Higher Education Draft Bill

HIGHER EDUCATION BILL, 1997

(as submitted to the State Law Advisers for certification)

To change the law governing higher education and, for that purpose, to provide for the establishment, composition and functions of a Council on Higher Education; to provide for the establishment of a single, co-ordinated system of higher education while encouraging diversity within such system; to provide for funding of the higher education system; to provide for the effective, efficient and optimal utilisation of resources in the higher education system; to provide for programme-based higher education; to provide for the registration of private and foreign institutions of higher education; to provide for quality assurance, promotion and certification in higher education; to provide for regional co-operation in higher education; to provide for the appointment of an independent assessor; to amend or repeal existing legislation affecting the higher education system; and to provide for matters incidental thereto

PREAMBLE

WHEREAS IT IS DESIRABLE that institutions providing higher education -

PROMOTE the redress of past discrimination and ensure representativeness;

PROVIDE optimal opportunities for learning and the generation of knowledge;

PROMOTE the values which underlie an open and democratic society based on freedom and equality;

RESPECT freedom of religion, belief and opinion;

RESPECT and encourage democracy, academic freedom, freedom of speech, freedom of expression, artistic creativity, scholarship and research;

PURSUE excellence, promote the full realisation of the potential of every student and employee, tolerance of ideas and appreciation of diversity;

RESPOND to the developmental needs of the Republic and of the communities served by them;

CONTRIBUTE to the advancement of all forms of knowledge and scholarship, in keeping with international standards of academic quality;

ENJOY freedom and autonomy in their relationship with the State within the context of public accountability and the national need for advanced skills and scientific knowledge;

AND WHEREAS IT IS DESIRABLE to establish a single co-ordinated higher education system and to restructure programmes and institutions to respond better to the human resource and economic needs of the Republic of South Africa

NOW THEREFORE, the Parliament of the Republic of South Africa provides as follows:

______________

ARRANGEMENT OF ACT

CHAPTER 1

DEFINITIONS, APPLICATION AND DETERMINATION OF POLICY

1. Definitions
2. Application
3. Determination of higher education policy

CHAPTER 2

COUNCIL ON HIGHER EDUCATION

4. Establishment of Council on Higher Education (CHE)
5. Functions of CHE
6. Information provided to CHE
7. Quality promotion and assurance functions of CHE
8. Membership of CHE
9. Terms of office of members
10. Vacation of office by members
11. Filling of vacancies
12. Executive officer and employees of CHE
13. Executive committee of CHE
14. Committees of CHE
15. Meetings of CHE and committees
16. Funds of CHE
17. Remuneration and allowances of members of CHE and committees
18. Annual audit
19. Annual report to Parliament

CHAPTER 3

PUBLIC HIGHER EDUCATION INSTITUTIONS

20. Establishment of public higher education institutions
21. Declaration of institution as public higher education institution
22. Consequences of declaration as public higher education institution
23. Merger of public higher education institutions
24. Merger of subdivisions of public higher education institutions
25. Closure of public higher education institutions

CHAPTER 4

GOVERNANCE OF PUBLIC HIGHER EDUCATION INSTITUTIONS

26. Institutional governance structures
27. Council of public higher education institution
28. Senate of public higher education institution
29. Committees of council and senate
30. Principal of public higher education institution
31. Institutional forum of public higher education institution
32. Institutional statutes and institutional rules
33. Institutional statutes to be approved or prescribed by Minister
34. Appointments and conditions of service of employees of public higher education institutions
35. StudentsÆ representative council
36. Disciplinary measures
37. Admission to public higher education institutions
38. Regional co-operation between higher education institutions

CHAPTER 5

FUNDING OF PUBLIC HIGHER EDUCATION

39. Allocation of funds by Minister
40. Funds of a public higher education institution
41. Records to be kept and information to be furnished by council
42. Action on failure of council to comply with this Act or certain conditions

CHAPTER 6

PRIVATE HIGHER EDUCATION INSTITUTIONS

43. Designation of registrar
44. Registration of private higher education institution
45. Application for registration
46. Requirements for registration
47. Determination of application for registration
48. Registration certificate must be displayed
49. Access to information
50. Records and audits to be provided
51. Amendment of registration
52. Requirements for amendment to registration and determination of application
53. Registrar may impose conditions
54. Registrar may vary or cancel condition
55. Registrar may cancel registration
56. Consideration by registrar before variation or cancellation
57. Appeal to Minister

CHAPTER 7

INDEPENDENT ASSESSOR

58. Appointment of independent assessment panel
59. Appointment of independent assessor
60. Circumstances when independent assessor may be appointed
61. Independent assessor may be appointed for two or more public higher education institutions
62. Functions of independent assessor
63. Independent assessor may be assisted
64. Remuneration and allowances

CHAPTER 8

TRANSITIONAL ARRANGEMENTS

65. Existing statutes and rules of public higher education institutions
66. Existing technikons and universities
67. Continued existence of University and Technikons Advisory Council
68. Continued existence of Committee of University Principals, Committee of Technikon Principals and Matriculation Board
69. Exemption of existing private higher education institutions

CHAPTER 9

GENERAL

70. Offences
71. Limitation of liability
72. Delegation of powers
73. Regulations
74. Application of Act when in conflict with other laws
75. Repeal of laws
76. Short title and commencement

CHAPTER 1

DEFINITIONS, APPLICATION AND DETERMINATION OF POLICY

Definitions

In this Act, unless the context otherwise indicates -

"academic employee" means a person appointed to teach or to undertake research at a public higher education institution and any other employee designated as such by the council of that institution;

"Act of Parliament" means a Private Act of a university;

"auditor" means a person registered as such in terms of the Public AccountantsÆ and AuditorsÆ Act, 1991 (Act No. 80 of 1991);

"applicant" means any person who makes any application referred to in Chapter 6;

"college" means any college established or declared as a college in terms of this Act;

"CHE" means the Council on Higher Education established in terms of section 4;

"council" means the governing body of a public higher education institution;

"Department of Education" means the government department responsible for education at national level;

