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[2014] ZALCJHB 170
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Hospital Association of South Africa and Another v Minister of Higher Education and Training and Others (JR 2422/11) [2014] ZALCJHB 170 (13 May 2014)
Not Reportable
REPUBLIC OF SOUTH
AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 2422/11
In the matter
between:
THE HOSPITAL
ASSOCIATION OF
SOUTH
AFRICA
...........................................................................................................
First
Applicant
THE NATIONAL
UNION OF PUBLIC
SERVICE AND
ALLIED
WORKERS
....................................................................
Second
Applicant
and
THE
MINISTER OF HIGHER
EDUCATION
AND
TRAINING
..............................................................................
First Respondent
THE
HEALTH AND WELFARE
SERVICES
SECTOR EDUCATION AND
TRAINING
AUTHORITY
....................................................................................
Second
Respondent
NOZIPHO
JANUARY-BARDILL
........................................................................
Third Respondent
THEMBI
MATHENJWA
....................................................................................
Fourth
Respondent
SHEILA
BARSELL
.................................................................................................
Fifth
Respondent
EMMA
ZONDO
.....................................................................................................
Sixth Respondent
FAZEELA
FAYERS
..........................................................................................
Seventh Respondent
HITLA
SKITLA
..................................................................................................
Eighth Respondent
PAT
MOTUBATSE
…..........................................................................................
Ninth Respondent
REHMETH
FAKROODEEN
...............................................................................
Tenth Respondent
ELSETTE
STRACHEN
..................................................................................
Eleventh Respondent
WANDILE
MONTJANE
...................................................................................
Twelfth Respondent
ARISTIDES
SEIRLIS
...................................................................................
Thirteenth Respondent
IVEDA
SMITH
..............................................................................................
Fourteenth Respondent
ROEDOLF
VAN
LOGGENBERG
..................................................................
Fifteenth Respondent
DEREL
SHAEDLOW
.....................................................................................
Sixteenth Respondent
MARGARETHA
SMITH
............................................................................
Seventeenth Respondent
Heard: 18
December 2013
Delivered: 13 May
2014
Summary: Review
of administrative decisions brought in terms of section 33(2) of the
SDA. Labour Court having jurisdiction- Minister
extending Second
respondent’s term to 31 March 2016- Minister approving second
respondent’s new constitution and appointing
constitutive
members -Minister exceeding his powers as 2005 constitution still
valid- Minister’s decisions set aside- Minister
given four
months to allow nomination of members. Review application granted
with costs.
JUDGMENT
MATYOLO AJ
Introduction
[1]
This is an application to review and set
aside the actions of the First Respondent, (“
the
Minister
”) of the 08 April 2011
in imposing the new standard constitution on the Health and Welfare
Services Sector Education and
Training Authority and appointing the
Third to Seventeen Respondents as members of the training authority.
[2]
The facts in this matter are largely common
cause and as a result, I need only to set out a short synopsis of the
overall picture.
Material facts
[3]
It appears that on or about 8 April 2011,
the Minister took a decision in terms of which he promulgated the
applicability of the
standard constitution to all SETAs and appointed
the Third to the Seventeenth Respondents as members of the Second
Respondent.
[4]
The Health and Welfare Services Sector
Education and Training Authority (“
HWSETA
”)
was until the Minister’s decision governed by Clauses 9 and 10
of the 2005 constitution which provided the constituent
parts and
representation for the establishment of an Executive Committee
respectively.
[5]
It is common cause that in February 2010,
the Minister extended the operation of the HWSETA to 31 March 2011
and a further extension
period was given by the Minister on 11
November 2010 for the period 1 April to 31 March 2016. During the
periods of extension,
the affairs of the HWSETA were, as earlier
indicated, governed by its 2005 constitution.
[6]
Sometime during November 2010, the Minister
published a proposed draft model of a constitution for adoption by
all Sector Education
and Training Authorities (“
SETAs
”)
which, if adopted, would govern the affairs of the SETAs that would
have adopted it.
[7]
The Minister, acting in terms of sections 9
and 13 of the Skills Development Act 97 of 1998 (SDA) approved all
constitutions of
the SETAs and appointed the chairpersons and members
effectively substituting the 2005 constitution of the HWSETA and
removing
its members, substituting them with the Third to Seventeenth
Respondents. It is these actions of the Minister that the Applicants
seek to have reviewed and set aside on the basis that they are
unlawful and were effected in a manner that is inimical to the proper
exercise of administrative powers.
