21784

Act No. 54 of 2000: Higher Education Amendment Act, 2000

Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 REPUBLIC OF SOUTH AFRICA GOVERNMENT GAZETTE STAATSKOERANT VAN DIE REPUBLIEK VAN SUID-AFRIKA Registered at the Post Office as a Newspaper As 'n Nuusblad by die Poskantoor Geregistreer CAPE TOWN. 22 NOVEMBER 2000 VOL 425 No. 21784 KAAPSTAD 22 NOVEMBER 2000 THE PRESIDENCY DIE PRESIDENSIE No. 1196. 22 November 2000 No. 1196. 22 November 2000 It is hereby notified that the President has assented to the Hierby word bekend gemaak dat die President sy goed- following Act which is hereby published for general keuring geheg het aan die onderstaande Wet wat hierby ter information  algemene inligting gepubliseer word - No. 54 of 2000  Higher Education Amendment Act 2000. No. 54 van 2000  Wysigingswet op Hoer Onderwys. 2000. Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 2 No. 2178.. GOVERNMENT GAZETTE 22 NOVEMBER 2000 Act 1"o. 54 2000 HIGHER EDUCATION AMENDMENT ACT. 2000 GENERAL EXPLANATORY NOTE  Words in bold type in square brackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments. English text signed by the President. Assented to 17 November 2000. ACT To amend the Higher Education Act 1997 so as to define certain expressions to extend the power of the Minister of Education with regard to the determination of higher education policy to provide that vacancies in the Council on Higher Education are filled for the unexpired term of office of the predecessor to provide for the nominations to fill vacancies in the Council to provide that a public higher education institution may not without the approval of its council and under certain circumstances without the concurrence of the Minister enter into a loan or overdraft agreement or develop infrastructure to make further provision for information a council has to furnish to the Minister to make further provision for the registration of private higher education institutions the requirements for their registration and the determination of applications for their registration to provide afresh for the change of the name of a public higher education institution and to make further provision for the repeal of laws and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa. as follows  Amendment of section 1 of Act 101 of 1997 I. Section 1 of the Higher Education Act 1997 hereinafter referred to as the principal Act is hereby amended 5 a by the insertion after the definition of "financial year" of the following definition  'forei n uristic erson' means a erson- i registered or established as a juristic person in terms of a law of a foreign country and 10 ii recognised or registered as an external company in terms of the Companies Act 1973 Act No. 61of1973 " h by the insertion after the definition of "institutional statute" of the following definition  " 'local juristic person' means a person established as a juristic person in 15 South Africa in terms of the Companies Act 1973 Act No. 61 of 1973 " and c by the insertion after the definition of "this Act" of the following definition  Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 4 No. 21784 GOVERNMENT GAZETTE 22 NOVEMBER 2000 Act No. 54 2000 HIGHER EDUCATION AMENDMENT ACT 2000 " 'to rovide hi her education' means- a the registering of students for- i complete qualifications at or above level 5 of the National Qualification Framework as contemplated in the South African Qualifications Authority Act 1995 Act No. 58 of 1995 or 5 ii such part of a qualification which meets the requirements of a unit standard as recognised by the South African Qualifications Authority at or above the level referred to in subparagraph i h the taking of responsibility for the provision and delivery of the curricula 10 c the assessment of students regarding their learning programmes and d the conferring of qualifications in the name of the higher education institution concerned.". Amendment of section 3 of Act 101of1997 15 2. Section 3 of the principal Act is hereby amended by the addition of the following subsection  " 3 The Minister ma in terms of the olic contem lated in subsection 1 and in the interest of the higher education system as a whole determine the scope and range of operations of 20 a public higher education institutions h private higher education institutions and c individual public or private higher education institutions.". Amendment of section 11 of Act 101of1997 3. Section 11 of the principal Act is hereby amended by the addition of the following 25 subsections the existing section becoming subsection 1   " 2 A member nominated in accordance with subsection I serves for the unexpired term of office of the predecessor. 3 Notwithstanding section 8 3 the Minister must in writing invite nomina- tions to fill a vacancy contemplated in subsection I from 30 a national organisations representing- i students ii academic employees iii employees other than academic employees iv university principals 35 v technikon principals vi principals of higher education colleges vii principals of private higher education institutions viii organised business and ix organised labour and 40 b research and science councils.". Amendment of section 40 of Act 101of1997 4. Section 40 of the principal Act is hereby amended- a by the substitution for paragraph d of the following paragraph  " d money raised by means of loans and overdrafts " and 45 b by the addition of the following subsections the existing section becoming subsection I   " 2 a Sub"ect to ara ra h b a ublic hi her education institution may only with a resolution of its council not taking into account any vacancy that may exist enter into a loan or an overdraft agreement. 50 b An agreement contemplated in paragraph a must be approved by the Minister if the agreement or the sum of loans and overdrafts to be raised in any financial year exceeds- Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 6 No. 21784 GOVERNMENT GAZETTE 22 NOVEMBER 2000 Act No. 54 2000 HIGHER EDUCATION AMENDMENT ACT. 2000 i such amount as the Minister had determined for such institution or ii in the absence of such determination five per cent of the average income of that public higher education institution received during the two years immediately preceding such agreement. 