removing any reference to "an Act of Parliament". The purpose is to remove any reference to the private Acts, which established public higher institutions. The Bill seeks to repeal the private Acts referred.

6. Amendment of section 27

    1. Part of the amendment is similar to the one in respect of section 26.
    2. The further amendments are aimed at a prohibiting a member of a council from serving on more than one council. A member who already serves on more than one council is allowed to complete his/her term.
    3. The other amendment provides that if sixty (60) per cent or more of the members of a public higher education institution council that are not staff or students of such public higher education institution resigned at a particular meeting of council, it is deemed that such council has resigned and a new council must be constituted in terms of the statute of the public higher education institution.

7. Amendment of sections 28, 29,31, 32 and 72

See comments on section 26

8. Amendment to section 35

The words "or the institutional rules" have been added to make it clear that the student representative council is composed not only in terms of the institutional statute but also in terms of the institutional rules.

9. Amendment of section 41 A

The amendment herein is partly similar to the amendment in respect of section 26. In addition the amendment provides that the person appointed as an administrator will replace the council or management. This is rather drastic and may lead to abuse of power. A Minister who has differences with a council can unilaterally remove it in its entirety by invoking this section. The amendment, which seeks to give power to the Minister to remove a council, ought not to be allowed. The explanatory memorandum to the Bill is silent on this aspect and does not explain any reason for the amendment.

This section should only be invoked in circumstances that should be defined by regulations promulgated by the Minister after public comments thereon.

10. Insertion of new sections 65 A, 65 B and 65 C

Section 65 A deals with the seat of a public higher education institution. This is the physical location of the institution. Subject to the approval of the minister, the public higher education institution may conduct its activities beyond its seat. The restriction of the seat should not apply to Unisa, as Unisa is an open and distance education institution. Unisa undertakes activities throughout and beyond the borders of the Republic of South Africa.

Section 65 B deals with conferment of degrees, diplomas and certificates.

Section 65 C deals with conferment of honorary degrees. It seems to codify existing practices in respect of such conferments. Institutions have a long and established tradition in conferring degrees and/or awarding honours for meritorious service.