Higher Education Amendment Act [No. 63 of 2002]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 450 Cape Town 19 December 2002 No. 24187
THE PRESIDENCY No. 1598 19 December 2002 It is hereby notified that the President has
assented to the following Act, which is hereby published for general information:–
No. 63 of 2002: Higher Education Amendment Act, 2002.


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Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT. 2002
GENERAL EXPLANATORY NOTE:
I ] 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 9 December 2002.)
ACT To amend the Higher Education Act, 1997, so as to provide for consequential matters arising out of declarations and mergers of public higher education institutions in relation to labour and student matters; to provide for changes in the size of councils and institutional forums; to provide for the appointment of an administrator to take over the functions of a council which is deemed to have resigned; to make new provision for the Minister’s authority to make regulations; and to make certain textual alterations; and to provide for matters connected therewith.
E IT ENACTED by the Parliament of the Republic of South Africa, as B ~ ~ ~ ~ ~ ~ ~ : - Amendment of section 1 of Act 101 of 1997
1. Section 1 of the Higher Education Act, 1997 (Act No. 101 of 1997) (hereinafter referred to as the principal Act), is hereby amended- 5
by the substitution for the definition of “higher education institution” of the following definition: “higher education institution” means any institution that provides higher education on a full-time, part-time or distance basis and which is- (a) merged, established or deemed to be established as a public higher 10
(b) declared as a public higher education institution under this Act: or ( c ) registered or [conditionally] provisionally registered as a private higher
by the insertion after the definition of “higher education quality committee” 15 of the following definition: “incorporation of a subdivision” means the process of incorporation as contemplated in section 21( 1)(6) or 24 in terms of which an identified I
education institution under this Act;
education institution under this Act;”;
subdivision, faculty, school, department, section or component of a public higher education institution or education institution becomes part of another public higher education institution while the latter institution’s legal personality as contemplated in section 20(4) is not affected by the incorporation, and “an incorporated subdivision” has a similar meaning;”; and by the insertion after the definition of “local juristic person” of the following definition:
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Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT, 2002
“merger” means the process contemplated in section 23 in terms of which two or more public higher education institutions lose their status as juri tic persons on the date that they are merged into a new juristic person as contemplated in section 20(4).”.
Amendment of section 8 of Act 101 of 1997 5
2. Section 8 of the principal Act is hereby amended by the substitution, in subsection
“(b) national organisations representing students, academic employees, employ- ees other than academic employees, university principals, technikon principals. [principals of colleges of education,] principals of higher 10 education colleges, principals of private higher education institutions, the further education sector, the distance education sector, educators. organised business and organised labour;”.
(3 ) , for paragraph (6) of the following paragraph:
Amendment of section 20 of Act 101 of 1997
3. Section 20 of the principal Act is hereby amended by the substitution for subsection 15
“(4) Every public higher education institution established, merged. deemed to have been established or declared as a public higher education institution under this Act, is a juristic person.”.
(4) of the following subsection:
Amendment of section 21 of Act 01 of 1997 20
4. Section 21 of the principal Act is hereby amended- (a) by the substitution in subsection (1) for paragraph (b) of the following
paragraph: “(b) [a] an incorporated subdivision of a university, technikon or college.”;
(b) by the substitution in subsection ( 3 ) for paragraph (b)(i) of the following 2S subparagraph:
“(i) published a notice in one or more [daily] newspapers circulating in the area in which the education institution provides higher education, containing the reasons for the declaration referred to in subsection (l), in all the official languages used as media of 30 instruction by the education institution concerned;”; and
(c) by the substitution for subsection (5) of the following subsections: “ ( 5 ) (a) Notwithstanding sections 197 and 197A of the Labour
Relations Act, 1995 (Act No. 66 of 1995), the contracts of employment between the ducation institution (herein referred to as -‘the old employer’) and its employees are transferred automatically to the declared higher education institution (herein referred to as ‘the new employer’) as from the date of the declaration contemplated in subsection (l), but any redeployment of an employee as a consequence of the declaration is subject to applicable labour legislation.
