Universities South Africa. Comments on the National Qualifications Amendment Bill 2016

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1 Executive summary Universities South Africa Comments on the National Qualifications Amendment Bill The primary purpose of this draft Bill appears to be to name and shame people who use bogus qualifications or claim qualifications 1 they do not have to advance their careers. If enacted in its present form it will impose substantial and unreasonable additional burdens on employers, on education providers and on SAQA. The drafting is opaque in many places, and would need significant revision. If the Minister persists in proceeding with the measure USAf should seek substantial improvements in the draft Bill and oppose some proposed provisions. USAf however does support a regulatory framework to deal with fake and falsified qualifications, with qualifications which have been awarded as a result of fraud or error, and with (a) individuals and institutions who peddle bogus qualifications; and (b) individuals who seek advancement on the basis of claimed qualifications that they have not earned. USAf believes that that considerable further thought should be given to the proper framework to address these issues, and would be prepared to join a working group to give this the necessary attention. USAf accepts the importance of a well-maintained National Learners Records Database (NLRD). USAF considers that as professional bodies maintain records of the holders of those who have qualified to use professional designations shifting this responsibility to SAQA would be an unnecessary duplication, and will lead to confusion between professional designations on the one hand and qualifications (as defined by the NQF) on the other hand. 1 Or part-qualifications or professional status 1

2 Introduction 1. The Minister of Higher Education & Training published a draft Bill for comment in the Gazette on 18 November Comment must be submitted by 18 December The draft Bill seeks to amend the NQF Act, which may be found at: 2. The ostensible purposes of the draft Bill are 2.1 To establish registers of bogus qualifications and part qualifications and of all people who fraudulently claim to have a qualification or part qualification they do not have; 2.2 To establish a register of professional designations; and 2.3 To require employers to submit the [claimed] qualifications of all prospective employees to the South African Qualifications Authority (SAQA) for validation and verifications [sic] 3. In addition, and in furtherance of these purposes, the draft Bill provides that SAQA must 3.1 maintain these registers; and 3.2 evaluate foreign qualifications submitted to it in terms of criteria SAQA must formulate. General Comment The distinction between qualifications on the one hand, and certificates declaring or purporting to declare that the holder of the certificate has been awarded the qualification 4. The proposed definitions of fraudulent qualifications and misrepresented qualifications need attention. Although the draft Bill is not clear on this, and as no Memorandum has been published with the draft Bill there is not the usual help discerning the intention behind the draft Bill, the mischiefs that the draft Bill presumably intends to counter are: 4.1 bogus qualifications (e.g., the qualifications awarded, or more generally sold by degree mills); 4.2 fake or falsified certificates, which suggest that the holder has been awarded a qualification where the holder has not been awarded the qualification; 4.3 qualifications awarded by education institutions that are not accredited and/or where the qualification is not registered on the NQF; 4.4 qualifications obtained dishonestly and subsequently withdrawn by the institution which awarded the qualification (e.g., a research degree where the thesis or dissertation is found to have been plagiarized); 4.5 individuals who hold out that they have qualifications which they do not have (but may not actually submit fake or falsified certificates as evidence of these claimed qualifications); 4.6 Fake or falsified certificates which suggest that the holder has obtained a professional designation/professional licence (e.g., PrEng, or CA(SA)) which they do not have; 2

