Higher Education Amendment Act

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 general information:– published for No. 63 of 2002: Higher Education Amendment Act, 2002. AIDS HELPLINE: 0800-123-22 Prevention is the cure 7 No. 21187 GOVERNMENT GAZETTE. 19 DECEMBER 2002 Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT. 2002 GENERAL EXPLANATORY NOTE: I ] Words in bold type in square brackets indicate existing enactments. omissions from Words underlined with existing enactments. a solid line indicate insertions in (English text signed by the President.) (Assented to 9 December 2002.) ACT 1997, so as to provide for consequential of public higher education To amend the Higher Education Act, matters arising out of declarations and mergers institutions in relation to labour and student matters; to provide size of councils and institutional forums; to provide for the appointment 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. for changes in the of an B ~ E IT ENACTED by ~ ~ the Parliament ~ ~ of the Republic ~ ~ of South Africa, as - : Amendment of section 1 of Act 101 of 1997

1. Section 1 of the Higher Education Act, 1997 as referred to (Act No. 101 of 1997) (hereinafter Act), is hereby amended- principal the 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- or deemed to ( a ) merged, established be established as a public higher 10 5 education institution under this Act; ( b ) declared as a public higher education institution under ( c ) registered or [conditionally] provisionally registered as a private higher this Act: or education institution under this Act;”; of incorporation as the process in terms of which an identified I by the insertion after the definition of “higher education quality committee” 15 of the following definition: “incorporation of a subdivision” means contemplated in section 21( 1)(6) or 24 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 the personality as incorporation, and “an incorporated subdivision” has a similar meaning;”; and by the insertion after the definition of “local juristic person” of the following definition: 20(4) is not affected by contemplated in section 25 20 4 No. 23187 GAZETTE, GOVERNMENT

19 DECEMBER 1,001- 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 on the date that they are merged into a new section 20(4).”. juristic persons juristic person as contemplated in Amendment of section 8 of Act 101 of 1997

2. Section 8 of the principal Act is hereby amended by the substitution, in subsection (3), for paragraph (6) of the following paragraph: “(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 education colleges, principals of private higher education institutions, the further education sector, the distance education sector, educators. organised business and organised labour;”. Amendment of section 20 of Act 101 of 1997 5 10

3. Section 20 of the principal Act is hereby amended by the substitution for subsection 15 (4) of the following subsection: “(4) Every public higher education institution established, merged. deemed to have been established or declared as a public higher education institution under Act, is a juristic person.”. this Amendment of section 21 of Act 101 of 1997

4. Section 21 of the principal Act is hereby amended- ( a ) by the substitution paragraph: “(b) [a] an incorporated subdivision of a university, technikon or college.”; in subsection ( 3 ) for paragraph (b)(i) of the following in subsection (1) for paragraph (b) of the following ( b ) by the substitution subparagraph: 20 2S “(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 education institution (herein referred to as -‘the old employer’) and its employees are transferred automatically to the ‘the new declared higher education institution (herein referred to as 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. 40 ( b ) If an education institution is declared a higher education institution 35 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 45 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 50 rules applicable to the higher education institution as from the date of the declaration contemplated in subsection (I), but if any enquiry into 55 6 No. 23187 GAZETTE. GOVERNMENT 19 DECEMBER 2002 Act No. 63.2002 HIGHER EDUCATION AMENDMENT ACT. 2002 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. certificate must also reflect the name of the education institution as it was before the declaration.”. diploma or Amendment of section 23 of Act 101 of 1997

5. Section 23 of the principal Act is hereby amended- ( a ) by the substitution in subsection (2) for paragraph (b) of the following paragraph: “ ( 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 concerned are situated;”; ( 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 to as merged single public higher education institution (herein referred ‘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 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. obligations between the new employer and each 5 10 15 20 25 30 35 30 45 (2C) A merger referred to in subsection (1) does not interrupt the 50 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 in respect of a charge of enquiry into incapacity or any proceedings 55

