The Labour Appeal Court (LAC) has dismissed – with costs – the appeal by the Minister of Higher Education and Training against the original judgement granted in BUSA’s favour in 2015. This follows a long series of court processes where the appeal was lodged late, lapsed and then there was an application for condonation for late filing of the record by the Minister.

Key elements of the LAC decision – on both substantive and procedural grounds – are as follows:

  • The Labour Court’s decision to set aside the “sweep mechanism” created by Regulation 3(12) stands.  This was the regulation that provided for the “sweep-up” of unspent SETA funds to the National Skills Fund each year.
  • The Labour Court’s judgement setting aside the original Regulation 4(4), which reduced the mandatory grant from 50 to 20%, also still stands.
  • The LAC further found that the Minister’s failure to consult the National Skills Authority was on its own sufficient on its own to dismiss the appeal.
  • This appeal does not, however, dispose of the ‘re-promulated’ Regulation 4(4) that was made by the Minister last year.
  • BUSA has sought to challenge this by review and obtain a declaratory order confirming that the 50% mandatory grant remains in force. The ‘re-promulgated’ Regulation 4(4) is the subject of the further review application that is still pending before the Labour Court.

BUSA has been advised by the Labour Court that a notice of set down should be issued this week. The organisation has requested a meeting with the newly appointed Minister and will endeavour to seek ways to resolve this matter without having to resort to  Court processes.