Let’s have calm and rational discussion about the higher education amendment bill

In certain quarters any discussion of government intervention in universities is twisted and used to inflame panic about threats to university autonomy. But our current laws provide, as they must, for points at which government must intervene, when there is a breakdown in the management of a public university.

Much has changed since 1997, when the act which currently governs the South African university system was passed (Higher Education Act 101 of 1997). For example, we no longer have Technikons; the Act still reflects the existance of these institutions. Many lessons have been learnt by universities and government, and in particular, problems have been experienced with some aspects of amendments which were passed in 2012.

In response to concerns from the university sector as well as to the White Paper on Post-School Education and Training, published in October 2013, and after extensive consultation and discussion in the sector, a Higher Education Amendment Bill is on the Parliamentary agenda for February and March 2016. The Portfolio Committee on Higher Education and Training heard the first presentation of the Bill on the 28 January 2016.

The proposed amendment deals, amongst other issues, with institutional breakdowns. Perhaps because of this it has triggered concern amongst some stakeholders and other interested parties. But this concern is unwarranted; the current amendment is not aimed at a rash snatching of power, but in fact brings better coherence and clarity to the existing rules, which have been variously criticized within the sector as clumsy, cumbersome to read and apply, giving the Minister too much power over universities and National Institutes of Higher Education, and inadequately consulted. Some of the provisions of the earlier amendment did not fully comply with the Promotion of Administrative Justice Act of 2000 (PAJA).

The current amendments consolidate various measures whereby government must intervene in universities into one chapter, to make them easier to understand, and to make it clearer what kinds of interventions should happen when.  They also provide greater clarity about the mechanisms available for the Minister to intervene, as already prescribed in the Act.

Instead of waiting for institutions to be on the brink of collapse before any government action, a preventative and progressive approach by the Minister is proposed. For example, one change is that the amendments allow the Minister to act much earlier by way of a directive, in order to prevent serious interventions at a later stage. Another is that they provide the Minister with a range of options instead of the current arrangement whereby the Minister is obliged to appoint an Administrator as the only option in a serious institutional problem.

The amendments also make it clearer how independent assessors and administrators should be appointed and what their mandate should be. Whatever the circumstances may be, the Minister may only appoint an independent assessor or administrator after compliance with the law. The proposed amendments require the Minister to provide more information and comply more substantively with pre-directive prescripts than the current arrangements.

They also make it clear what the responsibilities of independent assessors are in terms of fair administrative procedures and provision of access to information. The roles and powers of Administrators in different contexts are clarified and legislated respectively, in order to make a smoother transition for institutions under administration back to full functionality under a newly established Council.  

The powers of the governing structures, specifically the Councils and the Senate remain unchanged.

The new provisions also provide the Minister with the power to determine transformation goals for the higher education system and institute appropriate oversight mechanisms. This does not mean that the Minister will randomly decree goals, as scaremongers suggest; goals must be determined in the interest of the higher education system as a whole, and in terms of the policy on higher education, after consulting with the Council on Higher Education.

Another amendment is about frameworks on articulation and recognition of prior learning frameworks. The proposed amendments give the Minister a mechanism to ensure momentum and progress. Again this does not mean forcing anything on the sector willynilly. Frameworks on articulation and prior learning would take the form of agreements between the Minister and institutions, after consultation and discussion with individual institutions as well as with the Council on Higher Education. This cooperative system is currently how growth targets and other matters are agreed between government and institutions. The process of concluding these agreements is iterative and consultative.

The Amendment also removes technikons as an institutional type. Three types of institutions are provided for: a university, a university college, and a higher education college. Universities provide undergraduate and postgraduate education, produce new knowledge through research, and engage with communities. University Colleges are introduced, in line with international best practice, as a mechanism to enable the growth of new universities under the supervision of another identified university.

The amendments also allow the formalization of the support of universities to colleges providing mid-level qualifications, such as agricultural colleges. These higher education colleges have a more limited range and scope, focusing on undergraduate and skills development programmes. The creation of these types of institutions, together with the Minister's power to establish or convert the different types, will enable the expansion and differentiation of the public sector in a planned and coherent manner.

The Amendment allows for the registration of private higher education institutions in different categories, similar to the new categories of public higher education institutions. This makes it possible for some registered private institutions to call themselves universities, allowed to confer professorships and award honorary degrees, something the private higher education sector has been clamouring for.    

This revision was undertaken through a reflective and consultative process, involving the university sector and other key stakeholders. Upcoming public hearings will allow for further debate and consultation on the proposed amendments before the Bill is promulgated.

Professor Stephanie Allais is Special Advisor to the Minister of Higher Education and Training.