LSNP denied leave to appeal in CCMA representation challenge

December 1st, 2013

By Nomfundo Manyathi-Jele

The Constitutional Court has dismissed the Law Society of the Northern Provinces (LSNP) application for leave to appeal a Supreme Court of Appeal (SCA) judgment.

The LSNP’s applications for leave to appeal came after the SCA overturned a judgment by the North Gauteng High Court that found the Commission for Conciliation, Mediation, and Arbitration’s (CCMA’s) r 25(1)(c) that limits legal representation to be unconstitutional.

Rule 25(1)(c) limits the right to legal representation in CCMA arbitration proceedings on the fairness of dismissals for misconduct or incapacity and subjects it to the discretion of the commissioner, unless the commissioner and all the parties consent.

In October 2012 the High Court, per Tuchten J, found the subrule to be unconstitutional and invalid, but suspended the declaration of invalidity for a period of 36 months to enable the parties to consider and promulgate a new subrule. The SCA, inter alia, found that the High Court disregarded ample evidence placed before it justifying the limitation of legal representation in dismissal cases.

The appeal was dismissed with costs.

The CCMA has welcomed the judgment. Its director, Nerine Kahn said in a statement: ‘The Constitutional Court has in their decision upheld a central tenant of the Labour Relations Act [66 of 1995] which is to ensure that all citizens have access to affordable justice in terms of dispute resolution as provided for by the Commission for Conciliation, Mediation and Arbitration.’

The President of the LSNP Dr Llewellyn Curlewis told De Rebus that this decision came as ‘a huge surprise to the LSNP and other stakeholders, since many of the most brilliant legal minds in this country that concurred in the sound principles which formed the basis of the application and assisted in the preparation of the application.’ He added that he believes that the order would usher in a far-reaching effect on all legal practitioners, not only with regard to labour law, but also with regard to most other domestic tribunals.

‘This is a tragic turn of events, especially in a democratic society where access to justice and the right to legal representation should, in our view, always be guaranteed and without limitation in all fora and in all circumstances,’ he said.

Dr Curlewis said that attorneys and advocates alike, must be mindful that the implication of this case may result in more potential work being taken away from practitioners in future.

Dr Curlewis said that the main argument against legal representation was that proceedings were often obfuscated, protracted and delayed. ‘Exclusion of legal representatives who are inherently best suited to deal with matters that are adjudicative in nature, results in an unwarranted differentiation, namely legal representatives versus the non-representatives.’ He suggests the commissioner should have a general discretion  to exclude all representatives, not only attorneys and advocates. He adds: ‘The discretion the commissioner currently has is irrational and implies that the other representatives are better suited to represent persons than admitted attorneys and advocates.  This in essence amounts to discrimination as there is no rationality in distinguishing the representatives. The LSNP still believes that r 25 mentioned is inconsistent with the Promotion of Administrative Justice Act 3 of 2000 and would have wanted clarity and legal certainty once and for all on these and other related issues. Respectfully said, the order of the Constitutional Court therefore does not facilitate the desperately needed finality in this sphere of the law.’

Nomfundo Manyathi-Jele,

 This article was first published in De Rebus in 2013 (Dec) DR 8.