| (1) | The Minister may, after consulting the CHE and by notice in the Gazette, declare any education institution providing higher education as— |
| (b) | an incorporated subdivision of a university, university college or higher education college. |
[Section 21(1) substituted by section 6(a) of Notice No. 21, GG 40548, dated 17 January 2017]
| (2) | The notice contemplated in subsection (1) must determine— |
| (a) | the date on which the education institution becomes a university, university college or higher education college or a subdivision of a university, university college or higher education college, as the case may be; |
| (b) | the name of the university,university college or higher education college; and |
| (c) | the physical location and the official address of the university, university college or higher education college. |
[Section 21(2) substituted by section 6(b) of Notice No. 21, GG 40548, dated 17 January 2017]
| (3) | The Minister may act under subsection (1) only— |
| (i) | the governing body of the education institution, if it is a public institution; |
| (iii) | the responsible Minister, Member of the Executive Council or authority, if the education institution is administered, controlled or funded by an organ of state other than the Department of Education; and |
| (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; |
[Section 21(3)(b)(i) substituted by section 4 of Act No. 63 of 2002]
| (ii) | given any interested persons an opportunity to make representations; and |
| (iii) | considered such representations; |
| (c) | if it is a private institution, with the concurrence of the owner of the education institution and the Minister of Finance. |
| (3A) | Section 20(6) to (11), with the changes required by the context, applies to a declaration referred to in subsection (1)(a). |
[Section 21(3A) inserted by section 5 of Act No. 23 of 2001]
| (4) | Nothing contained in this Act or any other law may be regarded as obliging the Minister to declare an education institution to be a public higher education institution in terms of this section. |
| (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. |
[Section 21(5) amended by section 4 of Act No. 63 of 2002]
| (6) | Notwithstanding subsection (5)(a), the old employer may undertake rationalisation of its workforce according to operational requirements 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). |
[Section 21(6) inserted by section 4 of Act No. 63 of 2002]
| (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. |
[Section 21(7) inserted by section 4 of Act No. 63 of 2002]
