What were the potential problems raised by the African ICC exodus?

With a greater understanding of the witness protection framework and the role of state cooperation, it is now possible to consider the possible ramifications to be addressed by the International Criminal Court (ICC or Court) – the Victims and Witnesses Section (VWS) in particular – in dealing with an African walkout.

These can broadly be divided into three strands:

– the risks considered by the VWS in applications for admission to the International Criminal Court Protection Programme (ICCPP) and ongoing reassessment of risk to the protected witnesses;
– the reduction in possible protective states; and
– the question of what happens to the existing relocation agreements, and those persons relocated in terms thereof.

Assessment and reassessment of risk

Witnesses should always, where possible, be relocated to a state where the cultural, linguistic and geographic particularities are close to their country of origin. Given that the majority of situations currently before the Court are located in Africa, this principle is particularly important when considering the impact of an African exodus. If the Court has applied this principle in practice, many witnesses relocated under the ICCPP to date will presumably have been relocated within Africa. In 2016, a Court official confirmed that African participation in the ICCPP is “very good”.

As protective states are presumably bound by fairly onerous confidentiality arrangements under the relocation agreements, problems for relocated witnesses are possibly unlikely to materialise. But, no matter how implausible, the possibility remains that protective states could renege on their commitments (feeling less obligated to honour them having severed ties with the ICC) which places the witnesses living under their protection at risk.

When a witness applies for admission to the ICCPP, the VWS conducts a risk assessment. Regulation 96(6) of the ICC Registry Regulations (ICC-BD/03-03-13) states that the need for continued participation in the ICCPP will be reassessed every 12 months. Due to the understandably-confidential nature of the ICCPP, it is unclear what factors are considered to increase the risk to a witness to such an extent that it is considered necessary that she be relocated or remain in protection. A significant change in the protective state’s attitude towards the ICC (especially where such a change is negative) arguably necessitates a reassessment of the risk to the relocated witness and her family. In this particular context, it may be advisable for the VWS to reassess the risks posed to witnesses already relocated in African states participating in any walkout.

Reduction in potential protective states

Given the confidential nature of the identity of the states who have accepted witnesses under the ICCPP, it is impossible to tell whether relocation agreements have been concluded with non-States Parties. Although this is possible in theory, if the Court has any kind of policy preferring relocation agreements to be concluded with States Parties, the withdrawal of a number of states in a walkout would reduce the number of potential relocation partners for future matters. This could make relocation difficult where a matter involving an African country necessitates the relocation of a witness. Given the priority principle of relocating witnesses to states similar to their home state, this reduction in the number of potential African states will hamstring the VWS and may compromise the best interests of the witnesses.

Existing relocation agreements

The Rome Statute of the International Criminal Court establishes a general duty

of cooperation on States Parties under article 86, while article 93(1)(j) sets out a specific obligation in relation to the protection of witnesses. Article 127(2) provides that exiting states are not relieved of obligations that arose while the state was still a States Party. Therefore, the duty to cooperate will still be effective in relation to the exiting states insofar as current matters are concerned.

However, the context of the walkout is important. In SALC v Minister of Justice, the High Court (Pretoria) found that failure to arrest President al-Bashir amounted to a disregard for South Africa’s international law obligations. The calls for the African exodus come on the back of this finding. However, regardless of the reasons for African states’ indifference and their non-compliance with international obligations, it is the witnesses who will ultimately be prejudiced and need to be protected.

The threshold for admission to the ICCPP is high: “a high likelihood that the witness will be harmed or killed unless action is taken” (see Lubanga); and the VWS can only recommend participation in the ICCPP if the risk threshold has been met (see Bemba). The witnesses in the ICCPP were, and may continue to be, at great risk because of their assistance to the Court. It is conceivable that, at the extreme end of the scale, witnesses could be attacked or assassinated. It is possible (perhaps even probable) that a protected witness or the ICC would not be aware of the risk to the witness before it is too late to do anything. This renders the duty to cooperate that continues to bind withdrawn States Parties meaningless, and there is little point to the duty if it has no meaning for the people it aims to protect.

