Higher Education and Training Laws Amendment Act

Link to law: http://www.gov.za/documents/higher-education-and-training-laws-amendment-act
Published: 2010-12-07

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Higher Education and Training Laws Amendment Act 25 of 2010
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 546 Cape Town 7 December 2010 No. 33853
THE PRESIDENCY No. 1176 7 December 2010
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 25 of 2010: Higher education and Training Laws Amendment Act, 2010.
























2 No. :nR53
Act No. 25 of 2010
GOVERNMENT GAZETTE, 7 DECEMBER 2010
HIGHER EDUCAnON AND TRAINING LAWS AMENDMENT ACT, 2010
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 3 December 2010,)
ACT To amend-
• the Adult Basic Education and Training Act, 2000, so as to amend certain definitions; to make provision for the employment of educators at public centres by inserting provisions in tbe said Act witb regard to employers of educators, salaries and other conditions of service of educators, the educator establishment, powers of employers, appointments and tbe filling of posts, the transfer ofeducators, the secondment ofeducators, the retirement of educators, the discbarge of educators, incapacity and misconduct and the performance of other work by educators; to provide for transitional arrangements witb regard to public centres; to make provision for the determination of national education policy for public centres, for directive principles of national education policy, for consul- tation on policy and legislation, for tbe publication of national education policy and for the monitoring and evaluation of adult education and training; and to provide for quality assurance in respect of tbe qualifications offered by public and private centres; and
• the Further Education and Training Colleges Act, 2006, so as to amend certain definitions; to make provision for the determination of national education policy for colleges, for directive principles of national educa- tion policy, for consultation on policy and legislation, for the publication of national education policy and for tbe monitoring and evaluation of furtber education and training; to make provision for the Council of Education Ministers and the Heads of Education Departments Commit- tee and for their administrative functions; to provide for transitional arrangements with regard to colleges; and to provide for quality assurance in respect of the qualifications offered by colleges;
and to provide for matters connected therewith,
B E IT ENACTED by tbe Parliament of tbe Republic of Soutb Africa, asfollows,- Amendment of section 1 of Act 52 of 2000
1. Section 1of the Adult Basic Education and Training Act, 2000, is hereby amended by-- 5
(a) the substitution for the definition of "adult basic education and training" of the following definition:
































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"'adult [basic] education and training' means all learning and Iraining programmes for adults [from] on level I [to 4 where level 4 is equivalent to-- - (a) grade 9 in public schools; or (b)] registered on the national qualifications framcwork [level 1 as] 5
contcmplated in the [South African Qualifications Authority Act, 1995 (Act No. 58 of 1995)] National Qualifications Framework Act, 2008 (Act No. 67 of 2008);";
(b) the substitution for thc definition of "Council of Education Ministers" of the following definition: 10
" 'Council of Education Ministers' means the Council established [under section 9 of the National Education Policy Act, 1996 (Act No. 27 of 1996)] by section 41H of the Further Education and Training Colleges Act, 2006 (Act No. 16 of 2006);";
(e) the substitution for the definition of "Department" of the following 15 definition:
" 'Department' means the [government department responsible for education at national level] Department of Higher Education and Training;";
(d) the substitution for the definition of "educator" of the following definition: 20 "'educator' means any person who teaches, educates or trains [a learner] another person, or provides professional educational services, including professional therapy and education psychological services, at [a] any public centre and who is appointed in a post on any educator establishment contemplated in section 20F;"; 25
(e) the insertion after the definition of "educator" of the following definition: "'employer', in relation to any provision of Chapter 4, 5 or 7 of the Employment of Educators Act, 1998 (Act No. 76 of 1998). which applies to, or is connected wilh, an educator in the service of- (a) the Department of Higher Education and Training, means the 30
Director-General; and (b) a provincial education department, means the Head of Depart-
ment;"; (f) the insertion after the definition of "Head of the Department" of the
following definition: 35 " 'Labour Relations Act' means the Labour Relations Act, 1995 (Act No. 66 of 1995);";
(g) the substitution for the definition of "Minister" of the following definition: " 'Minister' means the Minister of Higher Education and Training;";
(h) the substitution for the definition of "NABABET" of the following 40 definition:
" '[NABABET] NABAET' means the National Advisory Board for Adult [Basic] Education and Training, established by regulation in terms of section II of the National Education Policy Act, 1996 (Act No. 27 of 1996);"; and 45
(i) the insertion after the definition of "policy" of the following definition: " 'prescribed' means prescribed by regulation made in tenus of section 41;" .
Amendment of section 11 of Act 52 of 2000
2. Section II of the Adult Basic Education and Training Act, 2000. is hereby amended 50 by-
(a) the substitution in subsection (2) for paragraph (a) of the following paragraph: "(a) educators and employ educators additional to the establishment deler-
mined by the Member of the Executive Council in terms of [section 5 of the Employment of Educators Act] Chapter 3A; and"; and 55
(b) the substitution for subsection (7) of the following subsection: "(7) [After consultation as contemplated in section 5 of the
National Education Policy Act, 1996 (Act No. 27 of 1996, the] The Minister may, by notice in the Government Gazette, determine norms



































