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[2015] ZALAC 54
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Minister of Higher Education & Training v Hospital Association of South Africa and Others (JA82/2014) [2015] ZALAC 54; (2016) 37 ILJ 913 (LAC); [2016] 5 BLLR 443 (LAC) (8 December 2015)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA82/2014
In the matter between:
MINISTER OF HIGHER
EDUCATION &
TRAINING
Appellant
and
THE
HOSPITAL ASSOCIATION OF SOUTH AFRICA
First
Respondent
THE NATIONAL UNION OF
PUBLIC SERVICE &
ALLIED
WORKERS
Second
Respondent
THE HEALTH &
WELFARE SERVICES SECTOR
EDUCATION
& TRAINING
AUTHORITY
Third
Respondent
NOZIPHO JANUARY
BARDILL AND
FORTEEN
OTHERS
Fourth
Respondent
Heard
:
19
August 2015
Delivered
:
08
December 2015
Summary:
Lawfulness of the Minister establishment of SETA in terms of the
Skills Development Act –
Minister allegedly extending the
period of HWSETA – admission made in affidavit confirming
extension – Principle that
a factual admission made by a party
in an affidavit will be binding on such party and he/she may not
adduce evidence to contradict
the admission. Court having discretion
to release such party from the admission when erroneously made.
Evidence notwithstanding
admission showing that the Minister not
extending HWSETA but establishing the HWSETA for 60 months –
admission not binding
- Minister’s act of establishing the
HWSETA invalid because not in accordance with the SDA. Appeal upheld
with costs - Labour
Court’s order on the validity of the
establishment of the HWSETA upheld but suspended for four months in
order to allow the
Minister to validly establish the HWSETA.
Coram:
Tlaletsi DJP, C J Musi e
t
Coppin JJA
JUDGMENT
C J MUSI JA
[1] The Labour Court
(Matyolo AJ) made the following order:
‘
(i)
The decision of the Minister taken on 8 April 2011 and published and
implemented under
Government Notice No 316 in Government Gazette No
34202 in which the Minister approved the Second Respondent’s
Constitution
is reviewed and set aside.
(ii)
The decision to appoint the Third to Seventeenth Respondents by the
Minister is also
reviewed and set aside. The Minister is given
four months within which period the Second Respondent is to be
reconstituted
in accordance with the 2005 Constitution by appointing
members in accordance with that Constitution.
(iii)
The Minister is directed to effect the nomination process for new
members in accordance
with the 2005 Constitution in line with his
extension of the term which expires in March 2016.
(iv)
The Respondents are ordered to pay the costs including costs of the
two counsel.’
[2] The appellant (the
Minister) being dissatisfied, appeals, with the leave of the court a
quo,
against the order. Although the appeal was initially
directed at the entire order, upon reflection it seems, the Minister
changed
his stance, during argument before us and directed his attack
only against paragraphs (ii) to (iv) of the order.
[3]
The Skills Development Act (SDA)
[1]
was,
inter
alia
,
enacted to provide an institutional framework to devise and implement
national, sector and workplace strategies to develop and
improve
skills of the South African workforce and to provide for learnerships
that lead to recognised occupational qualifications.
[4]
The sector education and training authorities (SETAs) are the primary
vehicles utilised to achieve the objectives of the SDA.
[2]
The Minister may establish a SETA with a constitution for any
national economic sector.
[3]
A
SETA may consist only of members representing organised labour,
organised employers and relevant government departments. The
Minister
may if he/she considers it appropriate and after consultation with
the members mentioned above also include any interested
professional
body or any bargaining council with jurisdiction in the economic
sector.
[4]
[5] The Health and
Welfare Sector Educator and Training Authority (HWSETA or the third
respondent) was established by the Minister
in terms of section 9(1)
of the SDA. It was cited as the second respondent in the court a
quo.
[6] The Hospital
Association of South Africa (HASA or first respondent) represents the
overwhelming majority of owners and operators
of private hospitals
and clinics nationally. When the application was launched it
represented 210 of the 245 private hospitals
and clinics operating in
South Africa, when the application was launched. It therefore
represented the majority of employers in
private hospitals and
clinics.
