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SKILLS DEVELOPMENT ACT NO. 97 OF 1998
[ASSENTED TO 20 OCTOBER, 1998] (Unless otherwise indicated) (Date of commencement of s. 1-8 & 27 - 29 : 2 February, 1999.) (English text signed by the President) ACT |
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To provide an institutional framework to devise and implement national, sector and workplace strategies to develop and improve the skills of the South African workforce; to integrate those strategies within the National Qualifications Framework contemplated in the South African Qualifications Authority Act, 1995; to provide for learnerships that lead to recognised occupational qualifications; to provide for the financing of skills development by means of a levy-grant scheme and a National Skills Fund; to provide for and regulate employment services; and to provide for matters connected therewith. |
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ARRANGEMENT OF SECTIONS |
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CHAPTER 1 DEFINITIONS, PURPOSE AND INTERPRETATION OF ACT |
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CHAPTER 2 NATIONAL SKILLS AUTHORITY |
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CHAPTER 3 SECTOR EDUCATION AND TRAINING AUTHORITIES |
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CHAPTER 4 LEARNERSHIPS |
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CHAPTER 5 SKILLS PROGRAMMES |
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CHAPTER 6 INSTITUTIONS IN DEPARTMENT OF LABOUR |
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CHAPTER 7 FINANCING SKILLS DEVELOPMENT |
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CHAPTER 8 GENERAL |
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Schedule 1
Repeal of laws |
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CHAPTER 1 DEFINITIONS, PURPOSE AND APPLICATION OF ACT |
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Definitions.--In this Act, unless the context otherwise indicates-- |
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"Basic Conditions of Employment Act" means the Basic Conditions of Employment Act, 1997 (Act No. 75 of 1997); "Department" means the Department of Labour; "Director-General" means the Director-General of Labour; "employee" means--
"employment services" means the provision of the service of--
"government department" means any department or organisational component referred to in Schedule 1 or 2 of the Public Service Act, 1994 (Proclamation No. 103 of 1994); "Labour Court" means the Labour Court established by section 151 of the Labour Relations Act, 1995 (Act No. 66 of 1995); "Minister" means the Minister of Labour; "National Skills Authority" means the National Skills Authority established by section 4; "national skills development policy" means the national skills development policy referred to in section 5 (1) (a) (i); "national skills development strategy" means the national skills development strategy referred to in section 5 (1) (a) (ii); "National Skills Fund" means the National Skills Fund established by section 27; "NEDLAC" means the National Economic Development and Labour Council established by section 2 of the National Economic Development and Labour Council Act, 1994 (Act No. 35 of 1994); "prescribed" means prescribed by regulation; "regulation" means a regulation made and in force in terms of section 36; "SETA" means a sector education and training authority established in terms of section 9 (1); "Skills Development Levies Act" means national legislation imposing levies for skills development; "skills development levies" means the skills development levies payable in terms of the Skills Development Levies Act; "South African Qualifications Authority" means the South African Qualification Authority established by section 3 of the South African Qualifications Authority Act; "South African Qualifications Authority Act" means the South Africa Qualifications Authority Act, 1995 (Act No. 58 of 1995); "this Act" includes any regulations but does not include the footnotes; and "worker" includes an employee, an unemployed person and a work-seeker. |
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Purposes of Act.--(1) The purposes of this Act are-- |
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(2) Those purposes are to be achieved by--
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Interpretation.--Any person applying this Act must interpret its provisions to give effect to-- |
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CHAPTER 2 NATIONAL SKILLS AUTHORITY |
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Establishment of National Skills Authority.--The National Skills Authority is hereby established. |
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Functions of National Skills Authority.-- |
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(1) |
The functions of the National Skills Authority are-- |
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(2)
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For the purposes of investigations referred to in subsection (1) (d), the Authority has the prescribed powers of entry and to question and inspect. |
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(3)
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The Authority must perform its functions in accordance with this Act and its constitution. |
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Composition of National Skills Authority and term and vacation of office.-- |
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(1) |
The National Skills Authority consists of-- |
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(2) |
The members referred to in subsection (1) (b) are-- |
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(3)
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The Minister must designate four members as deputy chairpersons, one deputy chairperson each from the members to be appointed to represent-- |
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(4)
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A member of the Authority holds office for a period of three years and is eligible for re-appointment. |
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(5) |
A member of the Authority vacates office if that member-- |
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(6) |
The Minister may remove a member of the Authority-- |
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(7)
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If a member of the Authority vacates office before the expiry of the period of office, the Minister must, in terms of subsection (2), appoint a new member for the unexpired portion of that period. |
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Constitution of National Skills Authority.-- |
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(1) |
The National Skills Authority must, as soon as possible after the appointment of its members, adopt its constitution. |
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(2) |