Therefore, where the duty to cooperate is in place but a state has adopted a position of contempt, there must be some enforcement mechanism to ensure cooperation in this high risk area. The next two alerts will consider the possible enforcement mechanisms available.

table cliffe dekker 14 march

On Tuesday, 7 March 2017, South Africa revoked its notice of withdrawal from the Rome Statute of the International Criminal Court in accordance with the recent order of the High Court, Pretoria. This action was recorded by the United Nations on the same date.

Sarah McGibbon, overseen by Lionel Egypt, Dispute Resolution practice and services, Cliffe Dekker Hofmeyr.

What was the ruling issued by SARS in respect of venture capital companies?

The South African Revenue Service (SARS) issued binding private ruling 264 on 3 February 2017 (Ruling).

In essence, the Ruling determines whether each share to be issued by a venture capital company (VCC) and another company (Target Company) will constitute “equity shares” as defined in s1(1) of the Income Tax Act, No 58 of 1962 (Act). In addition, the Ruling provides guidance as to whether the Target Company would be a “controlled group company” for purposes of the definition of “qualifying company” in s12J(1) of the Act.

The Ruling is important as it provides further direction in respect of the ongoing interpretation of the rules contained in s12J pertaining to VCCs as well as illustrating the practical implementation of some of the technical aspects of the rules to particular structures. This note does not discuss every nuance arising out of the Ruling, but merely highlights some of the major principles and aspects taken from it.

Background of proposed transaction

In essence, the applicant, a South African resident company approved as a VCC under s12J (Applicant) proposed raising funds by issuing shares to various persons (Investors), which funds were to be allocated specifically to a Target Company.

(Note: while the Ruling initially refers to a “Target Company B”, it thereafter merely refers to a “Target Company”. For purposes of this note, it is assumed that “Target Company B” and “Target Company” are the same.)

The proposed transaction steps were as follows:

Transaction step 1:

– The Applicant’s board of directors would classify and assign certain preferences, rights and limitations, and other terms to a class of its ordinary shares (class A ordinary shares) which would rank pari passu (ie equally) with all its other ordinary shares.
– The Investors who wished to specifically invest in the Target Company would subscribe for class A ordinary shares in the Applicant and a management company (Manco A) would co-invest in the Applicant.

Transaction step 2:

– The Applicant would use the subscription price received from the Investors to subscribe for class A ordinary shares in the Target Company.
– The Applicant would subscribe for no more than 69% of the total equity shares issued by the Target Company. The capital, which the Applicant would contribute to the Target Company would be disproportionately high, compared to the number of shares it would hold in the Target Company. Although the Applicant would subscribe for no more than 69% of the equity shares in the Target Company, it would contribute in excess of 69% of the Target Company’s capital.
– The total equity shares to be issued by the Target Company would comprise of ordinary shares and class A ordinary shares. Target Company’s class A ordinary shares would rank pari passu (ie equally) with all its other ordinary shares.
– The Target Company would issue the remaining 31% of its equity shares (ordinary shares) to a management company (Manco B).
– Manco B was not required to contribute any capital to the Target Company.

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The first issue which the parties wished to clarify was whether the relevant shares to be issued pursuant to the application would constitute “equity shares” as defined in s1(1) of the Act for purposes of the definition of “venture capital share” in s12J(1) of the Act. The main significance of this lies in the fact that as per s12J(2), a taxpayer is only allowed an income tax deduction (subject to certain qualifications) of expenditure actually incurred by that taxpayer in acquiring any “venture capital share” (ie an equity share) issued to that taxpayer by a venture capital company.

It is therefore important to consider the definition of “equity share” in s1 of the Act, which states as follows:

Any share in a company, excluding any share that, neither as respects dividends nor as respects returns of capital, carries any right to participate beyond a specified amount in a distribution.