3 a Subject to paragraph b a public higher education institution 5 may only with a resolution of its council not taking into account any vacancy that may exist embark on any- i construction of a permanent building or other immovable infrastructural development ii purchasing of immovable property or 10 iii long-term lease of immovable property. b Any action contemplated in paragraph a must be approved by the Minister if the value of such development or property exceeds five per cent of the average income of that public higher education institution received during the two years immediately preceding such action.". 15 Amendment of section 41 of Act 101 of 1997 5. Section 41 of the principal Act is hereby amended by the substitution for subsection 3 of the following subsection  " 3 The council of a public higher education institution must provide the Minister with [ 20 a the information that must be provided in terms of the Reporting by Public Entities Act 1992 Act No. 93 of 1992 and b ] such [additional] information in such format as the Minister may reasonably require.". Substitution of section 51 of Act 101 of 1997 25 6. The following section is hereby substituted for section 51 of the principal Act  "Registration of private higher education institutions 51. No person other than a public higher education institution or an organ of state may provide higher education unless that person is- a in the prescribed manner registered or conditionally registered as a 30 private higher education institution in terms of this Act and b registered or recognised as a juristic person in terms of theCompanies Act 1973 Act No. 61 of 1973 before such person is registered or conditionally registered as contemplated in paragraph a .". Amendment of section 53 of Act 101of1997 as amended by Act 55of1999 35 7. Section 53 of the principal Act is hereby amended- a by the substitution for the words preceding paragraph a of subsection 1 of the following words  "The registrar [must] may register an applicant as a private higher education institution if the registrar has reason to believe that the 40 applicant-" b by the deletion of subparagraph iii of paragraph b of subsection 1 and c by the addition to subsection I of the following paragraph  " c complies with any other reasonable requirement determined by the registrar which may include a requirement that none of the words or 45 any derivatives of the words 'university' or 'technikon' may appear in the name of the applicant.". Amendment of section 54 of Act 101of1997 8. Section 54 of the principal Act is hereby amended- a by the substitution for subsection 1 of the following subsection  50 Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 8 No. 21784 GOVERNMENT GAZETTE. 22 NOVEMBER 2000 Act No. 54 2000 HIGHER EDUCATION AMENDMENT ACT. 2000 The registrar [must]- " I must consider any application for registration as a private higher a education institution and any further information particulars or documents provided by the applicant [and] b may when considering the application differentiate between a 5 foreign juristic person and local juristic person with regard to matters such as its scope and range of operations its size and its institutional configuration and c may register the applicant as a private higher education institution if the requirements for registration contemplated in section 53 are I0 fulfilled.'' b by the substitution for subsection 3 of the following subsection  " 3 Notwithstanding subsection I the registrar may conditionally register an applicant who does not fulfill the requirements for registra- tion other than a foreign juristic person if the registrar believes that the 15 applicant will be able to fulfill the relevant requirements within a reasonable period." and c by the addition of the following subsection  " 7 No inde endent school as defined in the South African Schools Act 1996 Act No. 84 of 1996 or other private education institution 20 may call itself a university or a technikon or confer a professorship or an honorary degree or use the title of rector. vice-chancellor or chancellor unless it is registered as a private higher education institution in terms of Chapter 7 and the word "university" or ''technikon" appears in its name.". 25 Substitution of section 65 of Act 101 of 1997 9. The following section is hereby substituted for section 65 of the principal Act  "Name change of public higher education institution ill [A] Notwithstanding anything to the contrary contained in any other law a council of a public higher education institution [other than a council 30 of a university established or incorporated by a private Act of Parliament] may with the approval of the Minister and by notice in the Gazette change the name of such higher education institution. 2 Any change of name contemplated in subsection 1 does not affect any right duty liability or obligation of the public higher education 35 institution in question.". Amendment of section 66 of Act 101of1997 10. Section 66 of the principal Act is hereby amended by the substitution for subsection 3 for the following subsection  " 3 Any person who contravenes section 51 1 a 54 7 or 55 2 is 40 guilty of an offence and is liable on conviction to a fine or to imprisonment not exceeding five years or to both such fine and imprisonment.". Amendment of section 68 of Act 101of1997 as amended by section 9 of Act 55 of 1999 45 11. Section 68 of the principal Act is hereby amended by the substitution for subsection 2 of the following subsection  " 2 The council of a public higher education institution may on such conditions as it may determine delegate any of its powers under this Act or delegated to it in terms of subsection I except the power to 50 El make an institutional statute b enter into an agreement contemplated in section 40 2 or c perform an action contemplated in section 40 3 Reproduced by Sabinet Online in terms of Government Printer s Copyright Authority No. 10505 dated 02 February 1998 IO No. 21784 GOVERNMENT GAZETTE 22 NOVEMBER 2000 Act No. 54 2000 HIGHER EDUCATION AMENDMENT ACT 2000 and assign any of its duties in terms of this Act or assigned to it in terms of subsection I to the other internal structures the principal or any other employee of the public higher education institution concerned.". Amendment of section 76 of Act 101 of 1997 12. Section 76 of the principal Act is hereby amended by the addition of the following 5 subsection  " 5 The University Staff Education and Training Act 1984 Act No. 91 of 1984 is hereby repealed in its entirety.". Short title 13. This Act is called the Higher Education Amendment Act 2000. 10 

