Vol. 417, No. 21052, 31 March 2000
GENERAL NOTICE
Notice 1445 of 2000
DEPARTMENT OF EDUCATION
HIGHER-EDUCATION AMENDMENT BILL, 2000
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
______ Words underlined with a solid line indicate insertions in existing enactments.
To amend the Higher Education Act, 1997, so as to provide that the policy determined by the Minister may prescribe the scope of operations of public and private higher education institutions; to provide that vacancies in the CHE are filled for the unexpired term of office of the predecessor; to provide for nominations to fill vacancies in the CHE; to provide that public higher education institutions may not without the concurrence of the Minister enter into a loan agreement or develop infrastructure; to empower the Minister to differentiate between foreign higher education institutions and local private higher education institutions if it is deemed to be in the best interest of public higher education institutions-; to provide that the Minister must make regulations to give effect to the registration of private higher education institutions; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:
Amendment of section 1 of Act 101 of 1997
- by the addition after the definition of "financial year" of the following definition:
""foreign legal person" means a person -
- established as a legal person in terms of a law of a foreign country to function as a higher education institution; and
- recognised or registered as an external company in terms of the Companies Act. 1976 (Act No. 61 of 1973);";
- by the addition after the definition of "institutional statute" of the following definition:
""local legal person" means a person originally established as a legal person in South Africa in terms of the Companies Act, 1973 (Act No. 61 of 1973) or the Close Corporation Act, 1984 (Act No. 69 of 1984);";
- by the addition after the definition of "this Act" of the following definition:
""to provide higher education' means the registering of students for whole qualifications or unit standards, the taking of responsibility for the provision and delivery of the curricula, the assessment of such learning programmes and the conferring of certificates.".
Amendment of section 3 of Act 101 of 1997
"(3) The Minister may, in terms of the policy contemplated in subsection (1) and in the interest of the higher education system as a whole, prescribe the scope of operations of public and private higher education institutions.
(4) The policy contemplated in subsection (1) may be determined with reference to the size and institutional configuration of the higher education system, the high level human resource needs of the country, the geographical location of higher education institutions and the mode of delivery of academic programmes.".
Amendment of section 11 of Act 101 of 1997
by numbering it as subsection (1); and
- by the addition of the following subsections:
"(2) A vacancy filled by nomination in accordance with subsection (1), must be for the unexpired term of office of the predecessor.
(3) Notwithstanding section 8(3) the Minister must invite nominations to fill such vacancies by writing to -
- national organisations representing students, academic employees, employees other than academic employees, university principals, technikon principals, private higher education institutions, business and labour; and
- research and science councils.".
Amendment of section 20 of Act 101 of 1997
"(6) Notwithstanding subsection (4). a public higher education institution may not, without the concurrence of the Minister, enter in any one financial year into loan or overdraft agreements which total a value of 10% or more of its annual budget for the financial year immediately prior to the loan or overdraft application.
(7) Notwithstanding subsection (4), a public higher education institution may not, without the concurrence of the Minister, embark on any immovable infrastructural development or the purchasing of immovable property or long term leases of immovable property.".
Amendment of section 51 of Act 101 of 1997
- by numbering it as subsection (1); and
- by the addition of the following subsections:
"(2) The person contemplated in subsection (1) must be a person registered or recognised as a legal person in terms of -
- the Companies Act, 1973 (Act No. 61 of 1973). or
- the Close Corporation Act, 1984 (Act No. 69 of 1984).
- When determining an application for registration as contemplated in section 54, the registrar may differentiate between a foreign legal person and a local legal person.
- The Minister must make regulations to provide for any matters pertaining to registration.".
Amendment of section 53 of Act 101 of 1997 as amended by Act 55 of 1999
- by the substitution for the words preceding paragraph (a) of subsection (1) of the following words
"The registrar [must] may register an applicant as a private higher education institution if the registrar has reason to believe that the applicant-";
- by the deletion of subparagraph (iii) of subsection (1)(b); and
- by the addition to subsection (1) of the following paragraph:
complies with any other reasonable requirement determined by the registrar which may include a requirement that none of the Words or expressions or any derivatives of the words or expressions 'university'. 'technikon' or 'higher education college' may appear in the name of the applicant.'.
Amendment of section 54 of Act 101 of 1997
- by the substitution for the words preceding paragraph (a) of subsection (1) of the following words -
"(1) The registrar [must]- ";
- by the substitution for paragraphs (a) and (b) of subsection (1) of the following paragraphs:
"(a) must consider any application for registration as a private higher education institution and any further information, particulars or documents provided by the applicant; and
(b) may register the applicant as a private higher education institution if the requirements for registration contemplated in section 53 are fulfilled.";
- by the substitution for subsection (3) of the following subsection:
"(3) Notwithstanding subsection (1), the registrar may conditionally register an applicant other than a foreign renal person, who does not fulfil the requirements for registration, if the registrar believes that the applicant will be able to fulfil the relevant requirements within a reasonable period."; and
- by the addition of the following subsection:
"(7) A private higher education institution may not confer a professorship or an honorary degree or use the titles of rector, vice-chancellor or chancellor, unless it is registered as a private university or a private technikon.".
Amendment of section 57 of Act 101 of 1997
"(3) Every private higher education institution must keep student records and in the event of the cancellation of its registration must provide such records to the registrar within one month of the cancellation of its registration.".
Amendment of section 66 of Act 101 of 1997
"(3) Any person who contravenes section 51(1), 54(7) or 55(2) is guilty of an offence and is liable on conviction to a fine or to imprisonment not exceeding five years or to both such fine and imprisonment.".
Amendment of section 76 of Act 101 of 1997 as amended by section10 of Act 55 of 1999
"(7) The University Staff (Education and Training) Act, 1984 (Act No. 91 of 1984) is hereby repealed in its entirety.".
Short title
EXPLANATORY MEMORANDUM TO THE HIGHER EDUCATION AMENDMENT BILL, 2000
"(7)This Bill provides for the amendment of the Higher Education Act, 1997 (Act No. 101 of 1997) so as to provide for additional provisions to the Act and to make certain technical adjustments.
The implementation of the Higher Education Act, 1997 has exposed, amongst others, the following problem areas:
2.1 the procedure of the filling of a vacancy in the CHE's membership which resulted from a member who vacates his or her office before the expiry of his or her term of office is too complicated, time-consuming and costly;
2.2 institutions running into huge overdrafts;
2.3 the risk of a higher education institution developing infrastructure without proper planning and budgeting;
2.4 the influx of external private higher institutions into our higher education system.
3.1 The long process of filling of vacancies has been shortened by means of empowering the Minister to write directly to the role players inviting for nominations.
3.2 In terms of section 20(4), every higher education institution is a juristic person. This in effect means that it can sue and be sued, in its own name overdrafts in its own name. A number of institutions are now in dire financial situations (bankrupt) with huge overdrafts.
3.3 The development of infrastructure without proper planning and budgeting has already placed some institutions in financial difficulties.
3.4 It is therefore advisable that the conclusion of any loan agreement or request for an overdraft or the development of any infrastructure be entered into or made in concurrence with the Minister.
3.5 The registrar of private higher institutions is empowered, if it is in the best interest of the higher education system as a whole, to discriminate in a fair manner between foreign private higher education institutions and local private higher education institutions and between private higher education institutions and public higher education institutions.
After extensive consultations with all relevant role players, a Bill has been drafted which incorporates the above considerations.
The Department is of the opinion that this Bill must be dealt with in terms of the procedures tabled in section 76 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).