"Director-General" means the Director-General of the Department of Education;

"employee" means a person employed at a public higher education institution;

"employer" means the council of a public higher education institution;

"financial year" means a year commencing on the first day of January of every year and ending on the thirty-first day of December of the same year;

"Grade 12" means the highest grade in which education is provided by a school as defined by the South African Schools Act, 1996 (Act No. 84 of 1996);

"higher education" means all learning programmes leading to qualifications higher than Grade 12;

"higher education institution" means any institution that provides higher education on a full-time, part-time or distance basis and is -

established or deemed to be established in terms of this Act;
declared as a higher education institution in terms of this Act;
registered or conditionally registered as a private higher education institution in terms of this Act;

"institutional forum" means the body contemplated in section 33;

"institutional statute" means any statute made by a council of a public higher education institution in terms of section 34;

"institutional rules" mean any rules made by a council of a public higher education institution in terms of section 34;

"Minister" means the Minister of Education;

"organ of state" means an organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"person" includes a natural person, any association or group of natural persons and a juristic person;

"prescribed" means prescribed by regulation;

"principal" means the chief executive officer of a public higher education institution, and includes the vice-chancellor and rector;

"private higher education institution" means any person registered or conditionally registered in terms of Chapter 6;

"public higher education institution" means any higher education institution that is established, deemed to be established or declared as a public higher education institution in terms of this Act;

"registrar" means an employee of the Department of Education designated by the Director-General to perform the functions of registrar in terms of Chapter 6;

"SAQA" means the South African Qualifications Authority established under section 3 of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995);

"senate" means the body contemplated in section 30, and includes an academic board;

"student" means a person registered as a student at a higher education institution;

"technikon" means any technikon established, deemed to be established or declared as a technikon in terms of this Act;

"this Act" means this Act and all regulations made under this Act;

"university" means any university established, deemed to be established or declared as a university in terms of this Act;

"vice-principal" includes vice-rector and deputy vice-chancellor.

Application

This Act applies to higher education in the Republic of South Africa.

Determination of higher education policy

(1) The Minister determines policy on higher education after consulting the CHE as contemplated in section 5 of this Act.

(2) The Minister must -

publish such policy by notice in the Government Gazette; and
table such policy in Parliament.

CHAPTER 2

COUNCIL ON HIGHER EDUCATION

Establishment of Council on Higher Education (CHE)

The Council on Higher Education is hereby established as a juristic person with full legal capacity.

Functions of CHE

(1) The CHE may advise the Minister on higher education on its own initiative and must -

advise the Minister on higher education at the request of the Minister;
arrange and co-ordinate conferences and publish an annual report on the state of higher education;
through its permanent committee, the Higher Education Quality Committee -

(i) promote quality assurance in higher education;
(ii) audit the quality assurance mechanisms of higher education institutions; and
(iii) accredit programmes of higher education;

publish information regarding developments in higher education on a regular basis;
promote the access of students to higher education institutions;
perform any other function -

(i) assigned to it in terms of this Act;
(ii) delegated or assigned to it by the Minister by notice in the Government Gazette.

(2) The advice contemplated in subsection (1)(a) includes advice on -

quality promotion and assurance;
research;
the structure of the higher education system;
a mechanism for the allocation of public funds;
governance of higher education institutions and the higher education system; and
the national higher education plan.

(3) The Minister must -

consider the advice of the CHE; and
if the Minister does not accept the advice, provide reasons in writing to the CHE.

(4) The Minister may act without the advice referred to in this section -

in cases of urgency; or
if the CHE has failed to provide the advice within a reasonable time.

(5) If the Minister acts without the advice of the CHE referred to in this section the Minister must -

notify the CHE of such action; and
provide reasons in writing for such action.

Information provided to CHE

Every national or provincial department of state, every publicly funded research council and every institution of higher education must provide the CHE with such information as the CHE may reasonably require for the performance of its functions in terms of this Act.

Quality promotion and assurance functions of CHE

(1) The CHE must -

establish the Higher Education Quality Committee as a permanent committee in terms of section 14, to perform the quality promotion and assurance functions of the CHE in terms of this Act; and
comply with the policies and criteria formulated by SAQA in terms of section 5(1)(a)(ii) of the South African Qualifications Authority Act, 1995 (Act No. 58 of 1995).

(2) The Higher Education Quality Committee, with the approval of the CHE, may delegate any quality promotion and assurance functions to other appropriate bodies, authorities or structures capable of performing such functions.

(3) The delegation under subsection (2) -

must be in writing and published by notice in the Government Gazette;
is subject to such conditions as the Higher Education Quality Committee may determine; and
does not prevent the performance of such functions by the Higher Education Quality Committee.

(4) The CHE may charge fees for any service rendered to any person, institution, or organ of state contemplated in section 27 by the CHE or the Higher Education Quality Committee.

(5) The CHE may request the Minister to publish regulations prepared by the Higher Education Quality Committee relating to any matter that the Higher Education Quality Committee believes is necessary to give effect to quality promotion and assurance in terms of this Act.

Membership of CHE

(1) The CHE consists of -

a chairperson, who must be a person with knowledge and experience relevant to the interests and governance of higher education, appointed by the Minister;
three students appointed by the Minister from nominations by national organisations representing students;
three academic employees appointed by the Minister from nominations by national organisations representing academic employees;
one employee appointed by the Minister from nominations by national organisations representing employees other than academic employees;
two college principals appointed by the Minister from nominations by national bodies representing college principals;
two university principals appointed by the Minister from nominations by national bodies representing university principals;
two technikon principals appointed by the Minister from nominations by national bodies representing technikon principals;
one person appointed by the Minister from nominations by national bodies representing private higher education institution principals;
two persons appointed by the Minister from nominations by national bodies representing further education;
one person appointed by the Minister from nominations by the National Research Foundation;
one person appointed by the Minister from nominations by the heads of provincial departments of education;
two persons appointed by the Minister from nominations by the National Economic, Development and Labour Council (NEDLAC) established by section 2 of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994), one representing organised labour and one representing organised business;
no more than four persons not directly involved in higher education appointed by the Minister from nominations by the public;
one representative each from the Departments of Education, Arts, Culture, Science and Technology designated by the respective Directors-General; and
no more than three additional persons co-opted by the CHE on account of their experience and expertise in matters relating to the functions of the CHE.

