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[2011] ZALCJHB 33
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Services Sector Education and Training Authority and Others v Minister of Higher Education and Training and Others (J604/2011)) [2011] ZALCJHB 33; (2011) 32 ILJ 2225 (LC) (3 May 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NUMBER
:
J604-2011
In the matter between:
SERVICES SECTOR
EDUCATION AND
TRAINING AUTHORITY
…................................................................
First
Applicant
IVOR BLUMENTHAL
…...............................................................
Second
Applicant
UASA THE UNION
(“UASA”)
…......................................................
Third
Applicant
FEDERATION OF UNIONS
OF SOUTH AFRICA
(“FEDUSA”)
…............................................
Fourth
Applicant
CONFEDERATION OF
ASSOCIATIONS
IN THE PRIVATE
EMPLOYMENT
SECTOR (“CAPES”)
….....................................................................
Fifth
Applicant
ASSOCIATION OF
PERSONNEL
SERVICE ORGANISATIONS
OF
SOUTH AFRICA (“APSO”)
…..........................................................
Sixth
Applicant
BEVERLY ANN JACK
…............................................................
Seventh
Applicant
LEON GROBLER
….......................................................................
Eighth
Applicant
and
THE MINISTER OF HIGHER
EDUCATION
AND TRAINING
….........................................................................
First
Respondent
SIHLE MOON
….......................................................................
Second
Respondent
SHAKEEL ORI
….........................................................................
Third
Respondent
NOLWANDE MANTASHE
….....................................................
Fourth
Respondent
MZWAMADODA WISEMAN
DINWA
…........................................
Fifth
Respondent
CLIVE EDWARD WICKS
….........................................................
Sixth
Respondent
ASHLEIGH CLAIRE VAN
GREUNEN
…................................
Seventh
Respondent
KIM VELTMAN
…......................................................................
Eighth
Respondent
PATRICK MAKHUBELA
….........................................................
Ninth
Respondent
PAM SNYMAN
…........................................................................
Tenth
Respondent
ADENE PRINGLE
…..............................................................
Eleventh
Respondent
SHADRACK MOTLOUNG
…...................................................
Twelfth
Respondent
FEROZA FAKIR
…..............................................................
Thirteenth
Respondent
JOYCE MHLONGO
…........................................................
Fourteenth
Respondent
JOYCE DIMAKATSO SEEMA
…...........................................
Fifteenth
Respondent
JUDGMENT
AC BASSON, J
This is an urgent
application in terms of which the applicants challenge the validity
of various actions taken by the Minister
of Higher Education and
Training (hereinafter referred to as “the Minister”) as
well as actions taken by the second
respondent (Mr. Sihle Moon
(hereinafter referred to as “Moon”)). The applicants
also specifically challenge the appointment
by the Minister of Moon
as the new chairperson of the first applicant – the Services
Sector Education and Training Authority
(hereinafter referred to as
“the Services SETA”) as well as the suspension of the
second applicant (Mr. Ivor Blumenthal
(hereinafter referred to as
“Blumenthal”).
The following order is
sought in terms of the Notice of Motion:
“
1.
Permitting this application to be heard as a matter of urgency and
dispensing with the ordinary periods and notice requirements.
Reviewing and setting
aside the purported appointment by the First Respondent of the
Second Respondent as the chairperson of the
First Applicant’s
accounting authority, being its Council.
Reviewing and setting
aside the purported appointment by the First Respondent of the
Second to Fifteenth Respondents as members
of the First Applicant’s
Council.
Reviewing and setting
aside the First Respondent’s decision to publish Gazette
Notice No 316 in Gazette No 342023 of 8 April
2011, and setting
aside such notice as being invalid and of no lawful force and
effect, in so far as such decision and such Gazette
notice relate to
the First Applicant.
Reviewing and setting
aside the First Respondent’s purported approval, on or about 8
April, of a new constitution in respect
of the First Applicant.
Declaring that the
Constitution of the First Applicant as published in Government
Notice R1421 in Government Gazette 24036 of
22 November 2002 is the
currently applicable and valid Constitution which governs the
affairs of the First Applicant and inter
alia the election or
appointment and removal of the members of the Council of the First
Applicant, its Chairperson, Deputy Chairperson
and Chief Executive
Officer.
Declaring the action
of the First Respondent in seeking to compel the First Applicant to
accept the draft “model”
constitution for Sector
Education and Training Authorities as the First Applicant’s
new Constitution is unlawful and that
the contents of the First
Respondent’s draft “model” Constitution (appearing
as Annexure “
H2”
to the Founding Affidavit) are
in conflict with the relevant provisions of the
Skills Development
Act No.97 of 1998
, as amended, in particular in relation to the
election or appointment and removal of the First Applicant’s
Council and
its Chairperson, Deputy Chairperson and Chief Executive
Officer.
Declaring that the
current validly appointed members of the First Applicant’s
Council are the persons listed in Annexure
“
Y”
to
the Founding Affidavit, that the Seventh Applicant is its validly
appointment Chairperson and that the Eighth Applicant is
its validly
appointed Deputy Chairperson.
Reviewing and setting
aside, and declaring unlawful and unfair, the purported suspension
by the Second Respondent of the Second
Applicant as the First
Applicant’s Chief Executive Officer.
Interdicting the
Second and other Respondents from taking any action aimed at or
having the effect of precluding the Second Applicant
from- or
interfering with the Second Applicant in relation to- his resuming
and fulfilling the functions of the Chief Executive
Officer of the
First Applicant.
Interdicting the
Second to Fifteenth Respondents from taking any other action in
relation to any of the First Applicant’s
functions, personnel
or affairs on the strength of their purported appointment by the
First Respondent as members of the First
Applicant’s Council.
Ordering the First
Respondent and, to the extent that any of them may oppose this
application, the Second and Further respondents,
to pay the costs of
this application, jointly and severally, the one paying the other to
be absolved.
Granting further or
alternative relief.”
The applicants are the
following: The first applicant is the Services SETA (referred to
above). The Services SETA is established
in terms of section 9
1
of the Skills
Development Act 97 of 1998 (hereinafter referred to as the “SDA”).
The second applicant – Mr.
Blumenthal (hereinafter referred to
as “Blumenthal”) is employed by the Services SETA as the
Chief Executive Officer.
The third respondent is UASA. UASA is
affiliated to the Fourth respondent (the Federation of Unions of
South Africa – hereinafter
referred to as “FEDUSA”).
UASA also has recognition as the representative union of the
majority of staff employed
by the Services SETA. As such it has an
interest in the application. UASA is also one of the employee
representative members
sitting on the Services SETA. FEDUSA –
the fourth applicant– is one of the largest union federations
in this country
(second in size to COSATU) and is not only a member
of NEDLAC but also holds a seat on the National Skills Authority.
The fifth
applicant is the Confederation of Associations in the
Private Employment Sector (referred to as “CAPES”).
CAPES is
a representative body of employers in the private
employment sector. The sixth applicant is the Association of
Personnel Services
Organisations of South Africa (referred to as
“APSO”). APSO is an association representing the major
personnel service
organisations in this country. APSO is also a
member of the Services SETA and a member of CAPES. APSO also holds a
seat on the
National Skills Authority. The seventh applicant - Ms.
