For many years practising attorneys have argued that some of their constitutional rights had been infringed by the rules of the CCMA. Rule 25(1) purports to restrict their right to represent clients, mainly employers, in certain arbitration proceedings in the CCMA. On 15 October 2012 the High Court declared Rule 25(1)(c) to be inconsistent with the Constitution and invalid. But the declaration has been suspended for 36 months to enable a new subrule to be considered and promulgated.
Courtesy of Saflii see the full judgment of Justice Tuchten in Law Society of the Northern Provinces v Minister of Labour [2013] 1 BLLR 105 (HCGNP). Here are some extracts from the judgment with footnotes omitted.
12. As I have shown, the powers of commissioners and the process under which arbitrations are conducted are strictly governed by law. However, in the conduct of the arbitration itself, the commissioner is empowered to conduct the arbitration in a manner which he considers appropriate in order to determine the dispute fairly and quickly but must deal with the substantial merits of the dispute with the minimum of legal formalities. He may even decide to dispense with oral evidence or cross-examination and concluding arguments. But he must take into account any code of good practice issued by NEDLAC, the National Economic Development and Labour Council established under s 2 of the National Economic, Development and Labour Council Act, 35 of 1994 or any guidelines issued by the CCMA relevant to the case before him.
15. An arbitration tribunal constituted under the LRA is not a court. A commissioner conducting a CCMA arbitration is performing an administrative function. This is important because, as the law stands, there is no general entitlement to legal representation in arenas in which disputes are resolved except in courts. However, under s 3(3)(a) of the Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”), administrators as that term is used in PAJA, including presiding officers in administrative tribunals, must consider on a case by case basis whether a person whose rights or legitimate expectations are (I would add: potentially) materially and adversely affected by administrative action should be given an opportunity to obtain legal representation. Statutes such as the LRA, which authorise administrative action, must be read together with PAJA unless, on a proper construction, the provisions of the authorising statute are inconsistent with PAJA.
16. The provisions of subrules 27(1)(b) and (c) were formerly contained within ss 140(1) and s 138(4) of the LRA. These subsections of the LRA were repealed in 2002 and, as I have already mentioned, re-enacted in 2003 within subrules 25(1)(b) and (c). Had the substance of the impugned subrule been contained within the LRA itself, there would have been room for the argument that the provision in the LRA was inconsistent with PAJA, with the consequence that there was no requirement that the LRA be read together with PAJA for present purposes. But because, as matters stand today, that is not the case, the result is that to achieve constitutional compliance, the impugned subrule must be consistent with both the LRA and PAJA.
22. The second and third points in limine may be discussed together.
Essentially the argument is that the impugned subrule is permitted by s 115(2A)(k) of the LRA read together with s 3(3) of PAJA. In my view, these are really arguments which go to the heart of the dispute on the merits and I shall deal with this question when I discuss the merits of the challenge, as I shall now proceed to do.
23. One of the Law Society’s grounds of attack is an absence of rationality in the impugned subrule. It will be observed that in all arbitrations which come before a commissioner except matters relating to the employee’s conduct or capacity, the litigants have an unrestricted right under rule 25(2)(b) to appear in person or be represented by a legal practitioner, a director, employee or, in the case of close corporations, a member of that litigant or a member, office bearer or official of the litigant’s registered trade union or employer’s association. But in matters relating to the employee’s conduct or capacity, rule 25(2)(c), ie the impugned subrule, applies. In the argument before me, “matters relating to the employee’s conduct” were equated to arbitrations arising from dismissals of employees for misconduct.
24. Rule 25(2)(c) restricts the right to representation. It does so by excluding legal practitioners, as defined in the LRA, from appearance as of right unless the nature of the case, presumably as evaluated before the case begins, is such as to persuade the commissioner that the appearance of a legal practitioner is warranted or all parties and the commissioner consents to the appearance of the legal practitioner. But the impugned subrule does not affect the right conferred in rule 25(2)(b) in relation to the other categories of representative. Only legal practitioners as defined are hit by the impugned subrule.
26. The fundamental principle, deriving from the rule of law itself, is that the exercise of public power at every level is only legitimate when lawful. This tenet of constitutional law admits of no exception and has become known as the principle of legality. The principle of legality requires, amongst other things, that conduct in the exercise of public power must not be arbitrary or irrational. The rules of the CCMA themselves, the framing of which is itself an example of an administrative decision, must be rational.
31. There is a thread that runs through the evidence placed before me by the CCMA: that the presence of lawyers within the arbitration process will, more often than not, lead to obfuscation, unnecessary complication of the issues and time wasting. I have no doubt that in specific arbitrations, all these evils will occur. They occur in court cases as well. The solution devised for the courts is to try to staff courts with presiding officers who can recognise, and deal appropriately with, such conduct.
32. The other side of the coin, however, certainly in the vast majority of court cases, is that lawyers contribute to the efficient and speedy resolution of disputes by agreeing matters which are not genuinely in dispute and limiting evidence, cross-examination and argument to that which is necessary for the adjudication of the case. There is no reason why that should not be so in CCMA arbitrations as well. That some evidence or cross-examination is ultimately inconclusive is an inevitable consequence of the constitutional imperative that disputes which can be resolved by the application of law must be decided in a fair hearing and a legal system which allows evidence, cross-examination and argument as a means to achieve fairness.
33. The evidence shows that arbitrations about the fairness of dismissals on the ground of misconduct account for about 80% of the total of the arbitrations that come before the commissioners of the CCMA and those for incapacity a further small percentage. The balance of the arbitrations relate, amongst others, to constructive dismissals (ie misconduct or the use of unfair labour practices by the employer) and, I was told during argument, unfair labour practices outside the ambit of dismissals, failures to promote employees, victimisation and retrenchment. In addition, as the rule stands at present, litigants are entitled to legal representation as of right in all applications for rescission of awards and condonation for non-compliance with time frames provided for in the rules.
34. It is in my view a fair conclusion that the several negotiating parties who participated in the deliberations that led to the enactment of the LRA came to a compromise solution in relation to legal representation at arbitrations which found its way into the now repealed ss 138(4) and 140(1) of the LRA and ultimately into subrules 25(1)(b) and (c).
39. The impugned subrule does not, as does s 3(3)(a) of PAJA, confer the discretion in a serious case which is not also a complex case. PAJA was enacted to give effect to s 33 of the Bill of Rights. The impugned subrule is in my view inconsistent with s 33 to the extent that it significantly abridges the discretion of the commissioner in a CCMA arbitration to afford the opportunity for legal representation in a serious but not complex case of dismissal for misconduct or incapacity. The impugned subrule also impermissibly trenches upon the discretion conferred by s 3(3)(a) of PAJA in relation to serious cases.
41. I do not think that the respondents have succeeded in establishing that the limitation of the right to legal representation imposed under the impugned subrule is reasonable and justifiable. I say this because the limitation is arbitrary.
42. My finding that the impugned subrule is arbitrary means that I do not have to consider the other grounds of attack raised by the Law Society.
43. It follows that a declaration of constitutional invalidity must issue. This conclusion does not mean that the rules of the CCMA must provide for an unrestricted right to legal representation. On the contrary, both the common law as expressed in Hamata, supra, and s 3(3)(a) of PAJA confer a discretion on a commissioner in a CCMA arbitration. I further express no opinion whether a litigant in such an arbitration should receive legal aid.