(2) For the purpose of nominations contemplated in subsection (1), the Minister must give notice in the Government Gazette, in two national newspapers and by any other means deemed necessary by the Minister of the intention to appoint members of the CHE and request the nomination of persons who, on account of their experience and expertise in matters relating to the functions of the CHE, are suitable candidates for appointment as members of the CHE.

(3) Members referred to in subsection (1)(k) and (n) have no voting powers.

(4) A co-opted member of the CHE has the same rights, powers and duties as any voting member of the CHE.

(5) A member of the CHE must advance the best interests of higher education in general above the particular interests of the body or organisation which nominated such member.

Terms of office of members

(1) The chairperson of the CHE holds office for a period of five years.

(2) Every student member of the CHE holds office for a period of two years.

(3) Every other member of the CHE holds office for a period of four years.

(4) The CHE may determine that a co-opted member holds office for a period of less than four years.

(5) A member of the CHE may not serve for more than two consecutive terms of office.

Vacation of office by members

A member of the CHE ceases to be a member of the CHE if the member -

resigns by giving written notice to the chairperson or, if the chairperson, to the Minister;
no longer qualifies for appointment in terms of section 8;
is absent from three consecutive meetings of the CHE without the leave of the chairperson or, if the chairperson, the leave of the executive committee of the CHE;
is declared insolvent, removed from an office of trust by a court of law, convicted of an offence involving dishonesty or of an offence for which the member is imprisoned without the option of a fine; or
is declared unable to attend to his or her personal affairs by a court of law.

Filling of vacancies

If a member vacates his or her office, the resultant vacancy must be filled by a person representing the same category as the member vacating office, who must be nominated, appointed or co-opted as provided in this Act.

Executive officer and employees of CHE

(1) The CHE must appoint an executive officer, who must -

perform the functions determined by the CHE;
supervise the employees of the CHE; and
account for the assets and liabilities of the CHE.

(2) The CHE, may appoint such other employees as it deems necessary to assist the executive officer.

(3) The CHE, with the agreement of the Minister and the Minister of Finance, determines the conditions of service of the executive officer and any other employee of the CHE.

Executive committee of CHE

(1) The CHE must establish an executive committee and determine its functions.

(2) The executive committee consists of -

the chairperson of the CHE; and
four other members appointed by the CHE.

(3) A decision of the executive committee is deemed to be a decision of the CHE, unless such decision is revoked at the next meeting of the CHE.

(4) Anything done in consequence of a decision of the executive committee is not invalid by reason only of the fact that the decision is revoked by the CHE in terms of subsection (3).

Committees of CHE

(1) The CHE must establish the Higher Education Quality Committee and may establish other committees to assist it in the performance of its functions, and may include as members of such committees persons who are not members of the CHE.

(2) The chairperson of a committee established in terms of subsection (1) must be appointed by the CHE from among its members.

Meetings of CHE and committees

(1) Meetings of the CHE and its committees are held at such times and places as determined by the chairperson concerned, but the chairperson must convene a meeting if asked to do so in writing by one third or more of the members of the CHE or the committee.

(2) Whenever the chairperson is absent from any meeting of the CHE or a committee of the CHE, the members present must elect a person from among themselves to preside at that meeting.

(3) The CHE may, with the approval of the Minister, make rules relating to the procedure at meetings of the CHE and its committees, including the quorum for such meetings, and any other matter necessary or expedient for the performance of its functions.

(4) The proceedings of the CHE or of a committee are not invalid by reason only of the fact that a vacancy exists on the CHE or such committee, as the case may be.

Funds of CHE

(1) The funds of the CHE consist of -

money appropriated by Parliament;
donations, contributions and other income received by the CHE from whatever source; and
money payable by any person, institution or organ of state contemplated in section 27 for services rendered by the CHE or the Higher Education Quality Committee.

(2) The CHE -

must in each financial year, at such time and in such form as the Minister may determine, submit a statement of its estimated income and expenditure for the ensuing financial year to the Minister for his or her approval granted with the agreement of the Minister of Finance;
may in any financial year submit adjusted statements of its estimated revenue and expenditure to the Minister for his or her approval granted with the agreement of the Minister of Finance;
may not incur any expenditure which exceeds the total amount approved under paragraph (a).

(3) If the Minister fails to approve the CHEÆs statement of its estimated income and expenditure, the Minister must request the CHE to provide a revised statement within a reasonable period.

(4) The money contemplated in subsection (1) must be used by the CHE in accordance with the approved statement referred to in subsection (2), and any unexpended balance must be carried forward as a credit to the following financial year.

(5) Subject to the provisions of subsection (4), the CHE may invest any portion of its funds in such manner as the Minister, with the agreement of the Minister of Finance, may approve.

Remuneration and allowances of members of CHE and committees

The Chairperson of the CHE, every other member and any person appointed as a member of a committee who is not in the full-time service of the state may, in respect of services rendered by him or her in connection with the affairs of the CHE or a committee, be paid by the CHE -

such travelling, subsistence and other allowances; and
in the case of the chairperson of the CHE, such additional remuneration, as the Minister with the agreement of the Minister of Finance may determine.

Annual audit

(1) The books of account and financial statements of the CHE must be audited at the end of each financial year by the Auditor-General.

(2) For the purposes of subsection (1), financial year means a year commencing on the first day of April of every year and ending on the thirty-first day of March of the following year.

Annual report to Parliament

(1) The CHE must, not later than three months after the end of each financial year, submit to the Minister a report on the performance of its functions during the financial year.

(2) The Minister must table copies of the report contemplated in subsection (1) in Parliament as soon as reasonably practicable.

CHAPTER 3

PUBLIC HIGHER EDUCATION INSTITUTIONS

Establishment of public higher education institutions

(1) The Minister may, after consulting the CHE, by notice in the Government Gazette, and from money voted for this purpose by Parliament, establish public higher education institutions.

