Author: Gary Moore

Date: 11 December 2019

The National Qualifications Framework Act, 2008[1] was amended in 2010 and 2012.[2] The Act will be amended further when a 2019 Amendment Act[3] comes into operation.[4]

In issue is whether the 2008 Act, whether as it stands now[5] or to be amended by the pending 2019 Act, violates the Rule of Law and, if so, in what respects. The Rule of Law is a founding value of the Republic[6] and a fundamental value of the Constitution.[7]

The 2008 Act repealed[8] the 1995 South African Qualifications Authority Act,[9] which had provided for the development and implementation[10] of a National Qualifications Framework,[11] and establishment and functions of a South African Qualifications Authority.[12]

The 2008 Act provides for the continued existence[13] and further development[14] of the Framework, and for the continued existence of the Authority.[15]

The Act declares that the Framework has been implemented under the 1995 statute, and has won wide acceptance as the principal instrument for recognising and assuring the quality of education and training qualifications,[16] but that a review has revealed that changes to the Framework’s governance and organisation were necessary so that its objectives may be realised more effectively and efficiently.[17]

Sub-frameworks. The Act states that the Framework is a single integrated system which comprises of three co­ordinated qualifications Sub­frameworks,[18] for—

General and Further Education and Training;[19]

Higher Education;[20] and

Trades and Occupations.[21]

The Minister must determine the Sub-frameworks, after considering advice from the Authority.[22]

Framework’s objectives. The Minister must advance the achievement of the  objectives of the Framework.[23] The Framework’s objectives are[24] to—

Create a single integrated national framework for learning achievements;[25]

facilitate access to education, training and career paths, and mobility and progression within them;[26]

enhance the quality of education and training;[27] and

accelerate redress of past unfair discrimination in education, training and employment opportunities.[28]

The objectives serve as principles to guide the Minister in determining the Sub-frameworks.

(Statutes should be read to give effect to the Constitution’s fundamental values where possible.[29] A court must seek to preserve the constitutional validity of a legislative provision if it is reasonably capable of a meaning that keeps it in constitutional bounds,[30] so that the purpose that the provision was enacted to serve[31] is realised.[32])

Levels. The Framework is a series of ten levels of learning achievement in ascending order, each level being described by a “level descriptor” or statement of learning achievement which provides a broad indication of learning achievements or outcomes that are appropriate to a qualification at that level.[33]

The Authority must, in order to advance the objectives of the Framework,[34] develop the content of these level descriptors, and reach agreement on the content with the three Quality Councils, namely[35]

The Quality Council for General and Further Education and Training;[36]

the Council on Higher Education;[37] and

the Quality Council for Trades and Occupations.[38]

The Quality Councils must, in order to achieve the objectives of the Framework,[39] consider and agree to those level descriptors.[40]

Criteria for developing qualifications. The Act states that the Authority must, to advance the objectives of the Framework, and after consultation with the Quality Councils, develop and implement criteria for the development and registration[41] of qualifications.[42]

The criteria must require each sub­framework to have distinct nomenclature for its qualification types which is appropriate to that sub­framework and consistent with international practice.[43]

And a Quality Council must, to achieve the objectives of the Framework, develop criteria for the development and registration[44] of qualifications for its Sub-framework, taking into account criteria developed by the Authority.[45]

Developing of qualifications. A Quality Council must[46]

Ensure the development of such qualifications[47] as are necessary[48] for its sector;[49] and

recommend qualifications[50] to the Authority for registration.[51]

And the Authority must[52] register on the Framework[53] a qualification[54] recommended by a Quality Council, if it meets the relevant criteria.[55]

The Authority, and the Quality Councils, must seek to achieve the Framework’s objectives by ensuring that qualifications are—

Internationally comparable;[56] and

of an acceptable quality.[57]

Registration of qualifications. The Act states that it applies to[58] education or learning[59] programmes that lead to “qualifications or part­qualifications” offered[60] by—

Education institutions that are established, declared or registered by law;[61] and

skills-development providers that are accredited by the Quality Council for Trades and Occupations under the Skills Development Act, 1998.[62]

The Act defines[63]

A “qualification” to mean a “registered” qualification;[64]

a “part qualification” as an assessed unit of learning that is “registered” as part of a qualification;[65] and

“registered” to mean “registered on the [Framework] by the [Authority]”.[66]

These definitions convey that[67] the Act applies only to education or learning programmes that lead to registered qualifications and part­qualifications.