Beverly Ann Jack (hereinafter referred to as “Jack”) is
the
Vice President (Education) of APSO. Jack was elected by the
members of the Services SETA as the Chairperson of its Council. Jack
was also elected by the Minister as a member to the council
established by him (the Minister)
Mr. Grobler (hereinafter
referred to as “Grobler”) the eighth applicant is the
Chief Operating Officer of UASA and a
Management Committee member of
FEDUSA. He was also recently elected by the members of the Services
SETA as the Vice Chairperson
of the Services SETA’s council.
The respondents are the
following. The first respondent is the Minister of Higher Education
and Training. The second respondent
is Mr. Sihle Moon. Moon was
appointed by the Minister as the Chairperson of the Council of the
Services SETA. His appointment
as Chairperson is,
inter alia
,
challenged by the applicants. The remainder of the applicants (the
third – fifteenth respondents) were appointed by the
Minister
to the Council in April 2011. The applicants submit that the
appointment of these individual respondents to the Council
established by the Minister is unlawful. Not all of these
respondents are opposing this application. Counsel for the
respondents
has indicated that it only acts on behalf of some of the
respondents.
Two councils and
two chairpersons
In April 2011, the
Minister has, in addition to the appointment of Moon (the second
respondent) as the chairperson of the Council
of the Services SETA
(the first applicant) appointed a further 14 individuals as members
to the Council. The seventh applicant
– Jack - is one of the
individuals that were appointed by the Minister to the Council of
the SETA in April 2011. The remainder
of the individuals that was
appointed by the Minister to the Council are listed as respondents
to this application. However,
as already indicated not all of the
respondents (referring to those individuals who were appointed by
the Minister to the Council
of the Services SETA) are opposing this
application. For convenience sake, I will refer to the Council
established by the Minister
(and to which he has appointed Moon as
the Chairperson and 14 other individuals as members to the Council)
as “
the
Minister’s Council
”
.
As will be pointed out
in the subsequent paragraphs, the applicants (and more specifically
the “members”
2
of the Services SETA)
have appointed through a separate process individuals to its
Council. For convenience sake I will refer
to this Council as “
the
Members’ Council
”
to
distinguish it from the Council appointed by the Minister. The
applicants submit in their papers that their appointed Council
(namely the one appointed by the “
members
”
of the Services SETA) is
the lawful Council and not the Council appointed by the
Minister
.
(I will return to the applicants’ submissions in support of
this contention hereinbelow.) Some of the members of the Council
(appointed by the “members” of the Services SETA) were
also appointed by the Minister as members to his Council (the
Minister’s Council). The individuals appointed to the Member’s
Council are: Mr. Dinwa (the fifth respondent), Mr
Wicks (the sixth
respondent), Ms van Greunen (the seventh respondent), Ms. Veltman
(the eighth respondent), Ms. Snyman (the tenth
respondent), Ms.
Pringle (the eleventh respondent), Mr. Fakir (the thirteenth
respondent), Ms. Mhlongo (the fourteenth respondent)
and Ms. Seema
(the fifteenth respondent). According to the papers many of these
respondents have indicated to Blumenthal that
they also dispute the
validity of their purported appointment to the Minister’s
Council. Instead they recognise their appointment
to the Members’
Council. Most of the respondents (apart from the first, second,
third and fourth respondent) consequently
are not opposing this
application.
Urgency and locus
standi of the applicants
The respondents have
disputed the
locus standi
of the applicants to launch this
application and have also disputed the urgency of this application.
I am of the view that this
application is urgent and that the
various applicants all have the necessary
locus standi
to
bring this application. I will deal with the reasons for arriving at
this conclusion hereinbelow after I have set out the
relevant facts.
The nature of this
application
The following actions of
the Minister and of Moon (the second respondent) are challenged in
these proceedings:
1. The Minister’s
appointment of Moon as a member of and the Chairperson of the Council
for the Services SETA.
The Minister’s
appointment of the third and further respondents as other members of
the Services SETA’s Council.
The Minister’s
attempt to induce the Services SETA to accept or to subject it to a
new model constitution which the applicants
content is unlawful
inter alia
because it contravenes the requirements of the
SDA.
The Minister’s
approval of the new constitution for the Services SETA.
Moon’s actions to
suspend Blumenthal as the Chief Executive Officer (the “CEO”)
from the office of the Services
SETA.
Moon’s actions in
giving instructions and making various threats to other employees of
the Services SETA.
In brief it was
submitted that these actions taken by the Minister and Moon, are not
only unlawful but also adversely affect the
governance of the
Services SETA and that of various other SETAs.
Jurisdiction
In light of the fact
that the actions taken by the Minister in respect of the Services
SETA as set out above are actions taken
in connection with the
provisions of the SDA, the Labour Court has jurisdiction
3
to entertain the present
application. The Labour Court also has jurisdiction in respect of
the suspension of Blumenthal.
Statutory and legal
framework
Section 9 of the SDA
provides for the establishment of a SETA. In terms of this section
the Minister may in the prescribed manner
establish a Sector
Education and Training Authority
with
a constitution
for
any national economic sector. Before a SETA can be established or
operate, the Minister “
must
”
approve its
constitution. See also regulation 2(2)(c) of the Regulations
Regarding the Establishment of Sector Education and Training
Authorities.
4
This regulation
specifically states that the constitution of the proposed SETA must
specify the matters referred to in section
13(3)(a)(i) to (xii) of
the PDA. In the regulations 3(3) of the said Regulations, the
establishment of the SETA is valid for
a period of 60 months from
the date on which it was issued with a certificate. In terms of
regulation 4 a SETA may apply to the
Minister for renewal of its
certificate of establishment at least 12 months before the expiry of
the certificate of the establishment.
The various functions of
the SETA are listed in section 10 of the SDA. What is important to
note is the fact that section 10(3)
provides that the SETA must
perform its functions in accordance with the SDA, the Skills
Development Levies Act and the Constitution
of the relevant SETA.
Section 11
5
of the SDA prescribes
the composition of the SETA and provides for an equal number of
members representing employers and employees.
It is important for
purposes of this application to note the prescription in respect of
the composition of the SETA. Section
11 of the SDA states that a
SETA may consist only of members representing organised labour,
organised employers (including small
businesses) and relevant
government departments. If the Minister, after consultation with the
members referred to in paragraph
(a), (b) and (c) of this section,
consider it appropriate for the sector, it may also appoint any
interested professional body
and any Bargaining Council with
jurisdiction in the sector.
I have already referred
to the fact that the Constitution of the relevant SETA must comply
with section 13(3)(a)(i) to (xii)
6
of the SDA. The Minister
may in terms of section 13(2) of the SDA
after
consultation with the
SETA amend the constitution in the prescribed manner. For purposes
of this application, the following provisions
are of particular
importance:
(i) The SETA’s
constitution must specify the number of members to be appointed by
SETA. The SETA must consist of an equal
number of members
representing employers and employees.