[7] The National Union of
Public Service and Allied Workers (NUPSAW or the second respondent)
is a registered trade union representing
persons employed in the
health sector. The first and second respondents are important
stakeholders in the health sector.
[8] In terms of section
13(1) of the SDA, the Minister must approve the constitution of a
SETA for the purposes of its establishment.
The Minister, in terms of
section 13(2) of the SDA, after consultation with a SETA, may amend
its constitution in the prescribed
manner.
[9] The constitution of
the HWSETA, which was published on 8 September 2005, in Government
Gazette No 28005, recognised the first
and second respondents as
members of the HWSETA. In terms of clause 9(2) read with clause
9(2)(a) of the constitution, a member
of the HWSETA holds office for
a period of five years and is eligible for re-appointment at the end
of that period. The member
shall however vacate the office if he is
properly removed by the HWSETA, resigns or dies. Members of the
HWSETA were duly approved
in terms of the 2005 constitution. Their
tenure would therefore end on 31 March 2010.
[10] It is common cause
that the HWSETA was duly established by the Minister in 2005. It is
further common cause that on 5 February
2010, the Minister properly
extended the HWSETA’s establishment to 31 March 2011. The 2005
constitution governed the affairs
of the HWSETA during that period.
[11] The first and second
respondents alleged that the Minister further extended the HWSETA’s
establishment on 11 November
2010, form 1 April 2011 to 31 March
2016, during which period the 2005 constitution would have applied.
This was admitted by the
Minister in his answering affidavit but
later disavowed. I deal with this aspect later in this judgment.
[12] During November
2010, the Minister published a draft constitution for adoption by all
SETAs. The draft constitution was designed
to be a model
constitution, which, if adopted, would govern the affairs of the
SETAs that adopted it. The Minister requested the
SETAs and their
members to comment on the draft constitution.
[13] The HWSETA was of
the view that nothing in their 2005 constitution offended against or
was not in compliance with the SDA.
The HWSETA objected to the
Minister’s and the Department of Higher Education’s
approach of attempting to foist the
draft constitution on the HWSETA.
Neither the Minister nor the Department, seemingly, heeded the
objections.
[14] During November 2010
to March 2011, various versions of the draft constitution were
published on behalf of the Minister. This
all happened without proper
consultation.
[15] On 8 April 2011, the
Minister, without consulting with the members of the HWSETA,
published a list of names of members for
the HWSETA in Government
Gazette 34202; Government Notice No 316 Needless to say, none of
those persons were nominated by the first
or second respondent. The
list also did not contain any representatives of either of the
aforementioned respondents.
[16] The notice reads as
follows:
‘
I,
Bonginkosi Emmanuel Nzimande, Minister of Higher Education and
Training, has approved the constitutions of the respective Sector
Education and Training Authorities (SETAs) established in terms of
Government Notices No 1055, No 1056 and No 1057 published in
Government Gazette No 33756 of 11 November 2010. The respective
constitutions were approved by me in terms of section 13(1) and
section 9(1)
of the
Skills Development Act 1998
, in accordance with
the approval status as referred to in schedule 1.
I hereby appoint
the chairpersons and members of the respective Accounting Authority
for the specific Sector Education and Training
Authorities (SETAs) as
set out in schedule 1 in accordance with the constitution of the
respective SETA. The chairperson
and members as contained in
schedule 1 are appointed for the period indicated in the said
schedule.’
[5]
[17] Notice No R1055
published in Government Gazette No 33756 of 11 November 2010 reads as
follows:
‘
I,
Bonginkosi Emmanuel Nzimande, Minister of Higher Education and
Training, after consultation with the National Skills Authority,
has
under
section 9(1)
of the
Skills Development Act, 1998
read with
Government Notice No R1082 of 7 September 1999 as amended,
established the Sector Education and Training Authorities
(SETAs) as
indicated in schedule 1 from 1 April 2011 to 3 March 2016 with a
(sic) jurisdiction as indicated in schedule 2…’
[18]
Private hospitals and clinics, in terms of schedule 2 to the notice
fall under the jurisdiction of the HWSETA.