Also, the Amendment Act will insert in the principal Act provisions[68]

That a Quality Council must, to achieve the Framework’s objectives with regard to quality assurance in its sub­framework, accredit an education institution or skills development provider that complies with all the requirements to offer a qualification or part-qualification “registered on the [Framework]”;[69] and

that it will be an offence—

For a person, education institution or skills development provider to claim to offer a qualification or part-qualification “registered on the [Framework, but which] is not so registered”;[70]

for a person falsely or fraudulently to claim to hold a qualification or part­qualification “registered on the [Framework]”.[71]

These offences relate only to registered qualifications and part­qualifications.

They, too, indicate that the Act is applicable only to registered qualifications,[72] and does not govern unregistered qualifications.[73]

However, the Act has a clause which stipulates that “Every” qualification[74] that an education or learning programme offered by an education institution or skills-development provider leads to[75] “must be registered on the…Framework in accordance with this Act”.[76]

That clause suggests, arguably, that an education institution or skills-development provider is forbidden from offering education or learning programmes that lead to any qualifications[77] which are not registered on the Framework.

(Such a suggestion could be supported by the Act’s provision that definitions (including the definitions that “qualification” and “part qualification” mean “registered on” the Framework) apply in the Act “unless the context otherwise indicates”.[78] This means that definitions do not apply in a clause where their use would be inconsistent in the context of that clause.[79])

But, on balance, it is concluded that the clause (that “Every” qualification[80] that an education or learning programme offered by an education institution or skills-development provider leads to[81] must be registered on the Framework[82]) applies only to registrable qualifications, having regard to the other provisions discussed, especially that it will only be an offence to claim falsely to offer a “registered” qualification.[83] (Nothing in the context of the clause is inconsistent with this conclusion.)

It is true that such an interpretation renders the clause strictly speaking unnecessary, in that the Act already defines a qualification to mean a “registered” qualification,[84] a “part qualification” as an assessed unit of learning that is “registered” as part of a qualification[85] and “registered” to mean “registered on the [Framework] by the [Authority]”).

But doubt about the ambit of a statutory provision should be resolved by construing the provision strictly to give preference to its least onerous interpretation.[86]

The more stringent conclusion (that there must be registered on the Framework any and all qualifications[87] whatsoever,[88] however informal and unofficial) would mean that education institutions and skills-development providers could not offer education or learning programme that leads to qualifications[89] which are not registered on the Framework):

“Much plainer language than that which the legislature has employed would be required before such an interpretation could be justified”[90] on such a significant matter.

The better interpretation, although the Act does not make this unambiguously clear, is that this clause (that every qualification[91] to which education or learning programmes offered by education institutions and skills-development providers lead, must be registered on the Framework[92]) applies only to qualifications developed under a Quality Council’s auspices with a view to their registration.

As mentioned,[93] a Quality Council must—

Ensure the development of such qualifications[94] as are necessary for its sector; and

recommend qualifications[95] to the Authority for registration.[96]

This means that education institutions and skills-development providers may continue to offer education and learning programmes that lead to qualifications other than those developed under a Quality Council’s auspices for registration.

This conclusion is not especially obvious. The Act and Amendment Act are less than a model of clarity in that regard.

That lack of clarity violates the Rule of Law. Laws should be accessible and clear.[97]

Registration of education institutions by “relevant Department”. The Act applies to education or learning programmes leading to qualifications[98] offered by[99]

Education institutions that are established, declared or registered by law;[100] and

skills-development providers accredited by the trades and occupations Quality Council.[101]

The 2019 Amendment Act will alter the principal Act to provide that every private education institution or skills development provider offering education and training programmes[102] towards a qualification[103] must be registered by the “relevant Department” as a private education institution or skills development provider.[104]

The identity of the “relevant Department” in the case of a private education institution[105] is unclear. This is confusing: Some education institutions were declared[106] by law, not departmental registration[107] (e.g., the University of Cape Town was incorporated as a university by statute[108]).

The Framework comprises[109] three Sub­frameworks, for[110]

General and further education and training contemplated in the General and Further Education and Training Quality Assurance Act, 2001;

higher education contemplated in the Higher Education Act, 1997; and

trades and occupations contemplated in the Skills Development Act, 1998.[111]

Those three statutes each define the Department[112] as the Department[113] of Higher Education and Training.[114]

If, then, the “relevant Department” is indeed the said Department of Higher Education and Training, it is unclear why the 2019 Act does not say that much and avoid uncertainty.

