Higher Education Laws Amendment Bill, Skills Development Levies Bill; Higher Education & Training Laws: Department response to public comments

Higher Education, Science and Innovation

31 August 2010
Chairperson: Mr M Fransman (ANC)
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Meeting Summary

The Department of Higher Education presented the Committee with a response to the comments received from stakeholders on the Higher Education Laws Amendment Bill, the Skills Development Levies Bill and the Higher Education and Training Laws Amendment Bill. Specific issues raised were on the scope of certain levels within the National Qualifications Framework (NQF), the use and impact of specific wording, the place of certain organisations and courses within the NQF structure and the role of the various entities involved in the NQF. He also acknowledged that there was a policy issue with regard to the understanding of Adult Basic Education and Training (ABET) and Adult Education and Training (AET).

Members noted the problems facing international institutions and questioned whether the South African Qualifications Authority (SAQA) was suffering from an administrative backlog. They questioned the place and meaning of the word ‘basic’ in basic education. Discussion became quite heated over the assertion by the Department that it lacked the policy and capacity to deal with certain issues. Members questioned the open-ended definition of the term ‘educator’. The Committee asked the Department to give an idea of the considerations around ABET/AET and what the effect of leaving it in place would be. It would seek advice as well from their legal advisor in Parliament on this.

Meeting report

Mr Eben Boshoff, Chief Director: Legal Services, Department of Higher Education, addressed the Committee on the Department’s response to concerns and grievances raised by the public and stakeholders.

Response to Mr M Kerruish (TESOL South Africa) submission
He first addressed the problems of Mr M Kerruish the representative from Teaching English to Speakers of Other Languages (TESOL South Africa) on the matter of the Higher Education Laws Amendment Bill particularly around certificates, diplomas and registration of courses considered to not necessarily be a qualification. He explained that TESOL offered short courses that did not fit the South African Qualifications Authority categories and classifications. He explained that the NQF was developed from the SAQA Act, which did not recognise short courses or unit standards.  What it did was acknowledge that it was a qualification framework therefore the outcome must be a qualification. He noted that the Act also provided for part qualifications giving recognition to learning programs, which fall short of a full qualification but form part of a qualification. He suggested that if short courses wanted to be registered with the NQF they would then to fulfil being either a qualification or a part qualification in terms of the requirement of the Act. He explained that the focus on the use of the terms ‘qualifications’ or ‘part qualifications’ was to ensure that learners were marketed a framework of learning. The focus on qualifications makes provision for an outcome that was internationally recognised and allowed the advantage of standards and quality assurance. He suggested that Mr Kerruish was frustrated by the fact that he did not offer a qualification or a part qualification but wanted the protection of the Act.

Discussion
Ms N Vukuza (COPE) questioned whether or not the Act should be altered to suit people or people must alter in order to fit within the Act. She argued that the Act was there to protect more than a singular person and that the short courses should lend themselves to the requirement of the Act

The Chairperson summarised that it was seemingly an issue of providers in this situation and not something that affected the legislative process. He requested that the commentator meet relevant people in the Department and in SAQA and that the Committee receive a report on the progress of the issue.

Response to Independent Institute of Education submission
Mr Boshoff acknowledged that presenter from the previous day had raised issues which had caused substantial discussion. He explained that the presentation had brought in two important focuses, the first being the concept of extension to policy. He reiterated that the commentator had suggested this would nullify the process and should not be supported by the Committee. The second focus was on the use of the word ‘offer’ against the use of the word ‘provide’. He explained that both these words were in use in the current legislation. 

He drew the Committee’s attention to the structure of the new statutory environment for the new Minster of Higher Education and Training. This environment was made up of the NQF, Skills Development Act, Higher Education Act, Further Education and Training Colleges Act and Adult Education and Training Act (AET). In terms of these Acts, there was no formal structure, which dealt with skills provision in the sub framework for trades and occupation. The approach taken within the legislation to deal with this was to provide interpretation and technical alignment for both public and private higher and further education institutions allowing them to deliver the new qualifications known as Trade and Occupational qualifications.

