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Select Committee on Education and Recreation

21 November 2012

The HETLA Bill, 2012 seeks to amend the Higher Education Act, 1997 as follows:

― to provide afresh for the establishment of a national institute for higher education (NIHE);

– to extend the functions of a NIHE;– to provide for the appointment of an administrator for a

NIHE; – to provide for the closure of a NIHE; – to extend the powers and functions of an independent

assessor;– to provide for the intervention of the Minister in cases of

poor or non-performance;– to temporarily take over the management, governance and

administration of the council; and – to provide for matters connected therewith

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The HETLA Bill, 2012 seeks to amend the National Qualifications Framework Act, 2008 as follows:

– to amend the date on which the annual report of the South African Qualifications Authority (SAQA) must be submitted to the Minister

– to provide for matters connected therewith

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– The State Law Advisers are of the opinion that the Bill is drafted in accordance with the norms and standards followed in our country regarding the drafting of laws. This opinion together with the Bill were presented to Cabinet during May 2012. Cabinet approved the tabling of the Bill for the 2012 Parliamentary process.

– This Bill was certified by the State Law Advisers.

– All processes and procedures have been complied with and consequently this Bill was tabled in Parliament on 31 May 2012.

– This Bill served before the Portfolio Committee of the NA

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Clause 1

• Section 27 of the HEA is amended by the insertion of two new subsections (5A) and (5B)

• Subsection (5A) makes provision that the eligibility criteria for nomination and election as a member of a council of a PHEI must be determined by the institutional statute

• Subsection (5B) provides that any person who has been a member of a council of a PHEI under circumstances contemplated in sections 49A(4)(a) and 49E and who is implicated in the report of the independent assessor is not eligible for appointment as a member of a council of a public higher education institution

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Clause 2

• These amendments seek to extend the powers of the Minister to establish afresh national institutes for higher education (NIHEs) . At present the Minister is allowed to establish NIHEs only in Mpumalanga and the Northern Cape

• The Minister may establish a NIHE, only after consultation with the Council for Higher Education (CHE)

• A NIHE must be established with a specific scope or application and the Minister must publish particulars of the establishment in the Gazette

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Clause 3• This clause seeks to substitute Section 38B

• Functions of the NIHE:

₋ to provide services to higher education within its specific scope or application

₋ to advance learning by ensuring collaboration, co-ordination of the work of higher education institutions (HEIs) and national institutes for higher education NIHEs

₋ to advise the Minister on matters relating to its specific scope or application or to higher education generally

• The Minister must prescribe the functions of each NIHE

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Clause 4

• This clause seeks to amend section 38C : Insertion of Subsection (1A) :

• The majority of members must have specific knowledge and experience

• in higher education, generally

• in the scope and application of the NIHE specifically

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• This clause provides for the substitution of section 38H which deals with the “Annual Audit”:

• The Auditor-General must audit the books of account and financial statements of a NIHE and submit an audit report to the Minister within three months of receipt of the financial statements

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Clause 5

Clause 6

• This clause proposes to substitute section 38I which deals with the Annual Report:

• The Board must, within three months after the end of each financial year, submit a report to the Minister which includes a financial statement on the performance of its functions during the preceding financial year.

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Clause 6….. continues• This annual report must:

⁻ fairly present the financial state of affairs of the national institute for higher education

⁻ fairly present its business

₋ fairly present its financial results and financial position at year end

₋ fairly present its performance against predetermined objectives

₋ contain the Audit Committee’s report

₋ contain any other prescribed information

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Clause 7• This clause provides for the insertion of new sections 38J to 38 O

• Section 38J provides for the intervention of the Minister in that the Minister may issue a directive to the board of a NIHE to take such action specified by the Minister if the NIHE:

– is involved in financial impropriety or is being mismanaged

– is unable to perform its functions effectively

– has acted unfairly or in a discriminatory or inequitable way towards a person to whom it owes a duty ito the Higher Education Act, 1997 (HE Act)

– has failed to comply with any Ministerial directive

– has obstructed the Minister or a person authorised by the Minister from performing a function ito the HE Act

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Clause 7……. continuesThe directive must state:

₋ the nature of the deficiency₋ the steps which must be taken to remedy the situation₋ a reasonable period within which steps must be taken

Before the Minister may take a decision, he must comply with the provisions of the Promotion of Administrative Justice Act, 2000 (PAJA).

• Should the board fail to comply with the Ministerial directive within the stated period, the Minister must dissolve the board and appoint an

Administrator to perform all functions of the NIHE•The costs of the appointment of the Administrator will be for the account of the NIHE

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Appointment of Administrator

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38K: The Minister may, after consultation with the board of a NIHE, if practicable, appoint an Administrator

• to take over the management, governance and administration of the NIHE

• to perform the functions of the NIHE, in the following circumstances:₋ an audit of the financial records of the NIHE or a report by a

Ministerial Committee reveals financial or other maladministration of a serious nature

₋ or the serious undermining of the effective functioning of the NIHE

• any other circumstances arising that reveal financial or other maladministration of a serious nature or the serious undermining of

• the effective functioning of the national institute of higher education or

• the board of the NIHE requests such appointment

• The Minister may only act if the appointment of an administrator is in the interest of the NIHE and of higher education and training in an open and democratic society