3 4.7 Individuals who hold out that they have obtained a professional designation/professional licence which they do not have (but do not submit fake or falsified certificates as evidence of such claims to professional status); and 4.8 Institutions or organisations or individuals that sell bogus qualifications. The definitions proposed in Section 1(c) and Section 1(e) of the draft Bill seem to need re-drafting in order to cover these issues. (See below.) They do not make clear the distinction between bogus qualifications, fake or falsified certificates purporting to represent registered qualifications, and the other questions set out in 4.1 to 4.7 above. Implications of the draft Bill 5. Onus on employers: The provision (the proposed Section 32B) requiring every employer to refer qualifications of employees to SAQA for validation and verifications (which simultaneously requires the employer to submit an acknowledgement made by the [prospective] employee allowing SAQA to publish any negative outcome of the validation process) is likely to be ignored by the majority of employers; if not, it will create an administrative nightmare for employers and for SAQA (which will have to validate and verify each claimed qualification). Where the qualification has been entered onto the National Learners Record Database (NLRD) this process will be relatively simple though time-consuming: but (a) the volume is likely to swamp the SAQA office responsible; and (b) many qualifications including the NSC do not get into the NLRD for some months after they have been awarded, with the resultant danger that a person may be reported as having claimed a qualification that he/she/they did not have, when in fact they did have this. Where the issue is important to an employer (i.e., where the employer wishes to verify a claimed qualification) the employer can at present approach the education provider direct or use a qualifications verification agency; the present process is almost certainly more efficient and cost effective than that envisaged in the draft Bill. Where the claimed qualifications have been awarded by legitimate foreign providers the process envisaged by the draft Bill is likely to be both time-consuming and expensive. Where the claimed qualifications were awarded by a legitimate public university/technikon/technical college, or by one the departments of state that awarded the senior certificate or the junior certificate, prior to the establishment of the NLRD, the process envisaged by the draft Bill may be extremely difficult to undertake. Where the claimed qualifications have been awarded by an illegitimate foreign provider the process will fail unless the foreign provider is unmasked as illegitimate. 6. The proposed registers and natural justice: The provision for registers of offending qualifications and offenders (the proposed sections 13(1)(lB) and 13(1)(lC)) apart from suffering from the imprecision in the proposed definitions of fraudulent qualifications and misrepresented qualifications raises important questions of natural justice. A qualification or name will be added to the register on the basis of an adverse validation/verification decision by SAQA, presumably by a SAQA official. 3

4 While the reasons for an adverse decision are to be published, there is no provision allowing the person claiming the qualification to make representations to SAQA, no provision for appeals against the decision of SAQA, and no provision for removing a name from the [public] register if the decision can be shown to be wrong. This omission must be put right; if it is not the applicable sections of the Bill, if enacted, may be liable to being struck down. An important lacuna in the draft Bill is the absence of any sanction, or other remedial action, other than being listed; we believe that this omission needs to be dealt with. It does not seem enough to rely on the fact that in many cases an employer will be able to rely on misrepresentation to cancel an already entered into contract of employment, and the person who is not offered employment when his/her/their qualification is found to be fake will simply walk away (and may thereafter hawk the offending documentation around to unsuspecting employers. 7. Additional requirements for the NLRD: The draft Bill proposes that the NLRD be expanded to include: 7.1 qualifications requirements and part-qualifications requirements and related information (the proposed section 13(1)(l)(vi)); and 7.2 Details of individuals that an institution awarded qualifications and or partqualifications to, as well as the supporting source documents (the proposed section 13(1)(l)(vii)). These provisions are probably so vague as to be un-administrable: what is related information and what supporting source documents are to be provided? What the Bill does not do is to take account of valid qualifications awarded or conferred by [public] higher education qualifications before the establishment of the NQF and SAQA. These qualifications are not to be found on the NLRD. There is no central register for such qualifications. It would be a task of herculean proportions to create a central data base for the pre-1996 public South African universities, Technikons and their predecessors the Technical Colleges. And it would be no simple thing to impose on SAQA the onus of verifying such qualifications. Even allowing for the fact that these provisions are likely to be better drafted before enacted the provisions are simply unrealistic. If the 26 public universities alone are considered the work required in keeping up-to-date the requirements for each of the hundreds of qualifications registered by them on the NQF is likely to cause this system to grind to a halt. As no memorandum has been published with the draft Bill, no basis has been provided for these proposed additions to the NLRD. USAf should question why these are needed, and unless a rationale for them can be provided, USAf should oppose the enactment of these provisions. Detailed clause by clause comments on the draft Bill 8. The following detailed comments refer to the clauses in the Bill: 8.1 Clause 1: definitions A new definition of foreign juristic person is to be added; it is not clear why. (The Higher Education Act, Act 101 of 1997 as amended now provides that a foreign juristic person must ensure that any qualification or part-qualification offered within the Republic is registered on the sub-framework for higher education on the National Qualifications Framework of the National Qualifications 4

