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The question of whether an applicant has a constitutional right to legal representation during arbitration proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA) is a multifaceted and intricate issue. It necessitates a deep dive into constitutional principles, relevant legislation, and the rules governing the CCMA. This discussion will centre on the interplay between r 25 of the Rules for the conduct of proceedings before the CCMA, various sections of the Constitution, and the Labour Relations Act 66 of 1995 (LRA), with a specific focus on how s 36 of the Constitution, which governs the limitation of rights, applies to this context.
The Constitution is the country’s supreme law, providing the foundation for all rights and obligations. Its significance cannot be overstated in the context of legal representation at the CCMA (s 2 of the Constitution). The right to legal representation during arbitration at the CCMA must be considered in light of several vital constitutional provisions:
Section 33 of the Constitution guarantees everyone the right to just administrative action that is lawful, reasonable, and procedurally fair. As a statutory body, the CCMA is mandated to conduct its proceedings in a manner that upholds these principles, ensuring that everyone’s right to just administrative action is respected.
Section 34 of the Constitution ensures that everyone has the right to have any dispute that the application of law can resolve decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. The CCMA serves as a tribunal for labour disputes, raising whether fairness necessarily requires legal representation.
These constitutional provisions set the stage for understanding the broader legal context within which the CCMA operates.
The LRA is the primary legislation governing labour relations and dispute resolution in South Africa. The LRA emphasises accessible and efficient mechanisms for resolving labour disputes, mainly through the CCMA.
Section 138 of the LRA provides that arbitration proceedings should be conducted fairly, with commissioners empowered to manage proceedings to ensure both parties have an opportunity to present their cases fully. This section reflects the LRA’s commitment to fair and efficient dispute resolution.
Section 140 of the LRA explicitly addresses legal representation in arbitration proceedings concerning dismissals related to misconduct or incapacity. It allows for legal representation under certain conditions, particularly when the complexity of the case or the parties’ comparative abilities justify it. This section underscores the need for a balanced approach to legal representation, recognising that while legal representation can be crucial, it must be carefully managed to maintain accessibility.
Rule 25 of the CCMA Rules directly governs the issue of legal representation in CCMA proceedings, establishing conditions under which legal practitioners may represent parties.
This sub-rule allows representation in conciliation and other proceedings without restriction, reflecting these processes’ informal and non-adversarial nature.
Rule 25(1)(c) specifically limits legal representation in arbitration proceedings concerning dismissals for misconduct or incapacity. Legal representation is allowed only if –
The design of rule 25 reflects a deliberate balance between ensuring that the arbitration process remains accessible and informal while also accommodating the need for legal representation in specific circumstances deemed necessary for fairness.
Section 36 of the Constitution is crucial in understanding how the right to legal representation, as it applies within the CCMA framework, can be limited in a manner that is both reasonable and justifiable.
Section 36(1) provides that rights enshrined in the Bill of Rights may be limited only in terms of a law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom. It requires a proportionality test, considering factors such as:
In the context of CCMA proceedings, the limitations on legal representation imposed by rule 25 of the CCMA Rules must meet these criteria. The purpose of limiting legal representation – to ensure that arbitration is accessible, efficient, and fair – is of significant importance. The extent of the limitation is balanced by the flexibility given to commissioners, who can permit legal representation in complex cases or where there is a significant imbalance between the parties (r 25 of the CCMA Rules).
The application of r 25 of the CCMA Rules and its limitations have been interpreted in several critical cases and were found to be fair.
In Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (incorporated as the Law Society of the Transvaal) [2014] 1 All SA 125 (SCA), the Supreme Court of Appeal upheld the constitutionality of r 25, reaffirming that its limitations are consistent with the objectives of the LRA to ensure accessible and affordable dispute resolution. While the right to legal representation is essential, the court recognised that it is not absolute and can be limited to serve the broader goal of fair and efficient arbitration.
In Vaal Toyota (Nigel) v Motor Industry Bargaining Council and Others [2002] 10 BLLR 936 (LAC), the Labour Appeal Court (LAC) addressed the issue of whether it would be unreasonable for a party to deal with a dispute without legal representation. The case underscored that the central issue is the reasonableness of expecting a party to navigate the dispute without legal assistance. The LAC stressed that the factors outlined in
s 140(1)(b) of the LRA, must be considered when evaluating requests for legal representation. This case reinforced the principle that legal representation is not an automatic right but should be assessed based on the case’s specifics, including its complexity and the parties’ ability to represent themselves effectively.