That lack of clarity violates the Rule of Law.[115]

Minister’s policy. Policy is usually not legislation but a general guideline for future exercise of public power by executive government.[116] (The Constitution in its chapter on the national executive[117] stipulates that[118] the President exercises executive authority with the other Cabinet members by developing and implementing “national policy”.[119])

Yet the Act states that the Minister must determine “policy on [Framework] matters[120] in terms of [the] Act,”[121] and that the Authority[122] and the Quality Councils[123] must “comply with” policy determined by the Minister.[124] These provisions elevate Ministerial policy determinations to the level of subordinate legislation.

The word “policy” may bear different meanings and is inherently vague. The inadvisability of another level of subordinate legislation (labelled “policy”) is obvious.[125]

The Act also authorises the Minister to make regulations, regarding generally any ancillary or incidental administrative or procedural matter that it is necessary to prescribe for the proper implementation or administration of the Act.[126]

It thus appears that Ministerial policy may prescribe Framework matters which go beyond such mere “ancillary or incidental administrative or procedural matter”. But the extent to which a policy may go beyond administrative or procedural matter is not clear.

It is true that[127] that the Minister must advance the achievement of the objectives of the Framework.[128] The Act nevertheless does not indicate what the purpose of Ministerial policy is, or what its permissible content may be.

(In contrast, for example, the Minister must, in determining Sub-frameworks,[129] ensure that they are co­ordinated and that the Framework is a single integrated system.[130])

The Minister’s policy on Framework matters can notionally be as broad as the statute itself, and deal with Framework matters that the Authority, Quality Councils and professional bodies deal with,[131] or will deal with when the 2019 Act commences.[132]

The Minister’s policy could conceivably also deal with Framework matters other than those that the Authority, Quality Councils and professional bodies deal with. The Act places no limit on the scope of the Minister’s policy.

The Act’s failures to make clear what purposes Ministerial policy may achieve, and what its permissible content may be, violate the Rule of Law, which requires that—

Laws should be accessible and so far as possible clear and predictable;[133] and

discretions should be narrowly defined, to deter subjectivity and arbitrariness.[134]

Authority’s, Quality Councils’ policy for qualifications and prior learning. The Authority and Quality Councils must develop “policy” in conjunction with criteria.[135] Thus:

The Authority must[136] after consultation with the Quality Councils, develop and implement “policy and criteria” for development and registration of qualifications;[137]

a Quality Council must[138] develop “policy and criteria“ for the development and registration of qualifications for its Sub-framework, taking into account “policy and criteria” developed by the Authority;[139]

the Authority, to advance the Framework’s objectives with respect to qualifications, must develop[140] “policy and criteria” for assessment, recognition of prior learning and credit accumulation and transfer, after consultation with Quality Councils;[141] and

a Quality Council, to achieve the Framework’s objectives with regard to qualifications for its Sub-framework, must develop and implement “policy and criteria” for those matters,[142] taking into account the “policy and criteria” developed by the Authority.[143]

The Act does not indicate what differences there may be between “policy” and “criteria”.

This violates the Rule of Law. Laws should be accessible and clear.[144]

Authority’s policy for recognising professional bodies. Any statutory or non-statutory professional or occupational body[145] (a “professional body”[146]) must apply to the Authority to be recognised as a professional body.[147]

Anomalously, the Authority[148]

Must develop[149] “policy and criteria” for recognising a professional body;[150] but

must recognise a professional body if (merely) the “criteria” have been met.[151]

It is unclear why the Authority must develop both “policy and criteria” for recognising professional bodies, but must then recognise a professional body if just the “criteria” are met.

Again, such lack of clarity violates the Rule of Law.[152]

Professional bodies’ duty to co-operate with Quality Councils. The Act states that[153] a professional body must “co-operate” with relevant Quality Councils i.r.o. qualifications[154] in its occupational field.[155]

The scope of this duty of professional bodies to “co-operate” with Quality Councils is unclear. The word “co-operate” is vague and may bear different meanings:

To “co-operate” could merely mean a party’s working with another party to achieve a result that is reciprocally beneficial, associating for mutual benefit;[156] or

a duty to co-operate could mean more, and oblige the party to act in compliance with the other party’s requirements, to do what the other asks.[157]

This vagueness and ambiguity violate the Rule of Law. Laws should be accessible and so far as possible clear and predictable.[158]

Offences. The 2019 Amendment Act will insert into the principal Act provisions which create offences.[159] The provisions are poorly worded.[160] It will be an offence[161]