• The Minister determines the period for which the administrator is appointed. Such period may not exceed two years

• The Minister may extend the two year period once for a period not exceeding six months

• Section 38L: Assistance to administrator: With the approval of the Minister the administrator may appoint any other person with suitable knowledge and experience to assist him/her

• Sections 38M, 38N and 38O respectively provide for remuneration and allowances; dissolution of the board and the disestablishment of a NIHE

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Clause 8

Subsections (1) and (2) of section 41A are

deleted

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Clause 9 provides for an investigation by an independent assessor (IA)

• On receipt of a complaint or an allegation or on the ground of information that has come to the knowledge of the IA and which points to specific conduct, the IA has the power to conduct an investigation for the purpose of determining the merits of the complaint, allegation or information and the manner in which the matter concerned should be dealt with

• The format and the procedure to be followed in conducting any investigation shall be determined by the IA with due regard to the circumstances of the case

• The IA may direct that any category of persons or all persons whose presence is not desirable shall not be present at any proceedings pertaining to any investigation or part thereof.

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Clause 9…….. continues• No person may disclose to any other person the contents of any

document or the record of any evidence given to the IA during an investigation, unless the IA determines otherwise

• The IA may, at any time prior to or during an investigation, request any person to assist in the performance of his or her functions with regard to a particular investigation or investigations in general

• The IA may direct any person to submit an affidavit or affirmed declaration or to appear before the IA to give evidence or to produce any document in his or her possession or control which has a bearing on the matter being investigated, and may examine such person

• The IA or any person duly authorised thereto by the IA may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated

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Clause 9…… continues

• A direction must contain particulars of the matter in connection with which the person is required to appear before the IA ; shall be signed by the IA and served on the person either by a registered letter sent through the post or delivered by a person indicated in section 48

• The IA may require any person appearing as a witness before him or her to give evidence on oath or after having made an affirmation

• The IA or any person indicated in section 48 may administer an oath to or accept an affirmation from any such person

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Clause 9……. continues• If during the course of an investigation it appears to the IA that any

person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse recommendation pertaining to that person may result, the IA must afford such person or the council an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.

• If such implication forms part of the evidence submitted to the IA during an appearance, such person must be afforded an opportunity to be heard in connection therewith by way of giving evidence.

• The IA may allow legal representative to assist a person ito section 3(5) of PAJA

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Clause 9……. continuesThe IA shall be competent to enter, or to authorise another person

contemplated in section 48 to enter, any building or premises of the

PHEI under investigation and to make such investigation or assessment as he or she may deem necessary, and to copy any documents on those premises which in his or her opinion has a bearing on the investigation.

Clause 10Section 47(1) is amended by the substitution for paragraphs (b) and (c )

The IA must report in writing to the Minister of the findings of his or her investigation together with the reasons upon which the findings are based; and suggest appropriate measures and the reasons why the measures are needed.

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Clause 11

• Clause 11 provides for the intervention by Minister• The Minister may issue a directive to the council of a PHEI to take such

action specified by the Minister if the PHEI– is involved in financial impropriety or is being mismanaged;– is unable to perform its functions effectively;– has acted unfairly or in a discriminatory or inequitable way towards

a person to whom it owes a duty ito the Higher Education Act, 1997 (HE Act);

– has failed to comply with any Ministerial directive;– has obstructed the Minister or a person authorised by the Minister

from performing a function ito the HE Act.

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Clause 11….. continues

The directive must state :– the nature of the deficiency– the steps which must be taken to remedy the situation– a reasonable period within which steps must be taken

Before the Minister may take a decision, he must comply with the provisions of the Promotion of Administrative Justice Act, 2000 (PAJA)

• Should the council fail to comply with the Ministerial directive within the stated period, the Minister must dissolve the council and appoint an Administrator to perform all functions of the PHEI

• The costs of the appointment of the Administrator will be for the account of the PHEI in question

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Clause 11…… continues Appointment of an Administrator

• 49B: The Minister may, after consultation with the council of a PHEI, if practicable, appoint an Administrator to take over the management, governance and administration of the PHEI to perform the functions of the PHEI, in the following circumstances:

• an audit of the financial records of the NIHE or a report by a Ministerial Committee reveals financial or other maladministration of a serious nature or the serious undermining of the effective functioning of the NIHE

• any other circumstances arising that reveal financial or other maladministration of a serious nature or the serious undermining of the effective functioning of the public HEI or

• the council of the PHEI requests such appointment24

Clause 11….. continues

•Section 49C: Assistance to administrator: With the approval of the Minister the administrator may appoint any other person with suitable knowledge and experience to assist him/her.•Sections 49D and 49E respectively provide for remuneration and allowances; and the dissolution of the council.

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Clauses 12 and 13

• Clause 12 seeks to amend section 13 of the NQF Act, 2008 by changing the date on which the annual report of the SAQA must be submitted to the Minister. The new date by which SAQA must submit an annual report which includes the financial statements and audit reports is on or before 31 August in each year

• Clause 13 provides for the short title of this Amendment Act, namely the Higher Education and Training Laws Amendment Act, 2012 (HETLA Act, 2012)

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Thank You