25 Sep 2013

Legal Representation at the CCMA: the SCA has its say

Practice Area(s): Employment |

Rule 25 (1) (c) of the CCMA Rules limits the right to legal representation at arbitrations.  In particular, legal representation is not permitted if a dispute concerns a dismissal where the reason for the dismissal is either misconduct or capacity.  Although parties do not have an automatic right to legal representation in these circumstances, Rule 25 (1) (c) allows a party to make a formal application for legal representation or parties may, provided that the commissioner consents, agree to legal representation. 

In October 2012, the North Gauteng High Court, following an application from the Law Society of the Northern Provinces declared Rule 25 (1) (c) of the CCMA Rules unconstitutional and invalid.  As a consequence of the High Court's decision, the CCMA was ordered to consider and promulgate a new sub rule within 36 months from the date of the High Court's judgment.

Aggrieved by the High Court's decision, the Minister of Labour, the CCMA, Director of the CCMA and Minister of Justice and Constitutional Development approached the Supreme Court of Appeal ("SCA") in the hopes that the SCA would disagree with the High Court.  On Friday, 20 September 2013, the SCA (all five Judges concurring) delivered a judgment in which it makes it clear that it does not agree with the High Court's judgment and as a consequence, the High Court's decision has been set aside.  The SCA's decision means that Rule 25 (1) (c) as it currently appears in the CCMA Rules will remain unchanged.  There has been a sigh of relief from the CCMA in that it is no longer required to formulate a new rule as ordered by the High Court.

In its judgment, the SCA scrutinized the High Court's decision and stressed the fact that dismissal disputes comprise more than 80% of all CCMA matters and that a large majority of these disputes concern dismissals for misconduct and incapacity.  In reference to these statistics, the SCA disagreed with the High Court's finding in that it came to the conclusion that more often than not, attorneys contribute to the efficient and speedy resolution of disputes.  The SCA also reiterated the fact that the CCMA is not a court of law and as such, parties appearing before a forum other than a court of law do not have an automatic right to legal representation.  Although no automatic right to legal representation exists, the SCA is of the view that Rule 25 (1) (c) is sufficiently flexible to allow for legal representation in deserving cases.  The SCA also criticised the Law Society's argument in so far as it attempted to argue that the CCMA Rule discriminates against legal practitioners.  In this regard, the SCA found that the Law Society had failed to demonstrate that the alleged discrimination infringed a person's dignity.  Furthermore, the SCA pointed out that the Law Society failed to present any evidence which would suggest that Rule 25 (1) (c) imposes a hardship on parties at CCMA arbitrations nor did the Law Society refer to any one instance where there had been a refusal of legal representation at the CCMA which in turn prejudiced a party. Although the SCA's judgment appears to be well reasoned, it will be interesting to see whether the Law Society approaches the Constitutional Court for relief.  If so, we will keep our clients updated.