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[2011] ZALCJHB 219
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Service Sector Education and Training Authority and Others v Minister of Higher Education and Training and Others (J 677/2011) [2011] ZALCJHB 219 (1 June 2011)
IN THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
No: J677-2011
In
the matter between:
SERVICES
SECTOR EDUCATION AND
TRAINING
AUTHORITY First Applicant
IVOR
BLUMENTHAL Second Applicant
UASA
THE UNION 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
CLIVE
EDWARD WICKS Ninth Applicant
SHADRACK
MOTLOUNG Tenth Applicant
FEROZA
FAKIR Eleventh Applicant
And
MINISTER
OF HIGHER EDUCATION
AND
TRAINING First Respondent
ACTING
DIRECTOR OF HIGHER
EDUCATION
AND TRAINING Second Respondent
SIHLE
MOON Third Respondent
SHAKEEL
ORI Fourth Respondent
NOLWANDE
MANTASHE Fifth Respondent
MZWAMADODA
WISEMAN DINWA Sixth Respondent
ASHLEIGH
CLAIRE VAN GREUNEN Seventh Respondent
KIM
VELTMAN Eighth Respondent
PATRICK
MAKHUBELA Ninth Respondent
PAM
SNYMAN Tenth Respondent
ADENE
PRINGLE Eleventh Respondent
JOYCE
MHLONGO Twelfth Respondent
JOYCE
DIMAKATSO SEEMA Thirteenth Respondent
Date of Hearing : 2 June
2011
Date of Judgment :
June 2011
ruling
on leave to appeal and application to execute
Gush, J
This matter concerns an
application by the respondents for leave to appeal against my
judgement handed down on 6 May 2011 and
an application by the
applicants for leave to execute my judgment, which the parties
agreed should be heard together. In the
judgment the respondents
apply for leave to appeal against, I granted the applicants the
following order:
Reviewing and setting
aside the purported appointment by the first and second respondents
of the third respondent as the administrator
for the Services
Sector Education and Training Authority (“Services SETA”);
Reviewing and setting
aside the first respondent’s decision to direct the second
respondent - and of the second respondent
to act in terms of such
direction - to issue Government Notice 372 in Government Gazette
34245 of 21 April 2011, and setting
aside that notice as invalid.
Reviewing and setting
aside the second respondent order purporting to direct the transfer
of all funds in the Service’s
SETA”s bank account to
the National Skills Fund and in the event that the funds in the
first applicant’s bank account
have been transferred to the
National Skills Fund;
Directing the first and
second respondents to take all necessary measures immediately to
ensure the retransfer all funds which
had been transferred from the
Services SETA’s bank account to the National skills fund,
pursuant to the said Gazette
Notice, back into the Services SETA's
bank account;
In the event that first
applicant’s bank account had been frozen ordering in so far
as it is necessary that the bank
account be unfrozen; and
That the first and
second respondents were to pay the costs of the application the one
to pay the other to be absolved.
The respondents grounds
of appeal were:
“
The prematurity
of the application” in that in the light of the judgment by
Basson J in case number
J604/2011 handed down prior
to 6
th
May 2011 that Government Notice no. 372 published
in the Government Gazette of the 21 April 2011 was no longer of any
force
or effect.
That I erred in finding
that there was no financial mismanagement as was required for the
1
st
respondent to have acted in terms of section 15(4)
of the Skills Development Act; and
That the Minister was entitled to have acted in terms
of Section 15(4) without having to consult the relevant SETA or the
National
Skills Authority in that the 1
st
respondent had deliberately not consulted as it was implied or
implicit that “
any delay caused by the
consultation with the National Skills Authority and the SETA in
question would be detrimental to the
SETA’s capacity to
perform its functions
”
.
In support of the first
ground of appeal the applicants’ argued that the notice
published in the government Gazette of the
21 April 2011 suspending
the accounting authority of the first applicant, directing that the
funds in the first applicant's bank
account be transferred to the
National which Skills and Fund and appointing the third respondent
as an administrator, was directed
only at the council appointed by
the first applicant. The applicants’ averred that in the
circumstances once the appointment
of that council was set aside (by
virtue of the judgment of Basson J in case number J604/2011) the
suspension of the accounting
authority and appointment of the
administrator ceased to be of any force of effect.