(ii) The constitution
must provide for the election of
office bearers
by the
members of the SETA
and for those persons to act during their
absence or incapacity. The members appoint the Executive Officer and
such other employees
necessary for the effective performance of the
functions of the SETA (including the determination of the terms and
conditions of
employment). Members of the SETA and specifically its
Council and also the office bearers which include the Chairperson (of
the
Council – also referred to as the Accounting Authority)
must therefore be appointed in terms of the relevant provisions of
the SETA’s Constitution which in turn must comply with the
relevant provisions of the SDA. The only additional appointments
that
may be made to the Council are those by the Minister in terms of
section 11 of the SDA.
Relevant Facts
Establishment of
the Services SETA
The Minister of Labour
(who was assigned the function at the time) published a notice
listing various SETA’s including the
Services SETA indicating
the scope of coverage of the various SETA’s in Government
Notice 1083 in Government Gazette 6626
of 7 September 1999. The
Minister approved the Services SETA’s constitution on 20 March
2000 (Government Gazette 24036
of 22 November 2002). (For
convenience sake I will refer to this constitution as “the
2002 Constitution” to distinguish
it from the constitution
later imposed by the Minister on the Services SETA).
The Minister
subsequently approved an application by the Services SETA for the
renewal of its certificate of establishment before
the expiry
thereof on 21 March 2010 (Government Gazette Notice 52 in Government
Gazette 32916 of 5 February 2010). In terms of
this Notice the
period of establishment of the various SETA’s - including the
Services SETA - was extended from 31 March
2010 to 31 March 2011.
The 22 November
2002 Constitution of the Services SETA
The applicants submitted
that the 2002 Constitution remained in place after the
re-establishment of the Services SETA (in terms
of the Government
Gazette of 11 November 2010). The respondents’ case was that a
new constitution was adopted by the Minister
in April 2011 and that
this constitution is the one that governs the Services SETA. (I will
refer to this (second) constitution
as the “2011 Constitution”
to distinguish it from the “2002 Constitution”). Before
I turn to some of
the provisions of the 2011 Constitution, it is
necessary to briefly refer to some of the salient provisions of the
2002 Constitution:
(i) In terms of clause
8(a) of the constitution the Services SETA’s Council is its
governing body. The Executive Committee
is responsible for the day to
day affairs of the SETA. Dedicated Chambers are responsible for the
detailed implementation of SETA
strategy in each of the defined
sub-sectors. Functional Committees may also be appointed by the
Council.
(ii) The powers and
duties of the Council are set out in the clause 8 of the
Constitution.
(iii) The Members of the
Services SETA consist of organised labour, organised business
(including small business) and, where the
Minister considers it
appropriate for the sector, the State, any interested professional
body or Bargaining Council with jurisdiction
in the sector. The
members (organised labour, business and those appointed by the
Minister) elect the representatives to serve
on the Council (clause
10(c) of the Constitution). It is important for purposes of this
application to note that it is
the members
who elect the
representatives of organised labour and organised business and
not
the Minister. In terms of clause 14(b)(iii) of the constitution the
Minister - if he considers it appropriate - may
after consultation
with the Council
, appoint two representatives of interested
professional bodies.
(iv) In terms of clause
13 of the Constitution it is the representatives of the SETA (in
other words the representatives who were
elected by the members to
serve on the Council) who appoint the chairperson and deputy
chairperson (the office bearers). Once a
new chairperson and deputy
chairperson are appointed, the current chairperson and deputy
chairperson’s duties terminate.
It is again important to note
that it is the representatives of the members (organised labour and
organised business) who appoint
the chairperson and the deputy
chairperson and
not
the Minister.
(v) The control and
governance of the affairs of the SETA vest in the Council which shall
be accountable to the Minister (clause
14 of the Constitution). As
already pointed out, it is the
members
(in terms of clause
10(c) of the Constitution) who select the representatives to serve on
the Council and who appoint the chairperson
and deputy-chairperson to
the Council and
not
the Minister.
(vi) Clause 14(b) of the
Constitution prescribes how the Council is to be constituted:
“
(i)Voting
Members (24)
Two employer
representatives from each of the Chambers;
Two employee
representatives representing each of the Chambers;
(This number will vary
pro-rata to the number of chambers that the SETA is constituted of,
as reflected by this constitution, as
amended from time to time.)
(ii) Non-voting
Members (7)
The Chief Executive
Officer of the SETA;
The Managers of each
of the designated Chambers;
and
Any others party as
agreed to by the SETA.
(iii) Discretionary
Non-voting appointments (6)
If the Minister
considers it appropriate for the sector, he may, after due
consultation with the Council appoint up to two representatives
of
interested professional bodies; and
(iv) By Council
invitation (non-voting)
A representative from
any Government Department that has an active interest in the SETA;
Any stakeholders or
individuals who have an active interest in the SETA.”
The
re-establishment of the SETA
I have already pointed
out that the Minster re-established a number of SETA’s
including the Services SETA from 1 April 2011
to 31 March 2016 (on
11 November 2010).
After the establishment
the Minister communicated with various SETA’s and informed
them that he would shortly provide them
with a model constitution
with which they would be all be required to comply. A number of
versions of the new model constitution
were subsequently distributed
by the Minister each with different principles and approaches in
relation to the governance of
SETA’s.
The Minister required
all the SETA’s to submit a signed copy of the model
constitution on or before 28 February 2011. The
SETAs were also
required to forward nominations to SETA Councils received from
stakeholders in the sectors and forward same to
the Minister for
consideration.
According to the
applicants’ papers, the Services SETA initially engaged in
this process with the Minister as it believed
that the Minister had
the power to re-establish the SETA in the manner in which he did.
However, subsequent to this, the applicants
have obtained legal
advice in terms of which it was advised that the Minister was acting
beyond the scope of its powers. As a
result of the legal advice
obtained, the present application was launched.
On 4 March 2011, the
Services SETA submitted nominations for the Council to the Minister.
At a meeting of the Forum for SETAs,
the SETAs were advised that
notwithstanding the fact that they have already submitted a model
constitution to the Minister in
terms of his earlier draft by 28
February 2011, they were now required to consider a further
different model of the Constitution.
On 22 March 2011 a
further version of the model constitution was sent to the SETAs by
the Minister. At this stage this version
of the model Constitution
was referred to as “
the standard constitution for SETAs
”.
According to the applicants, it appeared that this “
standard
constitution
” differed substantially from an earlier draft
of the model constitution which the Minister had sent to the
Services SETAs
previously and which the applicants in their
ignorance signed. This new model constitution (referred to as the
standard constitution
for SETAs) was attached to an e-mail dated 22
March 2011. A copy of the Constitution to be signed is attached to
the founding
affidavit marked “Annexure H2”.
The applicants engaged
with the Minister and the Department of Higher Education and
Training (hereinafter referred to as the “DHET”).
The
DHET,
inter alia
, informed the applicants that the
nominations by the SETA for appointment to the Council were not
compliant with the requirements
listed in a letter from the DHET
dated 17 February 2011. The applicants also,
inter alia
,
informed the DHET that the SETA did not agree that its nominations
for the Council did not comply with the requirements as listed
by
the DHET.