In considering whether the relevant shares therefore constitute “equity shares” and thereby “venture capital shares” which would enable the Investors to claim the s12J(2) upfront income tax deduction on their subscription proceeds advanced to the Applicant, one must consider the specific rights, preferences, limitations and other terms of the various categories of shares issued by the VCC. The Ruling sets out the specific rights of the various shares as reflected below.

The Applicant’s ordinary shares entitled their holders to:

– vote on every matter to be decided by the shareholders of the company. A share would entitle the holder to one vote for each ordinary share; and
– share in the net assets of the Applicant upon its liquidation together with the Applicant’s class A ordinary shareholders.

The Applicant’s class A ordinary shares would entitle their holders to:

– share in distributions from only the Target Company. The class A ordinary shareholders would not be able to share in any distributions from any other target company in which the Applicant may invest;
– share in the net assets of the Applicant upon its liquidation together with the other ordinary shareholders of the Applicant;
– vote on every matter on which the shareholders are required to vote in relation to the Target Company’s class A ordinary shares and on any proposal to amend the preferences, rights, limitations and other terms associated with the Target Company’s class A ordinary shares in accordance with the relevant provisions of the Applicant’s memorandum of incorporation (MOI); and
– one vote on every matter on which that shareholder may vote, for each class A ordinary share held in the Applicant.

SARS Ruling

SARS ruled that for purposes of the definition of “venture capital share” in s12J(1), each of the Applicant’s ordinary shares and each of the Applicant’s class A ordinary shares would constitute an “equity share” as defined in s1(1). Building on developments in previous rulings issued by SARS in respect of the VCC regime, the Ruling demonstrates that there is a certain amount of flexibility in respect of how the VCC and its underlying investment can be set up and structured. Specifically, in this case, the Ruling illustrates that it is possible for the Investors to channel their funds to a specific investment by the VCC (ie the Target Company) and therefore ring fence their investment to a certain extent, without falling foul of the requirements of s12J.

Second issue – definition of “equity share” in respect of “qualifying shares”

Section 12J(6A) of the Act provides certain requirements which VCCs must comply with by the end of each year of assessment after the expiry of 36 months from the first date of issue of venture capital shares. One such requirement is that a minimum of 80% of the expenditure incurred by a VCC to acquire assets must be for “qualifying shares”. Furthermore, the expenditure incurred by the VCC to acquire qualifying shares in any one qualifying company must not exceed 20% of any amounts received in respect of the issue of venture capital shares. In other words, 80% or more of the subscription proceeds advanced by various investors must be utilised by the VCC to subscribe for qualifying shares in underlying investee companies, and secondly the VCC cannot subscribe for shares in any underlying investee company which is in excess of 20% of the aggregate subscription proceeds received from its investors. In essence, the purpose of the latter requirement is to ensure that VCCs spread their wealth and investment so that the incentive achieves its objective of supporting many small, medium and micro-sized enterprises and not merely a chosen few.

A “qualifying share” is defined in s12J(1) as an equity share held by a VCC which is issued to that VCC by a qualifying company, and which does not include any “hybrid equity instrument” as defined in s8E(1) of the Act (but for the three year period requirement), nor a “third-party backed share” as defined in s8EA(1) of the Act. As per the definition of equity share referred to earlier, one must have regard to the rights and limitations attached to the shares in the Target Company in order to ascertain whether such shares constitute “equity shares” and thereby “qualifying shares” which is important when considering the various requirements of a VCC structure.

The Target Company’s ordinary shares would entitle their holders to:

– vote on every matter to be decided by the shareholders of the company. A share would entitle the holder to one vote for each ordinary share held in the Target Company; and
– share with the Target Company’s class A ordinary shareholders in the net assets of the company upon its liquidation.

