Portfolio Committee Meeting on Higher Education and Training 3 August 2010 Parliament, Cape Town

Introduction In May 2009, education legislation at national level was divided between the Minister of Higher Education and Training and the Minister of Basic Education, by way of a Presidential Act. All legislation applicable to Skills Development was seen as legislation that affects the training functions assigned to the Minister and these laws were transferred from the Minister of Labour to the Minister of Higher Education and Training. Presidential Proclamations (PP 44 of 2009, PP 48 of 2009 and PP 56 of 2009) were promulgated in which the administration, powers and functions entrusted by the national legislation applicable to education and training were transferred from the Minister of Education and the Minister of Labour to the Minister of Higher Education and Training.

Because of the transfer of legislation through the Proclamations, the current legislation does not reflect the changes caused by the Proclamations and in fact refer to incorrect authorities and to legislation that is not even primarily under the authority of the Minister but are applicable only to certain of the institutions under the authority of the Minister. In terms of Proclamation 44 of 1 July 2009 and section 97 of the Constitution, the administration and powers and functions entrusted by specific legislation were transferred to the Minister of Higher Education and Training, namely: National Education Policy Act, 1996 (Act No. 27 of 1996) Higher Education Act, 1997 (Act No. 101 of 1997)

- Employment of Educators Act, 1998 (Act No. 76 of 1998) - National Student Financial Aid Scheme Act, 1999 (Act No. 56 of 1999) - South African Council for Educators Act, 2000 (Act No. 31 of 2000) - Adult Basic Education and Training Act, 2000 (Act No. 52 of 2000) - General and Further Education and Training Quality Assurance Act, 2001 (Act No. 58 of 2001) - Further Education and Training Colleges Act, 2006 (Act No. 16 of 2006) - National Qualifications Framework Act, 2008 (Act No. 67 of 2008).

This list of legislation must be read in conjunc-tion with the transfer of the administration to the Minister of Basic Education as contained in paragraph 1.2 of Presidential Proclamation No. 44 of 2009. An analysis of the two columns in the Schedule, indicates that the Minister of Higher Education and Training has the exclusive administrative authority relating to the following Acts: Higher Education Act, 1997 (Act No. 101 of 1997) National Student Financial Aid Scheme Act, 1999 (Act No. 56 of 1999) Adult Basic Education and Training Act, 2000 (Act No. 52 of 2000) Further Education and Training Colleges Act, 2006 (Act No. 16 of 2006) National Qualifications Framework Act, 2008 (Act No. 67 of 2008).

- National Education Policy Act, 1996 However, specific legislation that had been transferred to the administrative authority of the Minister of Basic Education have been identified and specific sections in so far as they relate to FET Colleges, were transferred to the Minister of Higher Education and Training. These laws are: - National Education Policy Act, 1996 (Act No. 27 of 1996) - General and Further Education and Training Quality Assurance Act, 2001 (Act No. 58 of 2001).

In relation to ABET centres, a further group of legislation has been identified where specific sections have been transferred to the Minister of Higher Education and Training, namely: National Education Policy Act, 1996 (Act No. 27 of 1996) General and Further Education and Training Quality Assurance Act, 2001 (Act No. 58 of 2001) Employment of Educators Act, 1998 (Act No. 76 of 1998) South African Council for Educators Act, 2000 (Act No. 31 of 2000).

This Proclamation was followed up by Proclamation 56 of 4 September 2009, which transferred the administration, powers and functions entrusted to the Minister of Labour by the Skills Development Levies Act as well as the Skills Development Act, to the Minister of HET, in so far as these provisions do not apply to Productivity South Africa and employment services.

Consequently Minister of DPSA requested Consequently Minister of DPSA requested that the applicable legislation subjected to the transfer of functions be amended and simplified to make it more user-friendly in the implementation process.

APPROACH AND FOCUS OF THE BILLS There are 3 Bills presented to Parliament, they are – Skills Development Levies Amendment Bill Higher Education Laws Amendment Bill Higher Education and Training Laws Amendment Bill The respective focuses were- to cluster all the legislation exclusively within the domain of the national level of government into one Bill (namely the Higher Education Laws Amendment Bill which is introduced into the National Assembly as a section 75 of Constitution Bill); to cluster the competencies of national and provincial governments (Schedule 4 of Constitution) into the Higher Education and Training Laws Amendment Bill. due to the special status of the Skills Development Levies Act as a money Act, it was decided to deal with it in a separate Bill.