[6]
The SDA was amended by the
Skills Development Amendment Act 26 of
2011
, which was passed by the legislature on 27 March 2012 but only
became effective on 11 May 2012. The standard constitution for SETAS
was published under Government Notice 369 in Government Gazette 35336
of 11 May 2012.
[7]
[19] In the court
a
quo
, the Minister resisted the review application on numerous
grounds. The court
a quo
rejected all the Minister’s
defences. Although the Minister attacked all the court
a quo’
s
findings in his grounds of appeal, he jettisoned most of them during
argument. Mr Hulley, on behalf of the Minister, who was briefed
after
the Minister filed heads of argument prepared by another counsel,
filed supplementary heads of argument directed exclusively
at
paragraphs (ii) to (iv) of the order of the court
a quo
. In
argument before us, Mr Hulley correctly conceded that paragraph (i)
of the court
a quo
’s order is, on the facts and the law,
unassailable.
[20] Mr Hulley submitted
that the court
a quo
misunderstood the nature of the
Minister’s decision because the court
a quo
assumed that
the Minister had amended the 2005 constitution of the HWSETA whereas
the Minister in fact established a new HWSETA.
He further submitted
that the orders compelling the Minister to reconstitute the board of
the HWSETA in accordance with the 2005
constitution are wrong because
the court
a quo
wrongly assumed that the constitution of the
HWSETA had been extended until 2016 by the Minister.
[21]
It is apposite to deal with the issue of the Minister’s
admission before discussing and deciding the issues raised by
the
Minister. The Director-General of the Department of Higher Education
and Training expressly admitted, in the answering affidavit,
that the
Minister extended the HWSETA’s establishment on 11 November
2010 from 1 April 2010 to 31 March 2016. The Minister
filed a
confirmatory affidavit confirming, by implication, the admission made
by the Director-General. The Minister did not, in
any way or form,
seek to withdraw the admission. A factual admission made by a
respondent in an answering affidavit will be conclusively
binding on
such respondent and such party may not adduce evidence to disprove or
contradict the admission. In
Water
Renovation (Pty) Ltd v Gold Fields of SA Ltd,
[8]
it was said:
‘
In regard to
counsel's first submission, I do not agree that the admission was not
a formal admission. It was made in the counterstatement
as a formal
admission of an allegation made in the statement of particulars,
and it constituted what
Wigmore
on Evidence
vol IX paras 2588-90 calls a 'judicial admission'. Such an admission
is binding upon the party making it, i.e. it prohibits any
further
dispute of the admitted fact by the party making it and any evidence
to disprove or contradict it (para 2590). Compare
Gordon
v Tarnow
1947 (3) SA 525
(A) at 531-2 where Davis AJA said:
“
Wigmore (loc
cit), speaking of judicial admissions in general refers to the
Court's discretion to release a party from the consequences
of an
admission made in error. It does not seem to me that such a
discretion could be exercised, in a case where the admission
has been
made in a pleading, in any other way than by granting an amendment of
that pleading…Here, there has at no stage
been any such
application to amend. But it is only right to add that in any case I
see no valid grounds for thinking that there
has been any error.”'
[9]
[22]
Section 15 of the Civil Proceedings Evidence Act
[10]
provides that it shall not be necessary for any party in civil
proceedings to prove nor shall it be competent for any such party
to
disprove any fact admitted on the record of such proceedings. A
properly made formal admission or judicial admission is therefore
beyond proof and disproof.
[23]
An admission has serious and important consequences and implications
for the party making it. In
AA
Mutual Insurance Association Ltd v Biddulph,
[11]
it was said that “it must clearly and unequivocally appear from
the pleadings that the alleged admission was made expressly
or by
necessary implication, or according to rule 22(3), by omitting to
deny or deal with the relevant allegation of fact…”
[12]
Schwikkard and van der Merwe state that before an admission can be
treated as a formal admission, the maker of the admission must
intend
it to be an admission of a fact which s/he does not wish to
dispute.
[13]
[24]
We must therefore consider whether the Minister made a clear and
unambiguous admission. If there was such an admission and
it was made
in error, the court has discretion to release a party from the
consequences of an admission made in error. In
Gordon
v Tarnow,
[14]
Davis AJA was of the view that the discretion to release a party from
the consequences of a judicial admission made in a pleading
can only
be granted by amending the pleading.