He explained that foreign Higher Education Institutions were currently part of the Higher Education Act. In terms of this the wording ‘foreign juristic persons’ referred to any entity with a legal personality. The current legislation required any private institution to be registered; this followed from Section 29 from the Constitution, which stipulated registration and compliance with standards comparable to a public institution in order to function in this country. He stressed that this has been the framework from the beginning and nothing has changed. In terms of this any person or institution even if they were considered to be reputable institutions in another country would need to be registered with the state and comply with the state’s requirements. The registration process required a legal entity as set out in the Companies Act. This required the entity to have a governance body and a management structure similar to that found in a public institution. This provided for financial security, the scrutiny of standards and an outcome, which would be considered, recognised and respected. There could be no differentiation between the accreditation of public and private institutions. This would ensure that weak institutions, which did not perform properly, did not mislead and abuse the system and act to the detriment of students.

Turning to the difference of interpretation between to ‘offer’ and to ‘provide’ he stated that he had made some enquiries. Since the Act had been enacted, there had never been an issue with these terms. It had always been understood that anyone involved in the delivery of education to a student, which lead to a qualification, the focus being on a qualification, would fall under the NQF. ‘Offer’ suggested demand and acceptance while ‘provide’ suggested a handing down from the institution. In terms of this, the Department could not see what the issue was. Both words were in use currently and both words had been used in the same context with the same meaning attached. In summary, the Department’s view was that there had not been a deviation from policy nor an extension of policy. Rather, they were dealing with clarifications as a result of the transfer of legislation.

Discussion
The Chairperson questioned why the issue had been raised in the first place. He wondered if the issue was an administrative one as had been implied and in relation to this whether this meeting was the correct forum to deal with this. He mentioned the suggestion made by the representative from Higher Education South Africa about word change and stated that he was pleased with this

Mr W James (DA) agreed that all institutions should fall into a system. The education that foreign providers offered should be of a specific standard. He suggested that the legislation on the table was not enforceable particularly since it seemed to focus on those already in the system and not on those avoiding it. He also questioned the speed at which SAQA registered qualifications and whether this was creating problems, he argued that it was evident that there was an administrative issue.

The Chairperson agreed that there was an issue and that it was something the Committee would have to deal with

Mr Boschoff explained that registration took place with the Department but accreditation was controlled by SAQA. He stated that SAQA was being assisted by the Quality Council. The issues around administration within SAQA would be something that received particular focus from the Quality Council.

Ms Vukuza noted that the issue was obviously about the lowering barriers to access for international institutions. She argued that there was a need to ease up the management processes.

The Chairperson noted the issues and suggested the Committee stick to the suggested draft. He summarised that the problem was obviously not the principle but rather how the process was being dealt with. He also agreed with a wording change as proposed by the representative from Higher Education South Africa (HESA). The wording pertaining to degree or certificates would state that ‘no person might offer award or confer degree, or a higher education diploma or a higher education certificate as contemplated in the Higher Education Qualifications Framework (HEQF)’. This wording would be inserted along with the old wording in order to create clarity

Response to Student Leader of Learnerships under the Free State Premiers Office submission
Mr Boshoff summarised that the proposal was from a student, Mr J Tekolo, who felt aggrieved by a situation connected to the Bill but not something that was dealing with the Bill specifically. Noting this he proposed it had no bearing on the current work and that the Committee move on.

Discussion
Ms M Kubayi (ANC) suggested that the Department would still need to look at the situation particularly since the money Mr Tekolo claimed he was being paid, was not the amount stipulated for learnerships

Response to Adult Learning Network (ALN) submission
Mr Boshoff summarised the issues raised by Mr A Mokone as dealing with the extension of the scope of responsibilities assigned to public and private Adult Learning Centres to include not only Level 1 but Levels 2 to 4. Qualifications at this level were considered the responsibility of the institutions within the AET Act. Levels 2 to 4 qualifications were the responsibility of institutions reflected in the FET Colleges Act. Levels 5 to 10 were educational qualifications applicable to higher education institutions. He suggested that to extend the level from one to four within the general phase would require a severe policy change heavily impacting capacity. The focus on Level 1 was a critical focus and required the work of a dedicated institution. He suggested that extending the focus or dividing it into an area, which was considered, to already be covered by another dedicated education institution might not provide a solution to the issue. The Department was taking the problem seriously and understood it to be a key area in the policy discussion debate. He stressed that the consequential amendments caused by such a massive deviation from an existing policy position would need to be considered before the problem could be resolved. He reiterated that the intention was to simplify the legislation in order to assist the policy debate and make it more accessible to all the stakeholders. There was no policy in existence that the Department could even draw on in order to accommodate or deal with the issue.