The issue
[8]
The Applicants seek to have the Minister’s
actions reviewed and set aside on the following grounds:
(i)
The grounds set out in PAJA
(ii)
The Minister’s actions are
ultra
vires
his powers as the Minister was
not authorised by the SDA in that, the Minister did not follow the
mandatory requirements of the
SDA that are required under section
13(1); the Minister failed to follow a fair procedure in taking the
decisions; the decisions
were taken for reasons other than those
authorised by the SDA; the Minister’s decisions contravened the
provisions of the
SDA and the Minister approved a constitution that
is in conflict with the SDA and that the decisions are
unconstitutional.
(iii)
The decisions of the Minister are unlawful
if regards is had to the provisions of subsections 6(2)(a)(i); (b),
(c), (e), (f), (h)
and (i) of PAJA.
(iv)
The decisions and the manner in which they
were taken offend against the rule of law and the principle of
legality.
Submissions and
arguments
[9]
The
Applicants referred the Court to the Judgment of Basson J in
Services
Sector Education and Training Authority and Others v Minister of
Higher Education and Training and Others
[1]
in which, the Court found
inter
alia
,
that:
‘
It
is a fundamental requisite of not only the constitutional rule of law
but of administrative law that a Minister can only take
specific
action if he or she has the necessary authority to do so…’
They
argued that the Minister was not empowered by the SDA to do what he
did on 8 April 2011 and their application was aimed at
having those
actions reviewed and set aside.
[10]
The Applicants further submitted that this
application was launched within 180 days in line with the provisions
of PAJA. They argued
further that the Minister was invited to undo
the changes he had introduced and remedy what the Applicants viewed
as an unlawful
conduct and provide reasons. It was argued further for
the Applicants that in terms of section 5(3) read with 5(4) of PAJA
if an
administrative body fails to provide adequate reasons for an
administrative action, that administrative action must be presumed
to
have been without good reason. The Applicants argued that the
Minister failed to provide them with reasons for his actions.
[11]
The Applicants argued further that what the
Minister did was not within his powers as it was not provided for in
the SDA and the
later amendments were only presented for public
comment after the Minister had already acted.
[12]
Mr Leech, for the Applicants, referred the
Court to the provisions of section 31 of the SDA and argued that on a
proper reading
of the section, this Court is the only court to which
the Applicants could have come to for this kind of application.
Section 31(2)
in particular provides
inter
alia
that, “the labour Court may
review any act or omission of any party person in connection with
this Act on any grounds permissible
in law”. He argued that
this should clarify any issues relating to the jurisdiction of this
Court.
[13]
The
Court was also referred to the decisions of the
Constitutional
Court in Chirwa v Transnet Ltd
[2]
and
Gcaba
v Minister for Safety and Security
[3]
and two decisions of this Court in
National
Bargaining Council for the Clothing Manufacturing Industry (Cape) and
Others v Zietsman NO and Others
[4]
and
De
Villiers v Head of Department of Education Western Cape Province
in which the Court concluded that the non-applicability of PAJA is
limited to employment and termination of employment.
[14]
Mr
Leech, for the Applicants further referred the Court to the
Constitutional Court decision in
Minister
of Health and Another NO v New Clicks South Africa (PTY) Ltd and
Others (Treatment Action Campaign and Another as Amicus
Curiae)
[5]
where the court held
inter
alia
that, at para 95:
‘
PAJA
is the national legislation that was passed to give effect to the
rights given in section 33. It was clearly intended to be,
and in
substance is, a codification of these rights. It was required to
cover the field and purports to do so.’
[15]
The Applicants argued further that what was
before Court is a case of powers purportedly exercised under the SDA
which is quintessentially
administrative action and secondly was a
publication of regulations.
[16]
The Applicants further argued that if the
Minister’s actions are set aside there will be no prejudice and
that if there should
be any, the Court can give a period of 120 days
to allow the Minister to remedy the situation by allowing the process
of nominations
and appointments to be finalised as this was a better
proposition than allowing a perpetuation of an unlawful act.
[17]
In relation to issue of non-joinder raised
by the Respondents in the papers, It was argued no proper case was
made for no-joinder
as the interest of the non-joined litigants had
not been explained.
