1. Introduction

1.1 The Council on Higher Education (CHE) has not had the opportunity to formally discuss the proposed amendments to the Higher Education Act due to the short notice period for public comment. However, given the substantive nature of the new amendments, which go well beyond the amendments as originally introduced relating to the establishment and functioning of a National Institute of Higher Education, the Executive Committee of Council agreed that the CEO should prepare a submission and to participate in the public hearings on the new amendments scheduled by the Portfolio Committee on Higher Education and Training.

1.2 The amendments seek to address perceived inadequacies in the efficacy of the existing intervention mechanism, namely, the independent assessor process, as well as the limitations on the powers of the Minister, for addressing governance and management challenges in higher education. It is submitted that any amendments to rectify inadequacies - perceived or otherwise, should be preceded by a detailed analysis both of the underlying factors that contribute to the ongoing governance and management challenges in higher education, as well as the effectiveness of the existing intervention mechanisms in practice. The absence of such an analysis results in ad-hoc amendments to address perceived rather than real inadequacies.

1.3 The amendments are substantive in two senses; (i) the role of the independent assessor and the nature of the investigation undertaken by the independent assessor is fundamentally changed from that contemplated in Higher Education Act currently; (ii) the powers of the Minister to intervene in public higher education institutions is extended beyond the limitations imposed by the Higher Education Act currently.

1.4 Given the substantive nature of the amendments and the implications for public higher education institutions, in particular, the balance between institutional autonomy and public accountability, it is suggested that a broader consultative process with stakeholders is necessary and, in particular, the CHE in line with its statutory responsibility, should be afforded the opportunity to advise the Minister of Higher Education and Training on the merits and implications of the amendments for the governance of public higher education institutions.

1.4.1 It is against this background that the concerns relating to the amendments are outlined below.