[25]
In
Canaric
NO v Shevil’s Garage,
[15]
however, it was stated that where it is clear, after a full
investigation, that an admission was made contrary to the facts and
where injustice will result from an adherence to the admission, it
was to be disregarded.
[16]
As
stated above, there was no application to withdraw the admission in
the court
a
quo
or before us. We must therefore have regard to the entire answering
affidavit to discern whether a clear and unambiguous judicial
admission had been made.
[26] In the answering
affidavit, the Director-General testified that:
‘
In any
event, the 2005 constitution lapsed automatically on 31 March 2011
and was never renewed. The applicant’s submitted
a new
constitution for adoption by the Minister.’
[27] At paragraph 32 of
the answering affidavit, he stated that:
‘
Further to
the above, the term of office of the members of the previous
accounting authority lapsed on 31 March 2011 when the previous
authority lapsed and when the constitution lapsed.’
[28] He further stated,
at paragraph 75 of the answering affidavit that:
‘
I admit the
publication on 8 April 2011 of the list of members of the HWSETA in
the Government Gazette. The persons appointed by
the Minister as
members of the HWSETA did not have to be persons nominated by the
HWSETA. They were appointed in terms of the standard
constitution
approved by the Minister which replaced the 2005 constitution.’
[29] The above mentioned
paragraphs clearly show that the Minister, contrary to the admission
made, was of the view that the 2005
constitution had lapsed on 31
March 2011 and could not be extended beyond that date.
[30] There is another
strange feature in this case. The first and second respondents did
not, in their founding papers, rely on
the Government Notice of 11
November 2010 for their assertion that the Minister extended the
HWSETA to 31 March 2016. Before us,
it was submitted on behalf of the
first and second respondents that the Government Notice of 11
November 2010 effected the extension.
I accept that they relied on
the said notice without expressly mentioning it.
[31] The notice reads
that the Minister has established the HWSETA in terms of section 9(1)
of the SDA from 1 April 2011 to 31 March
2016. Section 9(1) of the
SDA reads as follows:
‘
(1)
The Minister may, in the prescribed manner, establish a sector
education and training authority with a constitution for
any national
economic sector.’
Section
13(1) on the other hand provides as follows:
‘
(1)
For the purpose of the establishment of a SETA, the Minister must
approve the constitution of the SETA.’
[17]
[32] The regulations
promulgated in terms of the SDA reads as follows:
‘
2.
Application
for establishment as SETA
(1)
Any
body, which consists of the members contemplated in section 11 of the
Act, may apply to the Minister to be established in terms
of section
9(1) of the Act as a SETA.
(2)
An
application in terms of subregulation (1) must include –
(a)
…
(b)
…
(c)
The
constitution of the proposed SETA which specifies the matters
referred to in section 13(3)(a)(i) to (xii) of the Act …
3.
Establishment of SETA
(1) The
Minister may direct the Director-General to invite by notice in the
Gazette interested parties to
comment on an application made in terms
of regulation 2 within 30 days from the date of publication of the
notice.
(2) After
consultation with the National Skills Authority and considering every
comment received pursuant
to a notice published in terms of
subregulation (1), the Minister may establish a SETA for the national
economic sector or sectors
applied for by issuing a certificate of
establishment as a SETA.
(3) Subject to
subregulation (4) and regulation (v) a certificate of establishment
as a SETA is valid for
a period of 60 months from the date on which
it was issued.
(4) The
Minister may, after consultation with the National Skills Authority
and by notice in the Gazette
extend the period of 60 months referred
to in subregulation (3).
(5) The
provisions of the Public Finance Management Act apply to the period
of extension contemplated in
subregulation (4).
4.
Renewal of certificate of establishment
(1) A SETA may
apply to the Minister for a renewal of its certificate of
establishment as a SETA at least
12 months before the expiry date of
the certificate of establishment.
(2) If the
Minister is of the opinion that a SETA applying for a renewal of its
certificate of establishment
is not complying or is unable to comply
with any provisions of the Act or these regulations, the Minister may
extent the period
of 60 months by such additional period as he or she
considers necessary to enable the SETA to comply with the relevant
requirements
in full.