THE PRESIDENCY
 
 No. 1196.
 22 November 2000
 
 It is hereby notified that the President has assented to the following
Act which is hereby published for general information:-
 
 NO. 54 OF 2000: HIGHER EDUCATION AMENDMENT ACT, 2000
 GENERAL EXPLANATORY NOTE:
 
 Words in bold type indicate omissions from existing enactments.
 
 Words in italics indicate insertions in existing enactments.
 
 (English text signed by the President.)
 
 (Assented to 17 November 2000.)
 
 
 ACT
 
 
 To amend the Higher Education Act, 1997, so as to define certain
expressions; to extend the power of the Minister of Education with regard
to the determination of higher education policy; to provide that vacancies
in the Council on Higher Education are filled for the unexpired term of
office of the predecessor; to provide for the nominations to fill vacancies
in the Council; to provide that a public higher education institution may
not without the approval of its council and, under certain circumstances,
without the concurrence of the Minister, enter into a loan or overdraft
agreement or develop infrastructure; to make further provision for
information a council has to furnish to the Minister; to make further
provision for the registration of private higher education institutions,
the requirements for their registration and the determination of
applications for their registration; to provide afresh for the change of
the name of a public higher education institution; and to make further
provision for the repeal of laws; and to provide for matters connected
therewith.
 
 BE IT ENACTED by the Parliament of the Republic of South Africa, as
follows:
 
Amendment of section 1 of Act 101 of 1997
 
 1. Section 1 of the Higher Education Act, 1997 (hereinafter referred to
as the principal Act), is hereby amended-
 
 (a) by the insertion after the definition of "financial year" of the
 following definition:
 
 "'foreign juristic person' means a person-
 
 (i) registered or established as a juristic person in terms of
 a law of a foreign country; and
 
 (ii) recognised or registered as an external company in terms of
 the Companies Act, 1973 (Act No. 61 of 1973);";
 
 (b) by the insertion after the definition of "institutional statute" of
 the following definition:
 
 "'local juristic person' means a person established as a juristic
 person in South Africa in terms of the Companies Act, 1973 (Act No.
 61 of 1973);"; and
 
 (c) by the insertion after the definition of "this Act" of the
 following definition:
 
 " 'to provide higher education' means-
 
 (a) the registering of students for-
 
 (i) complete qualifications at or above level 5 of the National
 Qualification Framework as contemplated in the South African
 Qualifications Authority Act, 1995 (Act No. 58 of 1995); or
 
 (ii) such part of a qualification which meets the requirements
 of a unit standard as recognised by the South African
 Qualifications Authority at or above the level referred to in
 subparagraph (i);
 
 (b) the taking of responsibility for the provision and delivery of
 the curricula;
 
 (c) the assessment of students regarding their learning programmes;
 and
 
 (d) the conferring of qualifications, in the name of the higher
 education institution concerned.".
 