Discussion
Ms Kubayi asked for clarity as to whether there was an actual issue. She explained that on speaking to the presenter, he had suggested that the program was not even sitting with the correct Department and that it should be with Basic Education. She asked for clarity over the use of ABET and AET. She also suggested that the Department could not simply say they would not be able to deal with something due to a lack of capacity and resources. She argued that this had nothing to do with legislation itself.

Mr Boschoff apologised for making it seem as if they were lacking with regards to capacity. He clarified that they lacked a policy that would deal with the capacity issues and subsequent complexities. He informed the Committee that they currently experienced a policy vacuum in this area and to simply act would cause greater problems than experienced currently. He explained that Department was not against looking at the issue and would be taking it seriously but due to the realities it faced currently the Department would not be able to deal with the issue at this point in time

Ms Kubayi asked if the Department was suggesting that they did not have a policy guiding ABET. She suggested they should not be dealing with technicalities if there was a very real need for policy shift.

Mr Boschoff indicated that the Department was dealing with the policy issue. He suggested that there was a need to wait for the policy in order to let the legislation be informed by the policy. He agreed that there was a need for a good policy and that there was not disagreement over this matter but he reiterated that legislation would need to follow policy and in terms of this, a policy framework would be needed first. He also suggested this would have an impact on being able to hold the Minister and the Department accountable

Mr James raised the issue of the definition of an educator. He suggested that the definition presently in use was unacceptable. He argued that the Department could not simply continue to put this aside

Mr Boschoff replied that the content of the definitions and changing thereof always carried the possibility of affecting people working in a system, which was already in place. He argued that the language used in the definition was not cast in stone and that it might change but importance must be placed on the fact that learners need to learn in a structured environment. He also suggested that educators needed to be registered with the South African Council of Educators and that this body carried out oversight with regards to educators. They were not against addressing this issue but that there were greater issues particularly employment, and changing this definition would have wider effects on situations such as employment.

Mr James expressed confusion at why the Department would want to continue with this open-ended definition. He argued that this behaviour suggested a certain lack of seriousness about standards of education in South Africa.

Ms N Magazi (ANC) questioned how the Committee were going to address the ABET/ AET issue.

The Chairperson suggested that the Committee would have to decide if it wanted to deal with everything now or simply the technical issues

Ms F Mushwana (ANC) asked what was wrong with AET and suggested it would cover adult education better than Basic. She stressed that basic education with regards to adult did not always mean the imparting of skills.

Mr Boschoff agreed that this was an important question. He turned to the current framework and highlighted that skills and occupations ran from Level 1 to Level 10. In terms of this, he acknowledged that there was scope to deal with them as occupational qualifications and scope to deal with them as education qualifications. He reiterated though that they lacked the current policy in order to sufficiently address this issue. The issue sat with the Department for Higher Education and Training, as Basic Education was considered to be education taking place within schools while Higher Education was understood to be education outside of schools, this included Adult Education. There were a number of issues, which would need addressing, but there was a lack of policy currently available to do so and this would need to be addressed first, followed by legislation.

The Chairperson summarised the members concerns as ones over transitional processes. He also noted that there were questions around whether they should continue with the specific section or leave it as is and wait for policy. He acknowledged the Department’s suggestion that the Department look into the issue further and bring up the critical issues but this would cause a delay in addressing the issue. He questioned what the impact of leaving the legislation as it stood until the policy issue had been rectified

Mr Boschoff stressed the need to clarify the issues and clean up the technical problems within the Bill. He argued that there would be no legal change in implementing the technical amendments and that they were necessary.

Ms Vukuza suggested that the Department was definitely delivering on the technical side but that there were real issues with the body of the work. If there was a need to change definitions then these definitions could only impact on the body of the legislation. She argued that surely the body of the legislation would need to be aligned with the definitions.

The Chairperson asked for advice from members on how to proceed.

Ms Kubayi expressed discomfort in proceeding with the section and asked that it be set aside, particularly the part dealing with ABET. She argued that the issue of ABET had never been prioritised. She suggested that if there was a need to deal with ABET then it should be done.

The Chairperson clarified that the part dealing with ABET would not be dealt with and instead the Committee would look for a different route.