Subject to this Act, the constitution of the Authority-- |
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(3)
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At least 30 days notice must be given for a meeting of the Authority at which an amendment of the constitution or a regulation to be made is to be considered. |
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(4)
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A supporting vote of at least two thirds of the Authority's members and the approval of the Minister is required for an amendment to its constitution. |
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(5)
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A supporting vote of at least two-thirds of the Authority's members is required for advising the Minister on regulations to be made. |
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(6)
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Despite subsection (2) (a) (i), the Minister must determine the procedure for the nominations for the first appointment of members of the Authority referred to in section 6 (2) (a), (b), (c) and (g). |
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Remuneration and administration of National Skills Authority. |
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(1)
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A member of the National Skills Authority who is not in the full-time employment of the State may be paid the remuneration and allowances determined by the Minister with the approval of the Minister of Finance. |
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(2) |
Subject to the laws governing the public service, the Director-General must-- |
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CHAPTER 3 SECTOR EDUCATION AND TRAINING AUTHORITIES |
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Establishment of SETA. |
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(1)
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The Minister may, in the prescribed manner, establish a sector education and training authority with a constitution for any national economic sector. |
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(2)
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The Minister must determine a discrete sector for the purposes of subsection (1) by reference to categories of employers and for the purposes of that determination take into account-- |
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(3)
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On the establishment of a SETA, the Minister may provide assistance to the SETA to enable it to perform its functions. |
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Functions of SETA. |
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(1) |
A SETA must-- |
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(2) |
A SETA has-- |
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(3)
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A SETA must perform its functions in accordance with this Act and its constitution. |
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Composition of SETA |
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A SETA may consist only of members representing--
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Chambers of SETA. |
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(1) |
A SETA may, with the Minister's approval, establish in its sector chambers. |
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(2)
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A chamber so established must consist of an equal number of members representing employees and employers and may include such additional members as the SETA determines. |
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(3)
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That chamber must perform those functions of the SETA as delegated to it in terms of the constitution of the SETA. |
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(4)
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A chamber of a SETA is entitled to such percentage of the skills development levies collected in its jurisdiction as the Minister after consultation with the SETA determines. |
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Constitution of SETA |
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(1)
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For the purpose of the establishment of a SETA, the Minister must approve the constitution of the SETA. |
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(2)
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The Minister may, after consultation with the SETA, amend its constitution in the prescribed manner. |
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(3) |
Subject to this Act, the constitution of a SETA |
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Finances of SETA. |
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(1) |
A SETA is financed from |
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(2)
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The money received by a SETA must be paid into a banking account at any registered bank and may be invested only in-- |
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(3)
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The moneys received by a SETA may be used only in the prescribed manner and to |
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(4)
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In each financial year, ending on the prescribed date, every SETA must, at a time determined by the Minister, submit to the Minister a statement of the SETA's estimated income and expenditure for the following financial year. |
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(5)
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Every SETA must, in accordance with the standards of generally accepted accounting practice |
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(6) |
The Auditor-General must |
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Taking over administration of SETA. |
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(1)
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The Minister may, after consultation with the National Skills Authority, by notice in the Gazette, direct the Director-General to appoint an administrator to take over the administration of a SETA if the Minister is of the opinion that-- |
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(2) |
In that notice the Minister |
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(3)
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If a notice is published in terms of subsection (1), the Minister may, to ensure that the SETA resumes the performance of its functions-- |
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CHAPTER 4 LEARNERSHIPS |
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Learnerships. |
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A SETA may establish a learnership if |
