Appendix 3

Policy and its Unintended Consequences

The question of why policy and regulatory interventions often do not achieve their stated objectives and, to the contrary, sometimes seem to entrench precisely that which it purported to change is pertinent to the discussion about the impact of ICTs on public higher education in South Africa. When, in the 1980s, the Conservative Party government in the United Kingdom introduced measures to cut down waiting time in public hospitals and to shift the ethos in the system to customer service, the aim ostensibly was to improve quality in the public health system. What was achieved instead was a more costly and less client-friendly system. Medical staff, under pressure to reach set targets, referred more complex or time-consuming cases, which they normally would have handled themselves, to specialists, resulting in patients being referred from hospital to hospital. This clogged up the public health system on the second, and more expensive– tier of the system. 

Similar lessons have been learnt by South Africans over the last few years. A clause about grounds for dismissal in the Labour Relations Act of 1995 is a case in point. The clause states that workers may be dismissed on the basis of ‘operational grounds’, thus providing companies with grounds for retrenching staff when there is a downturn in the economic climate and companies experience a fall in turnover. The Labour Relations Act, the contents of which are the product of negotiations between business, labour, and government, is widely viewed as labour-friendly policy that extends greater protection to workers and safeguards their rights. An unintended consequence of the clause in question, however, is that it makes it possible to liquidate a company and to retrench workers on the basis of operational grounds, and then to reopen the company under a different name. The new company can then recruit new staff or re-employ former staff as subcontract workers at lower wages and with no or reduced benefits. Undoubtedly, it can be argued that this effect was not an intended consequence, and that it serves the interests of some of the parties to the negotiations. 

Looking at it from a different perspective, however, it is clear that this example highlights some of the circumstances under which unintended consequences occur. In this case, those players party to the development of the legislation had different interests at stake, and the way in which the specific clause was being implemented was, at least in part, made possible by other policy. COSATU, one of the parties to the initial negotiations, has now called for an amendment to the Insolvency Act, as it had become clear that this piece of legislation, which falls outside of the scope of the Labour Relations Act, has a direct impact on the implementation of the Act. 

There are similar examples from education policy and regulations in South Africa. An oft-cited case is the teacher retrenchment packages offered by then Minister Sibusiso Bengu to trim public expenditure on teacher salaries. At least two unintended consequences subsequently emerged. First, what was not foreseen was that the best teachers in the system would sign up for the retrenchment offer. Second, as no provision was made for a clause to prevent those teachers that have received severance packages from being rehired again, many were re-employed, thus resulting in double expenditure for the system. 

An example of a slightly different kind is the introduction of outcomes-based education (OBE) and Curriculum 2005. It could be argued that, through the way in which these were introduced, both in the media and through other channels, the notion of integration has come to be widely regarded as the central, core characteristic of both the curriculum and the methodology. The harm that this has done to public perception about the policy and the implementation of the policy is widely recognized. 

Anecdotal evidence suggests that public higher education institutions have responded to the NQF registration of higher education programmes on the NQF in at least two ways. First, providers moved to programme-based planning and developed a range of institution-specific specialized programmes. Second, based on fears about the pending restructuring of the higher education system, coupled with the understanding that institutions will be allowed to continue to offer programmes in niche areas or those areas in which they are the sole provider, institutions have begun developing and/or registering many new programmes. This has led to (unnecessary) proliferation of programmes and qualifications by providers as a strategy in order to ensure that they are allowed to continue offering programmes in a particular field. Both these responses are problematic and could be described as unintended consequences of the policy emerging. It can be argued that proliferation in programmes and qualification will add significantly to the workload of the South African Qualification Authority and its associated bodies. Furthermore, and perhaps most important, the development of these institution-specific specialist programmes undermines the notion of portability between institutions, which is one of the central principles underpinning the NQF. 

There are many more examples of this kind, such as the way in which the amendment to the Schools Act giving schools the right to solicit their own funds has led to the emergence of what can only be called fee-paying ‘semi-private’ former Model C schools. Of course, all the processes described require closer scrutiny and are more complex than we might have suggested. Unintended consequences are not always so easy to elicit and often only become apparent after some time has elapsed. Moreover, unintended consequences are of course just that. We believe, however, that these can be minimized and limited.  

The first principle, which is often said and as many times overlooked, is that policy cannot be separated from implementation. Second, the effectiveness of policy in forging change is constrained by the fact that policy is implemented in a social context. Human behaviour is unpredictable. Moreover, where policy interfaces with reality, in real contexts, there are real interests at stake. The way in which human beings and institutions respond to policy where their interest are at stake is a very real issue that policymakers have to take into account. Third, whereas there is a clear limit to the scope of specific policy, the space in which that policy is implemented is often shared with other systems and policy. These systems interface and overlap with each other. Fourth, the relationship between policy and time is important. On the one hand, the consequences of policy interventions often only become apparent after a long period of time has elapsed. On the other, policy is developed as a response to a system as it is at a particular time. If the system changes but the policy