CARMEL RICKARD: Rules are rules, even for ministers

It may sound odd to remind readers of this, but SA is entitled to expect more from government ministers than merely that they should not be thieves.

Yes, it is a good thing when a minister doesn’t loot national funds or manipulate tenders to benefit family and friends. But actually they are also supposed to do specialised work, each leading — with vision and professionalism — a sector crucial to the wellbeing of the country.

I mention this in connection with former higher education & training minister Blade Nzimande. The SACP general secretary, removed in a cabinet reshuffle last month, has no corruption allegations hanging over him. But that aside, based on a new labour appeal court judgment of huge importance to every employer and employee, you could well ask whether he was an unmitigated success in the job.

There are three key things about what the minister did.

In a nutshell: he decided on two bizarre new regulations, thrown out by the labour court for being "irrational and unreasonable".

He issued these regulations after deliberately ignoring the consultation requirements in the law on the grounds that he did not need to consult. Finally, in conducting the litigation he lost the plot and allowed extreme delays to develop, resulting in strong censure from the court — and an additional costs order.

The minister’s explanation of a 16-month delay in filing an answering affidavit was lambasted

The case to challenge the December 2012 regulations was brought by Business Unity SA (Busa). It queried his lack of consultation and the content of the regulations. Employers, who must pay 1% of their total wage bill for training, had been entitled to half of it back to spend on upgrading of skills to fit their own needs. Under the new regulations, however, that dropped from 50% to 20% — far too little for their needs, said Busa members. Not just that, there seems to have been some less than transparent manoeuvring, with the regulations finalised and gazetted before anyone knew what was happening.

A second regulation cleared unused funds out of the sector education and training authorities (Setas) annually to go to projects outside what the law permitted — a bizarre "sweeping mechanism" given that the Setas were already administratively stretched and inefficient.

At the labour court, the minister’s explanation of a 16-month delay in filing an answering affidavit was lambasted by the judge, who added that failure to consult was fatal to the regulations, and that they were in any case unreasonable and irrational.

Given leave to appeal, the minister again delayed, this time for so long that the appeal lapsed.

During that period, however, he undertook the required consultation and then reissued the regulation that cut employers’ training funds to just 20%.

Sweeping mechanism

Despite the delays, the labour appeal court agreed to hear the matter because of its importance to all employers and their employees. In its decision, now handed down, the appeal court affirms that the minister was bound to obey the law and consult before issuing the regulations and that the delays were unacceptable.

As to the content of the regulations, given the minister’s retrofitted consultation the 20% rebate could no longer be attacked on the grounds of noncompliance. The labour court’s decision on the invalidity of the "sweeping mechanism" was, however, upheld.

What about the future?

Perhaps the new minister, Hlengiwe Mkhize, will be better at proper consultation and at conducting litigation according to court deadlines.

As to the contested regulations, while the "sweeping mechanism" has been thrown out by the appeal court, Busa has confirmed that it will be taking the 20% rebate question on review. This is crucial litigation — keep your eye on it.