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Learnership agreements. |
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(1)
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For the purposes of this Chapter, a "learnership agreement" means an agreement entered into for a specified period between |
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(2) |
The terms of a learnership agreement must oblige |
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(3)
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A learnership agreement must be in the prescribed form and registered with a SETA in the prescribed manner. |
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(4)
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A learnership agreement may not be terminated before the expiry of the period of duration specified in the agreement unless |
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(5)
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The employer or training provider that is party to a learnership agreement may be substituted with-- |
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(6)
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A SETA must, in the prescribed manner, provide the Director-General with a record of learnership agreements registered by the SETA. |
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Contract of employment with learner.-- |
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(1)
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If a learner was in the employment of the employer party to the learnership agreement concerned when the agreement was concluded, the learner's contract of employment is not affected by the agreement. |
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(2)
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If the learner was not in the employment of the employer party to the learnership agreement concerned when the agreement was concluded, the employer and learner must enter into a contract of employment. |
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(3)
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The contract of employment with a learner contemplated in subsection (2) is subject to any terms and conditions that may be determined by the Minister on the recommendation of the Employment Conditions Commission established by section 59 (1) of the Basic Conditions of Employment Act. |
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(4)
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Chapters Eight and Nine1 of the Basic Conditions of Employment Act apply, with the changes required by the context, to a determination made in terms of subsection (3) except that-- |
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(5)
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The contract of employment of a learner may not be terminated before the expiry of the period of duration specified in the learnership agreement unless the learnership agreement is terminated in terms of section 17 (4). |
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(6)
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The contract of employment of a learner terminates at the expiry of the period of duration specified in the learnership agreement unless the agreement was concluded with a person who was already in the employment of the employer party to the agreement when the agreement was concluded. |
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Disputes about learnerships. |
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(1) |
For the purposes of this section a "dispute" means a dispute about-- |
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(2)
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Any party to a dispute may in writing refer the dispute to the Commission for Conciliation, Mediation and Arbitration established by section 112 of the Labour Relations Act, 1995 (Act No. 66 of 1995). |
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(3)
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The party who so refers the dispute must satisfy that Commission that a copy of the referral has been served on all the other parties to the dispute. |
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(4) |
The Commission must attempt to resolve the dispute through conciliation. |
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(5)
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If the dispute remains unresolved, any party may request that the dispute be resolved through arbitration as soon as possible. |
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(6)
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The law that applies to the lawfulness 2 and fairness 3 of a dismissal for a reason related to an employee's capacity or conduct applies to a dispute contemplated in subsection (1) (c) (ii). |
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CHAPTER 5 SKILLS PROGRAMMES |
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Skills programmes. |
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(1)
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For the purposes of this Chapter, a "skills programme" means a skills programme that |
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(2) |
Any person that has developed a skills programme may apply to-- |
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(3) |
The SETA or the Director-General may fund the skills programme if |
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(4)
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A SETA or the Director-General may set any terms and conditions for funding in terms of subsection (3) that the SETA or the Director-General, as the case may be, considers necessary. |
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(5)
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The SETA or the Director-General must monitor the skills programmes funded by the SETA or the Director-General, as the case may be. |
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(6)
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A SETA or the Director-General that has made funds available for a skills programme may withhold funds or recover any funds paid if the SETA or the Director-General, as the case may be, is of the opinion that-- |
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Disputes. |
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Any party to a dispute about the application or interpretation of-- |
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may refer the dispute to the Labour Court for adjudication. |
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CHAPTER 6 INSTITUTIONS IN DEPARTMENT OF LABOUR |
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Skills Development Planning Unit. |
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(1) |
Subject to the laws governing the public service, the Director-General must-- |
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(2) |