To make or cause to be made a false entry in the national learners’ records database;[162]

to, with fraudulent purpose, knowingly provide false or misleading information when required to give information[163] to another person;[164]

for a person, education institution or skills development provider to claim to offer a qualification[165] registered on the Framework, but which is not so registered;[166]

for a person falsely or fraudulently to claim to hold a qualification[167] registered on the Framework or awarded by an education institution or skills development provider;[168] or

for a person[169] falsely to claim to be registered and accredited as an education institution or skills development provider i.t.o. the laws of the Republic.[170]

These provisions to be inserted in the Act by the 2019 Act will create statutory offences for what are already offences under common law (viz. forgery[171] and uttering,[172] and fraud[173]).

It is unclear if the new provisions will abrogate those common-law offences or not.

Where conduct is an offence under common law and then criminalised by statute, the common law is repealed only if that is that statute’s express or necessarily implied intention. Without such intention, the statute and common law exist side by side, and the prosecution may indict under either the statute or common law.[174]

Such legislation is not desirable, because the overlapping which it involves leads to “uncertainty and confusion”.[175] This violates the Rule of Law.

The Rule of Law requires that laws should be clear and predictable.[176]

The Amendment Act will also insert a provision which state that it will be an offence to be “a party to” falsification and dissemination[177] of any person’s qualification.[178]

This provision, that it will be an offence to be “a party to” falsification[179] of a qualification, may imply that, for there to be an offence, the offender must have been involved with other parties, whether as—

A co-perpetrator[180] (who committed the offence together with others);[181]

an accomplice[182] (who assisted others in the commission of the offence);[183] or

an accessory after the fact (who by intervention after commission of the offence assisted a perpetrator or accomplice to evade detection of and prosecution for the offence).[184]

This uncertainty, too, violates the Rule of Law. Laws should be clear.[185]

Being ordered to close business, declared unfit for ten years. As mentioned, the 2019 Amendment Act will insert in the principal Act a provision that states that it will be an offence for a person[186] falsely to claim to be registered and accredited as an education institution or skills development provider i.t.o. the laws of the Republic.[187]

The Amendment Act will also insert in the principal Act a clause which states that a person[188] “in contravention” of that provision[189] may “be ordered” to “close its business” and “declared unfit” to register any education institution or skills development provider offering a qualification[190] on the Framework “for a period not exceeding 10 years”.[191]

This new clause (that a person in contravention of that provision[192] may be ordered to close business and declared unfit to register an education institution or skills development provider offering a qualification on the Framework for a period[193]) violates the Rule of Law in a number of respects:

First, the clause states that a person “in contravention” of the provision[194] may be ordered to close business and declared unfit. This does not make clear—

If the person must, before he may be ordered to close business, first have been convicted of being “in contravention” of the provision; or

if a mere formal allegation that he is in contravention will suffice.

Second, the clause states that a person in contravention may “be ordered” to close business and declared unfit. This does not make clear which state agency is authorised to make any such order, whether—

The ordinary courts;

the Minister (the Act says he may perform any function consistent with the Act[195]); or

the Authority if the Minister so determines (the Act says the Authority must perform any function consistent with the Act that the Minister may determine[196]).

Third, the clause says the person may be ordered to “close its business” and “declared unfit” to register education institutions or skills development providers offering qualifications on the Framework “for a period not exceeding 10 years”. It is unclear if this ten-year period—

applies only to the person’s being “declared unfit”; or

extends also to an order to “close […] business”.

This imprecision and ambiguity violate the Rule of Law. Laws should be accessible, clear and predictable.[197]

 

[1] National Qualifications Framework Act 67 of 2008 (also referred to here as the “Act”, “2008 Act” or “principal Act”).

[2] By the Higher Education Laws Amendment Act 26 of 2010 and Higher Education and Training Laws Amendment Act 23 of 2012.

[3] National Qualifications Framework Amendment Act 12 of 2019 (also referred to here as the “2019 Act” or “Amendment Act”).

[4] The 2019 Amendment Act’s provisions will come into operation on a date determined by the President by proclamation. He may determine different dates for different provisions. Amendment Act 2019 s 9(1) and (2).

[5] I.e., before commencement of the pending Amendment Act.

[6] Constitution of the Republic of South Africa, 1996 s 1(c).

[7] Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors: In re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others 2000 (10) BCLR 1079 (CC) par [22].

[8] National Qualifications Framework Act 2008 s 37.

[9] South African Qualifications Authority Act 58 of 1995.

[10] And objectives.