(2) The Minister may establish a university, technikon, or college in terms of subsection (1).

(3) Despite subsections (1) and (2), a university may be established by an Act of Parliament and when so established is deemed to be a higher education institution established in terms of this Act.

(4) The notice contemplated in subsection (1) must determine the -

date of establishment of the institution;
type and name of the institution; and
physical location and official address of the institution.

(5) Every public higher education institution established, deemed to be established or declared as a public higher education institution in terms of this Act, is a juristic person.

(6) Every public higher education institution may, subject to the provisions of this Act, purchase or otherwise acquire, hold, let, sell, exchange or otherwise alienate any movable or immovable property or grant to any person any real right in or servitude on its property and invest, lend and borrow money, but no such institution may without the approval of the Minister, dispose of or alienate in any fashion, immovable property acquired with the financial assistance of the state or grant to any person any real right therein or servitude thereon.

Declaration of institution as public higher education institution

(1) The Minister may, after consulting the CHE and by notice in the Government Gazette, declare any education institution as -

a university, technikon or college; or
a subdivision of a university, technikon or college.

(2) The notice contemplated in subsection (1) must determine -

the date on which the education institution becomes a public higher education institution or a subdivision of a public higher education institution, as the case may be;
the type and name of the public higher education institution; and
the physical location and the official address of the institution.

(3) The Minister may only act under subsection (1) -

after consulting -

(i) the governing body of the education institution concerned, if it is a public institution;
(ii) the council of the public higher education institution concerned, if the education institution is to be declared a subdivision of an existing public higher education institution;
(iii) the responsible Minister, Member of the Executive Council or authority, if the education institution is administered, controlled or funded by an organ of state other than the Department of Education;

after having -

(i) published a notice in one or more daily newspapers in the area in which the education institution concerned provides programmes, containing the reasons for the declaration contemplated in subsection (1) in all the official languages used as mediums of instruction by the public higher education institution concerned;
(ii) given any interested persons an opportunity to make representations; and
(iii) considered such representations; and

if it is a private institution with the agreement of the owner of the education institution and the Minister of Finance.

(4) Nothing contained in this Act or any other law may be construed as obliging the Minister to declare an education institution to be a public higher education institution in terms of this section.

(5) An education institution may only be declared a public higher education institution after the employer has complied with its obligations in terms of applicable labour law.

Consequences of declaration as public higher education institution

(1) From the date determined in terms of section 21(2)(a) -

the education institution is deemed to be a public higher education institution established under this Act or a subdivision of such public higher education institution;
the assets, liabilities, rights and obligations of the education institution devolve upon the public higher education institution concerned; and
any agreement lawfully entered into by or on behalf of the education institution, is deemed to have been concluded by the public higher education institution concerned.

(2) Immovable property devolving upon the public higher education institution concerned in terms of subsection (1)(b) must, subject to the approval of the Minister of Finance, be transferred to such institution without payment of transfer duty, stamp duty or other money or costs, but subject to any existing right, encumbrance, duty or trust on or over that property.

(3) The officer in charge of a deeds office or other office where the immovable property referred to in subsection (2) is registered must, on submission of the title deed and on application by the public higher education institution concerned, make such endorsements on that title deed and such entries in the registers, as may be required to register the transfer concerned.

(4) The declaration of an education institution as a public higher education institution under section 21(1) does not affect anything lawfully done by the education institution prior to the declaration.

(5) All funds, which immediately prior to the date referred to in section 21(2)(a), were vested in the education institution concerned by virtue of a trust, donation or bequest must be applied by the public higher education institution concerned in accordance with the trust, donation or bequest, as the case may be.

(6) Despite subsection (2) any fees charged by the Registrar of Deeds resulting from such transfer must be paid in full or in part from funds appropriated by Parliament for that purpose.

Merger of public higher education institutions

(1) The Minister may, after consulting the CHE and by notice in the Government Gazette, merge two or more public higher education institutions into a single public higher education institution.

(2) The Minister may not act under subsection (1) unless -

the Minister has -

given written notice of the intention to do so to the public higher education institutions concerned;
published a notice in one or more daily newspapers circulating in the area in which such public higher education institutions provide programmes, containing the reasons for merger in all the official languages used as mediums of instruction by the public higher education institutions concerned;
given the councils of the higher education institutions concerned and any other interested persons an opportunity to make representations within at least 90 days of the date of the notice contemplated in subparagraph (ii); and
considered such representations;

the Minister is satisfied that every employer at the public higher education institutions concerned has complied with their obligations in terms of applicable labour law.

(3) The single public higher education institution contemplated in subsection (1) is deemed to be a public higher education institution established under this Act.

(4) Section 22, read with the changes required by the context, applies to a merger contemplated in subsection (1).

Merger of subdivisions of public higher education institutions

(1) The Minister may, after consulting the CHE and by notice in the Government Gazette, merge a subdivision of a public higher education institution with another public higher education institution.

(2) The assets, liabilities, rights and obligations associated with the subdivision concerned devolve upon the public higher education institution with which the subdivision has merged in a manner agreed by the councils of the public higher education institutions concerned or failing such agreement, in a manner determined by the Minister after consulting such councils.

(3) Sections 22(2) to (5) and 23(2), read with the changes required by the context, apply to a merger contemplated in subsection (1).

Closure of public higher education institutions

(1) The Minister may, after consulting the CHE and by notice in the Government Gazette, close a public higher education institution.

(2) If a public higher education institution is closed in terms of section 25(1), all assets and liabilities of such public higher education institution must, after closure, be dealt with by law and any residue by the Minister.

(3) Sections 22(2) to (5) and 23(2), read with the changes required by the context, apply to a closure contemplated in section 25(1).

CHAPTER 4

GOVERNANCE OF PUBLIC HIGHER EDUCATION INSTITUTIONS

Institutional governance structures

(1) Every public higher education institution must establish the following structures and offices of institutional governance -

a council;
a senate;
a principal;
a vice-principal;
a studentsÆ representative council;
an institutional forum; and
such other structures and offices determined by institutional statute.