[18]
In answering, Mr Mokhare confirmed that the
factual matrix relating to the actions of the Minister on or about 8
April 2011 before
this Court is uncontested as it appears that the
Minister started a process of attempting to reconfigure the SETAs.
[19]
He argued that the process was all
inclusive and the Applicants participated but could not agree with
the adoption of the standard
constitution and the appointment of new
members. He also argued that it does not appear that the Applicants
deny the fact nor do
they challenge the establishment or
re-establishment of the SETAs by the Minister which became effective
from 1 April 2011 and
would come to an end on 31 March 2016. He
argued that what he understood as the issue for the Applicants was
the approval of the
standard constitution and the appointment of
Third to Seventeenth Respondents. In addition to this, the Applicants
seek the people
who were members on 7 April 2011 to be declared the
lawfully appointed and the constitution that was in place should be
declared
the sole valid and lawful constitution of the Second
Respondent.
[20]
The Respondents argued further that the
lifespan of the 2005 constitution was extended by the Minister until
31 March 2011 and it
follows that by 7 April 2011, there was no 2005
constitution as it automatically expired on 31 March 2011 and the
membership automatically
expired with effect from 1 April 2011. There
was therefore no 2005 constitution on 8 April 2013 as it lapsed when
its extended
lifespan expired.
[21]
It was argued further that the Applicants
would need to demonstrate that there was a further extension beyond
31 March 2011 and
if there was no such further extension, they cannot
lawfully ask the Court to appoint members into the SETA when their
term of
office came to an end and this Court cannot therefore be
asked to breath life into the 2005 constitution which was modified on
31 March 2011.
[22]
The Respondents argued further that in
terms of the 2005 constitution, a member is entitled to hold office
for five years after
which he is eligible for appointment and there
is no case made out in the papers that those members were in fact
appointed after
the expiry of their term of office on 31 March 2011.
Similarly, it was argued that no evidence is contained in the papers
showing
that there were elections in which these members were elected
as they were required to, three months before the expiry of their
term, to have called for nominations.
[23]
This argument, was to show that in as far
as the Applicants seek an order that those members must be declared
by this Court to have
been the lawfully appointed members of the
authority that it cannot be countenanced as it is not competent for
this Court to grant
an order that those persons were lawful members
of the authority on 7 April 2011.
[24]
He also argued that in so far as the
Applicants seek to have the 2005 constitution to be declared the sole
valid and lawful constitution,
that prayer must fail as the 2005
constitution lapsed on 31 March 2011. It has never been extended by
the Minister and there is
nothing to show that in terms of the
constitution the members of the authority took any decision or
resolution extending its lifespan.
[25]
Mr Mokhare indicated that after having had
a relook at section 31 of the SDA, he had no issue with this Court’s
jurisdiction
and the issue that remains was whether the review was
brought in terms of PAJA or whether it is a review permissible in law
and
if it were a review permissible in law, it would have to have
been brought within a reasonable time and in this instance section
145 of the Labour Relations Act gives guidance in providing that the
review must be brought within six weeks though section 158
does not
provide time frames within which the review must be brought.
[26]
He argued further that he would not take
issue if the Applicants argued that their review application has been
brought within a
reasonable time but was firm in the argument that it
cannot be review brought under PAJA but is a review that has been
brought,
“
under any other law
”
and that it was a common law review
sui
generis
which has been provided for in
the legislation or under the principle of legality but cannot be
brought under PAJA. Mr Mokhare indicated
that he would not take issue
if condonation was granted as the matter was an important one and has
to be dealt with on its merits.
[27]
Mr Mokhare also indicated that it is not
the Respondents’ argument that the amendments in the SDA had
the effect of making
the Minister’s “allegedly unlawful”
actions lawful and indicated that he agreed with the Applicants’
argument that the law is clear on the point that an unlawful decision
cannot be made lawful by a subsequent amendments but he maintained
that the decision of the Minister which is the subject of this
application was not unlawful as it was taken after consultation
and
was accepted across the board but for only two SETAs being the
Applicants and the services SETA.