(b) If an education institution is declared a higher education institution as contemplated in subsection (l), all the rights and obligations between the old employer and each employee at the time of the declaration continue in force as if they were rights and obligations between the new employer and each employee and anything done before the declaration by or in relation to the old employer is deemed to have been done by or in relation to the new employer.
(c) A declaration referred to in subsection (1) does not interrupt the employee’s continuity of employment.
(d) The provisions of this subsection do not affect the liability of any person to be disciplined for, prosecuted for, convicted of, and sentenced for any offence or misconduct.
( e ) An employee or a student is subject to the disciplinary codes and rules applicable to the higher education institution as from the date of the declaration contemplated in subsection (I) , but if any enquiry into
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incapacity or any proceedings in respect of a charge of misconduct had been instituted or commenced against any employee or student before the date of the declaration, such enquiry or proceedings continue in terms of the codes and rules applicable to the education institution immediately prior to the declaration.
(6) Notwithstanding subsection (5) (a) , the old employer may under- take rationalisation of its workforce according to operational require- ments in accordance with section 189 of the Labour Relations Act. 1995 (Act No. 66 of 1995), prior to the date of the declaration contemplated in subsection (1).
(7) If an education institution is declared a higher education institution as contemplated in subsection ( I ) , the higher education institution-
(a) continues with all academic programmes offered by the education institution under the rules applicable to the educa- tion institution immediately before the date of the declaration. until such programmes and rules are amended or restructured by its council; and
(b) awards a degree, diploma or certificate to a student who qualifies before or after the date of the declaration in its own name, but if the student started the course before the date of the declaration, such degree. diploma or certificate must also reflect the name of the education institution as it was before the declaration.”.
Amendment of section 23 of Act 101 of 1997
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5. Section 23 of the principal Act is hereby amended- 25 ( a ) by the substitution in subsection (2) for paragraph (b) of the following
“(b) publish a notice giving the reasons for the proposed merger in [at least] one [national and one regional newspaper] or more newspapers circulating in the area in which the public higher education institutions 30 concerned are situated;”;
paragraph:
(b) by the deletion of subsection (2) of paragraph ( e ) ; (c ) by the insertion after subsection (2) of the following subsections:
“(2A) Notwithstanding sections 197 and 197A of the Labour Relations Act. 1995 (Act No. 66 of 1995), the contracts of employment between the public higher education institution (herein referred to as ‘the old employer’) and its employees are transferred automatically to the merged single public higher education institution (herein referred to as ‘the new employer’) as from the date of the merger contemplated in subsection (l), but any redeployment of an employee as a consequence of the merger is subject to applicable labour legislation.
(2B) If two or more public higher education institutions are merged into a single public higher education institution as contemplated in subsection (l), all the rights and obligations between the old employers and each employee at the time of the merger continue in force as if they were rights and obligations between the new employer and each employee and anything done before the merger by or in relation to the old employers is considered to have been done by or in relation to the new employer.
(2C) A merger referred to in subsection (1) does not interrupt the employee’s continuity of employment.
(2D) The provisions of subsections (2A) to (2F) do not affect the liability of any person to be disciplined for, prosecuted for. convicted of and sentenced for any offence or misconduct.
(2E) An employee or a student is subject to the disciplinary codes and rules applicable to the new single public higher education institution as from the date of the merger contemplated in subsection (1). but if any enquiry into incapacity or any proceedings in respect of a charge of
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misconduct had been instituted or commenced against any employee or student before the date of the merger, such enquiry or proceedings continue in tenns of the codes and rules applicable to the relevant public higher education institution immediately prior to the merger.
(2F) Until the new single public higher education institution has made disciplinary codes or rules, the disciplinary codes and rules of the respective old public higher education institutions are applicable to the respective employees and students.
(2G) Notwithstanding subsection (2A), the old employer may undertake rationalisation of its workforce according to operational requirements in accordance with section 189 of the Labour Relations Act, 1995 (Act No. 66 of 1995), prior to the date of the merger contemplated in subsection (1).