4 No. 33R53
Act No. 25 of 2010
GOVERNMENT GAZETTE, 7 DECEMBER 2010
HtGHER EDUCAnON AND TRAINING LAWS AMENDMENT ACT, 2010
and standards [by notice in tbe Government Gazette] regarding the funds used for the employment of staff referred to in subsection (2), but such norms and standards may not be interpreted [so] as [to make] making the State a joint employer of such staff,",
Repeal of section 12 of Act 52 of 2000
3, Section 12 of the Adult Basic Education and Training Act, 2000, is hereby repealed.
Insertion of Chapter 3A in Act 52 of 2000
4. The following Chapter is hereby inserted in the Adult Basic Education and Training Act, 2000, after Chapter 3:
"CHAPTER 3A
Application of Chapter
20B, This Chapter applies to the employment of educators at public centres in the Republic.
Employers of educators and other persons
5
10
20C. (I) Save as is otherwise provided in this section, the Head of 15 Department shall be the employer of educators in the service of the provincial education department in posts on the educator establishment of public centres for all purposes of employment.
(2) For the purposes of determining the salaries and other conditions of service of educators, the Minister shall be the employer of all educators 20 contemplated in subsection (I).
(3) For the purposes of creating posts on the educator establishment of public centres in a provincial education department, the Member of the Executive Council shall be the employer of educators in the service of that department. 25
Salaries and other conditions of service of educators
200. (I) Notwithstanding anything to the contrary contained in any law but subject to the provisions of this section, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, the Minister shall determine the salaries and other conditions of 30 service of educators.
(2) Different salaries and conditions of service contemplated in subsection (I) may be determined in respect of different ranks and grades of educators.
(3) A determination by the Minister under this section involving 35 expenditure from the National Revenue Fund may only be made with the concurrence of the Minister of Finance.
Educator establishment
20E. (I) Notwithstanding anything to the contrary contained in any law but subject to the norms prescribed for the provisioning of posts, the 40 educator establishment of a provincial education department shall consist of the posts created by the Member of the Executive Council.
(2) The educator establishment of any public centre under the control of a provincial education department shall, subject to the norms prescribed for the provisioning of posts, consist of the posts allocated to the said public 45 centre or office by the Head of Department from the educator establishment of that department.





























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(3) For Ihe purposes of this Chapter- (a) the power to create a post under this section shall include the power to
grade, to regrade, to designate, to re-designate, to convert or to abolish the post; and
(b) the power to allocate a post under this section shall include the power 5 to re-allocate the post.
(4) The non-educator establishment of a public centre is determined io terms of the Public Service Act, 1994 (Proclamatioo No. 103 of 1994).
Powers of employers
20F. (I) Subject to the provisions of this section, the appointment of any 10 person, or the promotion or transfer of any educator, in the service of a provincial education department shall be made, or effected, by the Head of Department.
(2) Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations 15 Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine.
Appointments and filling of posts
20G, (I) In the making of any appointment or the filling of any post on 20 any educator establishment under this Act, due regard shall be had to equality, equity and the other democratic values and principles which arc contemplated in section 195( I) of the Constitution of the Republic of South Africa, 1996, and which include- (a) the ability of the candidate; and 25 (b) the need to redress the imbalances of the past in order to achieve broad
representation. (2) A person may be appointed under this Chapter-
(a) in a permanent capacity, whether on probation or not; (b) in a temporary capacity for a fixed period, whether in a full-time, in a 30
part-time or in a shared capacity; or (c) on special contract for a fixed period or for a particular assignment,
whether in a full-time or in a part-time capacity,
Transfer of educators
20H. (I) Subject to the provisions of this Chapter, the Head of 35 Department may transfer any educator in the service of- (a) the relevant department to any post or position in any other department
of state with the prior approval of the person in that other department of state having the power to appoint or to transfer and with the consent of that educator; and 40
(b) the provincial education department to any other post in that department.
(2) The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the written consent of that educator. 45
Seeondment of educators
201. (1) Any educator in the service of any provincial education department may, with the written consent of that educator, be placed at the disposalof- (a) another department of education; 50 (b) another government; or