On 28 March 2011 the
applicants received a further letter from the DHET requesting that
the SETA forward the revised constitution
as a matter of urgency.
On 5 April 2011, the
DHET published a notice on the official website of the government
stating that effective as from 1 April
2011 the Minister of Higher
Education and Training has approved the Constitutions of almost all
of the SETAs and has finalised
the appointments to the new SETA
Accounting Authorities including new independent chairpersons. The
notice further states that
all SETA’s are now certified to
function for the next five years as from 1 April 2011. In terms of
this notice - Moon (the
second respondent) is appointed as the new
Chairperson of the Services SETA. As already pointed out, 14 others
were also appointed
as members to the Council (referred to in this
judgment as “the Minister’s Council”).
On 7 April 2011 the
applicants wrote a letter to the DHET objecting to the attempt of
the Minister to impose the 2011 Constitution
on the SETA without
proper consultation. However, despite this objection the Minister
published Gazette Notice no 316 in Government
Gazette 34202 stating
that the Constitutions of the respective SETAs were approved.
Although this notice did not refer to a specific
constitution, the
applicants assumed that it was the same as the one attached to the
applicants’ papers as “Annexure
H2”. This is in
fact admitted by the respondents in the answering affidavit. At this
junction I must point out that there
was some debate during argument
whether or not the constitution attached the applicants’
founding papers as “Annexure
H2” was in fact that one
that was approved and imposed by the Minister. If regard is,
however, had to the papers and especially
the answering affidavit,
it is clear that the constitution (referred to in this judgment as
“the 2011 Constitution”)
approved and imposed by the
Minister is the one attached to the founding affidavit as “Annexure
H2”.
As already pointed out,
the Minister, in the same Gazette, appointed not only Moon as the
Chairperson, but also fourteen others
as ordinary members of the
Services SETA’s Council (also referred to as the Accounting
Authority).
The suspension of
Blumenthal
I have already pointed
out that the applicants,
inter alia,
contest the validity of
the appointment of Moon as the chairperson of the Council. If the
applicant’s argument is accepted
that the Minister did not
have the power to appoint Moon as the chairperson, it will, of
course follow that Moon did not have
the legal authority to suspend
Blumenthal as the CEO. I am of the view that the Minister had not,
despite the respondents’
contention that the Minister did in
fact have the necessary power to do this, have the necessary
authority to appoint Moon as
the Chairperson of the Council. In
light of this fact I am of the view that Moon could therefore not
have validly suspended Blumenthal.
I will in due course return to
the validity of the appointment of Moon in greater detail and to the
reasons for finding that
Moon was not validly appointed. I will also
later in the judgment point out that, even if it is accepted that
Moon was validly
appointed and even if it is accepted that the
Minister could impose and adopt the 2011 Constitution, Moon, in any
event, acted
outside of the 2011 Constitution in suspending
Blumenthal.
Apart from the
submission that Moon could validly suspend Blumenthal, it was also
argued on behalf of the respondents that Blumenthal
did not satisfy
the Court that his rights have been adversely affected by the
decision to suspend him particularly in light of
the fact that he
was suspended with pay. I do not agree: In fact, I am of the view
that Moon (purporting to act on behalf of
the Council of the
Services SETA in suspending Blumenthal) had no valid and fair reason
to suspend him. In addition, Moon (purportedly
acting on behalf of
the Council of the Services SETA) acted procedurally unfairly in
suspending Blumenthal:
(i) Firstly, I have
already indicated that I am in agreement with the applicants’
submission that the Minister did not have
the necessary power to
appoint Moon. Consequently, Moon did not have the legal authority to
suspend Blumenthal as the CEO. Blumenthal’s
rights were
therefore in my view adversely affected.
(ii) Secondly, even if it
is accepted that Moon was validly appointed, he could not, acting on
his own, suspend the CEO. In terms
of the Minister’s own
constitution (the 2011 Constitution), the decision to suspend rests
with either the Council or the
Executive Committee of the SETA.
7
Moon even admits in the
answering affidavit that at that stage the newly constituted
Accounting Authority (the Council) was yet
to convene its first
meeting. Moon in fact admits that he had not yet had any meeting with
any of the members of the Services SETA’s
Council. In fact at
that stage Moon did not even have the contact details of the
appointment members of the Council. Moon’s
decision to suspend
Blumenthal was, however, ratified on 16 April 2011 at the first
meeting of the Council.
(iii) The Court also has
serious difficulties with the undue haste with which Moon – in
fact within a few hours of confirmation
of his (Moon’s)
appointment - felt it necessary to suspend Blumenthal. This is not,
in my view properly explained on the
papers Moon states in his letter
dated 8 April 2011 suspending Blumenthal that Blumenthal is guilty of
misconduct. I find it difficult
to accept how Blumenthal’s
actions for which he was suspended can constitute misconduct.
Blumenthal was suspended for communicating
with the media, taking
legal action against the DHET without the express authorisation of
the Chairperson of the Services SETA
or the Board. I am not persuaded
that Moon had a valid and fair reason to suspend Blumenthal for these
reasons. It is clear that
Blumenthal was suspended for challenging
the authority of Moon and indicating that he and other member of the
Council intended
to challenge the validity of Moon’s
appointment (and the other actions by the Minister) in legal
proceedings. In terms of
section 34 of the Constitution Act 108 of
1996 Blumenthal was exercising his fundamental constitutional right.
8
He is, in my view,
entitled to challenge the appointment of the Chairperson to the
Services SETA if he (and others) have reason
to believe that the
appointment of the Chairperson and of other members to the board has
not been done in accordance with the enabling
legislation and the
constitution of the SETA. It is apparent from the papers that, as a
result of the actions of the Minister and
Moon, serious confusion has
arisen in the Services SETA in respect of which of the two Councils
have been validly appointed and
who the validly appointed chairperson
of the Council is. Is it Moon or is it Jack? Moreover, there appears
to also exist serious
confusion in respect of which constitution
governs the affairs of the Services SETA. The Court was informed that
the SETA controls
approximately one billion rand which is to be used
for,
inter
alia
,
education and training.
9
It is thus manifestly
important for the role players in the industry (who are also the
applicants in this application) to obtain
clarity in respect of
matters which affect the governance of the SETA. It is therefore, in
my view, manifestly unfair to suspend
an employee (especially one in
the position of Blumenthal) who challenges the actions of a Minister
through proper legal challenges.
(v) In respect of the
process that was followed in suspending Blumenthal, I am equally of
the view that his suspension was unfair.
Blumenthal was initially
afforded an opportunity
to
make representations in respect of his suspension in the letter dated
8 April 2011. According to this letter he had to make such
representations by 15 April 2011. However, before he could do so he
was summarily marched out of his office. Why it was necessary
to have
two attorneys present and an armed guard when Blumenthal was marched
out, is not properly explained on the papers. Moreover,
it is also
not explained why Blumenthal was not afforded an opportunity to even
collect his personal belongings.