In Walters v CCMA and Another (LC) (unreported case no C1073/15, 2-12-2016) (Steenkamp J), the Labour Court examined whether the decision to allow legal representation should consider the nature of the dispute and the disparities between the parties’ positions. The case involved an inquiry into the parties’ different positions, including the potential disadvantages faced by an unrepresented employee compared to an employer with expert representation. The court emphasised that significant disparities between the parties can be relevant in determining whether legal representation is necessary. This case highlights the need for commissioners to consider the fairness of the proceedings and the potential impact of representation disparities on the outcome of the arbitration.
In Motshekga v Commission for Conciliation, Mediation and Arbitration and Others (LC) (unreported case no JR2245/12, 7-8-2015) (Molahlehi J), the Labour Court addressed whether the commissioner had properly exercised discretion regarding legal representation in disputes involving dismissal for misconduct or poor performance. The court affirmed that r 25(1)(c) of the CCMA Rules, which regulates the right to legal representation, aligns with common law principles that do not provide an absolute right to representation in administrative tribunals like the CCMA. The ruling highlighted that the commissioner’s decision to disallow legal representation was appropriate given the factual nature of the dispute, which did not involve complex legal issues. The decision underscores the importance of assessing the context of each case and the discretion afforded to commissioners under r 25.
These cases highlight how the limitations on legal representation, as set out in r 25, have been upheld by the courts as reasonable and justifiable under s 36 of the Constitution.
However, a recent decision in South Africa has sparked significant discussion regarding the right to legal representation at Bargaining Councils and the Commission for Conciliation, Mediation, and Arbitration (CCMA). The case of Coetzee and Autohaus Centurion (2019) 40 ILJ 2658 (MIBCO), was heard by the Metal and Motor Industry Bargaining Council (MIBCO). The critical issue was whether the Legal Practice Act 28 of 2014 (LPA) overrides the CCMA’s existing rules that limit legal representation in certain arbitration cases, particularly those involving dismissals for misconduct or incapacity.
Historically and as discussed above, r 25 of the CCMA Rules grants commissioners discretion to deny legal representation unless the matter is complex or fairness requires it. However, the Coetzee case challenged this rule (r 26 of the Dispute Resolution Centre Rules) with the argument that the LPA grants attorneys the right to appear in any court or tribunal, effectively stripping commissioners of their discretion to deny legal representation.
In the ruling, Commissioner Stapelberg concluded that, due to the LPA’s provisions, commissioners are now compelled to allow legal representation in these cases, regardless of the CCMA Rules.
This decision implies that excluding attorneys in such proceedings might no longer be permissible unless challenged and overturned by a higher court, such as the Labour Court or Constitutional Court.
However, this decision does not yet constitute binding precedent across all CCMA or Bargaining Council proceedings, but it does indicate a significant shift that may influence future rulings
Rule 25 requires parties involved in CCMA arbitration proceedings to carefully assess their need for legal representation. While legal representation is generally allowed in disputes unrelated to misconduct or incapacity, parties involved in such cases must either secure the other party’s consent or demonstrate to the commissioner that legal representation is necessary due to the complexity of the matter (r 25 of the CCMA Rules).
For commissioners, r 25 requires a balanced approach. They must evaluate each case on its merits to decide whether allowing legal representation would contribute to a fair hearing without compromising the accessibility and efficiency of the arbitration process.
Rule 25 of the CCMA Rules and its limitations on legal representation must be understood within the broader context of s 36 of the Constitution. The rule balances maintaining an accessible and informal arbitration process and ensuring fairness by allowing legal representation where necessary. This balance is crucial for upholding the constitutional principles of just administrative action and access to justice while ensuring that the arbitration process remains efficient and effective.
The application of r 25, supported by the proportionality test under s 36, reflects a carefully calibrated approach that aligns with the constitutional framework. It ensures that the right to legal representation is respected and upheld in cases where it is essential for fairness while preserving the accessibility and informality of the CCMA arbitration process for the broader public.
Simon Mabuza LLB (Univen) is a legal professional at LIPCO – Law For All in Cape Town.
This article was first published in De Rebus in 2025 (March) DR 22.