The functions of the Skills Development Planning Unit are |
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Employment services. |
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(1) |
Subject to the laws governing the public service, the Director-General must-- |
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(2) |
The functions of those labour centres are-- |
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(3)
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The Minister may, after consulting the National Skills Authority, by notice in the Gazette, require each employer to notify a labour centre in the prescribed manner of-- |
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24. |
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Registration of persons that provide employment services. |
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(1)
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Any person who wishes to provide employment services for gain must apply for registration to the Director-General in the prescribed manner. |
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(2)
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The Director-General must register the applicant if satisfied that the prescribed criteria have been met. |
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(3) |
If the Director-General-- |
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(4) |
A registered employment service must comply with the prescribed criteria. |
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Cancellation of registration of employment service. |
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(1)
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Subject to this section, the Director-General may cancel the registration of an employment service if satisfied that the employment service is not complying with the prescribed criteria. |
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(2)
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If the Director-General has reason to believe that an employment service is not complying with the prescribed criteria and accordingly that its registration should be cancelled, the Director-General must, before cancelling its registration |
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(3)
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If the Director-General cancels the registration of an employment service, the Director-General must give written notice of that decision to the employment service. |
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Appeal against Director-General's decision. |
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(1)
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Any person aggrieved by a decision of the Director-General in terms of section 24 (3) (b) or 25 (3) may, within 30 days of the written notice of that decision, in writing, request the Director-General to give that person written reasons for the decision. |
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(2)
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The Director-General must give that person written reasons for the decision within 30 days of receiving that request. |
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(3)
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Any person aggrieved by a decision of the Director-General in terms of section 24 (3) (b) or 25 (3) may appeal to the Labour Court against that decision within 60 days of-- |
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(4)
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The Labour Court may, on good cause shown, extend the period within which a person may note that appeal. |
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CHAPTER 7 FINANCING SKILLS DEVELOPMENT |
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National Skills Fund. |
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(1) |
The National Skills Fund is hereby established. |
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(2) The Fund must be credited with--
(Date of commencement of paragraph (a) to be proclaimed.)
(Date of commencement of paragraph (b) to be proclaimed.)
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Use of money in Fund. |
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The money in the Fund may be used only for the projects identified in the national skills development strategy as national priorities or for such other projects related to the achievement of the purposes of this Act as the Director-General determines. |
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Control and administration of Fund. |
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(1)
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The Director-General is the accounting officer of the Fund in terms of the Exchequer Act, 1975 (Act No. 66 of 1975) and must-- |
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(2)
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Any money in the Fund not required for immediate use may be invested with the Public Investment Commissioner or with a financial institution approved by the Minister and may be withdrawn when required. |
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(3)
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Any unexpended balance in the Fund at the end of the financial year must be carried forward to the next financial year as a credit to the Fund. |
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Budget for training by public service employers. |
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Each public service employer in the national and provincial spheres of government-- |
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CHAPTER 8 GENERAL |
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Jurisdiction of Labour Court. |
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(1)
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Subject to the jurisdiction of the Labour Appeal Court and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters arising from this Act. |
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(2)
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The Labour Court may review any act or omission of any person in connection with this Act on any grounds permissible in law. |
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(3)
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If proceedings concerning any matter contemplated in subsection (1) are instituted in a court that does not have jurisdiction in respect of that matter, that court may at any stage during proceedings refer the matter to the Labour Court. |
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Monitoring, enforcement and legal proceedings. |
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Chapter Ten and Schedule Two of the Basic Conditions of Employment Act apply, with changes required by the context, to-- |
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33. |
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Offences. |
