SCA overturns High Court CCMA representation judgment

November 1st, 2013

By Nomfundo Manyathi-Jele

The Supreme Court of Appeal has overturned a judgment by the North Gauteng High Court that found the Commission for Conciliation, Mediation, and Arbitration’s (CCMA’s) rule that limits legal representation to be unconstitutional.

This appeal was based on the constitutionality of r 25(1)(c) of the rules for the conduct of proceedings before the CCMA. 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. In the meantime, r 25(1)(c) continued to apply.

In the case of The Law Society of the Northern Provinces v Minister of Labour and Others (GNP) (unreported case no 61197/11, 11-10-2012) (Tuchten J), the Law Society of the Northern Provinces’ (LSNP), inter alia, argued that r 25(1)(c) was unconstitutional and that it discriminated unfairly against attorneys’ constitutional rights regarding the free choice of their profession and that it therefore denied LSNP members work.

Rule 25(1)(c) states:

‘If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, the parties, despite subrule 1(b) are not entitled to be represented by a legal practitioner in the proceedings unless –

1)      the commissioner and all the other parties consent;

2)      the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering –

(a)     the nature of the questions of law raised by the dispute;

(b)     the complexity of the dispute;

(c)     the public interest; and

(d)     the comparative ability of the opposing parties or their representatives to deal with the dispute.’

The appellants in the matter were the CCMA and its director, the Minister of Labour and the Minister of Justice and Constitutional Development.

The unanimous judgment on the appeal was delivered on 20 September. The SCA concluded that the High Court was wrong in declaring r 25 (1)(c) unconstitutional. 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 SCA, as per Malan JA, held that the sole concern of the LSNP in bringing the application was that the rule denied work to its members. The court held that: ‘Nothing in the Constitution nor any decided cases suggests that lawyers have a right to receive business. Where they receive business through the operation of the courts or other tribunals that is because their clients have a right to employ their services and not because they have a right to provide them.’

The SCA declared that it did not seem like the LSNP was pursuing the interests of those who use the CCMA services. ‘Indeed, there is not the slightest suggestion in its papers that the restriction on the right to legal representation causes hardship to or has operated to the prejudice of those affected by it. Nor is there any suggestion that the major parties concerned with labour disputes – employers’ organisations and trade unions – support the application of the Law Society’, the judgment states.

The CCMA has welcomed the judgment. Its director, Nerine Kahn said in a statement: ‘This is a historic judgment and reconfirms the spirit in which the LRA [Labour Relations Act 66 of 1995] was drafted. This clause is at the heart of redressing our past and establishing the new labour dispensation. Dismissal disputes comprise of more than 80% of all matters, and this clause underpins the objective of providing an accessible, equitable, speedy and cheap access to redress unfair dismissals.’

Ms Khan said that the involvement of legal practitioners in CCMA processes had been the subject of ongoing debate for many years, with the CCMA seeking to ensure that their involvement is kept to a minimum, adding that this was primarily to ensure that costs were kept to a minimum to allow for cheap and equitable access.

Nomfundo Manyathi-Jele,

This article was first published in De Rebus in 2013 (Nov) DR 7.

De Rebus