(2) A structure contemplated in subsections (1)(a), (b), (e), (f) and (g) must elect a chairperson, vice-chairperson and such other office bearers from among its members in the manner prescribed by institutional statute or Act of Parliament.

Council of public higher education institution

(1) The council governs the public higher education institution, subject to this Act, any other law and institutional statute.

(2) The language policy of the public higher education institution is determined by the council, with the agreement of the senate, and must be published and made available on request.

(3) Every council must consist of -

the principal of the public higher education institution;
the vice-principal or vice-principals of the public higher education institution;
persons appointed by the Minister, who may not exceed 5;
members of the senate elected by the senate;
academic employees of the public higher education institution elected by such employees of the public higher education institution;
students of the public higher education institution elected by the students' representative council of such public higher education institution;
employees other than academic employees of the public higher education institution elected by such employees of such public higher education institution; and
such additional persons as may be determined by institutional statute.

(4) The number of persons contemplated in subsection (3) and the manner of their election, where applicable, is determined by institutional statute or Act of Parliament.

(5) At least 60 percent of the members of the council must be persons who are not employed by, or students of the public higher education institution.

(6) Members of a council must -

be persons with knowledge and experience relevant to the interests and governance of the institution concerned; and
participate in the deliberations of the council in the best interests of the higher education institution concerned.

Senate of public higher education institution

(1) A senate of a public higher education institution must consist of -

the principal of the public higher education institution;
vice-principal or vice-principals of such public higher education institution;
academic employees of such public higher education institution;
employees other than academic employees of such public higher education institution;
members of the council of such public higher education institution;
members of the students' representative council of such public higher education institution; and
such additional persons as are determined by institutional statute.

(2) The numbers of persons contemplated in subsection (1) and the manner of their appointment or election, as the case may be, are as determined by institutional statute or Act of Parliament.

(3) Subject to the approval of the council of a public higher education institution the senate of such public higher education institution is responsible for the academic and research functions of the public higher education institution and performs such other functions as are delegated or assigned to it by the council.

Committees of council and senate

(1) The council may establish committees to perform any of its functions and may appoint persons, who are not members of the council, as members of such committees.

(2) The council is not divested of responsibility for the performance of any function assigned to a committee in terms of this section.

(3) The senate may establish committees to perform any of its functions and may appoint persons, who are not members of the senate, as members of such committees.

(4) The senate is not divested of responsibility for the performance of any function assigned to a committee in terms of this section.

(5) The council and the senate may nominate committees, to be known as joint committees, to perform functions that are common to the council and the senate.

(6) The constitution, manner of election, functions, procedure at meetings and dissolution of a joint committee are as determined by rules of the institution, institutional statute or Act of Parliament.

Principal of public higher education institution

The principal is the chief executive and accounting officer responsible for the management and administration of the public higher education institution.

Institutional forum of public higher education institution

(1) An institutional forum must consist of representatives of -

management;
council;
senate;
academic employees;
employees other than academic employees;
students; and
any other category as determined by such institutional forum.

(2) The numbers of persons contemplated in subsection (1) and the manner of their appointment or election, as the case may be, are as determined by institutional statute or Act of Parliament.

(3) For the purposes of subsection (1)(a), management means management as determined by institutional statute or Act of Parliament.

(4) An institutional forum must -

(a) advise the council on issues affecting such public higher education institution; and
(b) perform such functions as are determined by the council.

Institutional statutes and institutional rules

(1) The council may make -

institutional statutes to give effect to any law relating to the public higher education institution and to promote the effective management of the institution in respect of matters not expressly prescribed by any law; and
institutional rules to give effect to institutional statutes.

(2) Institutional statutes or rules in connection with -

the composition of a senate may not be made, amended or repealed except on the recommendation of such senate;
the academic functions of the public higher education institution concerned, including the studies, instruction and examinations of students and research may not be made, amended or repealed except with the agreement of the senate of that institution; and
the composition, manner of election, term of office, functions and privileges of a studentsÆ representative council may not be made, amended or repealed except with the agreement of such studentsÆ representative council.

Institutional statutes to be approved or prescribed by Minister

(1) Any institutional statute which a council proposes to make in terms of this Chapter must be submitted for the approval of the Minister, and if so approved must be published by notice in the Government Gazette and comes into operation on the date provided in such notice.

(2) Any institutional statute made under section 32 must be tabled in Parliament by the Minister as soon as reasonably practicable after it has been published as contemplated in subsection (1).

(3) The Minister must prescribe a standard institutional statute which applies to every public higher education institution that has not made an institutional statute until such time as the council of such higher education institution makes its own institutional statute in terms of section 32.

Appointments and conditions of service of employees of public higher education institutions

(1) The council appoints the academic employees of the public higher education institution after consultation with the senate, and appoints all other employees of the institution.

(2) The council determines the conditions of service, disciplinary provisions, privileges and functions of the employees of the public higher education institution subject to applicable labour law.

Students' representative council

The establishment and composition, manner of election, term of office, functions and privileges of the studentsÆ representative council or councils must be determined by institutional statute.

Disciplinary measures

Every student at a public higher education institution is subject to such disciplinary measures and disciplinary procedures as determined by institutional statute made after consultation with the senate and the studentsÆ representative council or councils of such institution.

Admission to public higher education institutions

(1) Subject to this Act, the council, after consulting the senate, determines the admission policy of a public higher education institution.

(2) The council must publish the admission policy contemplated in subsection (1) and make it available on request.

(3) The admission policy of any public higher education institution must not unfairly discriminate in any way.

(4) Subject to this Act, the council may, with the agreement of the senate -

determine entrance requirements in respect of particular programmes of higher education;
determine the number of students who may be admitted for a particular higher education programme and the manner of their selection;
prescribe the minimum requirements for re-admission to study at the higher education institution; and
refuse re-admission to a student who fails to satisfy such minimum requirements for re-admission.