[11] South African Qualifications Authority Act 1995, Long title and s 2 .

[12] South African Qualifications Authority Act 1995 ss 3 and 5.

[13] To the extent consistent with the 2008 Act. National Qualifications Framework Act 2008 s 36(b).

[14] And organisation and governance. National Qualifications Framework Act 2008 s 2.

[15] National Qualifications Framework Act s 10 read with s 1 sv “SAQA”.

[16] National Qualifications Framework Act, Preamble second and third pars.

[17] National Qualifications Framework Act, Preamble fourth par.

[18] National Qualifications Framework Act s 7(a), (b) and (c).

[19] Contemplated in the General and Further Education and Training Quality Assurance Act, 2001.

[20] Contemplated in the Higher Education Act, 1997.

[21] Contemplated in the Skills Development Act, 1998.

[22] And publish them in the Gazette. National Qualifications Framework Act s 8(2)(e).

[23] And uphold its coherence. National Qualifications Framework Act s 8(3)(a) and (b).

[24] National Qualifications Framework Act s 5 (objectives of NQF).

[25] National Qualifications Framework Act s 5(1)(a).

[26] National Qualifications Framework Act s 5(1)(b).

[27] National Qualifications Framework Act s 5(1)(c).

[28] National Qualifications Framework Act s 5(1)(d).

[29] Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors: In re Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and others op cit par [22].

[30] South African Transport & Allied Workers Union and ano v Garvas and others (City of Cape Town intervening, amicus curiae Freedom of Expression Institute) 2012 (8) BCLR 840 (CC) par [37].

[31] I.e., its objectives.

[32] Cool Ideas 1186 CC v Hubbard and ano 2014 (8) BCLR 869 (CC) par [32].

[33] National Qualifications Framework Act s 6(1), (2) and (3).

[34] National Qualifications Framework Act s 13(1).

[35] National Qualifications Framework Act ss 6(4) and (5), read with ss 13(1)(g)(i), 27(g)(i) and 1 svv “QC” and “quality council”.

[36] “Umalusi”, as provided for in the General and Further Education and Training Quality Assurance Act 58 of 2001. National Qualifications Framework Act s 24 read with s 1 sv “GENFETQA Act”.

[37] As provided for in the Higher Education Act 101 of 1997. National Qualifications Framework Act s 25 read with s 1 sv “Higher Education Act”.

[38] Provided for in the Skills Development Act 97 of 1998. National Qualifications Framework Act s 26 read with s 1 sv “Skills Development Act”.

[39] National Qualifications Framework Act s 27.

[40] National Qualifications Framework Act s 27(g)(i).

[41] And publication.

[42] And part­qualifications. National Qualifications Framework Act s 13(1)(h)(i).

[43] National Qualifications Framework Act s 13(1)(h)(i)(bb).

[44] And publication.

[45] National Qualifications Framework Act s 27(h)(i).

[46] In order to achieve the objectives of the Framework.

[47] Or part-qualifications, i.e., assessed units of learning that are registered as part of a qualification. National Qualifications Framework Act s 1 sv “part-qualification”.

[48] Which may include appropriate measures for assessing learning achievement. National Qualifications Framework Act s 27(h)(iii).

[49] I.e., the education or training sector for whose sub­framework that Quality Council is responsible. National Qualifications Framework Act s 1 sv “sector”.

[50] Or part-qualifications.

[51] National Qualifications Framework Act s 27(h)(iv).

[52] In order to advance the objectives of the Framework.

[53] National Qualifications Framework Act s 1 sv “register”.

[54] Or part-qualification.

[55] National Qualifications Framework Act s 13(1)(h)(ii). See also s 3(2).

[56] National Qualifications Framework Act s 5(3)(b).

[57] National Qualifications Framework Act s 5(3)(c).

The requirement that qualifications be of “an acceptable quality” should be interpreted to seek to give effect to the object or purpose of the Act. See Mankayi v Anglogold Ashanti Ltd [2010] 3 All SA 606 (SCA) par [25].

[58] National Qualifications Framework Act s 3 (application of Act).

[59] The acquisition of knowledge, understanding, values, skill, competence or experience. National Qualifications Framework Act s 1 sv “learning”.

[60] Within the Republic.

[61] National Qualifications Framework Act s 3(1)(a)(i) read with s 1 svv “education institution”.

[62] Skills Development Act 97 of 1998. National Qualifications Framework Act s 3(1)(a)(ii) read with s 1 svv “skills development provider” and “Skills Development Act”, and Skills Development Act, 1998 s 17(1)(c), s 1 sv “QCTO” and s 26G.