[28]
Mr Mokhare argued further that the Minister
would suffer prejudice if the Minister’s actions complained
about were to be reviewed
and set aside as that would have the effect
of disrupting all the SETAs as the Applicants prayer does not limit
the Court to setting
aside the constitution in as far as it applies
to them and that even if the order of the Court would apply only to
them, if the
standard constitution is declared invalid it will affect
the other SETAs as they have organised their affairs in accordance
with
the standard constitution and for this reason argued that even
if the decision of the Minister is found to be invalid, the Court
must condone the invalidity as there will be more harm if the Court
sets the Minister’s action aside. The Court may acknowledge
the
invalidity of the decision without setting it aside.
[29]
It was argued further that the Minister
would not reinstate the constitution of 2005 as it expired on 31
March 2011 and on that
basis, it was prayed that the application
should be dismissed and costs should follow the result.
Analysis
[30]
The facts in this matter, as indicated
elsewhere in this judgment are largely common cause and in seeking to
have the decision of
the Minister reviewed and set aside, the
Applicants have brought this application on the basis of the
provisions of section 33(2)
of the SDA. In the papers before Court,
the Respondents had objected to the jurisdiction of this Court.
However, during his argument
Mr Mokhare indicated that on his second
reading of the provisions of the section, he conceded that this Court
indeed has jurisdiction.
I must say that the concession was well
made.
[31]
The other issue was whether the application
was brought in terms of the
Labour Relations Act 66 of 1995
as
amended in which case it would be a review brought on either
section
145
or
section 158.
If that were so, the Respondents argued that the
application was late and the Applicants ought to have filed an
application for
condonation.
[32]
Section 145
exclusively deals with the
review of arbitration awards and would find no application in the
matter before this Court.
Section 158(1)
on the other hand provides
inter alia
that:
‘
The
Labour Court may—
(h) review any
decision taken or any act performed by the state in it’s
capacity as employer, on such grounds as are permissible
in law..
(j) deal with all
matters necessary or incidental to performing functions in terms of
this act or any other law.’
Both
subsections are silent on the time frames within which such an
application should be brought before Court. In
such circumstances, the Courts have indicated that such applications
should be brought
within reasonable time frames.
[33]
The Applicants on the one hand argued that
this application has been brought in terms of PAJA and that it was
brought within the
180 days time limit set out in PAJA and therefore
there is no need for a condonation application.
[34]
In dealing with this issue, I need to first
deal with the applicability of PAJA as the Respondents had argued
that PAJA is not applicable
in the current dispute. Having been
referred to the decisions of the Constitutional Court in
Chirwa
v Transnet; Gcaba v Minister of Safety, Minister of Health and
Another v New Clicks (supra)
and indeed
this Court in
National Bargaining
Council for the Clothing Manufacturing Industry (Cape) and Others v
Zietsman NO and Others
and
De
Villiers v Head of Department of Education , Western Province,
I
find that PAJA is applicable in this matter.
[35]
In this matter, the Minister was clearly
exercising his powers in terms of the SDA and his actions constituted
an exercise of administrative
authority which is within the purview
of PAJA. The source of the Minister’s power in this matter is
legislation, the SDA.
This much is clear from the Respondents’
own arguments that the Minister’s actions were not unlawful as
he was empowered
by the SDA. This clearly indicates that in his
actions on 8 April 2011, the Minister was exercising his
administrative powers in
terms of the SDA. It is for these reasons
that, I find that PAJA is applicable and with that there is no need
for a condonation
application as the application was brought within
the requisite 180 days time limit provided for therein.
[36]
Having looked at the SDA, the piece of
legislation which it is argued is what empowered Minister to act as
he did, I cannot find
any support for the authority to act in the
manner he acted, consequently I find that the Minister was not
empowered and his actions
fall to be reviewed and set aside.
[37]
I cannot find any reason for not continuing
with the 2005 constitution in line with extension given by the
Minister for the period
up to March 2016. To this end, the Minister
is given a period of four months from the date of this judgment to
allow for nomination
of members in accordance with previous
extensions.
[38]
Accordingly, I make 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.
_______________
Matyolo AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT:
Adv B .E Leech SC with Adv M Kgatle
Instructed by
Werksmans Attorrneys
FOR THE RESPONDENTS:
Adv W Mokhare SC with Adv M Zulu and Adv M Qofa
Instructed by The
State Attorney
[1]
(2011)
32 ILJ 2225 (LC).
[2]
[2007] ZACC 23
;
2008
(4) SA 367
(CC).
[3]
2010(1)
SA 238(CC).
[4]
(2013)
34 ILJ 151( LC).
[5]
2006
(2) SA 311(CC).