(vi) Lastly, new
allegations were added when Blumenthal was suspended on 12 April
2011. In respect of these allegations Blumenthal
was not even
afforded the right to make any representations.
In the light of the
aforegoing I have no hesitation to conclude that the suspension of
Blumenthal was both unlawful and procedurally
unfair. I should also
point out that I am of the view that the fact that he was suspended
with pay does not mitigate the actions
of Moon nor does it diminish
the prejudice suffered by Blumenthal. I am also not persuaded that
Blumenthal has an adequate alternative
remedy at his disposal given
the urgency of this application.
Urgency
The applicants submitted
that the present application should be resolved without delay. It
was submitted that the Minister’s
actions in appointing the
respondents as chairpersons or members of the Council as well as his
attempts to impose upon the Services
SETA a new constitution as well
as the decision to suspend its CEO, create enormous difficulties,
uncertainty and prejudice for
the SETAs and all its members. It was
further submitted that there also exists confusion as to who is
lawfully entitled to hold
the positions and exercise the powers
relating to the governance of the Services SETA. This confusion
especially extends to the
financial control of the SETA and its
activities as set out in section 10 of the SDA. The confusion as to
who the new chairperson
is and who therefore may issue orders
further compounds the uncertainty that exists amongst the personnel
of the Services SETA.
According to the papers staff are being issued
with instructions, warnings and threats from Moon and the person he
has purportedly
appointed to act as CEO.
The respondents disputed
the urgency of this application and submitted that the grounds
relied upon by the applicants for urgency
are vague. More
specifically, it was argued that the Minister had informed all the
SETA’s that the period for extension
of the SETA would not be
extend beyond 31 March 2011. If the applicants wished to challenge
the decision of the Minister, it
should have done so before 31 March
2011.
I am not persuaded that
this application is not urgent. In fact, I am of the view that it is
in the interests of justice that
this application be decided on an
urgent basis. It is clear from the papers that there now exist two
competing constitutions
for the Services SETA and two competing
Councils with competing chairpersons. This confusion will
undoubtedly hamper the service
delivery of the SETA. This is simply
untenable and cannot be allowed to remain in uncertainty until such
time a Court in the
normal course has an opportunity to consider
this application. The Court also cannot lose sight of the fact that
there are interested
parties involved in this application
representing a large number of stakeholders. One of the stakeholders
– FEDUSA –
is the second largest union federation in
this country. Moreover, it is these stakeholders that contribute to
the one billion
rand controlled by the SETA for its activities which
is to enhance the skills of the workforce. These applicants, in my
view,
have a right to gain clarity in respect of not only the
constitution of the SETA, but also the composition of the Council
who
controls the activities of the SETA and the chairperson on an
urgent basis. At this juncture I must also point out that according
to section 13(3)(vi) and (xi) it is the
members
of the
Council who appoint the chairperson and the members to the Council.
The Minister has now, however, taken it upon himself
to not only
appoint the chairperson of the Council but also the other members to
the Council. This, as will be pointed out hereinbelow,
is in breach
of not only the enabling statute (the SDA) but the enabling
regulations and the 2002 Constitution. It is furthermore
also clear
from the papers that the governance of the SETA and its
administration are hamstrung by the dispute. This problem
is
compounded by the fact that the CEO was not only invalidly but also
unfairly suspended. I am therefore, despite the strong
objections on
behalf of the respondents, of the view that the matter is urgent. I
am also not persuaded that the applicants could
have brought the
application at an earlier date. I am in agreement that the
applicants could not have brought the application
prior to the
events of 8 April 2011. It was only then that the Minister has taken
a final decision in respect of the constitution
and the council
members.
Locus Standi
The respondents argued
that the various applicants do not have
locus
standi
in
this matter and that the Minster had the necessary powers to appoint
the Council and approve the 2011 Constitution.
I am not in agreement
with this submission. Firstly, the issue of
locus
standi
should
be decided without having regard to the merits of the application.
Clearly the applicants all have
locus
standi
in
bringing this application. Whether or not they will be successful
with this application is entirely a different matter and
can only be
decided once the merits of the application have been considered and
decided.
Briefly, the first
applicant has
locus
standi
as
it, according to the applicants, continues to exist. As such it has
the necessary
locus
standi
to
contest the validity of the Minister’s decision to appoint
another Council and a chairperson. Both Grobler and Jack (the
deputy
chairperson and the chairperson of the Members’ Council) have
the necessarily
locus
standi
to
seek an order from this Court clarifying the legal position
regarding their appointment. Blumenthal has the
locus
standi
to
challenge his suspension as the CEO of the Services SETA. Lastly,
the third, fourth, fifth and sixth applicants all have
locus
standi
by
virtue of the fact that they are either members of the Services SETA
or members of organisations which are represented on the
Services
SETA whether it is on the old SETA or the recently re-established
SETA. UASA has further
locus
standi
on
the basis that it represents Blumenthal. Lastly, the Court is faced
with the extraordinary situation where significant representatives
of labour and representatives of organised labour have united as
applicants in an application to contest the validity of various
actions by the Minister and by the newly appointed chairperson to
the Council. These representatives are statutorily recognised
as
members of the SETA.
10
To suggest that they do
not have
locus
standi
is
in my view simply ludicrous.
Merits
It is a fundamental
requirement of not only the constitutional rule of law
11
but of administrative
law
12
that a Minister can only
take specific action if he or she has the necessary authority to do
so. It is against the background
of these fundamental principles
that the Minister’s actions in adopting and imposing a new
constitution and establishing
a new Council for the Services SETA
will be evaluated.
I have already dealt
with the suspension of Blumenthal and will now deal with the
Minister’s actions of 8 April 2011
13
in terms of which he
approved the constitution of various SETAs (including that of the
Services SETA). (I have already indicated
that it is common cause
between the parties that the constitution that was approved is the
one attached to the founding affidavit
as “Annexure H”)
and the appointment of the chairperson (Moon) and members of the
Council (as set out in Schedule
1 to the aforementioned Gazette
Notice.) If this schedule is perused it appears that Moon is one of
three ministerial appointees.
The third and fourth respondents are
the other two ministerial appointees. The remaining 12 appointments
are purportedly appointed
from the interested parties namely
organised labour and organised business. The list purports to
appoint an equal number from
labour and business. However, it is
clear from the papers that the list is in fact defective: Pam Snyman
(nr 9 on the list);
Shadrach Motoung (nr 11 on the list) and Beverly
Jack (nr 12 on the list) are indicated as organised business whereas
they are
in fact representatives from organised labour. If the list
is then viewed
after
the necessary
corrections have been affected, it appears that labour then has 7
representatives and business only 5. This in itself
is in
contravention of the provisions of section 13(3)(a)(iii) of the SDA
which requires that the number of members to be appointed
to the
SETA must consist of an equal number of members representing
employees and employers. (I will return to this aspect hereinbelow.)
The Minister’s
action in imposing the 2011 constitution
The applicants contend
that the Services SETA is still governed by the 2002 Constitution.
They therefore contest the validity
of the Minister to have imposed
the 2011 Constitution on the SETA.