8 No. 231x7 GOVERNMENT G A Z E R E . 19 DECEMBER 2002 Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT. 2002 misconduct had been instituted or commenced against any employee or or proceedings of the merger, such enquiry student before the date 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 5 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 requirements in accordance with section 189 of the Labour Relations Act, 1995 (Act No. contemplated in subsection (1). of its workforce according to operational 66 of 1995), prior to the date of the merger (2H) If two or more public higher education institutions are merged into a single public higher education institution as contemplated subsection (1 ), the new single public higher education institution- in (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 registered.“; if the student was so ( d ) by the substitution for subsection (3) of the following subsection: “(3) ( a ) The single public higher education institution contemplated in subsection ( 1 ) is deemed to be established under [this Act] section20. - with the councils of the 1 public higher education institutions that are to be merged, determine by notice Contemplated in section 23( 1)- ( b ) The Minister must, after consultation a public higher education institution (i) (ii) (iii) the date of establishment of the institution; the type and name of the institution: and the physical location and official address of the institution.”; 30 35 ( 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 the public higher education institutions concerned; and ( b ) may not include any member of staff, or student, from the public 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 in thereof, each of the public higher education institutions referred to subsection (1) must provide the Minister with no fewer than four nominations for appointment of the members subsection @)(a). as contemplated in (13) Notwithstanding subsection fail to provide the nominations education institutions subsection (12), the Minister may appoint the members referred to subsection (7)(6) from the nominations received from the other institution concerned. or at his or her discretion.”. in (8), if any of the public higher in terms of 4s 50 55 Substitution of section 24 of Act 101 of 1997

6. The following section is hereby substituted for section 24 of the principal Act: 60 I O No. 24187 GAZETTE. GOVERNMENT I9 DECEMBER 2007 Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT. 2002 “[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 public higher institution. education another 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 to in subsection context, apply to [a merger] an incorporation referred (l).”. Amendment of section 27 of Act 101 of 1997

7. Section 27 of the principal Act is hereby amended by the substitution for subsections (4) and (5) of the following subsections, respectively: “(4) The council of a public higher education institution must consist of not more than 30 members, made up of- (a) the principal: ( 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 employees; by such elected education institution, a student or students of the public higher education institution. elected by the students’ representative council; (f) ( 8 ) an employee or employees other than academic employees. elected by such employees of the public higher education institution: and 15 70 25 ( h ) such additional persons as may be determined by the institutional statute. 30 (5) The number of persons contemplated in subsection (4)(b), (d), (el. ( f , ( g ) and (12) 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) for the words preceding paragraph (a) of the following words: “(2) The institutional forum of a public higher education institution must consist 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 40 ( 2 ) for paragraph (b) of the following paragraph: “ ( 6 ) A resolution contemplated in paragraph by the Minister if the sum of the borrowing the borrowing previously approved but not yet taken up, plus the institution’s short-term and long-term debt at that date exceeds- ( a ) must be approved it authorises plus (i) (ii) such amount as the Minister has determined for such institution; or in the absence of such determination, five per cent of the average annual income of the public higher education institution during the date of such resolu- the two years immediately preceding tion.”. - Substitution of section 41 of Act 101 of 1997

10. The following section is hereby substituted for section 41 of the principal Act: I?. No. 24187 GAZETTE. GOVERNMENT

19 DECEMBER 2002 Act No. 63,2002 HIGHER EDUCATION AMENDMENT ACT. 2002 “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 bodies operating under its auspices. its substructures and of other (2) The council of a public higher education institution must, in respect of the preceding year and by a date [determined] prescribed by the Minister, provide the Minister with[- (a) a report on the overall governance of the public higher education or dates and in the manner institution; (b) a duly audited statement of income and expenditure; and (c) a balance sheet and cash flow statement. (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 .”. 10 15 Amendment of section 41A of Act 101 of 1997

11. Section 41A of the principal Act is hereby amended subsection (2) of the following subsection: 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 ( a ) take over the authority of the council; (6) perform the council’s functions relating to governance; and (c) ensure that a new council is constituted.”. e 25 Amendment of section 65A of Act 101 of 1997 subsection: following

12. Section 65A of the principal Act is hereby amended the subsection (1) of 30 by the substitution for “( 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 by regulation in terms of this Act; (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 necessary or expedient to prescribe it objects of this Act.”. in order to achieve the 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 I4 No. 24187 GAZETTE. GOVERNMENT 19 DECEMBER 7002 Act No. 63, 2002 HIGHER EDUCATION AMENDMENT ACT, 2002 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 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. The date contemplated in subsection (3) must be- (4) ( a ) at least three months after the promulgation of provisions in terms of subsection (1) or subsection (2); ( 6 ) not later than 30 months after the date of commencement of this Act. (5) The council of such institution must be reconstituted in subsection provisions on the day after the date contemplated in terms of the amended (3). Short title

15. This Act is called the Higher Education Amendment Act, 2002. 5 10 15