(The 2019 Act will amend the Act’s definition of “skills development provider” to make it explicit that a provider is accredited by the Quality Council for Trades and Occupations (to offer occupational qualifications). National Qualifications Framework Act s 1 svv “Continuing Education and Training Act” to be inserted and “skills development provider” to be substituted by Amendment Act, 2019 s 1(b) and (h) resply.)

[63] Unless the context indicates otherwise.

[64] National Qualifications Framework Act s 1 sv “qualification”.

[65] National Qualifications Framework Act s 1 svv “part qualification”.

[66] National Qualifications Framework Act s 1 sv “registered”.

[67] As a rule.

[68] Discussed later below. See Offences.

[69] National Qualifications Framework Act s 27(i)(iv) to be added by Amendment Act, 2019 s 5(b).

[70] National Qualifications Framework Act s 32B(2) to be inserted by 2019 Act s 7.

[71] National Qualifications Framework Act s 32B(3) to be inserted by 2019 Act s 7.

[72] And part­qualifications.

[73] Or part­qualifications.

[74] Or part­qualification.

[75] National Qualifications Framework Act s 3(1)(a).

[76] National Qualifications Framework Act s 3(2) read with s 3(1)(a).

[77] Or part­qualifications.

[78] National Qualifications Framework Act s 1 (definitions).

[79] Such an inconsistency in the context would exist where applying the definitions in the clause concerned would lead to an injustice, incongruity, contradiction or absurdity which clearly shows that the legislature did not intend that result. Limbada v Principal Immigration Officer 1933 NPD 146 150.

[80] Or part­qualification.

[81] National Qualifications Framework Act s 3(1)(a).

[82] National Qualifications Framework Act s 3(2) read with s 3(1)(a).

[83] Or part­qualification. National Qualifications Framework Act s 32B(2) to be inserted by 2019 Act s 7.

[84] National Qualifications Framework Act s 1 sv “qualification”.

[85] National Qualifications Framework Act s 1 sv “part qualification”.

[86] Fundstrust (Pty) Ltd (in liquidation) v Van Deventer [1997] 1 All SA 644 (A) 656.

[87] Or part­qualification.

[88] To which an education or learning programme offered by an education institution or skills-development provider leads.

[89] Or part­qualifications.

[90] Drybulk SA v MV “Yu Long Shan” [1997] 4 All SA 613 (A) 619.

[91] Or part­qualifications.

[92] National Qualifications Framework Act s 3(2) read with s 3(1)(a).

[93] See above sub tit Developing of qualifications.

[94] Or part-qualifications.

[95] Or part-qualifications.

[96] National Qualifications Framework Act s 27(h)(iv).

[97] The Rt Hon Lord Bingham of Cornhill KG, Sixth Sir David Williams Lecture, Centre for Public Law, Univ of Cambridge, 2006, “The Rule of Law”, first sub-rule.

[98] Or part­qualifications.

[99] As mentioned. See above, sub tit Registration of qualifications.

[100] National Qualifications Framework Act s 3(1)(a)(i) read with s 1 svv “education institution”.

[101] Under the Skills Development Act, 1998. National Qualifications Framework Act s 3(1)(a)(ii) read with s 1 svv “skills development provider”.

[102] Or any components thereof.

[103] Or part­qualification.

[104] National Qualifications Framework Act s 3(3) to be added by Amendment Act, 2019 s 3(b).

[105] Offering education and training programmes towards a qualification or part­qualification.

[106] Or established.

[107] An education institution is established, declared or registered by law. National Qualifications Framework Act s 1 svv “education institution”.

Regarding a “skills development provider”, in contrast, the 2019 Act will amend the Act’s definition of that term to mean a provider registered with the Department (of Higher Education and Training) i.t.o. the Continuing Education and Training Act, 2006. National Qualifications Framework Act s 1 svv “Continuing Education and Training Act” to be inserted and “skills development provider” to be substituted by Amendment Act, 2019 s 1(b) and (h) resply, read with Continuing Education and Training Act, 2006 s 1 sv “Department”.)

[108] University of Cape Town Act 14 of 1916 s 1.

[109] As mentioned. See Sub-frameworks.

[110] Respectively.

[111] National Qualifications Framework Act s 7(a), (b) and (c).

[112] And “Minister”.

[113] And Minister.