The Target Company’s class A ordinary shares would entitle their holders to:

– vote on every matter to be decided by the shareholders of the company. A class A ordinary share would entitle its holder to one vote;
– be paid the full amount of each and every distribution in respect of the class A ordinary shares, in priority to the holders of the Target Company’s ordinary shares and/or the holders of any other class of shares in the company. This is subject to the relevant provisions of the Companies Act,
– No 71 of 2008, the MOI of the Target Company and any other applicable laws; and
– share with the Target Company’s ordinary shareholders in the net assets of the Target Company upon its liquidation. In respect of all other distributions, the full amount of each and every distribution must be made only to the holders of the Target Company class A ordinary shares.

SARS Ruling

In respect of this issue, SARS ruled that for purposes of the definition of “qualifying share” in s12J(1), each of the Target Company’s ordinary shares and each of the Target Company’s class A ordinary shares would constitute “equity shares” as defined in s1(1). The general principle taken from this is that, notwithstanding the fact that the class A ordinary shares in the Target Company had preferential rights to each and every distribution of the Target Company over the ordinary shareholders, such shares still constituted equity shares as defined and hence constituted qualifying shares in the Target Company, thereby complying with the relevant s12J requirements.

Third issue – “qualifying company”

Section 12J(1) of the Act defines a “qualifying company” as, among others, any company that is not a “controlled group company” in relation to a group of companies. A “controlled group company” is defined with reference to the definition of “group of companies” as two or more companies in which one company (controlling group company) directly or indirectly holds at least 70 percent of the equity shares in at least one other company (controlling group company), or by one or more other controlled group companies within the group or any combination thereof.

Therefore a VCC will be prohibited from investing in any potentially qualifying investee company which constitutes a controlled group company where it holds 70% or more of the equity shares in such underlying qualifying company directly. Alternatively, the prohibition would arise where any other shareholder (ie a third party) owns 70% or more of the equity shares in the qualifying company. In essence therefore a VCC will not be able to subscribe for shares in the underlying investee company in excess of 69.9%. In addition, no other investor company may hold 70% or more of the shares in the underlying investee company.

SARS Ruling

In respect of this issue, SARS ruled that, for purposes of the definition of “qualifying company” in s12J(1), the Target Company will not constitute a “controlled group company” as long as the number of equity shares to be held by the Applicant in the Target Company will constitute less than 70% of the total number of equity shares, despite the fact that the Applicant may invest more than 70% of the aggregate share capital in the Target Company in monetary terms.

It is therefore interesting to note that, despite the fact that the Applicant (ie the VCC) had an economic interest in the Target Company in excess of 70% (by virtue of contributing in excess of 70% of the share capital in Target Company), it would still not breach the threshold of 70% and hence the prohibition in respect of the underlying investee company not constituting a “controlling group company” was not applicable.

Summary and importance of the Ruling

One must always be cautious when relying on rulings issued by SARS as not all the facts and background are published in the sanitised rulings placed on SARS’s website. Notwithstanding this, they nevertheless provide valuable guidance in respect of the interpretation of various provisions within the Act. In respect of this specific Ruling, it shows that there is certainly some flexibility in respect of how VCC structures can be set up and implemented, which should be welcomed by potential investors and persons interested in this sector. This Ruling certainly builds on the previous rulings issued by SARS in respect of VCCs, nevertheless, one would be well advised to consult with a professional before embarking upon a structure of this nature and, if necessary, apply for a ruling in the event that the circumstances warrant it.

Announcements in the 2017 Budget

A final point to note is that the Minister of Finance recently announced in the 2017 Budget that further changes are being considered to the VCC regime to remove impediments to investment such as rules relating to investment returns as well as those relating to qualifying companies. One amendment which may be on the cards is the relaxing of the prohibition of underlying investee companies engaged in any trade carried on in respect of immovable property (except as a hotel keeper).

Jerome Brink, Tax and Exchange Control practice and services, Cliffe Dekker Hofmeyr.

Has the managed service provider (MSP) model gained traction?

The issue

In a recent arbitration award (the Award) in K Sefole & 102 Others v Bidvest TMS and Nampak Glass, the CCMA Senior Commissioner found that the relationship between Bidvest and Nampak did not amount to a temporary employment service (TES) for the purposes of s198A of the Labour Relations Act (LRA).