Regional co-operation between higher education institutions

(1) Higher education institutions may co-operate with each other in any sphere to achieve the optimal utilisation of resources and the fulfilment of their functions.

(2) Higher education institutions may establish regional structures to assist and facilitate the co-operation referred to in subsection (1).

(3) The Minister may provide financial incentives to such structures and to public higher education institutions participating in such structures to achieve the aims of such co-operation.

CHAPTER 5

FUNDING OF PUBLIC HIGHER EDUCATION

Allocation of funds by Minister

(1) The Minister, after consulting the CHE and with the agreement of the Minister of Finance, must determine policy on the funding of higher education and publish such policy by notice in the Government Gazette.

(2) The Minister, subject to the policy determined in subsection (1), must allocate public funds to higher education on an open and transparent basis.

(3) The Minister, subject to the policy contemplated in subsection (1), may impose -

any reasonable condition on an allocation contemplated in subsection (2); and
different conditions on different public higher education institutions, different instructional programmes or different allocations, if there is a reasonable basis for such differentiation.

Funds of a public higher education institution

The funds of a public higher education institution consist of -

funds allocated by the Minister in terms of section 39 for purposes of higher education;
any donations or contributions received by the institution;
money raised by the institution;
money raised by means of loans;
income derived from investments;
money received for services rendered to any other institution or person;
money payable by students for higher education programmes provided by the institution;
money received from students or employees of the institution for accommodation or other services provided by the institution; and
other receipts from whatever source.

Records to be kept and information to be furnished by council

Every council must, by the date or dates and in the form determined by the Minister -

cause true and correct records to be kept of all its proceedings;
cause complete, reliable, relevant and up to date accounting records be kept of all assets, liabilities, income and expenses and any other financial transactions of the institutions as a whole, that of its substructures and of other bodies operating under its auspices;
transmit to the Minister, in respect of the preceding year -

a report on the overall governance of the institution; and
a duly audited statement of income and expenditure, and a balance sheet;

furnish the Minister with the information that must be provided in terms of the Reporting by Public Entities Act , 1992 (Act No. 93 of 1992); and
provide the Minister with such additional information as the Minister may reasonably require.

Action on failure of council to comply with this Act or certain conditions

(1) If any council fails to comply with any provision of this Act under which an allocation from money voted by Parliament is paid to such institution or with any condition subject to which any such allocation is paid to such institution, the Minister may call upon such council to comply with the said provision or condition within a specified period.

(2) If such council thereafter fails to comply with the said provision or condition, the Minister may, despite anything to the contrary in any law contained, withhold payment of the whole or any portion of the allocation voted by Parliament in respect of the public higher education institution concerned.

(3) Before taking action under subsection (2), the Minister must -

give notice to the public higher education institution concerned of the intention so to act;
provide the council of such higher education institution a reasonable opportunity to make representations; and
consider such representations.

(4) If the Minister takes action as contemplated in subsection (2), a report regarding such action must be tabled in Parliament by the Minister as soon as reasonably practicable after such action.

CHAPTER 6

PRIVATE HIGHER EDUCATION INSTITUTIONS

Designation of registrar

(1) The Director-General must designate an employee of the Department of Education as the registrar of private higher education institutions to perform the functions of registrar in terms of this Act.

(2) The Director-General may designate any other employees of the Department of Education to assist the registrar to perform the functions of registrar in terms of this Act.

(3) The registrar may delegate any of his or her functions in terms of this Act to an employee contemplated in subsection (2).

Registration of private higher education institution

(1) Any person who provides a programme of higher education in the Republic, other than a public higher education institution or an organ of state must be conditionally registered or registered as a private higher education institution in terms of this Act.

(2) A person contemplated in subsection (1) includes an institution which provides a programme of higher education in the Republic and -

has its main seat or campus outside the Republic;
has its structure of governance outside the Republic; or
is controlled financially and administratively from outside the Republic.

Application for registration

An application for registration must be made in the form and manner determined by the registrar; and must be accompanied by the prescribed fee.

Requirements for registration

(1) The registrar may register a private higher education institution if the registrar is satisfied that the applicant -

is financially capable of satisfying its obligations to prospective students;
in regard to all its higher education programmes -

will maintain an acceptable standard;
will present them for regular accreditation;
will introduce and maintain an acceptable quality assurance system; and
complies with any other reasonable requirement determined by the registrar; and

(2) The registrar may require further information, particulars and documents in support of any application for registration.

Determination of application for registration

(1) The registrar must consider any application for registration and any further information, particulars or documents provided by the applicant and must register the higher education institution if the relevant requirements for registration are fulfilled to the registrars' satisfaction.

(2) If the registrar decides -

to grant the application, the registrar must -

enter the applicants' name in the appropriate register of private higher education institutions;
issue a certificate of registration, stating the terms of such registration;
provide the certificate to the applicant; and
as soon as practicable after the decision, publish the certificate of registration in the Government Gazette;

(b) not to grant the application, the registrar must advise the unsuccessful applicant in writing of the decision and provide the applicant with written reasons for his or her decision.

(3) Despite subsection (1), the registrar may conditionally register an applicant if the registrar believes that it will be able to satisfy such requirements within a reasonable period.

(4) If the registrar conditionally registers an applicant in terms of subsection (3) the registrar must -

(a) determine the period within which the applicant must satisfy the requirements for registration;
(b) enter the applicants' name in the appropriate register of private higher education institutions;
(c) issue a certificate of conditional registration, stating the terms of such registration and the duration of such registration;
(d) provide the certificate of conditional registration to the applicant; and
(e) as soon as practicable after the decision, publish the certificate of conditional registration in the Government Gazette.

(5) The registrar may on good cause shown extend the period contemplated in subsection (4).

(6) If, on the expiry of the period referred to in subsection (4) or any extension thereof, the applicant -

satisfies the requirements for registration specified by the registrar, the registrar must register the applicant;
fails to satisfy the requirements for registration specified by the registrar, the applicantÆs conditional registration lapses.