This supposition neither
accords with the notice which appeared in the government gazette nor
with the answering affidavit put
up by the respondents.
The notice in the
government gazette is general in its application and applies simply
to the “accounting authority”.
More importantly the
applicants’ answering affidavit does not suggest any way
whatsoever that the 1
st
respondent only intended to
suspend the council he had appointed. In fact the respondents’
answering affidavit stated specifically
that the:
“
Appointment of
the administrator was imperative for the following reasons
1.
There had to be
someone who runs the affairs and functioning of the
[first
applicant]
authoritatively
;
There has to be
someone running the
[first applicant]
authoritatively from
the date of judgment and to the date of judgment in any appeal that
may be instituted by any of the parties
;
In the event that the
court in the first application holds that neither accounting
authority was properly or legally appointed,
it is required that an
Administrator authoritatively run the affairs and functioning of the
[first applicant]
until the
[first respondent]
has
concluded the processes of appointing a new Accounting Authority.
Despite the contention
that the appointment of the administrator was of no force and effect
and submitting that the judgment in
this matter was academic,
respondents’ counsel advised the court during argument that
the administrator was in fact in
office and performing those
functions set out in Government Notice 372 in Government Gazette
34245 of 21 April 2011.
The second ground of
appeal is that I erred in finding that there was which would justify
the 1
st
respondent invoking section 15(4) of the Skills
Development Act.
Even if I was wrong in
so finding, the provisions section 15(4) of the Act require not only
that there are no financial irregularities
but also that the 1
st
respondent first consult with the National Skills Authority unless
“
the delay caused by the consultation would be detrimental
to the SETA's capacity to perform its functions”.
This is the
respondents’ third ground of appeal. Viz: is that I erred in
finding that the 1
st
respondent, having failed to
consult, had not made
out a case that
“any delay
caused by the consultation with the National Skills Authority and
the SETA in question would be detrimental
to the SETA’s
capacity to perform its functions
”. The respondents
submitted that it was implicit or implied in its case that to
consult would have caused a delay which
would have been “
detrimental
to the SETA's capacity to perform its functions”
This is neither implicit
nor implied.
In fact the deponent to
the respondents’ answering affidavit admitted that “
no
attempt whatever has been made to consult with the National Skills
Authority ...”
1
It appears from the papers and from counsel’s argument that
the decision not to consult was a deliberate decision and was
not
made for the reasons stipulated in section 15(4) of the Skills
Development Act.
Counsel for the
respondent submitted, referring to paragraph 74.2 of the
respondents’ answering affidavit, that in fact
the 1
st
respondent “
did not think it wise to consult the National
Skills Authority on this matter since, in his view, it was sub
judice.”
This in no way whatsoever suggests that the 1
st
respondent was concerned that consulting National Skills Authority
would cause a delay or that it would be detrimental to the 1
st
applicants’ capacity to perform its functions.
In
order for the respondents to succeed with application for leave to
appeal it must be shown that there is a reasonable possibility
that
another court may come to a different conclusion.
2
Regarding
the respondents first and main ground of appeal viz that my judgment
was academic in the light of the Basson J’s
judgment; the
respondents have persisted in giving effect to the notice in the
government gazette (which I set aside for want
of compliance with
the provisions of section 15(4) of the Skills Development Act.)
Whilst
I may have been incorrect in finding that there was no there was no
“financial mismanagement” it is clear even
from the
respondents own papers that the 1
st
respondent did not
consult with at least the National Skills Authority, if not the
Services Seta, and that the reason for not
consulting had nothing to
do with any “delay” or detriment “
to the SETA's
capacity to perform its functions”
In
the circumstances I am not satisfied that the respondents have
succeeded in establishing there is a reasonable possibility
that
another court may come to a different conclusion.