[114] See—

General and Further Education and Training Quality Assurance Act, 2001 s 1 svv “department of education” par (c), sv “Minister” par (b) and svv “further education and training”;

Higher Education Act, 1997 s 1 svv “Department of Education” and “Minister”; and

Skills Development Act, 1998 s 1 svv “Department”, “Minister”, “QCTO”, s 16 (learnerships), s 20 (skills programmes) and s 26D (trade tests), and Chap 6C (quality council for trades and occupations) s 26G (establishment of QCTO) and s 26H (functions of QCTO).

In certain provisions of the said Skills Development Act, 1998 mentioned in its definitions of “Department” and “Minister”, those terms meant instead the Department or Minister of Labour. Those provisions did not relate to education and training or qualifications, but to employment or placement services (advising workers on career choices, assessing work seekers for entry into the labour market and referring them to employers or to training providers for education and training, and assisting employers by providing recruitment and placement services and advising them on the availability of work seekers with skills that match their needs, etc). Those provisions were deleted from the Skills Development Act, 1998 w.e.f. 9 Aug 2015 and re-enacted as the Employment Services Act, 2014, which now deals with employment and placement services and defines “Department” and “Minister” as the Department and Minister of Labour. See Skills Development Act, 1998 s 1 svv “Department” pars (a) and (b), “Minister” pars (a) and (b), read with Employment Services Act 4 of 2014 s 1 svv “Department”, “employment services”, “Minister”, s 53 (repeal of laws) and Sched 1 (laws repealed), and Proc 33 of 2015 (Gazette 39079 of 7 Aug 2015).

[115] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[116] Arun Property Development (Pty) Ltd v City of Cape Town 2015 (3) BCLR 243 (CC) par [47].

[117] Constitution, 1996, Chap 5 (the president and national executive).

[118] Constitution, 1996, Chap 5 s 85 (executive authority of the Republic).

[119] Constitution, 1996, Chap 5 s 85(2)(e).

[120] The provision concerned refers to “policy on NQF matters”.

[121] And publish the policy in the Gazette. National Qualifications Framework Act s 8(2)(b).

[122] In order to advance the objectives of the Framework.

[123] In order to achieve the objectives of the Framework.

[124] National Qualifications Framework Act s 13(1)(c).

[125] Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd [2001] 4 All SA 68 (SCA) par [7].

[126] National Qualifications Framework Act s 33(2)(b).

[127] As stated.

[128] National Qualifications Framework Act s 8(3)(a).

[129] National Qualifications Framework Act s 8(2)(e).

[130] National Qualifications Framework Act s 7.

[131] I.e., Framework levels, criteria for qualifications, recognition of prior learning, qualifications, recognition of professional bodies, national learners’ records database, Quality Council databases of learner achievements, professional bodies’ databases.

[132] E.g., verification of authenticity of qualifications.

[133] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[134] As stated above. Bingham, 2006, “The Rule of Law” (op cit), second sub-rule.

[135] Criteria have been dealt with above.

[136] In order to advance the objectives of the Framework.

[137] And part­qualifications. National Qualifications Framework Act s 13(1)(h)(i).

The policy and criteria must require each sub­framework’s qualification types to have distinct nomenclature appropriate to that sub­framework and consistent with international practice. National Qualifications Framework Act s 13(1)(h)(i)(bb).

[138] In order to achieve the objectives of the Framework.

[139] National Qualifications Framework Act s 27(h)(i).

[140] Anomalously), the Act does not provide that the Authority must develop “and implement” such criteria (in contrast to what is stated for Quality Councils.

The courts would probably remedy this casus omissus by inserting the quoted phrase. A casus omissus in a statute should be avoided if on a reasonable construction of an Act it can be. Davehill (Pty) Ltd and others v Community Development Board [1988] 1 All SA 388 (A) 392.

[141] National Qualifications Framework Act s 13(1)(h)(iii).

[142] I.e., assessment, recognition of prior learning and credit accumulation and transfer.

[143] National Qualifications Framework Act s 27(h)(ii).

[144] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[145] Of expert practitioners.

[146] Which includes an occupational body. National Qualifications Framework Act s 1 svv “professional body”.

[147] National Qualifications Framework Act s 29 read with s 13(1)(i)(ii).

[148] To advance the Framework’s objectives.

[149] And implement.

[150] For the purposes of the Act, after consultation with statutory and non-statutory bodies of expert practitioners in occupational fields and with the Quality Councils. National Qualifications Framework Act s 13(1)(i)(i).