Registration certificate must be displayed

(1) A private higher education institution must conspicuously display -

(a) its certificate of conditional registration or registration or a certified copy thereof on its premises; and
(b) its registration number and an indication that it is registered or conditionally registered on all its official documents.

(2) If the registrar has cancelled the registration of a private higher education institution in terms of section 55 the private higher education institution must return the original certificate of registration to the registrar within 14 days.

Access to information

(1) Any person may inspect -

the register of private higher education institutions; and
the auditor's report provided in terms of section 50 of this Act.

(2) The registrar must provide a certified copy of, or extract from, any of the documents referred to in subsection (1) to any person who has paid the prescribed fee.

Records and audits to be provided

(1) Every private higher education institution must, in terms of generally accepted accounting practice, principles and procedures -

(a) keep books and records of income, expenditure, assets and liabilities;
(b) within three months of the end of its financial year, prepare financial statements, including at least -

a statement of income and expenditure for the previous financial year;
a balance sheet as at the end of the previous financial year; and
any other information the registrar may reasonably require.

(2) Every private higher education institution must, within the period determined by the registrar -

ensure an annual audit of its books and records of account and its financial statements by an auditor, who must conduct the audit in accordance with generally accepted auditing standards;
provide to the registrar a certified copy of the auditorÆs report in respect of its financial statements in terms of subsection (1); and
provide to the registrar any additional information, particulars or documents in a form and manner determined by the registrar.

Amendment of registration

A private higher education institution may apply to the registrar to amend its registration or conditional registration -

in the form and manner determined by the registrar; and
by paying the prescribed fee.

Requirements for amendment to registration and determination of application

(1) The registrar may not amend the registration of a private higher education institution unless the registrar is satisfied that such amendment is in the interests of higher education and will comply with the provisions of this Act.

(2) The registrar may require further information, particulars or documents in support of any application for amendment.

(3) If the registrar decides -

(a) to grant the application, the registrar must -

amend the certificate of registration or conditional registration accordingly;
provide a copy of the amended certificate to the applicant; and
as soon as reasonably practicable after the decision, publish the certificate in the Government Gazette; or

(b) not to grant the application, the registrar must advise the unsuccessful applicant in writing of the decision and provide the applicant with written reasons for the decision.

Registrar may impose conditions

(1) The registrar may impose any reasonable condition on a private higher education institution in respect of -

its conditional registration;
its registration; or
any amendment to its conditional registration or its registration.

(2) The registrar may impose different conditions in terms of subsection (1) in respect of different institutions, if there is a reasonable basis for such differentiation.

Registrar may vary or cancel condition

The registrar may, on reasonable grounds, vary or cancel any condition imposed in terms of section 53 or impose new conditions in terms of that section.

Registrar may cancel registration

(1) The registrar may, on reasonable grounds, cancel any registration or conditional registration in terms of this Act.

(2) If the accreditation of any programme offered by the private higher education institution is withdrawn, the registrar must review such institution's registration.

Consideration by registrar before variation or cancellation

The registrar may not act under sections 54 or 55 unless the registrar -

has informed the private higher education institution of the intention so to act and the reasons therefor;
has granted the private higher education institution and other interested persons an opportunity to make representations in relation to such action; and
has considered such representations.

Appeal to Minister

(1) Any interested person may appeal to the Minister against any decision of the registrar in terms of this Chapter.

(2) An appeal contemplated in terms of subsection (1), must be lodged with the Minister within 60 days of the date of the registrar's decision.

(3) The Minister, on good cause shown, may extend the period within which an appeal may be noted against the decision of the registrar.

(4) An appeal in terms of this section does not suspend the operation of any decision of the registrar unless a competent court orders otherwise on good cause shown.

CHAPTER 7

INDEPENDENT ASSESSOR

Appointment of independent assessment panel

The CHE must appoint an independent assessment panel consisting of at least three suitable persons who -

have knowledge and experience of higher education;
are not members of the CHE; and
comply with any other requirements determined by the CHE.

Appointment of independent assessor

(1) The Minister may, from the independent assessment panel referred to in section 58, appoint an assessor who is independent in relation to the public higher education institution to conduct an investigation at a higher education institution -

in circumstances contemplated in section 60; and
after consulting the council of the higher education institution if practicable.

(2) The council and any person affected by the investigation must assist and co-operate with the independent assessor in the performance of his or her functions in terms of section 62.

Circumstances when independent assessor may be appointed

(1) An independent assessor may be appointed in terms of section 59 if the council requests the appointment.

(2) Despite subsection (1), the Minister may appoint an independent assessor in terms of section 59 if -

circumstances arise at a public higher education institution that -

involve financial or other maladministration of a serious nature; or
seriously undermine the effective functioning of the public higher education institution;

the council has failed to resolve such circumstances; and
the appointment is in the best interests of higher education in an open and democratic society.

Independent assessor may be appointed for two or more public higher education institutions

The Minister may appoint an independent assessor in terms of section 59 to conduct an investigation at two or more public higher education institutions.

Functions of independent assessor

(1) An independent assessor appointed in terms of section 59 must, within a period of 30 days and on the terms of reference specified by the Minister -

conduct an investigation into circumstances at the higher education institution contemplated in section 60;
report in writing to the Minister regarding the findings of his or her investigation; and
suggest appropriate measures to address the circumstances and to avoid their recurrence.

(2) The Minister must as soon as practicable provide a copy of the report referred to in subsection (1) to the council and publish such report in the Government Gazette.

Independent assessor may be assisted

An independent assessor appointed in terms of section 59 may, with the approval of the Minister, appoint other persons with suitable knowledge and experience to assist in the performance of the independent assessor's functions.

Remuneration and allowances

The Minister, with the agreement of the Minister of Finance, may determine the remuneration and allowances to be paid to an independent assessor and any person appointed in terms of section 63.

CHAPTER 8

TRANSITIONAL ARRANGEMENTS

Existing statutes and rules of public higher education institutions

Any statutes or rules of public higher education institutions existing at the commencement of this Act continue to apply to the extent that such statutes or rules are consistent with this Act.

