South African labour practice is constitutionally entrenched within Section 23 of the Constitution, which provides that every person is entitled to, amongst other things, the right to fair labour practices. Section 23 is given effect in terms of the Labour Relations Act which provides for effective resolution of labour disputes. The CCMA is created in terms of the Labour Relations Act and acts independently to give force and effect to the purports of the Labour Relations Act. This was confirmed in Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2007 CC, where the Court confirmed the role of the CCMA in promoting and fulfilling the objectives of the Labour Relations Act.
The CCMA may make rules regulating the right of any party to be represented by any person or category of persons in conciliation or arbitration proceedings, including the regulation or limitation of the right to be represented in the proceedings. The Rules of the CCMA are accordingly adopted in accordance with the statutory powers granted to the CCMA to give effect and ensure the effective and expeditious resolution of labour disputes.
In terms of Rule 25, which refers to the capacity to represent, it is provided that a party will only have the capacity to represent whereby;
- The party is the employer, director or employee with the mandate to represent or member of a closed corporation.
- A duly registered trade union or employers’ organisation.
- An authorised member of a duly registered union.
- An authorised member of a duly registered employers’ organisation.
Section 25 does not provide an automatic right to legal representation by a legal practitioner or candidate attorney where the dispute is about a dismissal for misconduct, ill health or incapacity or where the dispute was referred in terms of Sections 69(5), 73 or 73A of the Basic Conditions of Employment Act.
In such cases, the legal practitioner or candidate attorney seeking representation must by way of application motivate in terms of Rule 25(1)(c) to allow representation, and the Commissioner will then decide whether to allow representation with consideration to the following factors;
- The nature of the questions of law raised in the dispute and will the interpretation be too difficult for an untrained party to effectively understand.
- The complexity of the dispute in question.
- Public interest.
- The comparative ability of the opposing parties or their representatives to deal with the dispute.
- Prejudice to either party.
- The unreasonableness and whether representation would prevent expedient and effective dispute resolution.
- The parties consent to the representation.
In the case of Casual Workers’ Advice Office and others v CCMA and Others case no. J645/16, the Court considered the constitutional issue of representation by employees that are not represented by a Union. The Court ruled that provisions of Rule 25 read with Rule 35, found that a Commissioner has the discretion to rule on legal representation where it can be shown on good cause why the party seeking representation does not have access to representation by a legal practitioner or trade union and that the representative provides representation where there is none for a vulnerable party, further that the representation would provide speedy, expedient and effective resolution of the dispute.
In the dispute of Danone Southern Africa (Pty) Ltd and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2177/16), the Court found that the CCMA is created by statute and, therefore, must act within the ambit of its power. The Court ruled that the provisions of Rule 25 are prescriptive and either apply or do not, furthermore, that Rule 35(1) does not apply to condonation in terms of Rule 25 for legal representation.
The constitutionality of Rule 25 in terms of legal representation was challenged in Law Society of the Northern Provinces v Minister of Labour and Others JS61197/11, where the Court found that the provisions of Rule 25(1)(c) were unconstitutional when read with Section 33 of the Constitution. The Court held that the Rules were neither a reasonable nor justifiable limitation on the rights to legal representation by a party to a dispute.
The Court, in this case, ruled that the restrictive provisions of Section 25 are unconstitutional and suspended the declaration of invalidity for 36 months to allow the CCMA to amend the provisions regarding representation. By following the new Rules, the right to legal representation by a legal practitioner or candidate attorney in specific instances is discretionary, and the party seeking representation bears the onus to establish good reasons for representation to be allowed.
Article by: Wesley Lazarus
Dispute Resolution Official – George