6 No. 33853
Act No. 25 of 2010
GOVERNMENT GAZETTE. 7 DECEMBER 2010
HIGHER EDUCATION AND TRAINING LAWS AMENDMENT ACT. 2010
(c) any other body or person, for a particular service or for a stated period on such conditions, in addition to the conditions prescribed by or under any law, as may be determined by Ihe Head of Department.
(2) While so placed at such disposal, the educator shall remain subject to 5 the provisions of this Act.
Retirement
20J, (I) Subject to the provisions of this scction- (a) an educator shall have the right to retire, and shall be so retired, on the
day on which the educator attains the age of 65 years; and 10 (h) an educator who allains the said age after the first day of a month shall
be deemed to have attained that age on the first day of the following month.
(2) Notwithstanding the provisions of subsection (1), an educator who was in employment immediately before 2 September 1994 in terms of a law 15 repealed by the Educators' Employment Act, 1994 (promulgated under Proclamation No. 138 of 1994), shall have the right to retire on or after attaining the retirement age applicable to the educator immediately before the said date.
(3) Notwithstanding- 20 (a) the provisions of subsections (I) and (2), an educator shall have the
right to retire on or after attaining the age of 55 years; and (h) the absence of any reason for discharge in terms of section 20K, the
employer may, at the request of an educator, allow the educator to retire before attaining the age of 55 years, if the employer is of the 25 opinion-
(i) that a sufficient reason exists therefor; and (ii) that the retirement will be to the advantage of the State.
(4) Notwithstanding the provisions of this section, an educator- (a) who was in employment immediately before I May 1996; 30 (h) who, without interruption of service, has completed a period of 10
years' continuous pensionable service in terms of the pension law applicable to the educator; and
(c) who has attained the age of 50 years, shall have the right to retire. 35
Discharge of educators
20K. (1) The employer may, having due regard to the applicable provisions of the Labour Relations Act, discharge an educator from service- (a) on account of continuous ill-health; 40 (h) on account of the abolition of the educator's post or any reduction in,
or reorganisation or re-adjustment of, the post establishments of departments or public centres;
(c) if, for reasons other than the educator's nwn unfitness or incapacity, the educator's discharge will promote efficiency or economy in the 45 department or public centre in which the educator is employed, or will otherwise be in the interest of the State;
(d) on account of unfitness for the duties attached to the educator's post or incapacity to carry out those duties efficiently;
(e) on account of misconduct; 50 (fJ if the educator was appointed in the post in question on the grounds of
a misrepresentation made by the educator relating to any condition of appointment; and
(g) if, in the case of an educator appointed on probation, the educator's appointment is not confirmed. 55
(2) If an educator is discharged from service in terms of subsection (1 )(f). that educator shall be deemed to have been discharged on account of misconduct.



































STAATSKOERANT, 7 DESEMBER 2010
HIGHER EDUCAnON AND TRAINING LAWS AMENDMENT ACT, 2010
Discharge on account of ill-health
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20L. An educator may be discharged on account of ill-health in the circumstances referred to in Schedule I to the Employment of Educators Act.
Discharge of educators appointed on probation 5
20M. (I) If it is not desirable to confirm the appointment, transfer or promotion of an educator on probation, the employer may. notwithstanding anything to the contrary contained in this Act but subject to this section- (a) extend the period of probation of the educator; or (b) after reasonable notice to the educator, discharge the educator from 10
service upon the expiry of the period of probation or any extension thereof,
(2) No appointment, transfer or promotion on probation may be extended, and no educator who is serving on probation may be discharged from service, if- 15 (a) the educator has been diligent; (b) the educator's conduct has been uniformly satisfactory; (c) the educator is in all respects suitable for the post which the educator
holds; and (d) the educator has complied with all the conditions applicable to the 20
educator's appointment, transfer or promotion. (3) An educator whose transfer or promotion on probation is not
continued and who immediately before such transfer or promotion was an educator, other than an educator on probation, shall be transferred to the post formerly held by that educator, or to a post of equivalent grading, 25
Resignation
20N. (I) An educator may resign by giving 90 days' notice in writing or such shorter notice as the employer may approve at the request of the educator.
(2) If the name of an educator is struck off the register of educators kept 30 by the South African Council for Educators, the educator shall, notwith- standing anything to the contrary contained in this Act, be deemed to have resigned with effect from the day following immediately after the day on which the educator's name was so struck off.
Incapacity and misconduct
200. The incapacity and misconduct of educators are dealt with in accordance with the procedure contemplated in Chapter 5 read with Schedules I and 2 to the Employment of Educators Act.
Performance of other work by educators
35
20P. (I) Unless ali educator's conditions of service provide otherwise- 40 (a) an educator shall place such time as the Minister may determine at the
disposal of the employer; (b) no educator shall without permission of the employer perform or
undertake to perform remunerative work outside the educator's official duty or work; and 45
(c) no educator may claim additional remuneration in respect of any official duty or work which the educator-
(i) performs voluntarily; nr (ii) has been ordered to perform by a competent authority,
(2) The employer may order an educator to perform, on a temporary 50 basis, duties other than those ordinarily assigned to the educator, if such temporary duties arc appropriate to the grade, designation or classification of the educator's post.







































8 No. 33853
Act No, 25 of 2010
GOVERNMENT GAZETTE, 7 DECEMBER 2010
HIGHER EDUCATION AND TRAINING LAWS AMENDMENT ACT, 2010
Transitional arrangements in respect of public centres
20Q. (I) for the purposes of this Chapter and with regard to employment and related matters, an educator employed at a public centre under the Employment of Educators Act prior to 31 December 20 I0, will continue to be employed on the post establishment of that public centre, and the post 5 occupied by that educator shall be deemed to be a post created by the Member of the Executive Council in terms of this Chapter.
(2) The post establishment of the public centre existing immediately before 31 December 20 I0 shall be deemed to be the educator establishment of that public centre for the purposes of section 20E. 10
(3) The employment and related matters contemplated in subsection (I), such as salary and other conditions of service applicable to an educator, shall continue to be applicable to that educator for the purposes of this Act and shall be deemed to have been determined by the Minister in terms of section 200.". 15
Insertion of Chapter 4A in Act 52 of 2000
5. The following Chapter is hereby inserted in the Adult Basic Education and Training Act, 2000, after Chapter 4:
"CHAPTER 4A
Objectives of Chapter
25A, The objectives of this Chapter arc to provide for-
20
(a) the determination of national education policy by the Minister in accordance with certain principles;
(b) the consultations to be undertaken prior to the determination of policy, and the establishment of certain bodies for the purposes of consulta- 25 tion;
(e) the publication and implementation of national education policy; and (d) the monitoring and evaluation of adult education and training.
Determination of national education policy for centres
25B. (I) The Minister shall determine national education policy in 30 accordance with the provisions of the Constitution and this Act.
(2) In determining national policy for adult education and training at centres. the Minister shall take into account the competence of the provincial legislatures in tenus of section 146 of the Constitution, and the relevant provisions of any provincial law relating to adult education and 35 training.
(3) Subject to the Constitution, national policy shall prevail over the whole or a part of any provincial policy on adult education and training if there is a conflict between the national and provincial policies.
(4) Subject to the provisions of subsections (I) to (3), the Minister shall 40 determine national policy for the planning, provision, financing, co- ordination, management, governance, programmes, monitoring, evaluation and well-being of the adult education and training system and, without derogating from the generality of this section, may determine national policy for- 45 (a) adult education and training management information systems,
including the provision of data in accordance with the international obligations of the government;
(b) the organisation, management and governance of the national adult education and training system; 50
(e) facilities, finance and development plans for adult education and training, including advice to the Financial and Fiscal Commission;
(d) innovation, research and development in adult education and training; (e) the organisation, management, governance, funding, establishment
and registration of centres; 55































