Minister of Higher Education & Training v Hospital Association of South Africa (JA82/2014) [2015] ZALAC 54 (8 December 2015) per CJ Musi JA [Tlaletsi DJP and Coppin JA concurring]

LAC summary:

Lawfulness of the Minister establishment of SETA in terms of the Skills Development Act – Minister allegedly extending the period of HWSETA – admission made in affidavit confirming extension – Principle that a factual admission made by a party in an affidavit will be binding on such party and he/she may not adduce evidence to contradict the admission. Court having discretion to release such party from the admission when erroneously made. Evidence notwithstanding admission showing that the Minister not extending HWSETA but establishing the HWSETA for 60 months – admission not binding – Minister’s act of establishing the HWSETA invalid because not in accordance with the SDA. Appeal upheld with costs – Labour Court’s order on the validity of the establishment of the HWSETA upheld but suspended for four months in order to allow the Minister to validly establish the HWSETA.


[1]        The Labour Court (Matyolo AJ) made the following order:

‘(i)        The decision of the Minister taken on 8 April 2011 and published and implemented under Government Notice No 316 in Government Gazette No 34202 in which the Minister approved the Second Respondent’s Constitution is reviewed and set aside.

(ii)        The decision to appoint the Third to Seventeenth Respondents by the Minister is also reviewed and set aside.  The Minister is given four months within which period the Second Respondent is to be reconstituted in accordance with the 2005 Constitution by appointing members in accordance with that Constitution.

(iii)       The Minister is directed to effect the nomination process for new members in accordance with the 2005 Constitution in line with his extension of the term which expires in March 2016.

(iv)       The Respondents are ordered to pay the costs including costs of the two counsel.’

. . . . .

[44]     This Court, like the court a quo, has discretion to grant an order that is just and equitable including an order declining to set aside the administrative action complained of.[1]

[1] See Bengwenyama Minerals (Pty) Ltd and Others v Gemorah Resources (Pty) Ltd and Others 2011 (4) SA 113 (CC) at paras [82] – [85], Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer South African Social Security Agency and Others 2014 (1) SA 604 (CC at paras [29] and [56].

[45]     A lot of water has flowed under the bridge since the Minister’s unlawful act. The HWSETA as constituted by the Minister has functioned unaffected by the review application. The parties are ad idem that it would take approximately four months to lawfully set up the HWSETA. The SDA was amended after the review proceedings were instituted. The Minister would have to act in accordance with the amended legislation.

[46]     It would be just and equitable under these circumstances to suspend the order that I intend to make. The Minister ought to pay the costs of the appeal. It is clear that the Minister’s unlawful act and his initial refusal to accept the unlawfulness of his act only to partially capitulate on appeal is the main reason why this matter was taken so far. Although both parties were partially successful on appeal, equity and the law dictates that the Minister should pay the costs of the appeal. There is no reason to interfere with the court a quo’s costs order.

[47]     The appeal succeeds to the following extent:

  • Paragraphs (ii) and (iii) of the order of the court a quo are set aside.
  • Paragraph (i) of the court a quo’s order is suspended for a period of four months from the date of this judgment for the Minister to establish a HWSETA in terms of the law.
  • The Minister is ordered to pay the costs of the first and second respondents, including the costs of the two counsel.