In terms of the 2002
constitution (as already pointed out) the voting members of the
councils are to be elected in equal numbers
by the members (the
representatives constituencies) of the council (and as required by
section 13(3)(a)(iii) of the SDA and in
terms of clause 13(c) of the
2002 Constitution). In terms of section 13(3)(a)(vi) of the SDA (and
in terms of clause 13 of the
2002 Constitution) the office bearers
must be elected by the representative
members
of the SETA who
have voting rights.
It was submitted on
behalf of the applicants that the Minister may only amend the
constitution of a SETA after consultation with
the SETA. This
process of consultation has not been followed. Furthermore, the
Minister is only empowered to
approve
the new constitution and
cannot therefore unilaterally impose the constitution on the SETA.
In this regard section 13 of the SDA
clearly states that the Minster
may only “
approve
”
the constitution.
Moreover, in terms of Regulation 2(2)(c) an application for the
establishment of a SETA must include a constitution
that specifies
the matters referred to in section 13(3)(a)(i) to (xii) of the SDA.
I am in agreement with
the submission that when the Minister established the SETA for the
period 1 April 2011 to 31 March 2016
he did so on the basis of the
2002 Constitution (approved in March 2000 and Gazetted in November
2002).
14
If the Government
Gazette of 11 November 2010 is perused it is clear that the
Minister, when he established the Services SETA
(in terms of section
9(1) of the SDA and Government notice R 1082 of 7 September 1999)
that he (the Minister) made no reference
to any constitution for the
Services SETA. It is not explicitly nor impliedly stated in the
Government Gazette of 11 November
2011 that, in establishing the new
Services SETA, the Minister relied on another constitution when
establishing the SETA. It
is further common cause on the papers that
there was no new constitution in existence at the stage when the
Minister established
the Services SETA (for a further five years).
In this regard it is also not the respondents’ case that any
other constitution
existed at the time of the re-establishment of
the SETA. Consequently, when the Minister established the (new) SETA
in terms
of the Government Gazette dated 11 November 2010, he must
therefore have done so on the basis of the 2002 Constitution which
was in place for the existing Services SETA. In coming to this
conclusion it is important to re-emphasise what has already been
stated, which is that the Minister may only lawfully establish a
SETA in terms of section 9(1) of the SDA
with
a constitution. The
constitution of a SETA is its founding document. The Minister
clearly must have been aware of this and must
therefore have
intended to establish the SETA on the basis of the 2002 Constitution
(being the only constitution that was in
existence at the time).
This much is clear from the clearly stated words in the Government
Gazette dated 11 November 2010 that
the Minister, in establishing
the SETA (for a further period), did so in terms of section 9(1) of
the SDA. To recap: Section
9(1) of the SDA unequivocally states that
“[
t]he
Minister may, in the prescribed manner, establish a sector education
and training authority
with
a constitution
15
for any national
economic sector
”
.
Moreover, a SETA, which is a juristic body cannot exist or perform
its functions in terms of the SDA without a constitution.
Moreover, when the
Minister previously extended the life of the Services SETA’s
by a year to March 2011,
16
the DHET confirmed in a
letter that the constitution of the SETA was automatically extended.
It was only on 17
February 2011 that Mr. Moleke (the Deputy Director General: Skills
Development) called upon the different SETAs
(including the Services
SETA) to amend or align their constitutions in terms of the DHET’s
proposed model constitution.
It is significant to note that this
letter specifically states that SETAs (including the Services SETA)
must
amend
or align their constitutions
.
In light of the fact that the 2002 Constitution was the only
constitution in existence at that stage, Moleke must therefore
have
referred to amendments and alignments to be affected to the
constitution that was in existence at the time, which was the
2002
Constitution.
In the letter from Mr.
Qonde (the Acting Director General’s) dated 25 March 2011
Blumenthal was informed that the Services
SETA’s constitution
was found not to be in compliance with the Model Constitution. Qonde
also called upon the Services
SETA to consider for acceptance the
standard constitution that was sent to the SETA on 22 March 2011. In
light of the fact that
no other constitution existed other than the
2002 Constitution, Qonde must also have intended to refer to the
2002 Constitution.
In conclusion: In light
of the fact that the Minster cannot in terms of section 9(1) of the
ADA establish a SETA without a constitution
and in light of the fact
that no other constitution existed at the time (as at 11 November
2010 when the SETA was re-established)
and in light of the fact that
the life of the SETA was previously extended on the basis of the
2002 Constitution and in light
of the fact that the SETAs (including
the Services SETA) were only called upon early in 2011 to
“
amend/align
”
17
their constitutions, the
Minister clearly established the Services SETA from 1 April 2011 to
31 March 2011 on the basis of the
2002 Constitution.
I should in passing
point out that it is not the case of the Minister that Government
Gazette Notice of 11 November 2010 is invalid.
In fact, if regard is
had to the papers the Minister relies on this Gazette as the legal
basis for the establishment of the current
Services SETA.
In light of the Court’s
conclusion that the 2002 Constitution remains in place for the
reasons as set out above, it must
therefore logically follow that
the 2002 Constitution continued to apply to the new SETA
(established by the Minister in terms
of the Government Gazette
dated 11 November 2010). It also follows that the 2002 Constitution
will apply to the governance of
the Services SETA including but not
limited to the assets and liabilities of the previous SETA. The
provisions of the 2002 Constitution
in respect of the election of
members to the Council (in terms of clause 10(c) of the 2002
constitution which is compliant with
section 13(3)(a)(iii) of the
SDA); the election of office bearers by the members of the SETA (in
terms of clause 13 of the 2002
constitution which is compliant with
section 13(3)(a)(vi) of the SDA) and the appointment of an executive
officer (and other
employees necessary for the effective performance
of the functions of the SETA) by its members (in terms of section
13)(a)(xi)
of the SDA) therefore continue to apply.
Furthermore, as already
pointed out, the Minister does not have the power to impose
unilaterally a new constitution on the SETA
– his powers are
limited to
approving
a constitution (section 13(1) of the
SDA).
I therefore do not
accept the submission on behalf of the respondents that the Minister
was entitled to unilaterally impose a
new constitution when the
Services SETA was re-established. The 2002 constitution, for the
reasons set out above, survived the
re-establishment of the new
Services SETA. In the event it is concluded that the Minister’s
unilateral act of imposing
a constitution on the SETA (in accordance
with the Government Gazette Notice of 8 April 2011) is invalid and
unlawful.
Proper
consultation?
In the alternative it
was submitted on behalf of the applicants that even if it is
accepted that the Minister had the necessary
power to impose a new
constitution, the procedural requirement of proper consultation was
not adhered to.
On behalf of the
respondents it was argued that the Minister, in establishing a SETA
with a constitution, has no legal duty to
consult any entity or
persons. The respondents do, however, concede that the duty to
consult arises only when the Minister intends
to amend a
constitution.
I am not persuaded on
the papers that the Minister engaged in any meaningful consultation.
If the letters from the DHET to the
SETA are perused it is clear
that the SETAs were instructed to align their constitutions with the
constitution proposed by the
Minister.
The 2011
Constitution.
