Higher Education Laws Amendment Act 21 of 2011
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REPUBLIC OF SOUTH AFRICA
Vol. 558 Cape Town 14 December 2011
No. 1061 14 December 201 1
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:-
No. 21 of 2011: Higher Education Laws Amendment Act, 2011.
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Act No. 21 of20ll Higher Education Laws Amendment Act, 20 II
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.
(English text signed by the President) (Assented to 12 December 2011)
ACT To amend the Higher Education Act, 1997, so as to regulate the conduct of members of the council, members of committees of the council and employees of a public higher education institution engaging in business with the relevant public higher education institution; and to adjust the period within which an independent assessor appointed by the Minister must finalise an investigation; to amend the National Student Financial Aid Scheme Act, 1999, so as to empower the Minister to intervene in the case of poor or non- performance or maladministration by the board of the National Student Financial Aid Scheme; to provide for the dissolution of the board, as well as the procedure for such dissolution; to provide for the appointment of an administrator to temporarily take over the management, governance and administration of the board; and to repeal the provisions placing an obligation on the employer of a borrower to make deductions from the remuneration of the borrower; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 27 of Act 101 of 1997, as amended by section 8 of Act 23 of 2001 and section 7 of Act 63 of 2002
1. Section 27 of the Higher Education Act, 1997, is hereby amended- 5 (a) by the substitution for subsection (7) of the following subsection:
"(7) [The members] A member of a council or a member of a committee of a council- ( a) must be [persons] a person with knowledge and experience
relevant to the objects and governance of the public higher 10 education institution concerned; [and]
(b) must participate in the deliberations of the council in the best interests of the public higher education institution concerned;
(c) must, before he or she assumes office, declare any business, commercial or financial activities undertaken for financial gain that 15 may raise a conflict or a possible conflict of interest with the public higher education institution concerned;
(d) may not place himself or herself under any financial or other obligation to any individual or organisation that might seek to influence the performance of any function of the council; and 20
(e) (i) may not have a conflict of interest with the public higher education institution concerned;
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Act No. 21 of20ll Higher Education Laws Amendment Act, 20 II
(ii) may not have a direct or indirect financial, personal or other interest in any matter to be discussed at a meeting and which entails or may entail a conflict or possible conflict of interest with the public higher education institution concerned;
(iii) must, before the meeting and in writing, inform the chairper- 5 son of that meeting of that conflict or possible conflict of interest."; and
(b) by the insertion after subsection (7) of the following subsections: "(7 A) Any person may, in writing, inform the chairperson of
a meeting, before the meeting, of a conflict or possible conflict of interest I 0 of a member of the council with the public higher education institution concerned of which such person may be aware.
(7B) A member referred to in subsections (7)( e) and (7 A) is obliged to recuse himself or herself from the meeting during the discussion of the matter and the voting thereon. 15
(7C) A committee of the council with delegated functions in terms of section 68(2) may not take a decision on a matter considered by it if any member of the committee has a conflict of interest contemplated in this section.
(7D) A member of the council or a member of a committee of the 20 council who contravenes subsection (7)(c), (d) or (e), (7A) or (7B), after Council has followed a due process, may be- ( a) suspended from attending a meeting; or (b) disqualified as a member of the council or a member of a committee
of the council. 25 (7E) The council must-
( a) having regard to the provisions of section 27(9) and (7 A) to (7D) and section 34 and after consultation with the institutional forum, adopt a code of conduct to which all the members of the council, all the members of committees of the council and all other persons who 30 exercise functions of the council in terms of delegated authority must subscribe; and
(b) determine rules and procedures in terms of section 32 for an annual declaration-
(i) by each member of the council, each member of a council 35 committee and each person who exercises functions of the council in terms of delegated authority;
(ii) of his or her financial interests and fiduciary roles, the latter to include but not be limited to offices, directorships of companies, memberships of close corporations and trustee- 40 ships held; and
(iii) of the financial interests and fiduciary roles of the members of his or her immediate family.".
Amendment of section 34 of Act 101 of 1997
2. Section 34 of the Higher Education Act, 1997, is hereby amended by the addition 45 of the following subsections:
"(4) An employee must in writing- (a) before he or she assumes office, declare any business that may raise a conflict
or possible conflict of interest with the public higher education institution concerned; and 50
(b) notify the public higher education institution concerned of any conflict or possible conflict of interest before such public higher education institution procures any goods or services from the employee or an organisation within which the employee holds an interest.
