Response by the DHET to the public comments submitted to the Portfolio

Committee on the Higher Education and Training Laws Amendment Bill, 2012

11 October 2012

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HIGHER EDUCATION SOUTH AFRICA (HESA)

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Allegations/Complaints/Information• The Higher Education Act, 1997 (HEA) should neither qualify nor restrict an

investigation based on complaints, allegations or information. The investigation must determine the substance and the nature of the allegations.

• The powers of the independent assessor (IA) are extended to ensure that if the allegations, complaints or information are corroborated by any other documentation or evidence, then the IA must place the person who is making the allegations/complaints or providing the information under oath. The IA may also copy any document that corroborate such allegation/complaint/information , even if the Council or management of the institution or any other a person is unwilling to submit such document/ evidence.

• To ensure that the Minister is in a position to take an informed decision, it is critical to extend the powers of the IA to be able to rely on the allegations and info provided voluntary and to ensure that there is substance to the allegations/complaints or information.

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“Category of persons” section 45 (1) (b) (ii)

• The IA must be given the flexibility to be able to gather and to substantiate evidence and facts, without any interference, particularly through an orchestrated reaction by persons, that may frustrate or hamper the work of the IA.

• It is not the intention that such a category of persons will be excluded from the investigation, but it is merely directed at a limitation, when a specific proceeding or meeting is conducted by the IA to obtain corroborative evidence.

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“Implicated person” section 45 (8) (a)

• An investigation by its very nature has the effect that the actions or conduct of implicated persons can be potentially harmful to the persons and therefore….

• In compliance with the principles of administrative justice and the rules of natural justice, the intention is to allow a person (also inclusive of a legal personality) who may be potentially negatively affected by any findings or recommendations made during the investigation, to be afforded an opportunity to respond.

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Section 42 (Directives)

• The HEA does allow for the Minister to call upon a Council to comply with any provision of the HEA and to withhold the allocation of money to a University if the institution fails to comply with a provision (section 42).

• However, if the Minister withholds an allocation of money, the students and the staff of the institution (who are innocent parties to the issue) will be directly and negatively affected, as the State is the main sponsor of all Universities.

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Directives

• The intention of the HETLA Bill, 2012 is to direct the relief sought against the perpetrator (Council/Management) by replacing that structure/ function of office and place it under an Administrator who can perform the functions without any disruption to the learning process.

• In any matter concerning the Council or University Management/Administration the preservation of the academic autonomy, the rights of employees and importantly the rights of learners should be paramount.

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“Dissension” section 49A (1) (b)

• The DHET is of the view that section 49A(1)(b) must be read within the context of the caveat that the dissension between members of the Council must be of such a nature as to render Council dysfunctional.

• However, it is conceded that reference to the dissension is only but one of the matters that can make a Council dysfunctional and the latter part of the provision that refers to it “due to dissension between Council members “ may be deleted.

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“Unfairly/discriminatory/inequitable” section 49A (1) (c )

• Unfair, discriminatory or inequitable actions are far reaching by nature and cannot be limited or clarified without losing the real effect and impact of unfair discrimination and inequitable measures. However, the safeguard of this provision is provided by subsection (3) of section 49A. This provision requires compliance with the prescripts of the Promotion of Administrative Justice Act, 2000 (Act 3 of 2000) (PAJA), in that all parties affected by this discriminatory and inequitable conduct, is afforded an opportunity to make representations.

• This specifically requires the Minister to get the recommendations and comments of the Council and to consider these comments before taking a decision to intervene.

• This provision cannot be seen as vague or unsubstantiated, because any decision taken by the Minister this regard must be based on all relevant facts, and has to be subjected through a proper process as provided for by PAJA,

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“Failed to comply with any directive” Section 49A (1) (e )

• This provision can easily be rectified by introducing the reference to section 42 of the HEA.

• This amendment will therefore ensure that the provisions of section 42 can be directed to the Council (who caused the failure) to comply with the directives of the Minister without having unforeseen consequences towards the learning processes were students and staff are deprived of funds.

• Again in governing and managing the system we have to ensure as a society the rights of learners are paramount in any matter that affects them.

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Dissolution of Council versus suspension of Council 49B(1)

• We are not sure what HESA’s proposal of suspension means in the context of the Act.

• Suspension is normally linked to disciplinary measures as a pre-emptive step before the final decision is taken.

• There would be no role and function for the suspended Council of the University, especially taking into account that the Council was dysfunctional when the decision to appoint the administrator was taken.