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It is an offence to |
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34. |
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Penalties. |
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Any person convicted of an offence referred to in section 33 may be sentenced to a fine or imprisonment for a period not exceeding one year. |
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Delegation. |
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(1)
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The Minister may in writing delegate to the Director-General or any other officer of the Department any power or duty conferred or imposed on the Minister by this Act. |
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(2)
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The Director-General may, in writing, delegate to any officer of the Department any power or duty conferred or imposed on the Director-General by this Act. |
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(3)
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Any person to whom any power or duty has been delegated in terms of subsection (1) or (2) must exercise that power or perform that duty subject to the conditions that the person who made the delegation considers necessary. |
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(4) |
Any delegation in terms of subsection (1) or (2) |
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Regulations. |
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The Minister may, after consultation with the National Skills Authority, by notice in the Gazette, make regulations relating to any matter which-- |
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Repeal of laws and transitional provisions. |
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(1) |
The laws referred to Schedule 1 are hereby repealed to the extent specified. |
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(2) |
The repeal of those laws is subject to any transitional provision in Schedule 2. |
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Act binds State. |
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This Act binds the State. |
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39. |
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Short title and commencement. |
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(1) |
This Act is called the Skills Development Act, 1998. |
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(2) |
This Act takes effect on a date to be determined by the President by proclamation in the Gazette. |
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REPEAL OF LAWS (Section 37 (1))
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TRANSITIONAL PROVISIONS (Section 37 (2)) |
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1. |
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Definitions. |
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--In this Part-- "Guidance and Placement Act" means the Guidance and Placement Act, 1981 (Act No. 62 of 1981); "Local Government Training Act" means the Local Government Training Act, 1985 (Act No. 41 of 1985); "Manpower Training Act" means the Manpower Training Act, 1981 (Act No. 56 of 1981); and "Telecommunications Act" means the Telecommunications Act, 1996 (Act No. 103 of 1996).- |
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2. |
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National Training Board. |
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Until the chairperson and other members of the National Skills Authority are appointed, the National Training Board, established in terms of section 3 of the Manpower Training Act, continues to exist and to perform the functions of the National Skills Authority |
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3. |
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Manpower Development Fund. |
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All assets, rights, liabilities and obligations of the Manpower Development Fund, established by section 38 of the Manpower Training Act, are hereby transferred to the National Skills Fund. |
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4. |
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Training boards and apprenticeships. |
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(1)
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Subject to subitem (4), a training board, established and accredited in terms of sections 12A and 12B of the Manpower Training Act, continues to exist and perform its functions as if that Act had not been repealed, until 31 March 2000. |
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(2) |
When a training board ceases to exist on 31 March 2000-- |
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(3)
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The Minister must, by notice in the Gazette, abolish a training board before 31 March 2000 if-- |
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(4)
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When a training board is abolished in terms of a notice referred to in subitem (3)-- |
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(5)
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Subject to sub-item (4) (b), sections 13 to 29 of the Manpower Training Act remains in force as if that Act had not been repealed until a date determined by the Minister by notice in the Gazette. |
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(6) |
From the date immediately after the date referred to in sub-item (5) |
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5. |
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Training centres. |
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(1) |
In this item "training centre" means any-- |
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(2)
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Subject to subitem (3), a training centre continues to exist and perform its functions as if the Manpower Training Act or any law mentioned in Schedule 1 of the Act referred to in subitem (1) (b) had not been repealed. |
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(3)
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A training centre must be liquidated in terms of its constitution not later than 31 March 2000 unless it has been registered as an association not for gain in terms of section 21 of the Companies Act, 1973 (Act No. 61 of 1973) before that date. |
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(4) |
The Director-General may take steps to liquidate a training centre after 31 July 1999 if that centre has not-- |
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(5)
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If a training centre is liquidated, any assets and rights not required to discharge the obligations and liabilities of that centre must be disposed of in accordance with the directions of the Director-General. |
