Higher Education Act, 1997 (Act No. 101 of 1997)Chapter 3 : Public Higher Education Institutions23. Merger of public higher education institutions |
| (1) | Subject to subsection (2), the Minister may, after consulting the CHE and by notice in the Gazette, merge two or more public higher education institutions into a single public higher education institution. |
| (2) | Before making a decision under subsection (1), the Minister must— |
| (a) | give written notice to the councils of the public higher education institutions concerned of the intention to merge the institutions and the reasons for the intended merger; |
| (b) | publish a notice giving the reasons for the intended merger in one or more newspapers circulating in the area in which the public higher education institutions concerned are situated; |
| (c) | give the councils of the public higher education institutions concerned and any other interested persons an opportunity to make representations within at least 90 days of the date of the notice referred to in paragraph (b); and |
| (d) | consider the representations contemplated in paragraph (c). |
[Section 23(2) substituted by section 7 of Notice No. 21, GG 40548, dated 17 January 2017]
| (2A) | Notwithstanding sections 197 and 197A of the Labour Relations Act, 1995 (Act No. 66 of 1995), the contracts of employment between the public higher education institution (herein referred to as "the old employer") and its employees are transferred automatically to the merged single public higher education institution (herein referred to as "the new employer") as from the date of the merger contemplated in subsection (1), but any redeployment of an employee as a consequence of the merger is subject to applicable labour legislation. |
[Section 23(2A) inserted by section 5 of Act No. 63 of 2002]
| (2B) | If two or more public higher education institutions are merged into a single public higher education institution as contemplated in subsection (1), all the rights and obligations between the old employers and each employee at the time of the merger continue in force as if they were rights and obligations between the new employer and each employee and anything done before the merger by or in relation to the old employers is considered to have been done by or in relation to the new employer. |
[Section 23(2B) inserted by section 5 of Act No. 63 of 2002]
| (2C) | A merger referred to in subsection (1) does not interrupt the employee’s continuity of employment. |
[Section 23(2C) inserted by section 5 of Act No. 63 of 2002]
| (2D) | The provisions of subsections (2A) to (2F) do not affect the liability of any person to be disciplined for, prosecuted for, convicted of and sentenced for any offence or misconduct. |
[Section 23(2D) inserted by section 5 of Act No. 63 of 2002]
| (2E) | An employee or a student is subject to the disciplinary codes and rules applicable to the new single public higher education institution as from the date of the merger 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 merger, such enquiry or proceedings continue in terms of the codes and rules applicable to the relevant public higher education institution immediately prior to the merger. |
[Section 23(2E) inserted by section 5 of Act No. 63 of 2002]
| (2F) | Until the new single public higher education institution has made disciplinary codes or rules, the disciplinary codes and rules of the respective old public higher education institutions are applicable to the respective employees and students. |
[Section 23(2F) inserted by section 5 of Act No. 63 of 2002]
| (2G) | Notwithstanding subsection (2A), 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 merger contemplated in subsection (1). |
[Section 23(2G) inserted by section 5 of Act No. 63 of 2002]
| (2H) | If two or more public higher education institutions are merged into a single public higher education institution as contemplated in subsection (1), the new single public higher education institution— |
| (i) | continues with all academic programmes offered by the old higher education institutions under the rules applicable to the respective higher education institutions immediately before the date of the merger, until such programmes and rules are amended or restructured by the new council; and |
| (ii) | awards a degree, diploma or certificate to a student who qualifies before or after the date of the merger in its own name, but such degree, diploma or certificate must also reflect the name of the education institution at which the student was registered immediately before the date of the merger if the student was so registered. |
[Section 23(2H) inserted by section 5 of Act No. 63 of 2002]
| (3) |
| (a) | The single public higher education institution contemplated in subsection (1) is deemed to be a public higher education institution established under section 20. |
| (b) | The Minister must, after consultation with the councils of the public higher education institutions that are to be merged, determine by notice contemplated in section 23(1)— |
| (i) | the date of establishment of the institution; |
| (ii) | the type and name of the institution; and |
| (iii) | the physical location and official address of the institution. |
[Section 23(3) substituted by section 5 of Act No. 63 of 2002]
| (4) | Section 22(1)(b) to (6), with the changes required by the context, applies to a merger referred to in subsection (1). |
| (5) | The Minister must in the notice contemplated in subsection (1) establish an interim council for a period not exceeding six months, to perform the functions relating to the governance of the single public higher education institution contemplated in subsection (1), except the making of an institutional statute. |
[Section 23(5) inserted by section 6 of Act No. 23 of 2001]
| (6) | The Minister may extend the period referred to in subsection (5) once for a further period not exceeding six months. |
[Section 23(6) inserted by section 6 of Act No. 23 of 2001]
| (7) | The members of the interim council contemplated in subsection (5) are appointed by the Minister and consist of— |
| (a) | the chairperson; and |
| (b) | a minimum of six members and a maximum of eight members. |
[Paragraph (b) amended by section 5 of Act No. 63 of 2002]
[Section 23(7) inserted by section 6 of Act No. 23 of 2001]
| (8) | The members contemplated in subsection (7)(b)— |
| (a) | must be appointed by the Minister from nominations received from the public higher education institutions concerned; and |
| (b) | may not include any member of staff, or student, from the public higher education institutions concerned. |
[Section 23(8) amended by section 5 of Act No. 63 of 2002]
| (9) | The interim council must co-opt three members of the interim management contemplated in subsection (10) (a) and these members have no voting powers. |
[Section 23(9) inserted by section 6 of Act No. 23 of 2001]
| (10) | Apart from the functions contemplated in subsection (5) the interim council must in particular— |
| (a) | appoint an interim body to manage the day-to-day activities of the institution; |
| (b) | ensure that a council is constituted in terms of the standard institutional statute contemplated in section 33(3); and |
| (c) | ensure that such other structures as may be determined in the standard institutional statute contemplated in section 33(3) are constituted. |
[Section 23(10) inserted by section 6 of Act No. 23 of 2001]
| (11) | Any decision of the interim council, which may affect the right of any structure of the public higher education institution, may only be taken after consultation with such structure. |
[Section 23(11) inserted by section 6 of Act No. 23 of 2001]
| (12) | Upon a written request by the Minister and within 60 days thereof, each of the public higher education institutions referred to in subsection (1) must provide the Minister with no fewer than four nominations for appointment of the members as contemplated in subsection (8)(a). |
[Section 23(12) inserted by section 5 of Act No. 63 of 2002]
| (13) | Notwithstanding subsection (8), if any of the public higher education institutions fail to provide the nominations in terms of subsection (12), the Minister may appoint the members referred to in subsection (7)(6) from the nominations received from the other institution concerned, or at his or her discretion. |
[Section 23(13) inserted by section 5 of Act No. 63 of 2002]