(5) An employee may not conduct business directly or indirectly with the public 55 higher education institution at which he or she is employed that entails or may entail a conflict of interest with the public higher education institution unless the council of such public higher education institution is of the opinion that- ( a) the goods, product or service in question are unique; (b) the supplier is a sole provider; and 60
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Act No. 21 of2011 Higher Education Laws Amendment Act, 2011
(c) it is in the best interest of the institution. (6) An employee may not on behalf of that public higher education institution
contract with himself or herself or any entity in which he or she has a direct or indirect financial or personal interest.
(7) Contracting referred in subsection (6) relates to conduct that is aimed at 5 receiving any direct or indirect personal gain that does not form part of the employment relationship contemplated in subsection ( 1).".
Amendment of section 47 of Act 101 of 1997
3. Section 47 of the Higher Education Act, 1997, is hereby amended by the substitution in subsection (1) for the words preceding paragraph (a) of the following 10 words:
"An independent assessor appointed under section 44 must, within [30 days] ~ period determined by the Minister, but not exceeding 90 days and on the terms of reference specified by the Minister-".
Insertion of sections 4A and 4B in Act 56 of 1999
4. The following sections are hereby inserted in the National Student Financial Aid Scheme Act, 1999, after section 4:
"Intervention by Minister
4A. (1) The Minister may issue a directive to the board to take such
action specified by the Minister if the NSF AS- 20 (a) is in financial difficulty or is being otherwise mismanaged; (b) is unable to perform its functions effectively due to dissension among
board members; (c) has acted unfairly or in a discriminatory or an inequitable way towards
a person to whom it owes a duty under this Act; 25 (d) has failed to comply with any law; (e) has failed to comply with any directive given by the Minister under
this Act; or (j) has obstructed the Minister or a person authorised by the Minister in
performing a function in terms of this Act. 30 (2) A directive contemplated in subsection (I) must state-
( a) the nature of the deficiency; (b) the steps which must be taken to remedy the situation; and (c) a reasonable period within which the steps contemplated in paragraph
(b) must be taken. 35 (3) Before making a decision under subsection (1) the Minister must,
subject to the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000)- ( a) give notice to the board of the intention to issue a directive; (b) give the board a reasonable opportunity to make representations; and 40 (c) consider such representations.
(4) (a) If the board fails to comply with the directive within the stated period, the Minister must dissolve the board and appoint an administrator to take over the functions of the board.
(b) For the purposes of paragraph (a), sections 17A, 17B and !7C apply 45 with the changes required by the context.
(5) If the Minister appoints an administrator in terms of subsection (4), the administrator may perform all the functions of the board and an employee must comply with a directive given by the administrator.
(6) The cost associated with the appointment of an administrator shall be 50 for the account of the NSF AS.".
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Act No. 21 of 20ll Higher Education Laws Amendment Act, 20 II
Insertion of Chapter 2A in Act 56 of 1999
5. The following Chapter is hereby inserted in the National Student Financial Aid Scheme Act, 1999, after Chapter 2:
Appointment of administrator
17 A. (1) Notwithstanding any other provision of this Act, the Minister may, after consultation with the board if practicable, appoint a person as administrator to take over the management, governance and administration of the NSFAS and to perform the functions of the NSF AS if-
(a) an audit of the financial records of the NSFAS or a report by a 10 Ministerial Committee reveals financial or other maladministration of a serious nature or the serious undermining of the effective functioning of the NSFAS;
(b) any other circumstances arise that reveals financial or other malad- ministration of a serious nature or the serious undermining of the 15 effective functioning of the NSF AS; or
(c) the board requests such appointment. (2) The Minister may only act in terms of subsection (1)( a) or (b) if the
appointment of an administrator is in the interests of the NSF AS and higher education and training in an open and democratic society. 20
(3) (a) The Minister appoints an administrator for such period as may be determined by the Minister but such period may not exceed two years.
(b) The Minister may extend the period contemplated in paragraph (a) once for a period not exceeding six months.
Assistance to administrator
17B. An administrator appointed in terms of section 17 A may, with the approval of the Minister, appoint any other person with suitable knowledge and experience to assist him or her in the performance of his or her functions.
Remuneration and allowances
17C. The Minister, with the approval of the Minister of Finance, may determine the remuneration and allowances to be paid to the administrator and to any other person appointed in terms of section 17B.
Dissolution of board
17D. The board is dissolved from the date the Minister appoints the 35 administrator in terms of section 17 A(3)(a).".
Repeal of section 23 of Act 56 of 1999
6. Section 23 of the National Student Financial Aid Scheme Act, 1999, is hereby repealed.
7. This Act is called the Higher Education Laws Amendment Act, 2011.