The Applicants are employed by Bidvest but claimed that the service provided by Bidvest to Nampak was not a temporary one as it had exceeded a duration of three months. They earned under the Ministerial earnings threshold and asserted that they should be treated as the “deemed” employees of Nampak and employed by it on an indefinite basis by it.

This dispute was first entertained, incorrectly so, by the National Bargaining Council for the Chemical Industry (NBCCI) which had no jurisdiction over Bidvest. The NBCCI found that the relationship between Bidvest and Nampak was a TES. An urgent application before the Labour Court sought to suspend the operation of the NBCCI decision pending a review to set it aside. The urgent relief was granted and the matter, by agreement between the parties, was referred to the CCMA for a Senior Commissioner to determine the dispute afresh.

The facts

Bidvest provided a specialised warehousing service to Nampak in terms of a detailed service level agreement (SLA) which had been concluded between them. The core business of Nampak Glass is the manufacture of glass products. Once these products are ready to be released for despatch, Bidvest’s employees are responsible for palletizing and packaging the products ready for distribution to Nampak’s customers.

In a decision of the Labour Court, which was confirmed on appeal by the Labour Appeal Court (LAC), Bidvest commenced its operations at Nampak and took over the warehousing functions from Unitrans. A dispute arose about whether that transfer amounted to an s197 transfer of part of Unitrans’ business to Bidvest as a going concern. Both the Labour Court and LAC determined that the events triggered an s197 transfer.

The Labour Court found that:

“… the warehousing service provided by (Bidvest) to Nampak constituted an economic entity … or … an organised grouping of resources … .”

The Labour Appeal Court found that:

“… the service that was provided was that of warehousing. … The warehouse operation services constituted a discreet business … .” (the facts demonstrate) … “that the service … constitutes a business sufficiently demarcated to justify the conclusion that when this business was taken over (by Bidvest) … there was a transfer of a business as a going concern.”

The Applicants, in the face of this binding precedent, claimed that a TES relationship existed because:

· Nampak staff sometimes gave direct instructions to them.

· The details of how Bidvest conducts its business at Nampak’s warehouse is contractually stipulated in the SLA and the standard operating procedures (SOPs) compiled, so they claimed, by Nampak with the result that Bidvest’s service was controlled directly by Nampak.

· They use the forklift trucks leased by Nampak.

· They make use of Nampak’s JDE software system which is an enterprise resource planning tool aimed at successful inventory control and invoicing.

The evidence

The Applicants claimed that all those factors demonstrated that they were an integral part of Nampak’s operations which smacked of a TES arrangement, but the evidence led indicated differently:

· Nampak’s staff rarely gave instructions to any of the Applicants as Bidvest had its own supervisory team at the warehouse to direct and control the carrying out of the Applicant’s duties. None of the Applicants who testified stated or even suggested that they did not report directly to Bidvest’s warehouse manager and its team of supervisors on a daily basis. There was unrefuted evidence that Nampak’s supervisor only gave direct instructions to an Applicant if it was to avert a health and safety hazard.

· Bidvest made use of its own administrative, financial reporting, payroll, disciplinary processes, induction training and it managed the Applicants.

· The SOPs were not drawn up by Nampak. Although the Applicants asserted that the SOPs carried Nampak’s logo’s, it was Bidvest’s warehouse manager who personally drafted and prepared them. Those Applicants who testified conceded that they were handed the SOPs and were required to sign for them by Bidvest.

· The Applicants argued that because the SLA indicates what “must” be done to satisfy Nampak’s requirements, this amounted to instructions issued by Nampak to them. However, in the evidence, none of the Applicants had even seen the SLA.