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(f) curriculum frameworks, core syllabuses and adult education and training programmes, learning standards, examination.s and the certification of qualifications, subject to the provisions of any law establishing a national qualifications framework or a certifying or accrediting body; 5
(R) co-operation between the Department and- (i) other state departments;
(ii) provincial education departments; (iii) local government; and (iv) non-government organisations, 10
with a view to advancing the national education policy contemplated in this section and the Reconstruction and Development Programme;
(h) international relations in the field of adult education and training; and (i) executive functions required to implement national education policy
determined in terms of this Chapter, including the implementation of 15 measures to address past discriminatory practices.
Directive principles of national education policy
25C. The policy contemplated in section 258 shall be directed toward- (a) the advancement and protection of the fundamental rights of every
person guaranteed in terms of Chapter 2 of the Constitution and in 20 terms of international conventions approved by Parliament, in particular the right-
(i) of every person to be protected against unfair discrimination within or by the Department or centres on any ground whatsoever; 25
(ii) of every person to receive adult education and training and to have equal access to public centres;
(iii) of every person to gain aCcess to adult education and training; (iv) of every learner to be instructed in the language of his or her
choice where this is reasonably practicable; 30 (v) of every person to the freedoms of conscience, religion,
thought, belief, opinion, expression and association at centres; (vi) of every person to establish, where practicable, centres based
on a common language, culture or religion, as long as there is no discrimination on the ground of race; and 35
(vii) of every person to use the language and participate in the cultural life of his or her choice at centres;
(b) enabling the adult education and training system to contribute to the full personal development of each leamer, and to the moral, social, cultural, political and economic development of the nation at large, 40 including the advancement of democracy, human rights and the peaceful resolution of disputes;
(c) achieving equitable education opportunities and the redress of past inequality in adult education and training provision, including the promotion of gender equality and the advancement of the status of 45 women;
(d) endeavouring to ensure that no person, as a result of physical disability, is denied the opportunity to receive adult education and training to the maximum of his or her ability;
(e) providing opportunities for and encouraging lifelong learning; 50 (() achieving an integrated approach to adult education and training
within a national qualifications framework; (g) cultivating skills, disciplines and capacities necessary for reconstruc-
tion and development; (II) recognising the aptitudes, abilities, interests, prior knowledge and 55
experience of learners; (i) encouraging independent and critical thought; (j) promoting a culture of respect for teaching and learning at centres; (k) promoting enquiry, research and the advancement of knowledge; (l) enhancing the quality of adult education and training and educational 60
innovation-






























10 No. 33853 GOVERNMENT GAZETTE. 7 DECEMBER 2010
Act No. 25 of 2010 HIGHER EDUCATION AND TRAINING LAWS AMENDMENT ACT. 2010
(i) through systematic research and development in respect of adult education and training;
(ii) through monitoring and evaluation of adult education and training provision and performance; and
(iii) through the training of educators and adult education and 5 training managers;
(m) ensuring broad public participation in the development of adult education and training policy and the representation of stakeholders in the governance of all aspects of the adult education and training system; 10
(n) achieving the eost-elIeetive use of adult education and training resources and sustainable implementation of adult education and training services;
(0) achieving close co-operation between the national and provincial governments on matters relating to adult education and training, 15 including the development of capacity in the Department and the effective management of the national adult education and training system.
Consultation on national edueation poliey
250. (1) Policy eontcmplated in section 25B shall be determined by the 20 Minister after consultation with the Council of Education Ministers.
(2) The policy contemplated in section 25B shall be determined by the Minister with the concurrence of the Minister of Finance in so far as it involves expenditure from the State Revenue Fund.
(3) Nothing in this section shall limit the discretion of the Minister to 25 consult whomsoever he or she wishes for advice on the determination of national education policy.
Consultation on legislation
25E. Legislation on a matter contemplated in section 25B shall be introduced in Parliament or, in the case of regulations, be published in the 30 Gazette only after consultation between the Minister and- (a) the Council of Education Ministers, in respect of adult education and
training at centres; and (b) all the parties in the Education Labour Relations Council established
by section 40 of the Labour Relations Act, in respect of any matter 35 falling within the objectives of that Act.
Publieation of national edueation poliey
25K The Minister shall within 21 days after dctermining policy in terms of section 25B (a) give notice of such determination in the Gazette and indicate in such 40
notice where the policy instrument with regard to which the notice was issued may be obtained; and
(b) table the policy instrument contemplated in paragraph (a) in Parlia- ment within 21 days after the notice has appeared in the Gazette, if Parliament is then in session, or, if Parliament is in recess, within 21 45 days after the commencement of the first ensuing session of Parliament.
Monitoring and evaluation of adult edueation and training
25G. (I) The Minister shall direct that the standards of adult education and training provision, delivery and performance throughout the Republic 50 be monitored and evaluated by the Department annually or at other specified intervals, with the object of assessing progress in complying with the provisions of the Constitution and with national adult education and training policy, particularly as determined in tcrms of section 25B.





