(2H) If two or more public higher education institutions are merged into a single public higher education institution as contemplated in subsection (1 ), the new single public higher education institution-
(i) continues with all academic programmes offered by the old higher education institutions under the rules applicable to the respective higher education institutions immediately before the date of the merger, until such programmes and rules are amended or restructured by the new council; and
(ii) awards a degree, diploma or certificate to a student who qualifies before or after the date of the merger in its own name. but such degree, diploma or certificate must also reflect the name of the education institution at which the student was registered imme- diately before the date of the merger if the student was so registered.“;
( d ) by the substitution for subsection (3) of the following subsection: “(3) (a) The single public higher education i stitution contemplated in
subsection ( 1 ) is deemed to be a public higher education institution
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30 established under [this Act] section20.
- (b ) The Minister must, after consultation with the councils of the 1
public higher education institutions that are to be merged, determine by notice Contemplated in section 23( 1)-
( i ) the date of establishment of the institution; (ii) the type and name of the institution: and
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(iii) the physical location and official address of the institution.”; ( e ) by the substitution for paragraph (b) of subsection (7) of the following
paragraph: “ ( b ) [four other members] a minimum of six members and a maximum of 40
eight members.”; (f! by the substitution for subsection (8) of the following subsection:
(8) The [four) members contemplated in subsection (7)(b)- (a) must be appointed by the Minister from nominations received from
(b) may not include any member of staff, or student, from the public the public h gher education institutions concerned; and 4s
higher education institutions concerned.”; and (g ) by the insertion after subsection (1 1 ) of the foliowing subsections:
“(12) Upon a written request by the Minister and within 60 days thereof, each of the public higher education institutions referred to in subsection (1) must provide the Minister with no fewer than four
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nominations for appointment of the members as contemplated in subsection @)(a).
(13) Notwithstanding subsection (8), if any of the public higher education institutions fail to provide the nominations in terms of 55 subsection (12), the Minister may appoint the members referred to in subsection (7)(6) from the nominations received from the other institution concerned. or at his or her discretion.”.
Substitution of section 24 of Act 101 of 1997
6. The following section is hereby substituted for section 24 of the principal Act: 60
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“[Merger] Incorporation of subdivisions of public higher education institutions
24. (1) The Minister may, after consulting the CHE and by notice in the Gazette, [merge] incorporate a subdivision of a public higher education institution with another public higher education institution. 5
( 2 ) The assets, liabilities, rights and obligations of the subdivisions concerned devolve upon the public higher education institution with which the subdivision has [merged] been incorporated 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 10 such councils.
( 3 ) Sections 22(2 ) to (6) and 23(2) , with the changes required by the context, apply to [a merger] an incorporation referred to in subsection (l).”.
Amendment of section 27 of Act 101 of 1997 15
7. Section 27 of the principal Act is hereby amended by the substitution for
“(4) The council of a public higher education institution must consist of not subsections (4) and (5) of the following subsections, respectively:
more than 30 members, made up of- (a) the principal: 70 (b) the vice-principal or vice-principals; (c) not more than five persons appointed by the Minister; (d) a member or members of the senate elected by the senate; (e) an academic employee or academic employees of the public higher
(f) a student or students of the public higher education institution. elected by
(8) an employee or employees other than academic employees. elected by
( h ) such additional persons as may be determined by the institutional statute. 30
education institution, elected by such employees; 25
the students’ representative council;
such employees of the public higher education institution: and
(5) The number of persons contemplated in subsection (4)(b), (d), (e l . ( f , (g ) and ( 1 2 ) and the manner in which they are elected, where applicable. must be determined by the institutional statute [or an Act of Parliament].”.
Amendment of section 31 of Act 101 of 1997
8. Section 3 1 of the principal Act is hereby amended by the substitution in subsection 35
“(2) The institutional forum of a public higher education institution must consist (2) for the words preceding paragraph (a) of the following words:
of a representative or representatives of-”.
