Universities are concerned that poor drafting of amendments gives the minister too much power.
There is concern in the higher education sector about the Higher Education and Training (HET) Laws Amendment Act 2012. A recent discussion of the Act on the Forum@8 programme on SAfm on July 24 attracted a large number of callers. The minister of higher education and training, Blade Nzimande, gave the impression throughout the programme that there is no problem with the legislation and accused vice-chancellors and other critics of lying when they claimed there had been inadequate consultation.
The HET Laws Amendment Act 2012 introduces into the Higher Education Act provision for a new type of national institute. It extends both the powers of the minister to intervene at a university in crisis and the grounds on which the minister must act. It allows the minister to appoint an assessor to investigate a university that is showing symptoms of an approaching crisis. The independent assessor has the power to summon personal testimony or documentation, or to exclude observers from attending any meeting he/she might call to investigate and interrogate such evidence.
We are writing to set down just a few of the more salient points that worry many university councils and vice-chancellors about the Act, as well as the process that was followed to bring it into law without an appropriate period of consultation with the higher education sector.
It is important to understand that this legislation started out in a very different form from the Act that was finally signed into law by President Jacob Zuma. The Bill, as published for comment in March 2012, was about enabling the minister to establish one or more national institutes with specific scopes of application, and a technical change to the National Qualifications Framework Act. It said nothing about suspending councils or vice-chancellors. Higher Education South Africa (Hesa), which comprises the vice-chancellors of all public tertiary institutions in South Africa, was consulted on this draft Bill in good time.
That Bill went before the portfolio committee in September 2012. At the meetings of the portfolio committee that month, while comments were being presented, the minister – without any consultation with the sector – introduced for the first time new amendments beyond the initial scope of the Bill. These amendments fundamentally changed the way an independent assessor would function, and they extended the powers of the minister to intervene and the grounds on which to do so.
The portfolio committee gave interested parties only two weeks to comment on these new amendments. This was clearly inadequate, given the nature of the amendments and their far-reaching implications for higher education institutions. The Council on Higher Education, Hesa and others sought an extension for further consultation on the proposed changes. They appeared before the portfolio committee in early October to argue for this, and to argue about the substance of the new amendments and drafting problems in the new Bill.
However, the minister persisted and both the National Assembly and the National Council of Provinces passed the measure – with further amendments that, in our view, aggravated the position – in quick succession, paving the way for it to be passed into law in December 2012.
So although it is true, as Nzimande claims, that Hesa was consulted on the early version of the Bill, there was no prior consultation on the new amendments and limited opportunity to comment on them once the new Bill was tabled. The Council on Higher Education, in its October submission to the portfolio committee, pleaded for an opportunity to study the proposals and advise the minister on the merits and implications of these changes.
It is not that we disagree with every facet of the new Act, or the spirit of most of the amendments. We agree that the minster has a responsibility to intervene if there is serious failure in public universities; that the minister needs the power to enforce interventions on universities in distress; and that crises such as serious financial mismanagement or corrupt governance can do serious, sometimes irreparable, damage to a university, requiring expensive government bail-outs and setting back higher education in the country.
So we can accept that the law needed more clarity on procedures in relation to independent assessors and administrators. However, we disagree with the minister on numerous points introduced by the Act that, in our view, contravene the constitutional rights of universities and those who manage them. For instance, section 35A (2) requires the minister’s independent assessor to impose a blanket embargo on any documents, records or evidence disclosed to the assessor. This constitutes a violation of the right of those affected by the investigation to answer allegations. As such it also compromises the integrity of the assessor’s proceedings.
Section 49A (1) gives the minister unwarranted powers to suspend a university council or its vice-chancellor, even when that university has no evidence of being in distress. It allows the minister, in effect, to decide who should be admitted to or employed by the university, and which staff members should be promoted if he/she is of the opinion the university is not doing this equitably. This would result in a direct violation of the institution’s academic freedom and autonomy, whereas the checks on unfair or illegal practices by a university are already adequately available in other legislation such as the chapter 9 institutions and the equality court.
We don’t believe Nzimande has ill intentions in creating such wide powers. In part these problems are the result of poor drafting, which could have been corrected during a proper consultation process. However, if these clauses are left unchanged they open the possibility for abuse of power by a less benign future minister. Fortunately, the minister, university vice-chancellors and chairs of councils have been meeting to discuss a way forward. They have agreed to set up task teams to address the problems with the Act as it now stands. Members of the task teams will be drawn from universities and the department of higher education. In this way we are hopeful that the government and the higher education sector can find common ground, leading the way to better legislation.
Archbishop Njongonkulu Ndungane is the chair of council and Dr Max Price is the vice-chancellor of the University of Cape Town.