The Rules remain the servant, not the master, of expeditious resolution…

LEGAL REPRESENTATION BEFORE THE CCMA – RULE 25
‘FLYING SOLO OR ASSISTANCE BY A LEGAL PRACTIONER’

“The Rules remain the servant, not the master, of expeditious resolution of labour disputes and provide an essential framework for users of the CCMA’

Andre van Niekerk & Nicola Smit Law@work (LexisNexis 2018) 471
[See article by Stefan van Eck & Rudolph Kuhn ‘Amendments to The CCMA Rules: Thoughts On the Good, Bad and The Ugly’ (ILJ April 2019)710 – 739]

INTRODUCTION
In the article by Professor van Eck & Kuhn 711 supra the learned authors made the observation that The Commission for Conciliation, Mediation and Arbitration (CCMA) continues to play a pivotal role in labour law in South Africa. During the financial year 2017 – 2018 the CCMA received a staggering 186 902 dispute referrals. Thus 754 dispute referrals every working day. [See CCMA Annual Report 2017-2018 19 http://www.ccma.org.za].

It is expected that the CCMA workload will show a dramatic increase in referrals in the light of the enactment of amendments to the Basic Conditions of Employment Act 77 of 1997 (BCEA), the promulgation of the National Minimum Wage Act 9 of 2018 (NMWA) and the Labour Relations Amended Act 8 of 2018 (the LRA, Act 66 of 1995). In short the amendments to labour legislation and with it, the scope of jurisdiction of the CCMA increased exponentially.

As a consequence of the introduction of the abovementioned legislative amendments, that came into effect on 1 January 2019 the Rules for Conduct of proceedings before the CCMA (CCMA Rules) have been amended to regulate the amended legislation. Van Eck 712 mentioned that the amendments to the Rules leave most of the CCMA Rules intact in their present form. The purpose of the amendments to the Rules was to rectify past difficulties as to interpretation and to streamline and expedite CCMA processes.

Of importance is the Purpose, Application and Interpretation of the LRA, ‘Purpose of this Act (d)(iv) ‘the effective resolution of labour disputes.’ [See LRA Chapter 1].
Of further importance is that the Governing Body of the CCMA in terms of Section 115(2A) and (6) of the Labour Relations Act 66 of 1995, derives the statutory power to issue [including amendments] of Rules.

One of the more controversial Rules has always been the Rule 25. The architects of the LRA of 1995 have adopted the policy decision to limit the role of legal practitioners during conciliation and arbitration proceedings. The aim of Rule 25 ‘Representation before the Commission’ was that unfair dismissal disputes should be resolved as cheaply and expeditiously as possible.

This is one of the reasons why it was decided to limit the right of parties to be represented by legal practitioners during CCMA proceedings. It was felt that the presence of lawyers would lead to overly technical, lengthy delays and expensive legalistic processes. [See PAK le Roux ‘The right to legal representation at the CCMA: The LRA, the CCMA Rules and the Labour Court’ Contemporary Labour Law’ Vol 13 No 2 September 2003].

The position taken by the drafters did not augur well with legal representatives. In the Explanatory Memorandum to the draft Labour relations Bill, 1995 the approach by lawyers were defined as legalistic and expensive. Lawyers were also responsible for delaying processes of conciliation and arbitration due to their unavailability and the approach that they adopt. Furthermore, individual employees and small businesses were at a disadvantage in that they could not afford legal representation. The position taken by the drafters formed the subject matter of heated debates amongst members of the legal profession.

Following thereon arbitrators handed down contradicting awards as regards legal representation especially at conciliation and arbitration proceedings. It was inevitable that the statutory limitations to legal representation would be challenged in the Courts. [See Chemical, Energy, Paper, Printing, Wood and Allied Workers Union obo Prince v Shatterproof (2003) 24 ILJ 1161 (CCMA); CEPPWAWU obo Nyanga v Mondipak [2003] 7 BALR 807 (CCMA)].