Amendment of section 3 of Act 101 of 1997
 
 2. Section 3 of the principal Act is hereby amended by the addition of
the following subsection:
 
 "(3) The Minister may, in terms of the policy contemplated in
 subsection (1) and in the interest of the higher education system as a
 whole, determine the scope and range of operations of-
 
 (a) public higher education institutions;
 
 (b) private higher education institutions; and
 
 (c) individual public or private higher education institutions.".
 
Amendment of section 11 of Act 101 of 1997
 
 3. Section 11 of the principal Act is hereby amended by the addition of
the following subsections, the existing section becoming subsection (1):
 
 "(2) A member nominated in accordance with subsection (1) serves
 for the unexpired term of office of the predecessor.
 
 (3) Notwithstanding section 8(3), the Minister must in writing
 invite nominations to fill a vacancy contemplated in subsection (1)
 from-
 
 (a) national organisations representing- (i) students; (ii) academic
 employees;
 
 (iii) employees other than academic employees;
 
 (iv) university principals;
 
 (v) technikon principals;
 
 (vi) principals of higher education colleges;
 
 (vii) principals of private higher education institutions;
 
 (viii) organised business; and
 
 (ix) organised labour; and
 
 (b) research and science councils.".
 
Amendment of section 40 of Act 101 of 1997
 
 4. Section 40 of the principal Act is hereby amended-
 
 (a) by the substitution for paragraph (d) of the following paragraph:
 
 "(d) money raised by means of loans and overdrafts;"; and
 
 (b) by the addition of the following subsections, the existing section
 becoming subsection (1):
 
 "(2) (a) Subject to paragraph (b), a public higher education
 institution may only with a resolution of its council, not taking
 into account any vacancy that may exist, enter into a loan or an
 overdraft agreement.
 
 (b) An agreement contemplated in paragraph (a) must be approved by the
 Minister if the agreement, or the sum of loans and overdrafts to be
 raised in any financial year, exceeds-
 
 (i) such amount as the Minister had determined for such
 institution; or
 
 (ii) in the absence of such determination, five per cent of the
 average income of that public higher education institution
 received during the two years immediately preceding such
 agreement.
 
 (3) (a) Subject to paragraph (b), a public higher education institution
may only with a resolution of its council, not taking into account any
vacancy that may exist, embark on any-
 
 (i) construction of a permanent building or other immovable
 infrastructural development;
 
 (ii) purchasing of immovable property; or
 
 (iii) long-term lease of immovable property.
 
 (b) Any action contemplated in paragraph (a) must be approved by the
Minister if the value of such development or property exceeds five per cent
of the average income of that public higher education institution received
during the two years immediately preceding such action.".
 
Amendment of section 41 of Act 101 of 1997
 
 5. Section 41 of the principal Act is hereby amended by the
substitution for subsection (3) of the following subsection:
 
 "(3) The council of a public higher education institution must
 provide the Minister with -
 
 (a) the information that must be provided in terms of the Reporting by
 Public Entities Act, 1992 (Act No. 93 of 1992); and
 
 (b) such additional information, in such format, as
 the Minister may reasonably require.".
 
Substitution of section 51 of Act 101 of 1997
 
 6. The following section is hereby substituted for section 51 of the
principal Act:
 
 "Registration of private higher education institutions
 
 51. No person other than a public higher education institution or an
 organ of state may provide higher education unless that person is
 -
 
 (a) in the prescribed manner, registered or conditionally
 registered as a private higher education institution in terms of
 this Act; and
 
 (b) registered or recognised as a juristic person in terms of the
 Companies Act, 1973 (Act No. 61 of 1973), before such person is
 registered or conditionally registered as contemplated in
 paragraph (a).".
 
Amendment of section 53 of Act 101 of 1997, as amended by Act 55 of 1999
 
 7. Section 53 of the principal Act is hereby amended-
 
 (a) by the substitution for the words preceding paragraph (a) of
 subsection (1) of the following words:
 
 "The registrar must may register an applicant as a
 private higher education institution if the registrar has reason to
 believe that the applicant-";
 
 (b) by the deletion of subparagraph (iii) of paragraph (b) of
 subsection (1); and
 
 (c) by the addition to subsection (1) of the following paragraph:
 
 "(c) complies with any other reasonable requirement determined by
 the registrar which may include a requirement that none of the words
 or any derivatives of the words 'university' or 'technikon' may
 appear in the name of the applicant.".
 
Amendment of section 54 of Act 101 of 1997
 
 8. Section 54 of the principal Act is hereby amended-
 
 (a) by the substitution for subsection (1) of the following subsection: