The Higher Education Amendment BIll

18 October 2016

The Higher Education Amendment Bill was narrowly adopted by the National Assembly, on 24 May 2016. It was then sent to the National Council of Provinces, where it was adopted on7 September 2016. The President has yet to sign it. The Bill when enacted amended the Higher Education Act, 101 of 1997.

The passing of the Bill was highly contested and criticised by opposition parties. Many sections of the bill are non-controversial, but there were two particular issues, both relating to university autonomy, which caused contention.

1. The amendment of Section 3.1 of the Act, on higher education policy.  The additions to this section are indicated in bold.

(1) The Minister must, taking into consideration the provisions of the Constitution and after consulting the CHE, determine policy on higher education, which policy includes, but is not limited to— 

(a) transformation goals and oversight mechanisms for these goals;

(b) articulation and recognition of prior learning frameworks across the education system; and 

(c) criteria for recognition as a university, university college, or higher education college.

The inclusion of subsection (a) has been the point of the controversy.

2. The amendment of Sections 42, 44, 45, 47 and 49 of the Act.  Section 45 of the Act is amended as follows:

The Minister may appoint an independent assessor under section 44 if—

(a) the council of a public higher education institution requests suchappointment in writing; or

(b)(i)  circumstances arise at a public higher education institution that— 

(aa)  involve financial or other maladministration of a serious nature; or 

(bb) seriously undermine the effective functioning of the public higher education institution; and 

(c) the council of the public higher education institution has failed to resolve such circumstances; and  

(d) the appointment is in the best interest of the public higher education institution concerned and in the interests of higher education in an open and democratic society.

Section 49B (inserted by means of the Higher Education Amendment Act 23 of 2012) is amended as follows (omitted material in italics, added material in bold):

(1) Notwithstanding any other provision of this Act, the Minister may[after consultation with the council of a public higher education institution, if practicable,] appoint a person as administrator [to take over the management, governance and administration of the public higher education institution and to perform the functions of the public higher education institution], if any of the following circumstances occur: 

(a) An audit of the financial records of a public higher education institution or the report by an independent assessor or any other report or information reveals financial or other maladministration of a serious nature or serious undermining of the effective functioning of the public higher education institution; 

(b) [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 higher education institution; or] the circumstances contemplated in section 42(4) arise; 

(c) the council of the public higher education institution requests such appointment; or

(d) if the council of the public higher education institution is deemed to have resigned as contemplated in section 27(8).

(1A) The Minister must, before making an appointment under subsection (1) on the grounds listed in section (1)(a) or (b)— 

(a) give written notice that complies with section 42(3) to the council of the higher education institution concerned of his or her intention to make such an appointment; 

(b) provide the council of the higher education institution concerned with the reasons for the appointment; 

(c) give the council of the higher education institution a reasonable opportunity to make written representations; and 

(d) consider the representations contemplated in paragraph (c);

(2)  The Minister may only act in terms of subsection (1)(a) or (b) if he or she has reason to believe that the appointment of an administrator is in the best interest of the public higher education institution concerned and of higher education in an open and democratic society.’.

Here the issues are the consideration of any other report or information in Section 49B(1) and the weakening of the test for Ministerial intervention in Section 49B(2).

The Minister has to date exercised the power of appointing independent assessors or administrators in the following cases[1] :

I. In 2009, the University of Zululand was placed under administration and it was found that it had serious weaknesses in governance and management. 

II. In 2011, the Minister appointed an independent assessor for the Tshwane University of Technology to investigate the root causes of ongoing strikes and discontent. It was found that the institution had serious problems of governance and management. 

III. In 2011, the Walter Sisulu University was placed under administration when it found itself in financial crises, which lead to the institution being unable to pay its salaries. The University Council requested assistance from the Minister. 

IV. In 2012, Vaal University of Technology was placed under administration after an independent assessor found that the Council had failed to provide strategic leadership when there were factional battles within the University, administration, governance and management. 

V. In 2012, the Minister appointed an administrator for the Central University of Technology after the Council failed to report to the Minister about allegations of corruption. 

These interventions were not without controversy. The Minister was seen to be suspending the principle of university autonomy in a bid for a quick fix. The interventions did not always have the desired effect and in some instances the position has deteriorated. Five of the seven universities had undergraduate success rates below the average for all universities in 2012.

In addition, university autonomy is at issue in the financial crises currently affecting all universities. Vice-Chancellors and Councils may be willing to cede it on financial matters in order to reduce pressure on themselves over the fees issue. Long term principles should not be sacrificed for short term reasons. 

University autonomy and academic freedom are the twin pillars supporting open-ended teaching and research in universities. These principles need to be protected jealously.   

Anele Mtwesi, Researcher, HSF, 18 October 2016