The Commission for Conciliation Mediation and Arbitration (“CCMA”) has in the past had the practice that, should a dispute be arbitrated for reasons relating to the fairness of a dismissal on the grounds of misconduct or incapacity, the parties should not be allowed to be represented by a legal practitioner. Specifically, Rule 25 (1) (c) of the Rules of Conduct for Proceedings Before the CCMA¹  (the “Rule”) states the following
(c) 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 .

This practice has long been thought to be unfair and was finally challenged by the Law Society of the Northern Provinces²  (the “Law Society”) in which judgment was handed down on the 20th of September 2012. The matter was first brought to the Court last year by the Law Society, which represents attorneys in Gauteng, Mpumalanga, North West and Limpopo.

Evidence presented to the Court showed that 80 percent of all arbitrations before the CCMA were with regard to whether a dismissal for misconduct was fair. Co-Chairpersons for the Law Society Jan Stemmett and Krish Govender said that this must be regarded as a serious matter for any society that considers itself a just one especially in light of the fact that the loss of employment is a grave blow for any person, and is very often a source of suffering for the families they support³.

The benefit of legal representation is that lawyers contribute to the “efficiency and speedy resolution of disputes by agreeing matters which are not genuinely in dispute and limiting evidence, cross-examination and argument to what is strictly necessary for the case. The Court noted that there was no reason why it should not be so in CCMA arbitrations as well.”⁴

The following order was made:

1. Rule 25(1)(c) of the Rules of the Commission for Conciliation, Mediation and Arbitration is hereby declared to be inconsistent with the Constitution and invalid; and

2. The declaration of invalidity was is suspended for a period of 36 months to enable the relevant parties to consider and promulgate a new subrule.

We await the amendment of the Labour Relations Act⁵ and are of the view that the order provides justice for employees who would otherwise be prejudiced.

Written and prepared by Mark Fiandeiro
BOUWER KOBELI MORABE

Please do not hesitate to contact us on +27 11 788-0083 should you have any further enquiries or email enquiries@bkm.co.za.

Notes:

1. Published under GN R1448 in GG 25515 of 10 October 2003.

2. Law Society of the Northern Provinces v The Minister of Labour and Others 61197/2011.

3. Law Society of the Northern Provinces press release, 17 October 2012.
4. Ibid.
5. 66 of 1995.