At present, the approach adopted by the Commission for
Conciliation, Mediation and Arbitration (CCMA) in regard to
parties' rights to legal representation is that there is no
absolute right to legal representation at any stage of the
Rule 25 of the current rules of the CCMA provide a general rule
that, in arbitration proceedings before the CCMA, although a party
to the dispute may appear in person or be represented by a legal
practitioner, the right to representation by a legal practitioner
is restricted 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.
This restriction can be relaxed if the commissioner and all the
other parties consent, or if the commissioner concludes that it is
unreasonable to expect a party to deal with the dispute without
legal representation, after considering relevant factors, such
the nature of the questions of law raised by the dispute;
the complexity of the dispute;
the public interest; and
the comparative ability of the opposing parties or their
representatives to deal with the dispute.
Any party to the dispute can bring an application to the CCMA
arguing that he/ she should be allowed legal representation and
would be required to motivate or justify why representation should
be allowed on the grounds set out above. There is an abundance of
case law which deals with investigations into these factors and the
circumstances in which such applications will be successful, or
The motivation behind this restriction would appear to be a
general appreciation that the CCMA is intended to be a forum in
which labour disputes can be speedily and expeditiously decided
with a minimum of legal formalities and procedure; there is a clear
apprehension that the right to be represented by legal
representatives will curtail the ability of the CCMA to operate
within these parameters and will unnecessarily complicate and
Be that as it may and notwithstanding that parties to
arbitration at the CCMA may apply for legal representation, there
has long been dissatisfaction of the general restriction of a
party's right to avail himself of legal representation.
Objections to this general restriction have been brought on the
the right to fair labour practices, in terms of Section 23(1)
of the Constitution of the Republic of South Africa ("the
Constitution") which provides that everyone has the right to
fair labour practices. Arguably, the right to legal representation
in arbitration disputes may form part of such general
the right to fair and lawful administrative action, in terms of
Section 33(1) of the Constitution which requires that everyone has
the right to administrative action that is lawful, reasonable and
In light of the disputes which have arisen about parties'
rights to be legally represented at all stages of CCMA proceedings,
the recent case of Law Society of the Northern Provinces v Minister
of Labour and Others JS61197/11, provides some guidance and shows
that changes to the CCMA can be expected.
This case, decided in the Pretoria High Court, found that Rule
25(1)(c) of the CCMA rules is unconstitutional, on the basis that
the restrictions on legal representation imposed by the CCMA rules
could not amount to a reasonable or justifiable restriction on
parties' constitutional rights, in particular section 33 of the
Constitution which provides for rights in regard to fair
The court also found that the restrictions in Rule 25 of the
CCMA was inconsistent with requirements of The Promotion of
Administrative Justice Act, 3 of 2000 ("PAJA"), which was
intended to give effect to Section 33 of the Constitution. The
Court decided that the restrictions which arose from Rule 25 were
arbitrary and concluded that the CCMA should amend its rules to
provide for a right to legal representation. Interestingly, the
court did no go so far as to say that the CCMA would have to be
completely unrestricted in regard to allowing legal
The order made by the court was that the declaration of
invalidity of Rule 25(1)(c) would be suspended for 36 months, to
allow the CCMA to consider and promulgate a new rule. This order is
a common sense approach, so as to not result in a situation in
which Rule 25(1) (c) is declared invalid without a replacement,
which could result in administrative difficulties for the CCMA.
However, what the amendments to Rule 25(1)(c) will be, and whether
these amendments will prove reasonable in light of the rights of
parties in terms of the Constitution and PAJA, remains to be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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