(3) If the
Minister extends the period of 60 months in terms of subregulation
(2), the relevant SETA must
submit again an application for renewal
at least 12 months, or such shorter period as the Minister may
determine, before the expiry
of the period so extended.
(4)
Regulations 2 and 3 apply with changes required to an application for
renewal.’
[33] It is common cause
that the procedure prescribed by the regulations was not followed
prior to the Minister establishing the
HWSETA by Government Notice
R1055 of 11 November 2010. There was no application in terms of
regulation 1 for the establishment
of a SETA in terms of section 9(1)
of the SDA. There was no notice published in the Government Gazette
in terms of regulation 3(1).
[34] The HWSETA submitted
its new constitution and board member nominations on 23 March 2011 to
the Minister. However, the Minister
rejected both the new
constitution and the nominations. The standard constitution was only
published in Government Notice 369 in
Government Gazette 35336 of 11
May 2012.
[35] In terms of section
13(1) of the SDA, the Minister must approve the constitution of a
SETA for purposes of establishing it.
When the Minister established
the HWSETA by way of Government Notice R1055 of 11 November 2010, he
could not have approved any
constitution because there was none for
him to approve.
[36] The notice does not
purport to extend the HWSETA but establishes it for a period of 60
months. If it was an extension of 60
months one would have expected
the Minister to say so because he has the power to extend the initial
period of 60 months. The Minister
expressly purported to establish
the HWSETA for 60 months by way of the Notice of 11 November 2010.
The Minister’s act of
establishing the HWSETA was not in
accordance with the SDA and the regulations. The Minister’s act
was therefore invalid.
[37] Objectively
speaking, the admission that there was an extension from 1 April to
31 March 2016 is incorrect. Having regard to
the totality of the
answering affidavit, it is also clear from the context thereof that
the Minister denied that there was an extension.
[38]
Where it is objectively demonstrated from the papers, without
additional evidence, that an admission was erroneously made it
would
be unfair to hold a party to such an admission. The context of the
answering affidavit also ineluctably lends itself to the
conclusion
that such admission was erroneously made. There was no judicial
admission of the kind mentioned in
Gordon
v Tarnow
or
AA
Mutual Insurance
made in this matter. There is no need in law, justice or fairness to
hold the appellant to the admission. In light of all this,
it is
clear that there was no need to apply to withdraw the admission.
[18]
[39]
The admission also conflicts with the contents of the government
notice. In terms of section 5 of the Civil Proceedings Evidence
Act,
[19]
we may take judicial
notice of a government notice and its contents. Section 5 reads as
follows:
‘
1
Judicial notice shall be taken of any law or government notice, or of
any other matter which has been published in
the Gazette.
2
A
copy of the Gazette, or a copy of such law, notice or other matters
purporting to be printed under the superintendence or authority
of
the Government printer, shall, on its mere production, be evidence of
the contents of such law, notice or other matter, as the
case may
be.”
[40] The Minister wrongly
admitted that the HWSETA was extended to 2016 whereas his notice of
20 November 2010 clearly states that
he established the HWSETA. The
context and contents of the answering affidavit, as a whole, read
with the government notice of
November 2010, show that the admission
was not a clear and unambiguous admission in light of the other
denials of the Minister,
in the same pleading wherein the alleged
clear and unambiguous admission was made.
[41] The upshot of all
this is that the 2005 constitution lapsed on 31 March 2011.
Nothing could thereafter be done in terms
of that constitution. The
terms of the respective board members who were appointed in terms of
the 2005 constitution also came
to an end on 31 March 2011.
[42] Reverting to the
impugned notice of 8 April 2011. Mr Hulley correctly conceded that
this notice was unlawful and invalid. He
submitted that it ought to
be set aside. I agree. In short, the Minister wrote a single standard
constitution for all SETAs; he
approved the constitutions; he
appointed the chairpersons and members of the SETAs; he did not
consult with members of the HWSETA
and there was no application for
the establishment of a HWSETA at the time that the Minister purported
to establish one. The Minister’s
actions were contrary to the
SDA and the regulations promulgated in terms thereof. The Minister’s
actions were not authorised
by the law that he purported to have used
as authority for his unlawful act.
