LAC judgment against DHET – More Questions than Answers


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This topic contains 5 replies, has 5 voices, and was last updated by  Menet Hamel 1 week, 2 days ago.

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  • #64351

    sylvia hammond
    Keymaster

    All South Africans should have received a graduate Internship contract, when we qualified as a democracy, because clearly we needed democracy work experience.

    The LAC judgment against the DHET raises more questions than answers:
    1. Why did DHET waste a lot of time and (our) money proceeding with a legal case when it was clear that the consultation requirement had not been met?

    2. After the Minister re-posted the Regulations in January 2016 – in line with the LC judgement – keeping the 20% levy refund and dropping the sweeping mechanism, was that not indicating that the LC judgment was accepted? (That was part of the BUSA case in the LAC). Why keep fighting an old fight that was already redundant?

    3. In Report SDF edition 4/2016 Global Business Solutions reported that BUSA again launched proceedings “in the Labour Court on 1 July 2016 to review and set aside Regulation 4(4) as well as the Minister’s decision to re-promulgate it”.

    Now where is that case up to – and why is it so difficult to find out what is going on?

    4. Why is the DHET not obliged to publish to all of us – as stakeholders – what legal cases are launched against the department?
    And to keep us updated on whether there is a decision to defend the case – and to tell us what they regard as their prospects of success?

    5. Does the DHET have an obligation to report these legal activities to the Parliamentary Portfolio Committee on Higher Education and Training (PPCHET)?

    Bearing in mind that we – as taxpayers – are paying for all of this soap opera, why is this not reported to the PPCHET? I scan through many reports, minutes and PPt presentations published by PMG, I may have missed it – but I have not noticed a big bold block highlight report indicating court cases in progress – and more importantly what are the anticipated costs.

    6. Why is this important? Well I would suggest that most of us don’t belong to BUSA, and I am not entirely sure how our views are represented at the NSA – despite the long list of membership quoted in the judgement and required by the SDA.

    So I conclude that the parliamentarians are the ultimate oversight that we have. Now all the political parties are represented on the committee. So whatever party we follow, support, or have membership of, we should be writing to them to ask:
    Do they know what court cases are outstanding against the DHET?
    What are the prospects of success for DHET in those cases?
    What is the expected cost to the DHET if they lose those cases?

    Maybe the DHET website should carry a running report and total expenditure incurred in legal battles.

    This particular case took 5 years to reach conclusion. There is an expression “justice delayed is justice denied”.
    So we need to ask what is not working?
    Why is there not a quicker method to resolve these issues?
    Why do we constantly have to litigate?
    Why is there no alternative dispute resolution mechanism?

    Which brings me all the way to the a previous suggestion I made – we need to have an Ombudsman for Higher Education and Training – for the entire Post-school Education and Training landscape.
    Now that’s a another full discussion.

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  • #64352

    Janelle Gravett
    Participant

    Hear Hear Sylvia!
    And another burning question is when will the Mandatory Grant return to 50%? Will companies get a refund from the time that the Grant was at 20% after the Labour Court ruled it should go back to 50% (before appeal)?

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    • #64368

      Stephanie Stylianou
      Participant

      They need to go back to WSP 1617 and re-reimburse as per the first judgement !

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      • #64376

        sylvia hammond
        Keymaster

        Hi Steph,
        Unfortunately that is not going to happen. The LC did not change the % but gave the Minister until March 2016 to remedy the situation.
        The Minister re-published at 20% but without the sweeping mechanism in January 2016.
        I understand that BUSA then started another LC case in July 2016.
        So even if DHET loses again (and they could still appeal to LAC again) then the refund or any correction – even if they get it – would only start from the 2016/2017 year.
        That is my understanding – maybe somebody else has a different view.

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  • #64390

    Des Squire
    Participant

    It is all too confusing and a real mess. Who knows any longer what the situation is – confused????

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  • #64433

    Menet Hamel
    Participant

    Morning all,

    I would like to share with you my summary of this ongoing litigation brought against the Minister.

    I feel it is our duty to provide clarity to employers regarding this matter as there seems to be confusion as to what the recent judgment means.

    Regards
    Menet

    SETA GRANT REGULATIONS: WHAT DOES THE RECENT JUDGMENT MEAN?

    December 2017
    This week the DHET communicated to SETAs to abide by the Labour Appeal Court (LAC) decision in relation to removal of the sweeping mechanism and informed all SETAs that the mandatory grants payable to employers remain unchanged as the dispute around Regulation 4(4) is still pending before the Labour Court.

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