By Talita Laubscher and Monique Jefferson
In Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) [2013] 11 BLLR 1057 (SCA) the Supreme Court of Appeal (SCA) considered the constitutionality of r 25(1)(c) of the rules for the conduct of proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) (the rule) that limits the right of appearance by legal practitioners in CCMA arbitrations concerning dismissals for misconduct or incapacity. In terms of this rule commissioners may exercise their discretion and permit legal representation at an arbitration on specified grounds.
The Law Society of the Northern Provinces (LSNP) applied to the High Court to have this rule declared unconstitutional as it was alleged that the rule unfairly discriminated against legal practitioners and that it was in contravention of the right to equality as guaranteed in s 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Furthermore, it was alleged that the rule contravenes ss 22 and 34 of the Constitution, which respectively guarantees the right of every person to choose his or her trade, occupation and profession freely and the right that every person has to have any dispute resolved in a fair public hearing before a court or another independent and impartial tribunal or forum.
This rule was declared unconstitutional and invalid by Tuchten J in the High Court (Law Society of the Northern Provinces v Minister of Labour and Others [2013] BLLR 105 (GNP)), but the declaration of invalidity was suspended for 36 months to enable the CCMA to promulgate a new rule that did not unfairly discriminate against legal practitioners.
In terms of the rule, legal practitioners are excluded entirely from CCMA conciliation proceedings. However, legal representation is permitted in all arbitration proceedings, except those concerning dismissals for misconduct or incapacity. This exclusion, however, is not absolute as legal representation is permitted where all parties and the commissioner agree or where the commissioner is satisfied that it would be unreasonable to expect a party to proceed without legal representation after considering factors such as the complexity of the matter and the comparative ability of the parties or their representatives to deal with the dispute.
Tuchten J based his High Court finding that the rule was unconstitutional on the principle of legality and the perceived inconsistency between the rule and the Promotion of Administrative Justice Act 3 of 2000 (PAJA), which requires administrative action to be rational. Furthermore, s 3 of PAJA permits legal representation in serious cases and Tuchten J was of the view that dismissal cases are generally always serious in nature.
The CCMA had argued that it was necessary to exercise this discretion because the involvement of legal practitioners often leads to obfuscation, unnecessary complication of issues and time wasting. However, Tuchten J rejected the CCMA’s evidence and found that it was impossible for a commissioner to decide in advance whether matters are complex or not. Tuchten J was of the view that, in the majority of cases, legal practitioners actually aided the efficient and speedy resolution of disputes. He concluded that the CCMA had not established that the limitation on the right to legal representation was reasonable and justifiable and the rule was therefore unconstitutional.
The decision of the High Court was taken on appeal to the SCA. The SCA held that Tuchten J had not considered the impact of the discretion afforded to commissioners by the rule. In this regard, a litigant is able to make a request for legal representation and the commissioner has considerable scope in exercising his or her discretion to determine whether legal representation should be permitted. Litigants are furthermore entitled to legal representation should the matter proceed to the Labour Court. Thus, it was held by the SCA that there was sufficient flexibility to allow for legal representation in deserving cases.
The SCA considered the historical background to the rule and the fact that the parties to the National Economic Development and Labour Council negotiations agreed that legal representation in arbitration proceedings concerning the fairness of dismissals for misconduct and incapacity should be permitted only when the circumstances justify it. This was because international research showed that South Africa’s system of adjudication of unfair dismissals is one of the most lengthy and expensive in the world and legal practitioners were regarded as making the process more legalistic and expensive.
The SCA considered the fact that the CCMA plays an important role in resolving labour disputes and that it should resolve such matters quickly and fairly with the minimum of legal formalities. The SCA noted that the CCMA is not a court. Arbitration proceedings are administrative action and administrative tribunals are accordingly required to act consistently with PAJA. It was held that the right to fair and rational administrative action for litigants at the CCMA does not automatically entitle them to a right to legal representation. In terms of the common law there is a right to a procedurally fair hearing in civil and administrative matters, but neither the constitutional right to fair administrative action nor PAJA confers an absolute right to legal representation.
The CCMA led evidence that 80% of all matters referred to the CCMA relate to dismissals for misconduct. It was held that the reason why disputes over dismissals for misconduct and incapacity were carved out of the right to automatic legal representation is because they constitute the majority of disputes referred to the CCMA. The CCMA argued that the reason for limiting legal representation is not the gravity of the consequences of the dismissal for the employee, but the fact that these dismissals usually involve one employee and not a whole workforce.
On appeal, the SCA found that the right to legal representation exists for the benefit and protection of litigants and the LSNP was not acting in the interests of litigants who use the CCMA, but rather was concerned with the fact that the rule denied its members work. The SCA found that the Constitution does not provide that lawyers have a right to receive business.
On the issue of the rationality of the rule, the SCA found that the fact that the rule distinguishes between different kinds of cases does not necessarily render the rule irrational. It was found that there was a rational historical basis for the rule excluding legal representation in disputes involving unfair dismissals for incapacity and misconduct since the majority of cases referred to the CCMA involve these categories of dismissals. There was accordingly a rational decision for the legislature to exclude legal representation from these categories of dismissals.
It was furthermore found that the rule did not infringe the legal practitioners’ rights to dignity that is inextricably linked to the right to equality. It was further found by the SCA that the rule did not infringe the s 22 right to freely choose a profession and practise the chosen profession, since the rule does not regulate entry into the profession or affect the continuing choice of practitioners to remain in the profession. It merely impacts on a litigant’s right to be represented in a particular forum. It was furthermore found that the rule did not contravene s 34 of the Constitution as there is no unqualified constitutional right to legal representation before administrative tribunals.
The SCA upheld the appeal with costs. The Constitutional Court subsequently dismissed the application for leave to appeal the SCA’s decision with costs on the basis that the application bears no prospects of success.
Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.
Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.
This article was first published in De Rebus in 2014 (Jan/Feb) DR 53.
