APPETD clarifies rights of private providers in Constitution and Higher Education law 1


The Constitution, Section 29, entrenches the right to education.  Currently section 29 reads as follows:

29 Education

(1) Everyone has the right-

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account-

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.

(3) Everyone has the right to establish and maintain, at their own expense, independent educational institutions that-

(a) do not discriminate on the basis of race;

(b) are registered with the state; and

(c) maintain standards that are not inferior to standards at comparable public educational institutions.

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Private providers are mostly concerned with their entrenched rights in terms of subsections 3 and 4 above.  At the moment a lot of public debate is being given to the first subsection, the right to free higher education.  I am not going to refer to this debate here. 

“Entrenched rights” mean that none of the Constitutionally-guaranteed rights can be lightly disregarded by the state unless it is reasonable and justifiable to do so, in an open and democratic society, and only through laws of general application, in terms of section 36 of the Constitution.  The rights entrenched in the Constitution are written very broadly and vague in a sense but with the express instruction that national and provincial legislation must be formulated to give effect to the rights.  This was also indeed the route followed regarding section 29.  In order to give content to the Constitution, Parliament adopted national legislation regarding National Education Policy; Adult Basic Education and Training; Basic Education; Higher Education; Further Education and Training Colleges; and Skills Development.

The legislation is, however, overlapping and often the manner in which the officials from the state departments interpret the legislation tend to be confusing.  One example, which has been with us for a long time is the question of accreditation and registration of private providers offering courses with exit levels 5 and 6.  Ms Marietta van Rooyen set out the problem quite clearly in her open letter to the Minister of Education which was published in the HR Future in April 2011.  Private training providers have to register with the DHET, but also be accredited by the SETA ETQA departments, who are not recognised by the DHET for the accreditation of private providers at those levels. (SETA ETQA departments do accredit workplace and occupationally directed training providers.  The responsibility now falls under the QCTO but has been provisionally delegated back to the SETA ETQAs.)   Consequently they have to accredit with UMALUSI and CHE.  In practice, Training Providers are on the one hand warned that they will be investigated and closed down if they are not correctly registered at the correct department, but on the other hand, the very same departments are sending providers from pillar to post in the process of requesting accreditation and registration.  SAQA has promised that a letter will be issued soon to address this issue.  APPETD’s CEO will be meeting with SAQA on 12 July 2012 and we hope that the promised letter will be provided then.

Another instance is that the Higher Education Act requires in section 51 that no person may provide higher education unless that person is registered as a private higher education institution and also registered or recognised as a juristic person in terms of the Companies Act of 1973.  The second requirement is apparently being interpreted as that the juristic person must be able to write “(Pty) Ltd “behind its name.  Requiring the “(Pty) Ltd” means that the company must have shareholding and paying out of dividends etc.  This is certainly not what is required by either the Higher Education Act or section 29 of the Constitution.  Should this be a requirement, then no company, duly registered, but registered in terms of section 21 of the Companies Act of 1973 will be able to register as a private higher education institution.  This will have disastrous effects.  One can only hope that this is a case of one departmental official who needs to learn that the Companies Act also provides for other juristic persons.  We also hope that the officials, who work with the application of these sections, also have taken note of the new Companies Act that came into operation in 2011. 

Another point of conflicting interpretations is that currently it is not allowed for private providers of tertiary education to request state subsidies for its students.  However, section 29(4) clearly provides that subsection (3) does not preclude state subsidies for independent educational institutions.  This is obviously an unconstitutional interpretation.  Nowhere in the legislation has it appeared yet that this is absolutely precluded.  This matter will be taken up with the relevant officials as the requests arise.  One question that arises in one’s mind is whether any strings will be attached to the granting of state subsidies, eg a requirement of linking private providers to public FET Colleges. 

APPETD’s members are urged to bring further instances of confusing interpretation to the attention of its CEO in order to assist APPETD to act as mouthpiece for the private providers of education, training and development.  Once this is taken up on behalf of the private providers, it is to be hoped that future confusions will be avoided. 

The next article will deal with decision-making by state departments and asking for reasons.

List of acronyms

CEO: Chief Executive Officer

CHE: Council on Higher Education

DHET: Department of Higher Education and Training

ETQA: Education and Training Quality Assurance body

FET: Further Education and Training

QCTO: Quality Council for Trades and Occupations

SAQA: South African Qualifications Authority

SETA:  Sector Education and Training Authority

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