• In any case nothing prevents reappointing- non implicated members of a dissolved council to a reconstituted council.

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“Inconsistency” between section 49B(1)(c) and section 49E

• There is no inconsistency as the dissolution is linked to the appointment of an administrator and not to the request for an administrator by the Council.

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CENTRAL UNIVERSITY OF TECHNOLOGY (CUT)

(We are not sure if the submission was from the Council of CUT or the Vice-Chancellor)

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• CUT link constitutional principles of freedom of speech and academic freedom to the concept of institutional autonomy while the White Paper 3 separates academic freedom, institutional autonomy and accountability from each other. These are not the same concepts. (also raised by UP and HESA)

• They aver that these legislative amendments and the appeal by the DHET against the “CUT versus the Minister of HET” judgment, cannot run concurrently. Parliament has an unfettered right to make legislation. Furthermore, the judgment was not related to an action of Parliament but to a decision of the Minister. (COSATU and NEHAWU also dispute this position of CUT.)

• The proposed amendments are addressing the weaknesses in the current legislation and uncertainties that exist in the Act in regards to the Council when an Independent Assessor or Administrator is appointed.

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Concern of an administrator assuming management and governance functions

and oversight

• Even when a court appoints a liquidator or administrator to a company, that person assumes both governance and management roles.

• Oversight of Council under normal circumstances is with the Minister, so is any Administrator. The Minister can hold the Administrator accountable and can replace such an Administrator for misgovernance, mismanagement, misadministration and/or non-performance

• We are unable to respond to the many personal experiences of the CUT presenter.

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COUNCIL ON HIGHER EDUCATION

(CEO presented on the mandate of the Executive Committee)

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Concept of independent assessor versus a legal investigator

• The current Act does not provide the Independent Assessor (IA) with the tools to perform his/her function to provide the Minister with the relevant facts for his/her findings and recommendations.

• Nor does the Act require the IA to provide reasons for the findings and recommendations.

• Administrative law requires the decision maker (Minister) must make an informed decision based on corroborated and substantiated evidence or facts.

• The current Act requires the IA to rely on his/her reputation knowledge and experience which is insufficient for the report to stand the muster of a challenge.

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The addition of “any circumstances” in appointment of administrator in the Bill Section 49B(1)(b)

• They contend that it is too wide and open ended as it allows unfettered discretion to the Minister.

• Our response is that the amendment is not open ended and unfettered as it specifically provides that financial or other maladministration of a SERIOUS NATURE affecting the functioning of the public institution must be REVEALED.

• The decision of the Minister is subject to Administrative law which requires that the facts on which the decision is based must be substantiated or corroborated by evidence. This provision would require the Minister to consult with the Council where practical, before the decision is taken, unless the Council itself is implicated.

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The addition of “any circumstances” in appointment of administrator in the Bill Section 49B(1)(b)

• The circumstances will have to be of such a serious nature that reliance on the audit or an assessment may cause more harm to the rights to public accountability, public resources or public education.

• Some examples of any circumstances, among others, could be: – Findings and/or recommendations from the reports from chapter 9

(Constitutional) institutions such as the Public Protector, the Human Rights Commission that requires urgent intervention.

– Decisions of the Council that may subject the University to unmanageable risk. For example imminent transfer of assets of the University.

– Imminently committing the University to an obligation it will not be able to fulfill.

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Grounds on which the Minister issues directives would impinge on institutional autonomy

Section 49A(1)(c)-(f)

• The Minister is compelled by the constitution to uphold the law, protect rights of students and workers.

• No-one has the right to claim autonomy from the constitutional, legislative and international obligations. These directives deal with these matters.

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SASCO

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SASCO

• Supports the Bill especially in regards to the transparency, openness and the need for the State to intervene.

• SASCO suggests a further ground for the directive to the Council in regard to discrimination, in regards to race or creed. We agree, however, that the matter is sufficiently covered in the Constitution and under these amendments under section 49A(1)(c) and (d).

• SASCO proposes that the Minister must appoint a competent individual in society to work with the Council in resolving the matter. This proposal goes beyond the current amendments and would require substantive policy discussion.

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COSATU NEHAWU JOINT SUBMISSION

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NEHAWU and COSATU

• Supported the Bill especially in regards to the transparency, openness and the need for the State to intervene where state resources are at stake.

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THANK YOUSIYABONGA

ENKOSI25