Further in the
alternative it was submitted that, even if the Minister had the
necessary power to impose a new constitution, this
constitution
(which was purportedly approved by the Minister on 8 April 2011) is
invalid because it contains various provisions
which are in conflict
with the enabling provisions in section 13(3)(a) of the SDA.
I have already referred
to the fact that section 13(3)(a) requires that a constitution of a
SETA “
must
specify
”
the
matters listed in this section which includes,
inter
alia
,
the election of office bearers “
by
the members of the SETA”
(and
of persons to act during their absence or incapacity, their term of
office and functions and the circumstances and manner
in which they
may be replaced)
18
and the appointment of
an executive officer (and such other employees necessary for the
effective performance of the functions
of the SETA) again “
by
its members”
.
19
If the salient
provisions of the 2011 Constitution is perused, it appears that this
constitution contains various provisions which
are in breach of
various provisions contained in the SDA. For example:
In terms of clause
8(4)(a) and (b) of the 2011 Constitution the Council (referred to
as the Accounting Authority) may not
exceed fifteen members). This
maximum number includes any appointments made by the Minister. If
regard is had to the appointments
listed in Schedule 1 attached to
the Government Gazette dated 8 April 2011, it appears that the
Minister made three additional
ministerial appointments namely
Moon (the second respondent), Ori (the third respondent) and
Mantashe (the third respondent)).
I am in agreement with the
submission that this clause breaches section 13(3)(a)(vi) of the
SDA which requires that the “
members of the SETA
”
elect the office bearers. The Minister may therefore not appoint
the members serving on the council. Clause 2(1)(e)
and (f) of
Schedule 4 to the 2011 Constitution which provides for two
ministerial appointees to the Council and for the Minister’s
appointment of the chairperson is therefore likewise in
contravention with the SDA.
In terms of clause 8(6)
the various constituents (namely organised labour, organised
employers and relevant government departments
within the sector)
merely nominate members to the council. These nominations must
thereafter be submitted to the Minster for
his consideration who
will thereafter recommend these to Cabinet for approval (clause
6(b)(c) of the 2011 Constitution). I am
in agreement that this
clause is likewise in breach of section 13(3)(a)(vi) of the SDA
which clearly provides that it is the
members
of the SETA who
elect the office bearers. The Minister therefore does
not
have the power to elect office bearers on behalf of the members of
the SETA.
(iii) In terms of clause
8(6)(d) and (e) of the Constitution of the three persons appointed by
the Minister (the so-called ministerial
appointees) which includes
the chairperson, only the chairperson will have no voting rights. The
two other ministerial appointees
will therefore have full voting
rights. This is again in contravention with section 13(3)(a)(vi) of
the SDA which clearly states
that it is the members of the SETA that
elect their own office bearers. Not only is the Minister not
empowered to appoint members
to the Council of the Services SETA, he
may not appoint persons to the council with voting rights. The
Minister’s powers
to appoint persons as “
members
”
to the SETA are further limited by the provisions of section 11(d) of
the SDA in terms of which the Minister may only appoint
as members
additional persons “
after consultation with the members
referred to in paragraph (a) and (b)
[organised labour and
organised employers]”. Section 11(d) places a further
restriction on the Minister to only appoint persons
to represent any
interested professional body or any Bargaining Council with
jurisdiction in the SETA.
In terms of clause
8(13)(b) of the 2011 constitution, the Minister, on the
recommendation of the council may remove a member
from the council
(the accounting authority). This is again in contravention with
section 13(3)(a)(vi) of the SDA which provides
that it is the
members
of the council who may replace a member.
In terms of clause 9(1)
of the 2011 Constitution the Council must establish an Executive
Committee “
with the approval of the Minister
”.
This is in breach of section 13(3)(a)(vii) which provides that the
members
appoint office bearers. Section 13(3)(vii) also does
not contain a provision that the
Minister
approves the
appointment of the Executive Committee.
In terms of clause 10(1)
of the 2011 Constitution only the Minister is authorised to appoint
the Chairperson of the Council. This
is clearly in breach of section
13(3)(a)(vi) and (xi) of the SDA which specifically states that it
is the
members
who appoint the office bearers; the Executive
Officer and other employees to the council.
(vii) In terms of clause
12(1) of the 2011 Constitution the Minister has the power to appoint
the Chief Executive Officer of a SETA
from amongst three nominations
received from the council whereafter the Cabinet will approve the
appointment. This clause is clearly
in contravention with section
13(3)(a)(xi) of the SDA which specifically provides for the
appointment of an Executive Officer and
other employees by the
members
of the SETA;
I am accordingly, in
light of the aforegoing, of the view that the content of the 2011
Constitution contravenes various provisions
of the SDA. Consequently
the constitution purportedly approved by the Minister on 8 April
2011 is, in any event, invalid.
Summary
In light of the
aforegoing it is accordingly concluded as follows:
The 2002 Constitution
survived the re-establishment of the Services SETA and as such
therefore continues to serve as the founding
document of the
Services SETA.
The Minister did not
have the power to impose the 2011 Constitution.
In the alternative,
even if it is accepted that the Minister had the power to impose
the 2011 Constitution, the constitution
is invalid in view of the
fact that various provisions of the Minister’s constitution
contravenes various provisions
of the enabling statute namely the
SDA.
I am further in
agreement with Mr. Kennedy that the effect of this conclusion is
either that the 2002 Constitution remains valid
or that the Services
SETA has no valid constitution at all. I am not inclined to accept
that the Services SETA has no constitution
for the reasons set out
in the preceding paragraphs. The Minister clearly re-established the
new Services SETA on the basis of
the 2002 Constitution for the
reasons set out hereinabove. The Minster did not have the necessary
power to impose a new constitution
and even if he had, the new
constitution is in breach of the SDA. Consequently, until a new
constitution has been lawfully adopted,
the 2002 Constitution
continues to govern the functions and affairs of the Services SETA.
As far as the
appointments to the Minister’s Council is concerned, I am in
agreement with the submission that the Minister’s
appointment
of the various members (including the chairperson - Moon) to the
Council is invalid. The validly established Council
is therefore the
one that was established by the members of the Council in terms of
the provisions of the 2002 Constitution.
Jack’s appointment as
the chairperson to the Council and Grobler’s appointment as
vice-chairperson to the Council
(established by the
members
)
are therefore valid. It therefore follows that because Moon was not
validly appointed as the chairperson to the Council, he
therefore
did not have the power to suspend Blumenthal. Apart from the fact
that Blumenthal’s suspension was unfair, Moon’s
action
of suspending Blumenthal was unlawful.
However, even if the
Minister was empowered to elect a new council, the Council
established by the Minister does not comply with
the requirement in
section 13(3)(a)(iii) of the SDA which requires that the number of
members appointed to the council “
must consists of an equal
number of members representing Organised Employers and Organised
Labour in the Sector
”. In this regard I have already
pointed out that it is evident from the list of members appointed by
the Minister to the
Council of the Services SETA that the
composition of the (Minister’s) Council is in breach of
Schedule 4 of his own constitution.