Amendment of section 40 of Act 101 of 1997
9. Section 40 of the principal Act is hereby amended by the substitution in subsection
“(6) A resolution contemplated in paragraph (a) must be approved by the Minister if the sum of the borrowing it authorises plus the borrowing previously approved but not yet taken up, plus the institution’s short-term and long-term debt at that date exceeds-
(i) such amount as the Minister has determined for such institution; or
(ii) in the absence of such determination, five per cent of the average annual income of the public higher education institution during the two years immediately preceding the date of such resolu- tion.”.
( 2 ) for paragraph (b) of the following paragraph:
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Substitution of section 41 of Act 101 of 1997
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10. The following section is hereby substituted for section 41 of the principal Act:
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“Records to be kept and information to be furnished by council
41. (1) The council of a public higher education institution must in the manner [determined] prescribed by the Minister- (a) keep records of all its proceedings; and (b) keep complete accounting records of all assets, liabilities, income and 5
expenses and any other financial transactions of the public higher education institution as a whole, of its substructures and of other bodies operating under its auspices.
(2) The council of a public higher education institution must, in respect of the preceding year and by adate or dates and in the manner 10 [determined] prescribed by the Minister, provide the Minister with[- (a) a report on the overall governance of the public higher education
(b) a duly audited statement of income and expenditure; and (c) a balance sheet and cash flow statement. 15
(3) The council of a public higher education institution must provide the Minister with] such information, in such format, as the Minister [may reasonably require] prescribes .”.
institution;
Amendment of section 41A of Act 101 of 1997
11. Section 41A of the principal Act is hereby amended by the insertion after 20
“(3) Notwithstanding subsection (l), if a council is deemed to have resigned as contemplated in section 27(8), the Minister must appoint a person for a period of not longer than six months as an administrator on behalf of the institution t e (a) take over the authority of the council; 25 (6) perform the council’s functions relating to governance; and (c) ensure that a new council is constituted.”.
subsection (2) of the following subsection:
Amendment of section 65A of Act 101 of 1997
12. Section 65A of the principal Act is hereby amended by the substitution for subsection (1) of th following subsecti n: 30
“( 1 ) The seat of a public higher education institution is the physical location of the institution, as contemplated in sections 20(3)(c), [and] 21(2)(c) and 23(3)(c), where an institution cames out its teaching activities and must be defined in the institutional statute.”.
Amendment of section 69 of Act 101 of 1997 35
13. Section 69 of the principal Act is hereby amended by the substitution for section 69 of the following section:
“Regulations
69. The Minister may make regulations consistent with this Act on- (a) any matter which the Minister is empowered or required to prescribe 40
(b) the maximum remuneration of council members; (c) the annual reporting framework; (dl any policy matter as contemplated in section 3; and [@)I@) any other matter [in respect of which the Minister deems] which 45
by regulation in terms of this Act;
it necessary or expedient to prescribe in order to achieve the objects of this Act.”.
Transitional arrangements
14. (1) If the institutional statute of a public higher education institution provides for a council of more than 30 members the council must amend the institutional statute to 50
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provide for a council of not more than 30 members, and must do so within 12 months of the commencement of this Act.
(2) If a council fails to comply with subsection (1) the Minister must amend the institutional statute of that institution, after consultation with its council, to provide for a council of not more than 30 members, and must do so within 24 months of the 5 commencement of this Act.
(3) Notwithstanding any other provision, the terms of office of members of any council which has a membership of more than 30 terminate on a date to be determined by the Minister by notice in the Gazette.
(4) The date contemplated in subsection (3) must be- 10 (a) at least three months after the promulgation of provisions in terms of
( 6 ) not later than 30 months after the date of commencement of this Act. subsection (1) or subsection (2);
(5) The council of such institution must be reconstituted in terms of the amended provisions on the day after thedate contemplated in subsection (3). 15
Short title
15. This Act is called the Higher Education Amendment Act, 2002.