The findings

The Commissioner correctly found that the SLA was not a sham as there was no evidence led suggesting the contrary. The Commissioner found, in line with recent LAC decision in Enforce Security Group v Fikile & Others (unreported: DA/24/15), that on the facts the SLA was based on “proper economic and commercial considerations”. The Commissioner reasoned that that is so because “Nampak had outsourced part of its operation to warehousing specialists” rather than attempting those functions itself.

Conclusion

The Commissioner found that no TES relationship was in existence and s198A had no application on the facts presented. There is room in our law for the recognition of a genuine outsource of services to an MSP, and this does not invoke the protections afforded to those eligible employees contemplated by the LRA.

Fiona Leppan, Employment practice and services, Cliffe Dekker Hofmeyr.

What is the latest on the national minimum wage?

On 8 February 2017, Cyril Ramaphosa, the Deputy President of South Africa, disclosed preliminary details regarding the implementation of a national minimum wage (“NMW”).

This came after social partners, representatives from government, business, the community sector and two of the three labour federations represented at NEDLAC signed agreements on 7 February 2017 which provide for, among others, the imposition of the NMW (“NMW Agreement”).

During the State of the Nation address on 9 February 2017, Jacob Zuma, the President of South Africa stated that:

Unity in action was also demonstrated again this week with the conclusion of the agreement on the National Minimum Wage and on measures to stabilise labour relations. This follows a call I had made in the State of the Nation Address on 14 June 2014. We congratulate the Deputy President and the team at NEDLAC for this milestone and wish them well for work that still needs to be done.

The NMW Agreement provides, among others, the following regarding the NMW:

Implementation

The NMW will be implemented by no later than 1 May 2018 and will be set at R20 per hour. Despite the above-mentioned implementation date, it is agreed that the NMW should be implemented as soon as possible. The implementation date may, therefore be prior to 1 May 2018. This will depend on factors such as the finalisation of legislation to give effect to the NMW (“NMW Act”).

NMW Commission

A NMW Commission (“Commission”) will be established and  will be tasked with activities such as:

• Establishing medium term aspirational targets for the NMW, taking into account appropriate benchmarks and the International Labour Organisations (“ILO”) principles;
• Making adjustments to the NMW. The first and subsequent adjustments will be based on a number of factors including cost of living and minimum living levels, the alleviation of poverty, wage differentials and inequality, conditions of employment, the health and safety and welfare of workers, employment levels, inflation, GDP growth, productivity, collective bargaining, the aspirational target, the impact of the adjustment of employment, in line with the principles of the Basic Conditions of Employment and the ILO.

Hours of work

An advisory panel (“Panel”) will conduct an assessment of the impact of the NMW on workers’ income.  It will also assess the possible job losses resulting from setting the payment of the minimum working hours at four, five or six hours a day respectively.

The Panel will also take into account the provisions of the collective and bargaining council agreements and sectoral determinations on minimum hours.

It is clear that not only will a NMW be imposed but also certain minimum working hours. This will be aimed at ensuring that the NMW is not undermined by simply reducing working hours while expecting the same or similar output from employees. It is, as yet, unclear how this will impact, if at all, upon part-time employment arrangements.

The NMW, conditions of employment, bargaining councils and sectoral agreements

No employer may unilaterally alter conditions of employment and hours of work, including those currently contained in private contracts, sectoral determinations or collective agreements because of the introduction of the NMW.

All sectoral determinations, collective agreements, bargaining council agreements and individual contracts of employment must comply with the NMW Act at the time of implementation (i.e. their minima must be no lower than the NMW floor unless exempted, or excluded by way of a phase-in agreement).

In addition, no wages or conditions of workers prescribed by sectoral determinations or bargaining council agreements or private contracts, which are more favourable than the NMW, may be unilaterally decreased after the introduction of the NMW.

Coverage and exemptions

No businesses may be excluded from the NMW. However, an exemption process will be provided for businesses, particularly SME’s, who are unable to afford the NMW.

Exemptions will be effective for 12 months, after which the affected business will have to re-apply for an exemption. A motivation will be required for any subsequent exemptions. Businesses who receive an exemption will be expected to pay a determined percentage of the NMW. There will be a 30 day turn-around time on exemption applications.