The purpose of this article is to analyze the latest amendments to Rule 25 as well as the judgements handed by the Courts, especially the judgement Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal) [2013] 11 BLLR 1057 (SCA) and the provisions, where relevant of the Legal Practice Act, Act No. 28 of 2014.

RULE 25 BEFORE THE 2019 AMENDMENTS
The drafters of the Labour Relations Act 66 of 1995 was to create a resolution procedure free of the technicalities which sometimes bedeviled litigation in the erstwhile Industrial Court. To that end, they set up the Commission for Conciliation, Mediation and Arbitration, and specifically instructed commissioners to handle arbitrations “with a minimum of legal technicalities” (section 138(1)). But the drafters went a step further. They provided in section 140(1) of the LRA that “legal practitioners” (meaning practicing attorneys and advocates) could represent parties in disputes concerning dismissals relating to the employees’ conduct or capacity only if the commissioner and all the other parties consented or, if a party objected, if the Commissioner so ruled, having had regard to the nature of questions of law raised by the dispute and its complexity, the public interest and the comparative ability of the opposing parties to deal with the arbitration themselves.

In all other dispute resolution procedure free of the technicalities which sometimes bedeviled litigation in the erstwhile Industrial Court. To that end, they set up the Commission for Conciliation, Mediation and Arbitration, and specifically instructed commissioners to handle arbitrations “with a minimum of legal technicalities” (section 138(1)). But the drafters went a step further. They provided in section 140(1) of the LRA that “legal practitioners” (meaning practicing attorneys and advocates) could represent parties in disputes concerning dismissals relating to the employees’ conduct or capacity only if the Commissioner and all the other parties consented or, if a party objected, if the commissioner so ruled, having had regard to the nature of questions of law raised by the dispute and its complexity, the public interest and the comparative ability of the opposing parties to deal with the arbitration themselves. In all other matters over which the CCMA has jurisdiction, lawyers have unrestricted right of appearance.

This conditional exclusion of lawyers was predicated on a number of assumptions, which many (especially lawyers) regarded as questionable. They appear from the Explanatory Memorandum to the Draft Labour Relations Bill 1995:
“Our system of adjudicating unfair dismissal disputes is, contrary to original intentions, highly legalistic and expensive. The Industrial Court conducts its proceedings in a formal manner, along the lines of a court of law, and adopts a strictly adversarial approach to the hearing of cases. Judgments are lengthy, fairness is determined by reference to established legal principles and, within an essentially adversarial system, the lawyer’s presentation of a case has inevitably emphasized legal precedent. Legalism undermines the goals of the system, namely cheapness, speed, accessibility and informality.”

The first assumption implicit in this extract is that there is something to distinguish dismissals for misconduct or incapacity, on the one hand, from other disputes over which the CCMA has jurisdiction (such as unfair labour practices, constructive dismissals, disputes arising from collective agreements and the like) which warrants the exclusion of lawyers from the former, but not the latter.

The second assumption was that the presence of lawyers somehow complicates matters and generates the legal technicalities commissioners are enjoined to avoid.
The third is that commissioners can on the basis of vague criteria discern in advance whether a particular matter justifies legal representation.

And the fourth is that the presence of lawyers inevitably complicates matters and hinders swift and effective resolution.

[See John Grogan ‘No obfuscation, please Legal representation in the CCMA’ Employment Law Journal (LexisNexis) 2013].

According to Grogan ‘after surviving virtually unchallenged for 16 years, the rule allowing CCMA commissioners to exclude lawyers from arbitrations concerning dismissals for misconduct and incapacity has been struck down as arbitrary, irrational and unconstitutional.’

In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and others [2003] 10 BLLR 1034 (LC), the employer was aggrieved because the commissioner refused to grant its attorney right of appearance, and ruled after the employer’s withdrawal that the employee’s dismissal was unfair and reinstated her with back pay. When the matter came before the Labour Court, section 140(1) had already been repealed and replaced by rule 25 of the then CCMA Rules.

This rule merely stated that “the representation of parties is dealt with in section 135(4), 138(4) and 140(1) of the Act”, and reproduced the contents of these sections in a footnote. Sections 135(4), which dealt with representation in conciliation proceedings, and section 138(4), which dealt generally with representation in arbitration proceedings, had not been repealed.

