Snaid & Morris

Legal Representation in the CCMA- Is it allowed?

The CCMA is a forum designed to resolve disputes through conciliation and arbitration. Specifically, it is a forum designed to broaden access to the wider public to resolve labour disputes. It does this by simplifying the legal formalities and procedures. As such, the cost to pursue a claim is significantly diminished and the claim is often resolved in a manner that is far more efficient.

The CCMA is a forum designed to resolve disputes through conciliation and arbitration. Specifically, it is a forum designed to broaden access to the wider public to resolve labour disputes. It does this by simplifying the legal formalities and procedures. As such, the cost to pursue a claim is significantly diminished and the claim is often resolved in a manner that is far more efficient.

All in all, the CCMA is intentionally designed to equalize bargaining positions between the employer and the employee. Accordingly, the right to legal representation in the CCMA has been met with apprehension.

The aim is to avoid complicating and lengthening the matter.

Section 23 (1) of the Constitution of the Republic of South Africa confers the right to fair labour practices. In addition, Section 33 of the Constitution confers the right to administrative action that is lawful, reasonable and procedurally fair. Viewed in conjunction, the case for maintaining this apprehension is compelling.

Rule 25 of the CCMA Rules governs representation before the commission. At the conciliation stage: legal practitioners have no right of appearance. At the arbitration stage: parties are permitted legal representation, but this is subject to restrictions. Legal representation is restricted where the arbitration concerns the fairness of the dismissal or dismissals relating to misconduct and incapacity. This standard may be relaxed where both parties consent and leave from the commissioner is obtained. Alternatively, this standard can be relaxed if the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering the following relevant factors:

  • 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.

The underlying question is whether it would be unreasonable to permit a party to continue without legal representation. If the commissioner denies a party’s request for legal representation, that legal practitioner must withdraw from the proceedings.

In Law Society of the Northern Provinces v Minister of Labour and Others, the court assessed whether excluding legal practitioners from arbitrations concerning misconduct and incapacity is unconstitutional and irrational. The Pretoria High Court held that it was unconstitutional since the CCMA rule did not amount to a reasonable or justifiable restriction. This ruling was overturned by the Supreme Court of Appeal (SCA) on appeal. The restrictions are thus preserved. The SCA emphasised that the bulk of the cases raised at the CCMA concerned unfair dismissals relating to incapacity and misconduct. The objectives envisaged by the CCMA are aimed at expeditious and inexpensive resolution. The SCA maintained that barring legal representation in arbitration proceedings is consistent with this envisaged purpose. Thus, it is submitted that there is no unqualified constitutional right to legal representation before administrative tribunals. Until this provision is challenged successfully, this stance stands firm.

Written by: Sinead De Jager