Tiering and fragile sectors

When the NMW is introduced, domestic workers will be paid 75% of the NMW and agricultural workers will be paid 90% of the NMW. It is proposed that these sectors will be brought up to 100% of the NMW level within two years of its implementation, pending research by the Commission on this time frame.

In fragile sectors, where difficulties are experienced with complying with the NMW, assistance may be granted, including incentives. In addition, any sectors wanting to apply for a phase-in to the NMW need to provide compelling evidence as to why this is necessary and timeously apply to the Committee of Principles (“COP”).

As a consequence, more sectors, apart from the agricultural and domestic sector, may be subject to a phase-in period.

Enforcement and compliance

Once the NWA Act is effective, and the NMW is implemented, the inspection, enforcement and obligation to comply with same will become effective immediately.

Andre Van Heerden is a senior associate and Jacques van Wyk is a Director at Werksmans Attorneys.

Is there a rising demand for industry lecturers in higher education?

Industry experts at the top of their careers are increasingly branching out into a parallel career in lecturing, owing to the great demand for their skills and the opportunity of broadening their experience.

Locally and internationally, there has been a steady increase in the number of industry expert, part-time academic staff employed in the higher education sector, which means that students get the most up-to-date exposure to their future industries, while their lecturers are able to diversify their career portfolios.

This growth in demand means that people with a great track record in their sector, who are considering their next moves, have real options in a new sector – education – which they may not even have considered before.

In today’s educational and economic climate, the direct link between the higher education institution and industry has become an imperative.

To close the gap between education and industry, and to ensure graduates are work-ready, good institutions are deliberately seeking industry experts to become part of their teaching faculty. In particular high demand, are individuals who remain active in their profession and are therefore current in their particular field, so that real-world credibility is embedded into the curriculum and its delivery.

Professionals who are interested in making a contribution to the higher education of the next generation, should take note that there are two very important criteria they need to fulfil before taking the next step in their career:

1) Their qualification must be one level higher than the level they wish to teach

This means that if they want to teach at honours level they would need a minimum of a Master’s degree, and to teach at degree level they would need a minimum of an Honours degree.

2) They need to be able to effectively teach their area of expertise

In the past, many institutions did not always invest sufficiently in ensuring they have educationally trained professionals, which meant that students ended up being lectured by people who were brilliant in their field, but unable to make their discipline accessible to students.    
 
Being an expert in your profession does not mean that you necessarily have the skills to teach the theory behind your work, and some working people have forgotten what it means not to know the things that are now so familiar to them. This is where it is essential to receive training in education generally, and teaching and lecturing specifically.
 
Many institutions will now require registration on some form of additional qualification to ensure that the original qualification and subsequent experience is supplemented by a  lecturing qualification. The 1-year Postgraduate Diploma in Higher Education, for instance, is designed to bridge the gap between disciplinary knowledge and educational expertise, and provides an ideal pathway into a sub-career or career in lecturing.

Industry experts who are qualified to become lecturers should contact an institution in their preferred geographical location which offers the kind of qualifications they would be interested in teaching.

It is important to then spend some time assessing whether the reason the institution is using part time industry active lecturers matches your aspirations. This can be measured by asking for information on how lecturers are on-boarded, inducted, developed and evaluated.   

You may also offer to do a guest lecture in your area of expertise and assess the response of the staff and students. It will be relatively easy to determine from this why they want to employ industry active lecturers. An institution that cannot make good logistical arrangements for a guest is not likely to be an ideal working environment on a more sustained basis.

Lecturing as a parallel or sub career for industry active experts will form a significant part of the development of the future cohort of graduates and the next generation of experts.
 
There is no doubt that being lectured by someone who also has real life experience adds significantly to the educational experience of students when the lecturer is also a competent educator. One without the other does not result in good student outcomes.

Peter Kriel is the General Manager at The Independent Institute of Education.

Jenni Holloway

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