Lastly, according to clause
8(6)(c) of the 2011 constitution, Cabinet must approve the
ministerial appointments. Despite the
fact that this issue was
pertinently raised in the founding papers and despite the fact that
the applicants challenged the respondents
to prove that the Cabinet
has indeed approved the ministerial appointments, the answering
affidavit is completely silent on this
issue.
Although I have already
dealt with the suspension of Blumenthal
supra
, it is
reiterated here that in light of the fact that Moon was not validly
appointed as chairperson, he had no legal authority
to suspend
Blumenthal as the CEO. Even if Moon was validly appointed, he was
not able, in terms of the 2011 constitution, to
act on his own in
suspending Blumenthal. This much is clear from clause 10(3) of the
2011 Constitution which provides that the
chairperson of the
accounting authority (council) merely “
preside at meetings
of both the Accounting Authority and the Executive Committee
.”
Also, Moon does not have voting rights in terms of the 2011
Constitution, yet he suspended Blumenthal and unceremoniously
escorted Blumenthal out of the building. Lastly, on his own version,
Moon did not event consult with any of the members of the
(Minister’s) Council when he suspended Blumenthal: He did not
even have the contact details of the other members.
It is therefore
concluded that the actions of the Minister (the first respondent)
and that of Moon (the second respondent) were
unlawful and unfair
and therefore fall to be reviewed and set aside. I can find no
reason why costs should not follow the result.
In light of the
submissions contained in the applicants’ heads of argument the
order as to costs are only made against
the Minster and the second
respondent by virtue of his opposition.
In the event the
following order is made:
1. The order is granted
in terms of prayers 2 to 11 of the Notice of Motion.
2. The First and Second
Respondents are ordered to pay the costs, jointly and severally, the
one paying the other to be absolved.
AC BASSON, J
Date of the
application:
20 April 2011
Date of the
judgment:
3 May 2011
FOR THE APPLICANTS:
Paul Kennedy SC
Instructed by Edward
Nathan Sonnenbergs Inc
FOR THE
RESPONDENTS:
Nceba Dukada SC; Adv
PG Malindi, Adv M Zulu
Instructed by the
State Attorney
1
“
9.
Establishment of SETA.—(1) The Minister may, in the prescribed
manner, establish a sector education and training authority
with a
constitution for any national economic sector.
(2) The Minister must
determine a discrete sector for the purposes of subsection (1) by
reference to categories of employers and
for the purposes of that
determination take into account—
(a) the education and
training needs of employers and employees that—
(i) use similar
materials, processes and technologies;
(ii)make similar
products; or
(iii) render similar
services;
(b) the potential of
the proposed sector for coherent occupational structures and career
pathing;
(c) the scope of any
national strategies for economic growth and development;
(d) the
organisational structures of the trade unions, employer
organisations and government in closely related sectors;
(e) any consensus
that there may be between organised labour, organised employers and
relevant government departments as to the
definition of any sector;
and
(f) the financial and
organisational ability of the proposed sector to support a SETA.
(3) On the
establishment of a SETA, the Minister may provide assistance to the
SETA to enable it to perform its functions.
(4) The Minister may,
after consulting the National Skills Authority and the SETAs in
question and subject to subsection (2),
change the sector of a SETA
and must publish a notice in the Gazette reflecting such change.”
2
The
“
members” of the Services SETA is
organized labour and organized business. See section 11 of the SDA.
3
See
section 31 of the SDA.
4
Published
in Government Gazette 20442 on 7 September 1999.
5
“
11.
Composition of SETA.—A SETA may consist only of members
representing—
(a) organised labour;
(b) organised
employers, including small business;
(c) relevant
government departments; and
(d) if the Minister,
after consultation with the members referred to in paragraph (a),
(b) and (c), considers it appropriate for
the sector—
(i) any interested
professional body;
(ii) any bargaining
council with jurisdiction in the sector.”
6
“
13.
Constitution of SETA.—(1) For the purpose of the establishment
of a SETA, the Minister must approve the constitution
of the SETA.
(2) The Minister may,
after consultation with the SETA, amend its constitution in the
prescribed manner.
(3) Subject to this
Act, the constitution of a SETA—
(a) must specify—
(i) the trade unions,
employer organisations and relevant government departments in the
sector;
(ii) the
circumstances and manner in which a member of SETA may be replaced;
(iii)the number of
members to be appointed to the SETA, provided that the SETA must
consist of an equal number of members representing
employees and
employers;
(iv) the procedure
for the replacement of a member of the SETA by the organisation that
nominated that member;
(v) the circumstances
and manner in which a member may be replaced by the SETA;
(vi) the election of
office-bearers by the members of the SETA and of persons to act
during their absence or incapacity, their
term of office and
functions and the circumstances and manner in which they may be
replaced;
(vii) the
establishment and functioning of committees, including an executive
committee;
(viii) the rules for
convening and conducting of meetings of the SETA and its chambers
and committees, including the quorum required
for and the minutes to
be kept of those meetings;
(ix) the voting
rights of the different members and the manner in which decisions
are to be taken by the SETA and its chambers
and committees;
(x)a code of conduct
for members of the SETA and its chambers;
(xi) the appointment
of an executive officer, and such other employees necessary for the
effective performance of the functions
of the SETA, by its members,
including the determination of their terms and conditions of
employment; and
(xii) the
determination through arbitration of any dispute concerning the
interpretation or application of the constitution; and
(b) may provide for—
(i) the delegation of
powers and duties of the SETA to its members, chambers, committees
and employees, provided that the SETA
may impose conditions for the
delegation, may not be divested of any power or duty by virtue of
the delegation and may vary or
set aside any decision made under any
delegation; and
(ii) any other matter
necessary for the performance of the functions of the SETA.
(4) In order to
ensure that its membership is representative of designated groups,
every SETA must—
(a) provide in its
constitution that each constituency contemplated in section 11
represented on the SETA in question is represented
by members who
are sufficiently representative of such designated groups; and
(b) take the
necessary steps to ensure that the constituencies in question comply
with the provision in the SETA’s constitution
contemplated in
paragraph (a).”
7
Clause
10(3) of the Ministers Constitution.
8
“
34
Access to courts
Everyone has the right
to have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
9
See
section 10 of the SDA where the various functions of the SETA are
listed.
10
Section
11 of the SDA.
11
Pharmaceutical
Manufacturers Association of SA: In re ex parte President of the RSA
2000 (2) SA 674 (CC).
12
Section
33 of the
Constitution of the Republic of South
Africa, 108 of 1996 and
sections 6(2)(a)(i)
and (b), (c), (d),
(e)(i) and (f)(i) of the
Promotion of Administrative Justice Act 3
of 2000
.
13
Government
Notice 316 in Government Gazette 34202 of 8 April 2011.
14
Attached
to the founding affidavit as “Annexure C2”.
15
The
Court’s emphasis.
16
In
terms of the
Government Gazette Notice of 6
February 2010.
17
Letter
from Moleke dated 17 February 2011).
18
Section
13(3)(a)(vi)
of the SDA.
19
Section
13(3)(a)(xi)
of the SDA.