Court overturns Nzimande's decision to place construction Seta under administration
The labour court has set aside higher education minister Blade Nzimande’s decision to place the Construction Education and Training Authority (Ceta) under administration.
The court found that the minister did not have the statutory power to place the training authority under administration, as he did not consult Ceta and the National Skills Authority (NSA) as required by section 15 (1) of the Skills Development Act.
The minister took the drastic step envisaged in section 15 (4) of the act, which permits him to act without consulting the NSA and the education and training authority in question, if the delay caused by the consultation would be detrimental to the authority’s capacity to perform its functions.
The case had its genesis on December 14 last year when Nzimande sent a letter to Ceta through its chairperson, Raymond Cele.
In the letter, Nzimande listed a catalogue of allegations, which allegedly demonstrated a lack of governance.
On January 10, Cele provided a lengthy response where he accepted that gross financial mismanagement was present.
On January 29, Nzimande informed Ceta he had taken a decision to place it under administration so an independent investigation could be conducted.
Aggrieved by this decision, the authority approached the labour court for urgent relief.
Judge André van Niekerk dismissed the centre’s application on February 7, but ordered that a review of the minister’s decision be placed on the expedited roll.
During that period, the decision by the minister was gazetted, Sabelo Mwasa was appointed as an administrator and the accounting authority was stripped of its powers.
In his judgment last week, judge Graham Moshoana said it was common cause that Nzimande did not consult Ceta and the National Skills Authority as required by section 15 (1) before directing the director-general to appoint Mwasa to take over its administration.
Moshoana said the minister did not tell the court why, before January 29 this year, consultation would have been detrimental to Ceta’s capacity to perform its functions.
“The issue is not about the corporate governance or lack thereof, the issue is, if the minister complies with the statutory consultation process, there would be injury caused to the capacity to perform the statutory functions directly by consulting.”
Moshoana said the minister failed to demonstrate that Ceta would have been lacking in capacity to perform its statutory functions, had consultation, as statutorily commanded, preceded his decision.
“The law requires functionaries to exercise powers that they have.
“If a functionary exercises the powers that it does not in law have, a court is empowered to set aside such a purported exercise of statutory power on application of the principle of legality.”
The court also set aside the appointment of Mwasa as the administrator.
It also declared that the suspension of the members of the accounting authority was lifted and they could resume the performance of their functions.
The court ordered the minister to pay the costs of the application by Ceta.
Nzimande said he intended to appeal the judgment. He said he had been advised there were good prospects that another court would agree with him.