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(6)
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Section 32 of the Manpower Training Act remains in force as if the Manpower Training Act had not been repealed, until a date determined by the Minister by notice in the Gazette. |
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6. |
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Arrangements for training of trainees. |
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Any arrangement contemplated in section 30 of the Manpower Training Act and in force immediately before the commencement of this Act remains in force as if the Manpower Training Act had not been repealed, until a date determined by the Minister by notice in the Gazette. |
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7. |
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Grants-in-aid. |
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Section 35 of the Manpower Training Act remains in force as if the Manpower Training Act had not been repealed, until a date determined by the Minister by notice in the Gazette. |
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8. |
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Fund for Training of Unemployed Persons. |
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(1)
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Any balance of the Fund for the Training of Unemployed Persons established by section 36A of the Manpower Training Act is hereby transferred to the National Skills Fund. |
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(2) |
The balance so transferred may be used only for the training of unemployed persons. |
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9. |
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Training schemes. |
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(1) |
Subject to subitem (2), any scheme declared binding in terms of section 39 (5) of the Manpower Training Act continues as if that Act had not been repealed. |
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(2) |
Any such scheme must be discontinued not later than 31 March 2000 unless the scheme has been-- |
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(3)
|
If that scheme is discontinued, any assets and rights not required to discharge the obligations and liabilities of that scheme must be disposed of in accordance with the directions of the Director-General. |
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||||||
10. |
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Training levies. |
|
||||||
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(1)
|
Subject to subitem (2), section 39 of the Manpower Training Act remains in force as if the Manpower Training Act had not been repealed, until 31 March 2000. |
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(2) |
A notice imposing a levy in terms of section 39 of the Manpower Training Act and issued, before or after the commencement of this Act-- |
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11. |
|
Training advisers. |
|
||||||
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|
Sections 45 and 46 of the Manpower Training Act remain in force as if the Manpower Training Act had not been repealed, until a date determined by the Minister by notice in the Gazette. |
|
||||||
12. |
|
Registered work-seekers. |
|
||||||
|
|
Any work-seeker registered in terms of section 4 of the Guidance and Placement Act immediately before the commencement of this Act is regarded to be a registered work-seeker in terms of section 23 (2) (b). |
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||||||
13. |
|
Private employment offices. |
|
||||||
|
|
Any private employment office registered in terms of section 15 of the Guidance and Placement Act immediately before the commencement of this Act is regarded to be an employment service registered for gain in terms of section 24 of this Act. |
|
||||||
14. |
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|
|||||||
|
|
(1) The Local Government Training Fund (in this item referred to as "the Fund"), established by section 7 of the Local Government Training Act continues to exist, subject to subitems (5) to (7), as if that Act had not been repealed. |
|
||||||
|
|
(2) Any body or institution, including a local government body, recognised as a training centre under section 9A of the Local Government Training Act immediately before the commencement of this Act, continues to be so recognised for a period of four months from that commencement as if the Local Government Training Act had not been repealed. |
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||||||
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|
(3) Subject to subitem (7) (c), any levy imposed in terms of section 10 of the Local Government Training Act and in force immediately before the commencement of this Act, remains in force until 31 March 2000 unless withdrawn before that date by the Minister in terms of section 2 (3) of the Skills Development Levies Act as if the Local Government Training Act had not been repealed. |
|
||||||
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(4) |
Subject to subitem (7)-- |
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||||||
|
|||||||||
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(5) |
The Director-General: Constitutional Development must administer the Fund and is the accounting officer for the Fund. |
|
||||||
|
(6)
|
The Minister for Provincial Affairs and Constitutional Development may, after consultation with the Local Government Education and Training Board, utilise the moneys in the Fund to fund any person or institution that in the opinion of the Minister can take action to develop the skills, knowledge, expertise or attitudes of a person elected to a municipal council or employed by a municipality. |
|
||||||
|
(7) |
When a SETA is established for the local government sector-- |
|
||||||
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|
||||||
15. |
|
Telecommunications sector.-- |
|
||||||
|
(1)
|
Subject to subitem (2), the Human Resources Fund referred to in section 78 (1) of the Telecommunications Act continues to exist as if sections 78 to 87 of that Act had not been repealed. |
|
||||||
|
(2) |
The Fund referred to in subitem (1) ceases to exist-- |
|
||||||
|
|
|
|
||||||
|
(3) |
If that Fund ceases to exist in terms of-- |
|
||||||
|
|||||||||
|
(4)
|
Subject to subitem (5), the contributions contemplated in section 86 (1) of the Telecommunications Act which are in force immediately before the commencement of this Act, remain in force until 31 March 2000 as if that Act had not been repealed. |
|
||||||
|
(5)
|
If a SETA with jurisdiction in the telecommunications sector is established, the contributions contemplated in subitem (4) must be credited to that SETA. |
|
||||||
16. |
|
Exemptions from transfer duty, donations tax or any other tax.-- |
|
||||||
|
|
Any transfer of assets or rights contemplated in this Schedule is exempt from transfer duty, donations tax or any other duty or tax. |
|