1. Portfolio Committee on Higher Education and Training Meeting
10 August 2011
Parliament, Cape Town

2. Introduction Progress with the current legislative programme:
Bills of the 3 Bills were tabled:
Higher Education Laws Amendment Bill, 2011
Further Education and Training Colleges Amendment Bill, previously referred to as Higher Education and Training Laws Amendment Bill, 2001
The Skills Development Amendment Bill will soon be tabled.
The Higher Education Laws Amendment Bill, 2011 seeks to amend the Higher Education Act, 1997 and the National Student Financial Aid Scheme Act, These Acts will be amended as follows:
The Higher Education Act, 1997, is amended to provide for the conduct of council members and staff engaging in business with the public higher education institution concerned and to adjust the period within which an independent assessor must finalise an investigation.
The National Student Financial Aid Scheme Act, 1999, is amended to empower the Minister to intervene by way of an administrator in the case of poor or non performance or maladministration by the Board; and to provide for Ministerial power to remove the Board, as well as the procedure for such removal. It further repeals the provision which placed an obligation on the employer of a borrower to make deductions from his or her remuneration.

3. Clauses 1, 2 and 3: Amendments to the Higher Education
Act.
Clause 1 seeks to amend section 27 of the Act, whereas clause 2 amends section 34 of the Act.
Clauses 1 and 2 regulate the conduct of Council members or staff in higher education institutions and oblige them to declare any business, commercial or financial activities for financial gain that may give rise to a possible conflict of interest with the public institution.
These clauses seek to place an obligation on a member of council or a staff member not to have a conflict of interest with the public higher institution concerned and to inform the chairperson in writing if the conflict or possible conflict of interest exists.
The intention of these amendments is to ensure that council members and staff do not act in self interest but perform the functions in the best interest of the higher education institution.
These provisions seeks to curb corruption and abuse of public money.

4. Clause 3:
This clause seeks to amend section 47 of the Higher Education Act by providing a longer period for an independent assessor to do an investigation and to report the outcome thereof to the Minister.
In terms of the current Act, the investigation must be finalised and a report must be given to the Minister within 30 days, however, practice has shown that this timeframe is too short and the Bill seeks to provide the assessor with a maximum of 90 days to complete this process.
An independent assessor’s investigation is of such a nature that it requires meetings with all the role-players in the higher education institution, evaluation of all the documentation and evidence and to provide a solution to the problem.
A longer period must be provided for the assessor to complete the functions, but still provide a speedy outcome to the problem that exists in the institution.

5. Clause 4 – 7:
These clauses seek to amend the National Student Financial Aid Scheme Act.
Clause 4 introduces two new sections to the Act.
Section 4A allows the Minister to intervene where the board–
has experienced financial difficulty
has mismanaged funds
is unable to perform its functions effectively or
acts obstructively by not complying with any law or
directive given by the Minister.
The Minister may direct the board to take action by identifying the nature of the deficiency and the steps that must be taken to remedy the situation within a set period.
This clause further provides for the Minister to follow a process in compliance with the Promotion of Administrative Justice Act by providing a notice of the intention to give directives and to allow the board an opportunity to make representations.

6. If the board fails to comply with the directives given by the Minister, the Minister may appoint an administrator to take over the functions of the board.
Once the Minister is satisfied that the board is able to perform its functions, the Minster must terminate the appointment of the administrator.
The cost associated with the appointment of the administrator will be for the account of NSFAS.
Section 4B provides that if the board fails to perform its functions under the Act, the Minister may appoint an administrator to rectify the failure of the board. The administrator must built the necessary capacity and must introduce corrective measures to remedy the situation and to provide continuity when the board assumes the functions of the administrator‘s when the term of office is terminated.

7. Clause 5 introduces a new section 7A to the Act, which section empowers the Minister to dissolve the NSFAS board if –
the conduct of the members of the board necessitates such action and this solution of the board is in the best interest of higher education and the NSFAS
if more than 75% of members of the board has resigned
if less than 75% members resign and the administrator recommends that the new board must be appointed.
If a board has been dissolved, an administrator must be appointed.
The Bill provides for the Minister to comply with a due process before he appoints the administrator.