[43] The notice of 8
April 2011 ought therefore to be set aside. Paragraphs (ii) and (iii)
of the court
a quo’
s order should also be set aside
because the 2005 constitution lapsed on 31 March 2011.
[44]
This Court, like the court
a
quo
,
has discretion to grant an order that is just and equitable including
an order declining to set aside the administrative action
complained
of.
[20]
[45] A lot of water has
flowed under the bridge since the Minister’s unlawful act. The
HWSETA as constituted by the Minister
has functioned unaffected by
the review application. The parties are
ad idem
that it would
take approximately four months to lawfully set up the HWSETA. The SDA
was amended after the review proceedings were
instituted. The
Minister would have to act in accordance with the amended
legislation.
[46] It would be just and
equitable under these circumstances to suspend the order that I
intend to make. The Minister ought to
pay the costs of the appeal. It
is clear that the Minister’s unlawful act and his initial
refusal to accept the unlawfulness
of his act only to partially
capitulate on appeal is the main reason why this matter was taken so
far. Although both parties were
partially successful on appeal,
equity and the law dictates that the Minister should pay the costs of
the appeal. There is no reason
to interfere with the court a
quo’s
costs order.
[47] The appeal succeeds
to the following extent:
(a)
Paragraphs
(ii) and (iii) of the order of the court
a
quo
are set aside.
(b)
Paragraph
(i) of the court
a
quo
’s
order is suspended for a period of four months from the date of this
judgment for the Minister to establish a HWSETA in
terms of the law.
(c)
The
Minister is ordered to pay the costs of the first and second
respondents, including the costs of the two counsel.
______________
C J Musi JA
Tlaletsi
DJP and Coppin JA concurred with C J Musi JA.
APPEARANCES:
FOR THE APPELLANT:
Adv. G. I Hulley SC
Instructed by the State
Attorney Johannesburg
FOR THE RESPONDENT:
Adv. B. E.
Leech and Adv. M.C. Kgatla
Instructed by Werkmans
Inc.
Sandton
[1]
Act No. 97
of 1998.
[2]
The functions of
the SETAs are set out in section 10 of the SDA. In terms thereof a
SETA must
interalia
develop and implement a sector skills plan and promote learning
programmes.
[3]
See section 9(1)
of the SDA.
[4]
Section 11 of the
SDA.
[5]
The schedule
inter
alia
contains the names of the fourth to eighteenth respondents. They
were all appointed from 1 April 2011 to 31 March 2016.
[6]
See schedule 2
SETA number 11 Sector code 9311B and 9319F.
[7]
The Amendment Act
is therefore irrelevant for the determination of the dispute before
us because it does not have retrospective
effect or application.
[8]
1994 (2) SA 588
(A).
[9]
At 605H – J.
[10]
Act 25 of 1965.
[11]
1976 (1) SA 725
(A).
[12]
At 375.
[13]
Schwikkard
et
al
Principles
of Evidence
2
nd
Ed (Juta 2002) at page 440.
[14]
Supra
[15]
1932 TPD 196
at
198.
[16]
See also
Frosso
Shipping Corporation v Richmond Maritime Corporation
1985 (2) SA 476
(C) at 485C-D.
[17]
This was done and
the approval was published in Government Notice R1082 in Government
Gazette 20442 of 7 September 1999 as amended
by Government Notice
R106 in Government Gazette 27254 of 4 February 2005.
[18]
South Coast
Furnishers CC v Secprop 30 Investments (Pty) Ltd
2012 (3) SA 431
(KZP) at 437C-D.
[19]
Supra.
[20]
See
Bengwenyama
Minerals (Pty) Ltd and Others v Gemorah Resources (Pty)
Ltd
and Others
2011 (4) SA 113
(CC) at paras [82] – [85],
Allpay
Consolidated Investment Holdings (Pty) Ltd and Others v Chief
Executive Officer South African Social Security Agency and
Others
2014
(1) SA 604
(CC at paras [29] and [56].