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Act No. 63 of 2002: Higher Education Amendment Act, 2002

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.
 
 Act No. 63, 2002
 
 HIGHER EDUCATION AMENDMENT ACT, 2002
 
 GENERAL EXPLANATORY NOTE:
 
 Words in bold type indicate omissions from existing enactments.
 
 Words underlined indicate insertions in 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.
 
 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 (Act No. 101 of 1997)
(hereinafter referred to as the principal Act), is hereby amended-
 
 (a) 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 education institution under this Act;
 
 (b) declared as a public higher education institution under this
 Act; or
 
 (c) registered or [conditionally] provisionally registered as
 a private higher education institution under this Act;";
 
 (b) by the insertion after the definition of "higher education quality
 committee" of the following definition:
 
 "incorporation of a subdivision" means the process of incorporation
as contemplated in section 21(1)(b) or 24 in terms of which an identified
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
 
 (c) by the insertion after the definition of "local juristic person" of
 the following definition:
 
 "merger" means the process contemplated in section 23 in terms of
which two or more public higher education institutions lose their status as
juristic 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
 
 2. Section 8 of the principal Act is hereby amended by the
substitution, in subsection (3), for paragraph (b) of the following
paragraph:
 
 "(b) national organisations representing students, academic employees,
 employees 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
 
 3. Section 20 of the principal Act is hereby amended by the
substitution for subsection (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 this Act, is a juristic
 person.".
 
 Amendment of section 21 of Act 101 of 1997
 
 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 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 (1), in all the
 official languages used as media of 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 declared higher education institution (herein referred to as
 `the new employer') as from the date of the declaration contemplated
 in subsection (1), 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 (1), 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 (1), but if any
 enquiry into 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 undertake
 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 (1), the higher education
 institution-
 
 (a) continues with all academic programmes offered by the education
 institution under the rules applicable to the education 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
 
 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 merged single public higher education institution (herein
 referred to as `the new employer') as from the date of the merger
 contemplated in subsection (1), but any redeployment of an employee
 as a co