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(2) Each direclive issued in lenns of subsection (I) shall comply with the provisions of any law establishing a national qualifications framework, and shall be formulated after consultation with the Council of Education Ministers.
(3) The Department shall undertake the monitoring and evaluation 5 contemplated in subsection (I) by analysis of data gathered by means of adult education and training management information systems, or by other suitable means, in co-operation with provincial departments of education.
(4) The Department shall fulfil its responsibilities in terms of subsections (I) to (3) in a reasonable manner, with a view to enhancing professional 10 capacities in monitoring and evaluation throughout the national education system, and assisting the competent authorities by all practical means within the limits of available public resources to raise the standards of adult education and training provision and perfonnancc.
(5) The Department shall prepare and publish a report on the results of 15 each investigation undertaken in terms of subsection (3) after providing an opportunity for the relevant provincial education department to comment, which comment shall be published with the report.
(6) If a report prepared in tenns of subsection (5) indicates that the standards of adult education and training provision, delively and perfor- 20 mance in a province do not comply with the Constitution or with the policy determined in tenns of section 25B, the Minister shall infonn the provincial political head of education concerned and require the submission, within 90 days, of a plan to remedy the situation.
(7) A plan required by the Minister in terms of subsection (6) shall be 25 prepared by the provincial education department concerned, in consultation with the Department, and the Minister shall table the plan in Parliament with his or her comments within 21 days of receipt, if Parliament is then in session, or, if Parliament is in recess, within 21 days after the commence- ment of the first ensuing session of Parliament. 30
Functions of Council of Education Ministers in respect of adult education and training
25H. The Council of Education Ministers must- (a) promote a national adult education and training policy which takes full
account of the policies of the government; 35 (bJ share information and views on all aspects of adult education and
training in the Republic; and (c) co-ordinate action on matters of mutual interest to the national and
provincial governments.
Functions of Heads of Education Departments Committee in respect of 40 adult education and training
251. The Heads of Education Departments Committee established by section 41 J of the Further Education and Training Act, 2006 (Act No. 16 of 2006). must- (aJ facilitate Ihe development of a national adult education and training 45
system in accordance with the objectives and principles provided for in this Act;
(b) share information and views on national adult education and training; (c) co-ordinate administrative action on matters of mutual interest to the
Department and the provincial education departments; and 50 (d) advise the Department on any matter contemplated in sections 25B to
25G and 25J in respect of adult education and training or on any other matter relating to the proper functioning of the national adult education and training system.































12 No. 33853
Act No. 2S of 2010
GOVERNMENT GAZETTE. 7 DECEMBER 20 I0
HIGHER EDUCATION AND TRAINING l.AWS AMENDMENT ACT. 2010
Transitional arrangements regarding policy
25J. Any policy detennined in terms of the National Education FrameworkAct, 1996 (Act No. 27 of 1996), up to 31 December 2010 and applicable to Adult Basic Education and Training Centres remains in force and effect until amended or repealed by the Minister in terms of this Act.". 5
Substitntion of section 32 of Act 52 of 2000, as substituted by section 29 of Act 50 of 2002
6. The following section is hereby substituted for section 32 of the Adult Basic Education and Training Act, 2000:
"Quality assurance of public and private centres 10
32. (I) Umalusi must, in accordance with the General and Further Education and Training Quality Assurance Act. 2001 (Act No. 58 of 2001), read with the National Qualifications Framework Act, 2008 (Act No. 67 of 2008). perform the functions relating to a Quality Council in respect of all qualifications offered by a public or private centre. 15
(2) For the purposes of this section, "Umalusi" means the council established by section 4 of the General and Further Education and Training Quality Assurance Act, 2001 (Act No. 58 of 200 I).".
Substitution of section 44 of Act 52 of 2000
7. The following section is hereby substituted for section 44 of the Adult Basic 20 Education and Training Act, 2000:
"Short title
44. This Act is called the Adult [Basic] Education and Training Act, 2000.".
Substitution of certain expressions in Act 52 of 2000 25
8. The Adult Basic Education and Training Act, 2000, is hereby amended by- (aJ the substitution for the expression "NABABET", wherever it occurs, of the
expression "NABAET"; (hJ the substitution for the expression "adult basic education and training",
wherever it occurs, of the expression "adult education and training"; and 30 (c) the substitution for the expression "provincial department of education",
wherever it occurs, of the expression "provincial education department".
Amendment of section 1 of Act 16 of 2006
9. Section I of the Further Education and Training Colleges Act, 2006, is hereby amended by- 35
(aJ the substitution for paragraph (hJ of the definition of "college" of the following paragraph:
"(hJa college under the authority of a government department other than the Department [of Education];";
(hJ the substitution for the definition of "Department" of the following 40 definition:
" 'Department' means the [government department responsible for education at national level] Department of Higher Education and Training;"; and
(eJ the substitution for the definition of "Minister" of the following definition: 45 .. 'Minister' means the Minister of Higher Education and Training;".































STAATSKOERANT. 7 DESEMBER 2010
HIGHER EDUCAlION AND TRAINING LAWS AMENDMENT ACT. 2010
Insertion of Chapter 6A in Act 16 of 2006
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10. The following Chapter is hereby inserted in the Further Education and Training Colleges Act, 2006, after Chapter 6:
"CHAPTER 6A
Objectives of Chapter
41A. The objectives of this Chapter are to provide for-
5
(a) the determination of national education policy by the Minister in accordance with certain principles;
(h) the consultations to be undertaken prior to the determination of policy, and the establishment of certain bodies for the purposes of consulta- 10 tion;
(c) the publication and implementation of national education policy; and (d) the monitoring and evaluation of education and training within the
scope of qualifications offered by a further education and training college. 15
Determination of national education policy for colleges
41H, (1) The Minister shall determine national education policy in accordance with the provisions of the Constitution and this Act.
(2) In determining national policy for education and training at colleges, the Minister shall take into account the competence of the provincial 20 legislatures in terms of section 146 of the Constitution, and the relevant provisions of any provincial law relating to education.
(3) Subject to the Constitution, national policy shall prevail over the whole or a part of any provincial policy on further education and training if there is a conflict between the national and provincial policies. 25
(4) Subject to the provisions of subsections (I) to (3), the Minister shall determine national policy for the planning, provision, financing, co- ordination, management, governance, programmes, monitoring, evaluation and well-being of the further education and training system and, without derogating from the generality of this section, may determine national 30 policy for- (a) further education and training management information systems,
including the provision of data in accordance with the international obligations of the government;
(b) the organisation, management and governance of the national further 35 education and training system;
(c) facilities, finance and development plans for further education and training, including advice to the Financial and Fiscal Commission;
(d) innovation, research and development in further education and training; 40
(e) the organisation, management, governance, funding, establishment and registration of colleges;
(j) curriculum frameworks, core syllabuses and further education and training programmes, learning standards, examinations and the certification of qualifications, subject to the provisions of any law 45 establishing a national qualifications framework or a certifying or accrediting body;
(g) co-operation between the Department and- (i) other state departments;
(ii) provincial education departments; 50 (iii) local government; and (iv) non-government organisations,
with a view to advancing the national education policy contemplated in this section and the Reconstruction and Development Programme;
(h) international relations in the field of further education and training; 55































14 No. 33853
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(i)
GOVERNMENT GAZETTE, 7 DECEMBER 2010
HIGHER EDUCAnON AND TRAINING LAWS AMENDMENT ACT, 2010
executive functions required to implement national education policy I determined in terms of this Chapter, including the implementation of measures to address past discriminatory practices,
Directive principles of national education policy
41C. The policy contemplated in section 41B shall be directed toward- 5 (a) the advancement and protection of the fundamental rights of every
person guaranteed in terms of Chapter 2 of the Constitution and in tcrms of international conventions approved by Parliament. in particular the right-
(i) of every person to be protected against unfair discrimination 10 within or by the Department or colleges on any ground whatsoever;
(ii) of every person to receive further education and to have training and equal access to public colleges;
(iii) of a parent or guardian in respect of the further education and 15 training of his or her child or ward;
(iv) of every child in respect of his or her further education and training;
(v) of every student to be instructed in the language of his or her choice where this is reasonably practicable; 20
(vi) of every person to the freedoms of conscience. religion. thought. belief. opinion. expression and association at col- leges;
(vii) of every person to establish. where practicable, colleges based on a common language. culture or religion, as long as there is 25 no discrimination on the ground of race; and
(viii) of every person to use the language and participate in the cultural life of his or her choice at colleges;
Ib) enabling the further education and training system to contributc to the full personal development of each student, and to the moral, social. 30 cultural, political and economic development of the nation at large, including the advancement of democracy, human rights and the peaceful resolution of disputes;
Ie) achieving equitable education opportunities and the redress of past inequality in further education and training provision, including the 35 promotion of gender equality and the advancement of the status of women;
Id) endeavouring to ensure that no person, as a result of physical disability, is denied the opportunity to receive further education and training to the maximum of his or her ability; 40
Ie) providing opportunities for and encouraging lifelong learning; If) achieving an integrated approach to adult education and training
within a national qualifications framework; (g) cultivating skills, disciplines and capacities necessary for reconstruc-
tion and development; 45 Ih) recognising the aptitudes, abililies, interests, prior knowledge and
experience of students; (i) encouraging independent and critical thought; (j) promoting a culture of respect for teaching and learning at colleges; (k) promoting enquiry, research and the advancement of knowledge; 50 (1) enhancing the quality of further education and training and educa-
tional innovation- (i) through systematic research and development on further
education and training; (ii) through monitoring and evaluating the further education and 55
training provision and perfonnance; and (iii) through the training of educators and further education and
training managers;































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(m) ensuring broad public participation in thc development uf further education and training policy and the representation of stakeholders in the governance of all aspects of the further education and training system;
(n) achieving the cost-effective use of further education and training 5 resources and sustainable implementation of further educatiun and training services;
(0) achieving close co-operation between the national and provincial governments on matters relating to further education and training, including the development of capacity in the Department, and the 10 effecti ve management of the national further education and training system.
Consultation on national education policy
41D. (I) Policy contemplated in section 41B shall be determined by the Minister after consultation with the Council of Education Ministers 15 established by section 41 H.
(2) The policy contemplated in section 41B shall be determincd by the Minister with the concurrence of the Minister of Finance in so far as it involves expenditure from the State Revenue Fund.
(3) Nothing in this section shall limit the discretion of the Minister to 20 consult whomsoever he or she wishes for advice on the detennination of national education policy.
Consultation on legislation
41E. Legislation on a mauer contemplated in section 41B shall be introduced in Parliament or, in the ca~e of regulations, be published in the 25 Gazette only after consultation between the Minister and- (a) the Council of Education Ministers established by scction 41H in
respect of further education and training at colleges; and (b) all the parties in the Education Labour Relations Council referred to in
section 54(3) in respect of any mauer falling within thc functions of 30 the bargaining council.
Publication of national education policy
41F. The Minister shall within 21 days after determining policy in terms of section 41 B (a) give notice of such determination in the Gazette and indicate in such 35
notice where the policy instrument issued with regard thereto may be obtained;
(b) table the policy instrument contemplated in paragraph (a) in Parlia- ment within 21 days after the notice has appeared in the Gazette, if Parliament is then in session, or. if Parliament is in recess, within 21 40 days after the commencement of the first ensuing session of Parliament.
Monitoring and evaluation of further education and training
41G. (I) The Minister shall direct that the standards of further education and training provision, delivery and perfonnance throughout the Republic 45 be monitored and evaluated by the Department annually or at other specified intervals, with the object of assessing progress in complying with the provisions of the Constitution and with national further education and training policy. particularly as determined in tenns of section 41 B.
(2) Each directive issued in terms of subsection (1) shall comply with the 50 provisions of any law establishing a national qualifications framework. and shall be formulated after consultation with the Council of Education Ministers referred to in section 41D( 1).
(3) The Department shall undertake the monitoring and evaluation contemplated in subsection (I) by analysis of data gathered by means of 55


