8. Clause 6:
This clause introduces three new sections to the Act.
Section 17A deals with the appointment of the administrator. The administrator may be appointed if an audit shows that there is financial or other maladministration of a serious nature which undermines the effective functioning of the NSFAS. The administrator can be appointed for a maximum of two years and the term of appointment may be extended once for another six months.
Section 17B compels the Minister to appoint other persons with suitable knowledge and experience to assist the administrator in performing the function.
Section 17C provides for the remuneration and allowances of the administrator and any other person appointed to assist him or her.

9. Clause 7:
This clause seeks to repeal section 23 of the National Student Financial Aid Scheme Act, This section place an obligation on the employer to deduct money from the employee (student) who received a loan through NSFAS and in the event that the employer fails to comply with this provision, such action constitutes an offence and the employer can be ordered to make a deduction or payment. This obligation placed on the employer is considered to be an infringement on the rights of an employer and hence the repeal of this section.

10. Further Education and Training Colleges Amendment Bill, 2011 (FETCA Bill) previously referred to as Higher Education and Training Laws Amendment Bill, 2011
Amendments were effected to the Further and Education Training Colleges Act and consequently the Bill’s name changed to Further and Education Training Colleges Amendment Bill, This Bill is subject to the compliance of the procedure of section 76 of the Constitution and therefore cannot be part of the Higher Education Laws Amendment Bill, 2011 that must be dealt with in accordance with the procedure prescribed by section 75 of the Constitution.
The Bill seeks to remove all references to provincial authorities by assigning the functions of the MEC to the Minister and the functions of the Head of Department to the Director-General. It regulates the conduct of members of Council and staff public colleges not engaging in business with the relevant public college. Furthermore, the Bill provides for the appointment of staff, transitional arrangements and matters connected therewith.

11. Clauses 1 to 10 and 14 to 33:
These amendments seek to assign the functions currently with provincial authorities to national authorities. The creation of two national Departments for Education in 2009 created an opportunity for the Department of Basic Education and the nine Provincial Education Departments to refocus on school education. The involvement of the provincial authorities focus primarily on the delivering of education in schools. The CEM and HEDCOM recommended that the Minister and Director-General of Higher Education and Training should be responsible for the delivering of education in Further Education and Training Colleges. The Distribution of Revenue Act made the operations funding of Public Colleges a conditional grant on the budget of the Department of Higher Education and Training. Cabinet further approved that Schedule 4 of the Constitution be amended to make FET Colleges an exclusive national competency. The Constitution Nineteenth Amendment Bill has already been tabled in Parliament and is subject to the processes being finalised during the session of Parliament.

12. Clauses 11, 12, 13 and 34:
These clauses seek to amend the employment status of certain employees who are fully funded by state subsidies to become state employees. This was the position prior to 2006 when the Act provided for state employees funded by the state and in addition to the state employees, employees employed by the Council of the College.
The need to revert back to the employment position prior to 2006 was recommended by the FET Colleges Summit in 2010 and supported by the trade unions.
Clause 11 repeals section 19 of the principal Act as it becomes redundant by the enactment of Clause 12.
Clause 12 amends section 20 to provide for the posts that are fully funded by the state to become posts on the establishment of the Department of Higher Education and Training. It further authorises the College (if funds are on the budget) to create additional posts in order to supplement the posts provided by the State. It provides for the remuneration of College staff to be less than the remuneration of state employees.

13. Clause 13 amends section 21 by substituting references of “lecturers” and “support staff” for “staff employed” by section 20(4).
Clause 36 allows for transitional arrangements to ensure that the incumbent to a post that is transferred to the state or the post that remains with the college as employer, will not be prejudiced by the statutory changes with regards to the employer.
The staff affected by the amendment will have the protection of section 197 and 197A of the Labour Relations Act.

14. Thank you