[151] National Qualifications Framework Act s 13(1)(i)(ii).

[152] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[153] Despite the provisions of any other Act.

[154] And quality assurance.

[155] National Qualifications Framework Act s 28 (co-operation with QCs).

[156] MacMillan Dictionary sv “cooperate” https://www.macmillandictionary.com/dictionary/british/cooperate ; Merriam-Webster Dictionary sv “cooperate” https://www.merriam-webster.com/dictionary/cooperate .

[157] Collins Dictionary sv “cooperate” https://www.collinsdictionary.com/dictionary/english/cooperate ; Cambridge Dictionary sv “cooperate” https://dictionary.cambridge.org/dictionary/english/cooperate .

[158] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[159] National Qualifications Framework Act s 32B (offences and penalties) to be inserted by 2019 Act s 7.

[160] But their purpose is clear.

[161] Slightly reworded.

[162] National Qualifications Framework Act s 32B(1)(a) to be inserted by 2019 Act s 7.

[163] Or notice.

[164] The Act states “in any circumstances in which the Act requires the person to provide information or give notice to another person”. National Qualifications Framework Act s 32B(1)(c) to be inserted by 2019 Act s 7.

[165] Or part­qualification.

[166] National Qualifications Framework Act s 32B(2) to be inserted by 2019 Act s 7.

[167] Or part­qualification.

[168] Or by a Quality Council. National Qualifications Framework Act s 32B(3) to be inserted by 2019 Act s 7.

As stated above, Qualifications are not awarded by Quality Councils, but by education institutions and skills development providers.

[169] Or education institution or skills development provider.

[170] National Qualifications Framework Act s 32B(4) to be inserted by 2019 Act s 7.

[171] Forgery is unlawfully making a false document with intent to defraud to the actual or potential prejudice of another. Law of South Africa vol 11 3 ed “Criminal Law” sv Forgery § 374 (definition and general character) and cases there cited.

[172] Uttering is unlawfully offering, passing off or communicating with intent to defraud a forged document, to the actual or potential prejudice of another. Commonly the person who utters a document is the one who forged it, and he will be charged with two offences, viz. forgery and uttering. If the person who utters the document is someone other than the one who forged it, he will be charged only with uttering. Uttering, like forgery, is a species of fraud, and its elements of prejudice and intention to defraud are similar to the corresponding elements in the crime of fraud. The requirement of a false document is the same as in forgery. Law of South Africa vol 11 3 ed “Criminal Law” sv Uttering § 378 (description of uttering) and cases there cited.

[173] Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another. Law of South Africa vol 11 3 ed “Criminal Law” sv Fraud § 363 (definition) and cases there cited.

[174] As circumstances seem to require. R v Feelander 1926 TPD 157 160.

[175] R v Roberts 1908 TS 279 283 per Innes CJ, Smith J concurring.

[176] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[177] Or publication.

[178] Or part-qualification. National Qualifications Framework Act s 32B(1)(b) to be inserted by 2019 Act s 7. It appears the offence consists of falsifying a qualification and disseminating or publishing the false information.

[179] And dissemination or publication.

[180] ’n Mededader.

[181] Law of South Africa vol 11 3 ed “Criminal Law” sub nom Participation: Perpetrators § 116 (definition).

[182] ’n Medepligtige.

[183] Law of South Africa vol 11 3 ed “Criminal Law” sub nom Participation: Accomplices § 129 (introduction).

[184] Law of South Africa vol 11 3 ed “Criminal Law” sub nom Participation: Accessories after the fact § 136 (actus reus).

[185] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

[186] Or education institution or skills development provider.

[187] National Qualifications Framework Act s 32B(4) to be inserted by 2019 Act s 7.

[188] Or education institution or skills development provider.

[189] That will create the offence of falsely claiming to be a registered and accredited education institution or skills development provider.n

[190] Or part­qualification.

[191] National Qualifications Framework Act s 32B(7) to be inserted by 2019 Act s 7.

[192] Creating the offence of falsely claiming to be a registered and accredited education institution or skills development provider. National Qualifications Framework Act s 32B(4) to be inserted by 2019 Act s 7.

[193] National Qualifications Framework Act s 32B(7) to be inserted by 2019 Act s 7.

[194] That it is an offence falsely to claim to be a registered and accredited education institution or skills development provider.

[195] National Qualifications Framework Act s 8(4).

[196] National Qualifications Framework Act s 13(1)(n)(iii).

[197] Bingham, 2006, “The Rule of Law” (op cit), first sub-rule.

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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