16 No. 33853
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GOVERNMENT GAZETTE. 7 DECEMBER 2010
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further education and training management information systems, or by other suitable means, in co-operation with provincial education depart- ments.
(4) The Department shall fulfil its responsibilities in terms of subsections (1) to (3) in a reasonable manner, with a view to enhancing professional 5 capacities in monitoring and evaluation throughout the national educatiun system, and assisting the competent authorities by all practical means within the limits of available public resources to raise the standards of further education and training provision and performance.
(5) The Department shall prepare and publish a report on the results of 10 each investigation undertaken in terms of subsection (3) after providing an opportunity for the provincial education department concerned to com- ment, which comment shall be published with the report.
(6) If a report prepared in terms of subsection (5) indicates that the standards of further education and training provision, delivery and 15 performance in a province do not comply with the Constitution or with the policy determined in terms of section 41B, the Minister shall inform the provincial political head of education concerned and require the submis- sion, within 90 days, of a plan to remedy the situation.
(7) A plan required by the Minister in terms of subsection (6) shall be 20 prepared by the provincial education department concerned, in consultation with the Department, and the Minister shall table the plan in Parliament with his or her comments within 21 days of receipt, if Parliament is then in session, or, if Parliament is in recess, within 21 days after the commencement of the first ensuing session of Parliament. 25
Council of Education Ministers
41H. (1) There is hereby established a council, called the Council of Education Ministers, consisting of- (a) the Minister, who is the chairperson; and (b) every provincial political head of education. 30
(2) The Director-General shall attend meetings of the Council of Education Ministers in order to report on the proceedings of the Heads of Education Departments Committee established by section 411, and to advise on any other matter relating to the responsibilities of the Department. 35
(3) The chairpersons of the Portfolio Committee on Higher Education and Training of the National Assembly and of the Select Committee on Education and Recreation of the National Council of Provinces may attend meetings of the Council of Education Ministers.
(4) The functions of the Council of Education Ministers shall be to-- 40 (a) promote national further education and training which take full
account of the policies of the government; (b) share information and views on all aspects of further education and
training in the Republic; and (c) co-ordinate action on matters of mutual interest to the national and 45
provincial governments. (5) The Council of Education Ministers may draw up such rules
regarding the convening of its meetings, the frequency of its meetings, the procedure at its meetings, including the quorum for its meetings, and any other administrative or procedural matter it may deem net:essary or 50 expedient for the proper performance of its functions or the exercise of its powers.
(6) The proceedings of the Council of Education Ministers shall not be invalid merely by virtue of the fact that there is a vacancy in the Council.
Heads of Education Departments Committee
411. (I) There is hereby established a committee, called the Heads of Education Departments Committee (in this section referred to as the Committee), consisting of- (a) the Director-General, who shall be the chairperson;
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(b) the Deputy Directors-General of the Department; and (c) the Heads of the provincial education departments.
(2) The functions of the Committee shall be to- (a) facilitate the development of a national further education and training
system in accordance with the objectives and principles provided for 5 in this Act;
(h) share information and views on national further education and training;
(c) co-ordinate administrative action on matters of mutual interest to the higher education and training departments; and 10
(d) advise the Department on any matter contemplated in sections 418 to 41 G and 41J in respect of further education and training, or on any other matter relating to the proper functioning of the national fU11her education and training system.
(3) The Committee may establish subcommittees to assist it in the 15 performance of its functions, and- (a) may appoint persons who are not members of the Committee to be
members of a subcommiuee: Provided that the organised teaching profession shall be invited to nominate representatives as members of each subcommittee; 20
(b) designate the chairperson of a subcommittee or direct that the chairperson be appointed by the subcommittee from among its members.
(4) (a) Meetings of the Committee shall be held at such times and places as the chairperson of the Committee may determine. 25
(b) The proceedings of the Committee shall not be invalid merely by virtue of the fact that there is a vacancy in the Committee.
(c) If the chairperson of the Committee is absent from a meeting of the Committee, one of the Deputy Directors-General designated for this purpose by the chairperson shall take the chair at that meeting. 30
(5) The Committee may draw up rules regarding the convening of meetings, the frequency of meetings, the procedure at meetings, including the quorum for meetings, and any other administrative ur procedural matter it may deem necessary or expedient for the proper performance of its functions or the exercise of its powers: Provided that the Committee shall 35 not hold less than fOUf meetings per year.
Allowances and remuneration of members of subcommittees
41J. A member of a subcommittee who is not in the full-time employment of the State may, in respect of the services rendered by that member in connection with the affairs of the subcommittee and from money 40 appropriated for that purpose by Parliament, be paid such travelling and subsistence and other allowances as the Minister, with the concurrence of the Minister of Finance. may determine.
Administrative functions of Council and Committee
41K. (I) The administrative functions of the Council established by 45 section 41H and the Comnnittee established by section 411 shall be perfonned by officials of the Department who are designated by the Director-General for that purpose.
(2) The Director-General shall in respect of the Council and the Committee contemplated in subsection (1) designate a Secretary under 50 whose direction the other officials shall perfonn their functions.
Consultative bodies
41L. (I) The Minister may by regulation establish a body to be known as the National Education and Training Council and other bodies to advise him or her on any matter contemplated in section 41 B or any matter 55 identified by the Minister.
18 No. 33853 GOVERNMENT GAZETTE, 7 DECEMBER 2010
Act No. 25 of 2010 HIGHER EDUCATION AND TRAINING LAWS AMENDMENT ACT, 2010
(2) T h e composi t ion , qualifications for member sh ip , dut ies , powers and functions of a body establ ished in te rms of subsect ion (1), and the term of office of its member s , shall be as prescr ibed by regulat ion.
Transit ional a r r a n g e m e n t s regarding pol icy
4 1 M . A n y policy de te rmined in te rms of the Nat ional Educat ion Policy 5 Act, 1996 (Act N o . 27 of 1996), up to 31 D e c e m b e r 2010 and appl icable to Further Educat ion and Training Col leges remains in force and effect until a m e n d e d or repealed by the Minis te r in terms of this A c t . " .
A m e n d m e n t of sect ion 42 of Act 16 of 2006
1 1 . Sect ion 42 of the Fur ther Educat ion and Training Col leges Act , 2006 , is hereby 10 a m e n d e d by the substi tut ion in subsect ion (1) for the words preceding paragraph (a) of the fol lowing words :
"Subjec t to the norms and s tandards set by the Minis te r in terms of [section 3 of the Nat ional Educat ion Pol icy Act , 1996 (Act 27 of 1996) , a n d by S A Q A , ] section 4 I B , the Director-General m u s t — " . 15
A m e n d m e n t of sect ion 4 3 of Act 16 of 2 0 0 6
12 . Sect ion 43 of the Further Educat ion and Training Col leges Act , 2006 , is hereby a m e n d e d b y —
(a) the substi tut ion for subsect ion (1) of the fol lowing subsect ion: " (1) T h e Minis ter m a y prescr ibe m i n i m u m n o rms and s tandards for further 2 0
educat ion and training p rog rammes , leading to qualifications within the sub-f ramework for general and further educat ion and training con templa ted in section 1(a) read wi th section \2>{\)(h) of the Nat ional Qualifications F ramework Act , that are offered at co l l eges . " ; and
(b) the addit ion of the fol lowing subsect ion: 25 "(5) A col lege m a y apply to the Qual i ty Counci l for Trades and
Occupat ions establ ished in te rms of section 26G of the Skil ls Deve lopmen t Act, 1998 (Act N o . 97 of 1998), for accredi tat ion as a Skil ls Deve lopmen t Provider in order to offer qualifications registered on the sub-f ramework for Trades and Occupa t ions con templa ted in section 1(c) of the Nat ional Qualifications F ramework Act , 2008 (Act No . 67 of 2008) ." .
Short title
1 3 . This Act is the Higher Educat ion and Training L a w s A m e n d m e n t Act , 2010.
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