Mr Boschoff reiterated that there was support for dealing with ABET. He would get advice from the Minster and Director General and report back

Ms Vukuza suggested that the process should not be set aside but rather the Committee must ensure that the issues were picked up and dealt with.

The Chairperson agreed and suggested that they would need to work out a way to deal with the issue. It was agreed that it would be taken up the following week and that the Department would come and explain what the debate was internally on the issue.

Response to Ekasi Development Project submission
Mr Boschoff suggested this submission actually fell within the Higher Education Act and not the Bill under discussion. He explained that the proposal addressed the need to be stricter with companies providing private education. He proposed that this had already been dealt with in essence. This was once again a management issue and the problems raised earlier with regard to administration. The commentator had raised problems with the National Student Financial Aid Scheme (NSFAS) and students attending FET colleges. In response, he stated that this had been dealt with and that there was movement on making this available to FET students. The commentator also addressed Section 26G of the Schools Development Act. Mr Boschoff explained that this was a matter of clarification and that the Committee had already been briefed that a technical amendment was required for alignment.

Discussion
The Chairperson summarised that the submission was affirming most of the issues that the Bill had suggested and it was raising some managerial and organisational problems.

Response to Umalusi submission
Mr Boshoff explained that although Umalusi were considered an important entity their presentation contained comments that were more reflective of a future process. He noted that some of the general issues raised had already been discussed. They had also raised the idea of the extension of scope. Umalusi had presented an interesting argument in wanting to extend into a higher level the current legislation. He suggested that there was flexibility within the current legislation that would allow FET colleges to move into qualifications registered on NQF Level 5 but this would need to be dealt with in cooperation with the Higher Education Institutions. The reason for this was that there was a funding structure which allocated program grants to institutions based on the qualifications within the statutory responsibility of the institutions. If Higher Education programs were dealt with by FET institutions then it could lead to ‘double dipping’ or an institution offering a program but not having the funding to carry it out because the statutory function fell with another statutory entity. Umalusi’s presentation was unclear as to whether they were referring to an entire level or one or two qualifications. He questioned how they would be able to split a whole level, as this was not provided for within the structure of the NQF. The NQF was based on level descriptors, which differentiate between the qualifications and place them within a different level. A split would have severe policy implications with massive financial consequences. 

Addressing the proposal that colleges would need to register with Umalusi as well as with the Quality Council for Trades and Occupations (QCTO), Mr Boshoff explained that the structure of the NQF was focused on bringing legal certainty and that it was impossible to have two authorities with the same legal responsibility. This would create confusion over what was the legal standard. Within the NQF there were three distinctive sub frameworks and each had its own Quality Council. It was an issue that would be focused on at the upcoming summit.

He noted the other proposals and suggested these were good and relevant pieces of advice but not relevant for the current meeting. On suggestion of the use of the word Adult Education in the legislation as opposed to FET, Mr Boshoff clarified that the use of ‘Adult’ was correct and was used to draw on the broader perspective of adult education. FET colleges were situated in an ideal position between ABET centres and linked to higher education institutions.

Mentioning the other issues raised, he acknowledged that Umalusi provided good advice but that this pertained to future processes and would be utilised as such by the Department. He stressed that their advice did not have an influence on the current technical amendments. Umalusi was correct in raising an issue with the wording of ‘sub-framework for further education and training on the NQF’ as there was no such framework. The wording of this had been amended by the Department.

Discussion
The Chairperson summarised that most of the issues raised by Umalusi spoke to a deeper process and would perhaps fall into issues that would need to be dealt with in the future. Umalusi had given some good pointers around the future process. He touched on the proposal from INKANYEZI and explained that the Department had indicated that this proposal though dealing with issues and challenges facing the Higher Education System, did not really provide anything of substance to the current provisions.

Mr Boshoff also mentioned the proposals sent in by a Mr J Malakazi noting that he was complimentary of the approach taken in the three Bills but that they could not find anything of substance in his proposal. The Department would propose draft amendments on the issues identified and this would be done in conjunction with the state law advisors.

The Chairperson asked for the Department to give an idea of the considerations around ABET/AET and what the effect of leaving it in place would be. He would seek advice from a legal perspective as well from their legal advisor in Parliament. He noted that there was a sentiment from the Committee and they would need an independent perspective on this and its effect.

The meeting was adjourned.


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