The
second part of this matter concerns the application by the
applicants’ to execute or to enforce the judgment pending
the
outcome of this application and any subsequent application for leave
to appeal (petition).
It
is so that a party seeking to execute must bring a special
application to do so and it has been held that:
“…
Generally the execution of a judgment
is automatically suspended upon the noting of an appeal, with the
result that, pending the
appeal, the judgment cannot be carried out
and no effect can be given thereto, except with the leave of the
Court which granted
the judgment.”
3
In
considering such an application the court set out the factors to be
taken into account :
“
The
Court to which application for leave to execute is made has a wide
general discretion to grant or refuse leave and, if leave
be granted,
to determine the conditions upon which the right to execute shall be
exercised… This discretion is part and
parcel of the inherent
jurisdiction which the Court has to control its own judgment….
In exercising this discretion the
Court should, in my view
,
determine what is just and
equitable
in all the circumstances
and, in doing so, would
normally have regard, inter alia, to the following factors:
The potentiality of
irreparable harm or prejudice being sustained by the appellant on
appeal (respondent in the application)
if leave to execute were to
be granted;
The potentiality of
irreparable harm or prejudice being sustained by the respondent on
appeal (applicant in the application) if
leave to execute were to be
refused;
The prospects of
success on appeal, including more particularly the question as to
whether the appeal is frivolous or vexatious
or has been noted not
with the bona fide intention of seeking to reverse the judgment but
for some indirect purpose, e.g to gain
time or harass the other
party; and
Where there is the
potentiality of irreparable harm of prejudice to both appellant and
respondent, the balance of hardship or
convenience, as the case may
be.”
4
The
respondent’s primary ground of appeal was that the reason for
the judgment had fallen away and therefore that the applicants’
application should have been dismissed. That being so, there can be
no prejudice or irreparable harm to the respondents should
the
judgment be enforced pending the final outcome of this matter.
Irrespective
of the outcome of this application, the application for leave to
appeal or the application for leave to appeal against
the judgment
of Basson J, if such circumstances occur in the future that warrant
the 1
st
respondent acting in accordance with section
15(4) of the Skills Development Act there is no reason why the 1
st
respondent cannot do so, in compliance with the Skills Development
Act.
In
the light of the respondents’ averment that the judgment is
academic and in the absence of any suggestion that to grant
the
applicants leave to execute would cause “
irreparable harm
”
or prejudice and coupled with the respondents lack of prospects of
success on appeal, there is no reason why the applicants’
application should not be granted
On
7
th
June 2011 the respondents filed a supplementary
affidavit dealing with issues first raised by the applicants in its
replying
affidavits in this application. These issues concerned
firstly the withdrawal as the attorneys for the 2
nd
applicant by the attorneys for the applicants following the
resignation by the 2
nd
applicant as CEO of the 1
st
applicant; and secondly regarding monies transferred from the from
the 1
st
applicants account to cover the administrators
administration costs.
The
judgment in this matter does not in any way relate to the 2
nd
applicant nor does the relief granted affect the 2
nd
applicant. The 2
nd
applicant only filed a confirmatory
affidavit in the main application and did not file any affidavit in
the application for leave
to appeal or the application to execute.
Regarding
the second matter I agree with the averment made in the respondents
supplementary affidavit that this is not an issue
which is relevant
for the purposes of determining the applicants’ application
for leave to execute the judgment.
As
far as costs are concerned there is no reason why costs should not
follow the result in both applications.
In
the circumstances I make the following orders:
The
respondents application for leave to appeal is dismissed with
costs;
The
applicants’ application for leave to execute the judgment is
granted with costs and it is accordingly ordered that
Government
Notice 372 in Government Gazette 34245 of 21 April 2011 shall not
be implemented and shall have no force or effect
until the matter
is finally disposed of by the Labour Appeal Court.
_______________
GUSH
J
Appearances
For the Applicants (Save
for the second applicant for whom there was no appearance) : Adv P
Kennedy SC
Instructed by : Edward
Nathan Sonnenbergs Inc
For the Respondent : Adv
G Malindi SC with him Adv M Zulu.
Instructed by : The
State Attorney
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