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The DA should read the Higher Education Amendment Bill before opposing it

Khaye Nkwanyana is the Spokesperson of the Ministry of Higher Education and Training.

The recent #FeesMustFall campaign illustrates the dilemma when the pace and nature of transformation is not attended to comprehensively.

Belinda Bozzoli, of the Democratic Alliance (DA) has criticised the proposed amendments to the Higher Education Amendment Bill, 2015, tabled in Parliament. She has accused Minister Blade Nzimande of using the amendments to increase his powers to intervene in university matters, specifically with respect to issues of transformation and institutional breakdown, and hence to undermine institutional autonomy. In this regard, she calls for the Bill to be removed.

It is clear that Bozzoli has not made an effort to engage with the proposed revisions to the Bill, and has no clue about the process that has led to the revision of the Bill. This revision was undertaken through a deep, reflective and consultative process, involving the university sector, and other key stakeholders. The revision was necessary to deal with a number of developments and changes in the higher education landscape, the two most important being the publication of the White Paper on Post-School Education and Training, published in October 2013, and the Higher Education Amendment Laws of 2012. Key stakeholders felt that the 2012 amendment to the Act was not properly consulted, the wording was clumsy, and it gave the Minister too much power over universities and National Institutes of Higher Education, all of which was inconsistent with the Promotion of Administrative Justice Act of 2000 (PAJA).

In 2013, the Minister consulted with university Vice Chancellors and Council Chairs on their concerns, and agreed on a process for reviewing the Act. A task team, including members from the Department, Higher Education South Africa, Universities Council Chairs Forum of South Africa, and the Council on Higher Education, was established to revise and improve the Bill, taking into consideration the principles of academic freedom, institutional autonomy, public accountability, and the prescripts of PAJA. This process has been highly consultative and inclusive, and is testament to the principle of cooperative governance between institutions and the State, which underpins the governance of higher education in South Africa.

The Higher Education Act 101 of 1997 was amended nine times between 1999 and 2012. There were some aspects, such as provisions for Technikons, as an institutional type, that were no longer applicable, and needed to be expunged. The Act was, also, cumbersome to read and apply. More importantly, some of the provisions did not fully comply with PAJA.

The revised Bill is intended to strike a better balance between institutional autonomy and public accountability, deal with the outdated aspects and create coherence. It provides greater clarity about the mechanisms available for the Minister to intervene, as already prescribed in the Act. It is common cause that the 2011/12 amendments of the Higher Education Act of 1997, resulted in widespread disquiet in the sector regarding institutional autonomy, and the powers of the Minister to override this important principle by employing statutory interventional measures.

The aim of the proposed amendments is to consolidate all aspects of the existing interventional measure in one chapter, to provide an easy perspective of the nature thereof, and the terms and conditions with regard to the activation of interventions. A much more preventative and progressive approach by the Minister is proposed. The proposals would allow the Minister to act much earlier by way of a directive to prevent serious interventions at a later stage. They also provide the Minister with a range of options, instead of the current arrangement, whereby the Minister is obliged to appoint an administrator, should the Minister wish to pursue matters further.

It is also clear that actions by the Minister should commence with the issuing of a directive and could, if circumstances dictate, progress to the more serious interventions such as the appointment of an independent assessor and an administrator. Whatever the circumstances may be, the Minister may only appoint an independent assessor or an administrator after compliance with the legislative prescripts in this regard. The proposed amendments require the Minister to provide much more information, and comply more substantively with pre-directive prescripts, compared to the current arrangements.

The new provisions also provide the Minister with the power to determine transformation goals for the higher education system, and institute appropriate oversight mechanisms. However, the Bill is clear that the transformation goals must be determined in the interest of the higher education system, as a whole, and in terms of the policy on higher education, after consulting with the Council on Higher Education. This must also be read with the amendment pertaining to the development of articulation and recognition of prior learning frameworks for the post-school education and training sector. These matters are identified in the White Paper for Post-School Education and Training as urgent imperatives, but marked, thus far, by inadequate or no response from the sector.

Bozzoli suggests that the Minister will have unfettered powers. Contrary to this, the powers of the governing structures, specifically the Councils and the Senate remain unchanged. These legislative arrangements will, however, provide the Minister with a mechanism to ensure momentum and progress with regard to critical transformational matters. The recent #FeesMustFall campaign illustrates the dilemma when the pace and nature of transformation is not attended to comprehensively. The prescript allowing the Minister to institute appropriate oversight mechanisms should also be welcomed.

The impact of the transformational goals and frameworks with regard to articulation and prior learning on individual institutions, would take the form of agreements between the Minister and institutions involved, similar to those concluded with regard to the Ministerial growth targets and various other matters incorporated in the reporting regulations for higher education institutions. The process of concluding these agreements would be no different to the iterative and consultative process followed by the Minister and Department up to now. This is the fundamental principle on which the Higher Education system is built; on the notion of cooperative governance.

The primary objective of this revision of the Act was to improve the system based on the collective experience of implementing the Higher Education Act since 1997. The White Paper 3 of 1997, which dealt in detail with the principles of institutional autonomy, academic freedom and public accountability, made a distinction on this balance that is upheld in this Bill. Universities South Africa and the Universities Council Chairs Forum, together with the Department, agreed on the majority of changes prescribed in the Bill. DM

Khaye Nkwanyana is the Spokesperson of the Ministry of Higher Education and Training.


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