5 Framework Act. This should be enough.) A new definition of fraudulent qualification or part-qualification is to be added; this definition appears to confuse a fake or falsified certificate with a bogus qualification. A new definition of misrepresented qualification and part qualification is to be added; this definition appears to be opaque and in needed of redrafting. These definitions need to be replaced on the basis of a clearer conception of the mischiefs that the Bill is intended to deal with. 8.2 Clause 2: Amends the stated object of the Act. 8.3 Clause 3: A minor technical correction the reference to subsection (1) is to be replaced by a reference to subsection (1)(a). A new subsection (Section 3(3) is to be added making it clear that every private provider must be registered [with?] and accredited [by or with a Quality Council? (QC)] if it wishes to offer a qualification or part-qualification registered on the NQF. 8.4 Clause 4: Section 8 of the Act is to be amended so that all advice from QCs to the Minister is submitted via SAQA and not direct. This attempt to strengthen SAQA s position is incidental to the object of the Bill. 8.5 Clause 5: This is the key clause in the draft Bill, in that it (a) adds to SAQA s mandate the responsibility of determining whether all qualifications and all certificates purporting to certify the award of a qualification submitted to it are valid, and for providing reasons for its determination in each case; (b) provides for a register of offenders and offending certificates; (c) adds data that SAQA must collect and add to the NLRD; (d) requires SAQA to maintain a separate professional designation register; and (e) requires SAQA to formulate the evaluation criteria for foreign qualifications. We (see above) question the need for some of these provisions. Our experience 2 suggests that unless the purposes of the evaluation criteria for foreign qualifications are agreed in advance the process of formulating evaluation criteria is hazardous. 8.6 Clause 6: This amends the provisions relating to QCs and (see clause 4 above) will ensure that a QC advising the Minister does so in consultation with SAQA. 8.7 Clause 7: This amends S 27 of the Act in order to add an accrediting function by a QC in regard to private providers. 2 For example, the desired equivalence of a foreign school leaving qualification as related to the National Senior Certificate (NSC) may be at the level of the NSC as an exit qualification; but it may also be that the desired equivalence is to an NSC endorsed where the holder has met the minimum requirements for admission to degree study at a public or private HEI in South Africa (often popularly but erroneously referred to as a bachelor s pass ). Similar criteria apply to qualifications that lead to professional registration; a foreign law degree may be acceptable as providing admission to higher degree studies in South Africa but not acceptable for purposes of admission as an attorney or advocate. 5

6 8.8 Clause 8: This amends S 30 of the Act that each professional body must assist to ensure that the professional designation is registered on a separate register. 8.9 Clause 9: A new S 32A is to be introduced making it compulsory for all education institutions and employers to report fraudulent qualifications to SAQA. No sanction seems to apply in the event of non-compliance. And the clause suffers from the lack of precision as to what is to be reported (See para 5 above) Clause 10: A new S 32B is to be added requiring all employers to refer qualifications of employees to SAQA for validation and verifications. As it stands this would require every employer to submit the qualifications of all employees (not merely newly-appointed employees) to SAQA for the validation and verification process. It also requires the employer to obtain from every employee an acknowledgement form authorising the publication of the fact of a claimed qualification where this is either bogus or one that the employee has not obtained. It might be feasible to do this for every new person who is to be offered permanent employment. To require this for all existing permanent and any casual employees is not Clauses 11 and 12 amend the long title and provide for this draft Bill if enacted to come into effect on a date or dates to be fixed by notice in the Gazette. We believe that the long title to the amending Bill needs attention. END Contact person: Ms Jana van Wyk Universities South Africa Tel: jana@usaf.ac.za Universities South Africa 20 January