Skills Development Levies Amendment Bill, 2010 The Skills Development Levies Act was promulgated in law by complying to section 77 of Constitution as it is defined as a money Act BUT Amendments in this Bill are very limited in that they correct references made to the authorities identified in the Skills Development Levies Act in order to reflect the Minister of Higher Education and Training and the Director-General of the Department of Higher Education and Training Amendments are purely technical and the amendments do not address any substantial issues relating to finances which is required to make it a money Bill - This view was consulted and agreed to by: - Office of President - Parliament - State Law Advisors

Higher Education Laws Amendment Bill, 2010 Main object of Bill to align the legislation with the new education dispensation so that the references made to authorities correctly reflect the Minister of Higher Education and Training and the Director-General of the Department of Higher Education and Training; and address critical aspects that cause confusion in the Higher Education and Training system as the result of the transfer of the Skills Development Act into education The Bill includes amendments to:- Higher Education Act, 101 of 1997 (HEA); Skills Development Act, 97 of 1998 (SDA); National Student Financial Aid Scheme Act, 59 of 1999 (NSFAS Act); and National Qualifications Framework Act, 67 of 2008 (NQF Act).

Substance of amendments The creation of the new Department of Higher Education and Training necessitated the redefinition of certain words and expressions in order to reflect the new dispensation. Clauses 1, 4, 7 and 8 are merely corrections of definitions to reflect the relevant authorities currently responsible to perform in terms of the Acts. These clauses substitute the definitions of: - Department - Department of Education - Director-General - Minister

Clauses 2, 3 and 9: Bill seeks to bring clarity in the HE Act in respect of criteria for the registration of private higher education institutions and the registration of qualifications on the National Qualifications Framework . The transfer of the functions relating to the definition of the subframework of trades and occupation on the National Qualifications Frameworks which subframework includes occupational qualifications on levels 5 to 10 of the NQF and which levels are also applicable to higher education qualifications offered in terms of the Act. The amendments seeks to avoid confusions in the offering of qualifications in private higher education institutions and confirm it must be qualifications on NQF.

Clause 5 and 6:. Section 26G of the Skills Clause 5 and 6: Section 26G of the Skills Development Act (SD Act) is amended to regulate the appointment of a chief executive officer of, and employees to the Quality Control for Trades and Occupational (QCTO). Schedule 3 is also amended to correctly reflect designations of certain members of the QCTO. These amendments are needed to bring consistency in the terminology used in the NQF Act and the other two Acts applicable to the other two Quality Councils. Clause 10: Section 8 of the NQF is amended to reflect that the Minister of HET including occupational qualifications has overall executive responsibility for the QCTO and no longer the involvement of the Minister of Labour on National Qualifications Framework matters.

Clauses 11 – 15: These amendments to the NQF Act are consequential amendments aimed at removing references to the Minister of Labour.

Higher Education and Training Laws Amendment Bill, 2010 This Bill is introduced in National Assembly i.t.o. section 76 of Constitution which provides that legislation that falls within concurrent legislative competency between national and provincial government must be subjected to this process. Bill seeks to align: - the Adult Basic Education and Training Act 52 of 2000; and - the Further Education and Training Colleges Act 16 of 2006 with new education dispensation

Methodology: Technical amendments: Incorrect references were amended 2. Incorporated existing statutory provisions currently contained in the National Education Policy Act, 27 of 1996 and in the Employment of Educators Act, 76 of 1998. These laws have been primarily transferred to the Minister of Basic Education and are relevant to ABET centres and FET Colleges only in so far as the laws relate to those institutions Because two Ministers must share the administration of the same laws, the application of these laws becomes very complex and cause confusion.

In order to make the complex situation more userfriendly the relevant provisions of the NEPA and EEA were incorporated into the ABET Act and FETC Act respectively. This approach consolidates various pieces of legislation into one Act and makes the implementation of the legal framework easier without changing the legal framework. The inclusion of the specific portions of legislation which are shared between the two Ministers are done by extracting provisions from the current legislation (National Education Policy Act and Employment of Educators Act) and include that into the two institutional Acts without amending the current law. This is purely technical as the substance of the provisions remain exactly the same.

adult [basic] education and training Clauses 1, 2, 8, 9: Redefine certain words and expressions in order to bring them in line with the creation of the Minister and Department of Higher Education and Training such as: adult [basic] education and training college educator employer Department Minister Clause 4: Incorporation of existing provisions of the EEA into the ABET Act in order to provide for employment of educators at public centres.

Clauses 5 and 10: Incorporating existing provisions of NEPA into respectively the ABET Act and FETC Act, in order to make provision for the determination of national education policy for adult education and training centres as well as further education and training colleges. Clause 6: Bill proposes that Umalusi must carry out quality assurance in respect of qualifications offered by public and private centres. Clause 7: Bill seeks to change the name of the ABET Act to the AET Act (Adult Education and Training Act).

Clauses 11 and 12: Amendments to sections 42 and 43 of the FETC Act are consequences of the incorporation of provisions of NEPA and provide that the promotion of quality in further education and training must be done subject to the norms and standards set by the Minister in terms of section 41B.

Thank you