Existing technikons and universities

(1) Any technikon which was established or deemed to be established in terms of the Technikons Act, 1993 (Act No. 125 of 1993) and which existed immediately prior to the commencement of this Act, is deemed to be a technikon established in terms of this Act.

(2) Any university established or incorporated by a Private Act of Parliament continues to exist in terms of such Private Act and is deemed to be a university established in terms of this Act.

(3) Subject to any other applicable law, all conditions of service or service benefits applicable immediately prior to the commencement of this Act at a university or technikon, continue to exist until changed by the council of the higher education institution concerned.

(4) Councils and senates of technikons and universities which existed at the commencement of this Act continue to exist and perform the functions which they performed prior to such commencement, but must comply with the provisions of this Act by a date determined by the Minister by notice in the Government Gazette.

Continued existence of University and Technikons Advisory Council

(1) The University and Technikons Advisory Council established in terms of the University and Technikons Advisory Council Act, 1983 (Act No. 99 of 1983), continues to exist and continues to perform its functions as if that Act had not been repealed until the CHE commences its functions in terms of this Act.

(2) The CHE commences its functions on a date determined by the Minister by notice in the Government Gazette.

Continued existence of Committee of University Principals, Committee of Technikon Principals and Matriculation Board

(1) The Committee of University Principals, the Committee of Technikon Principals and the Matriculation Board continue to exist as if the Universities Act, 1955 (Act No. 61 of 1955), and the Technikons Act, 1993 (Act No. 125 of 1993), had not been repealed.

(2) The Committee of University Principals, the Committee of Technikon Principals and the Matriculation Board cease to exist on a date or dates to be determined by the Minister, by notice in the Government Gazette, after the Minister has -

given the bodies at least 180 days notice of the decision to publish such notice; and
invited the CHE and such bodies to make representations in regard to such decision and has considered such representations.

(3) The Committee of University Principals and the Committee of Technikon Principals respectively determine the manner in which their assets and liabilities must be dealt with upon their dissolution.

(4) The joint statutes and joint regulations made in terms of the Universities Act, 1955 (Act No. 61 of 1955) and the Technikons Act, 1993 (Act No. 125 of 1993) continue to exist until the date or dates contemplated in subsection (2).

(5) The Committee of University Principals may, before the date determined by the Minister in terms of subsection (2), if it appears from the source of a bursary, scholarship or prize administered by the Committee of University Principals, be it a donation agreement, trust or testamentary provision, that such bursary, scholarship or prize, due to changed circumstances no longer conforms to the aims of its founder or donor, or that the interests of the beneficiaries are being prejudiced, or that it is no longer practicable, amend or delete any such provision for the purposes of better administration of the funds of such bursary, scholarship or prize available to it, and may make any reasonable and equitable decision regarding the matter, including the consolidation of two or more such bursaries, scholarships or prizes.

Exemption of existing private higher education institutions

The provisions of sections 44(1) and 70(3) and (4) do not apply to a person who provides a higher education programme at the date of commencement of this Act, until a date determined by the Minister by notice in the Government Gazette.

CHAPTER 9

GENERAL

Offences

(1) Any person other than a higher education institution, who, without the authority of a higher education institution -

offers or pretends to offer any higher education programme or part thereof;
purports to confer a qualification granted by a higher education institution, or in collaboration with a higher education institution; or
purports to perform an act on behalf of a higher education institution,

is guilty of an offence and on conviction is liable to a sentence which may be imposed for fraud.

(2) Any person who pretends that a qualification has been awarded to that person by a higher education institution, whereas in fact no such qualification has been so awarded, is guilty of an offence and is liable upon conviction to a sentence which may be imposed for fraud.

(3) Any person, other than a public higher education institution or an organ of state, who provides a higher education programme and is not registered or conditionally registered as a private higher institution in terms of this Act or has its registration cancelled in terms of section 55, or continues to display its registration certificate in terms of section 48(2) is guilty of an offence and on conviction is liable to a fine not exceeding R 100 000 or imprisonment not exceeding 5 years or both such fine and imprisonment.

(4) Any private higher education institution which does not comply with section 48(1) is guilty of an offence and on conviction is liable to a fine not exceeding R20 000.

(5) Despite the provisions of any other law, a MagistratesÆ Court is competent to impose any sentence in terms of this Act.

Limitation of liability

The state, the CHE and any person appointed in terms of this Act are not liable for any loss or damage suffered by any person as a result of any act performed or omitted in good faith in the course of performing any function contemplated in this Act.

Delegation of powers

(1) The Minister may, on such conditions as he or she may determine, delegate any of his or her powers under this Act, except the power to make regulations, and assign any of his or her duties in terms of this Act to -

a council of a public higher education institution;
the CHE;
any employee of the Department of Education; or
any organ of state.

(2) A council of a public higher education institution may, on such conditions as it may determine, delegate any of its powers under this Act or delegated to it in terms of subsection (1), except the power to make institutional statutes, and assign any of its duties in terms of this Act or assigned to it in terms of subsection (1), to the senate, the principal or other employee of the public higher education institution.

Regulations

The Minister may make regulations consistent with this Act on -

any matter which the Minister is empowered or required to prescribe by regulation; and
any other matter in respect of which the Minister deems it necessary or expedient to make regulations to achieve the objects of this Act.

Application of Act when in conflict with other laws

The provisions of this Act prevail over any other law dealing with higher education other than the Constitution.

Repeal of laws

(1) The University and Technikons Advisory Council Act, 1983 (Act No. 99 of 1983) is hereby repealed in its entirety.

(2) The Universities Act, 1955 (Act No. 61 of 1955) is hereby repealed in its entirety.

(3) The Technikons Act, 1993 (Act No. 125 of 1993) is hereby repealed in its entirety.

(4) The Tertiary Education Act, 1988 (Act No. 66 of 1988) is hereby repealed in its entirety.

Short title and commencement

(1) This Act is called the Higher Education Act, 1997.

(2) This Act comes into operation on a date determined by the President by proclamation in the Government Gazette.

(3) Different dates may in terms of subsection (2) be fixed in respect of different provisions of this Act.