However, the court accepted that representation in misconduct and incapacity dismissal cases was still governed by section 140(1), and turned to Netherburn’s argument that it was in conflict with the Constitution.

When the matter came before the Labour Court, section 140(1) had already been repealed and replaced by rule 25 of the then CCMA Rules. This rule merely stated that “the representation of parties is dealt with in section 135(4), 138(4) and 140(1) of the Act”, and reproduced the contents of these sections in a footnote. Sections 135(4), which dealt with representation in conciliation proceedings, and section 138(4), which dealt generally with representation in arbitration proceedings, had not been repealed.”

However, the court accepted that representation in misconduct and incapacity dismissal cases was still governed by section 140(1), and turned to Netherburn’s argument that it was in conflict with the Constitution.

Landman J could find nothing particularly rational about excluding legal practitioners from some dismissal disputes and not others. The judge also accepted that practicing lawyers have ethical obligations to assist commissioners. But he found that a right to legal representation in all arbitrations conducted by the CCMA could be located in neither the employers’ right to fair labour practice (section 23(1) of the Constitution) nor their right to fair administrative action (section 33(1)).
The right to have disputes settled by a court of law “or other independent and impartial forum” (Constitution, section 34) also did not necessarily imply a right to legal representation in CCMA arbitration proceedings. Nor could employers sensibly claim, as did Netherburn, that they were being discriminated against by being denied the right to a lawyer, because the rule affected all employers equally, and also covered employees.

Following thereon section 140(1) of the LRA was repealed. The CCMA Governing Body published rules dated 30 April 2004 that echoed the deleted sections of the LRA that dealt with representation namely sections 138(4), 140(1), 145(4). [See Collier ‘The right to legal representation under the LRA’ (2003) 24 ILJ 753; Bosch et al ‘The Conciliation and Arbitration Handbook’ (2004) LexisNexis 272 – 280].
In terms of the pre-2019 CCMA Rules, parties may appear at arbitration hearings in person or may be:
– represented by a legal practitioner;
– a director or employee of either party or, if a close corporation, a member thereof; or
– a member, office-bearer or official of an employee’s registered trade union or an employer’s registered employers’ organization [CCMA rule 25].

A legal practitioner is defined as ‘any person admitted to practise as an attorney or advocate in the Republic’ [s 213]. The term has been interpreted restrictively, limiting it to persons not only admitted but also practicing.

In general, a party may be represented by a legal practitioner in arbitration hearings except in disputes about alleged unfair dismissals for misconduct or incapacity [CCMA rule 25(1)(c)]. In such matters legal representation is excluded unless:
– the Commissioner and all other parties consent [CCMA rule 25(1)(c)(1)] ; or
– the Commissioner finds it unreasonable to expect a party to proceed without legal representation, representation, after considering:
(i) the nature of the questions of law raised by the dispute;
(ii) the complexity of the dispute;
(iii) the public interest; and
(iv) the comparative ability of the opposing parties or their representatives to deal with the matter [CCMA rule 25(1)(c)(2)].
The Commissioner thus has an independent discretion to exclude legal representation in hearings of this nature even if the parties agree to it or to allow it if the parties fail to agree. This follows from the fact that the Commissioner should be in overall control of the process.

A request to be allowed legal representation in terms of rule 25(1)(c) must be made to the arbitrating commissioner. Legal representation, it has been held, should be allowed for purposes of making such request. The request should be motivated with reference to the factors mentioned in rule 25(1)(c)(2) or other relevant considerations.

The Commissioner’s discretion, though fairly wide, may be challenged on review [s 158(1) (g)]. A Commissioner may also initiate contempt proceedings against a legal representative in the Labour Court even if the parties agree to it or to allow it if the parties fail to agree. This follows from the fact that the Commissioner should be in overall control of the process.

A request to be allowed legal representation in terms of rule 25(1)(c) must be made to the arbitrating commissioner. Legal representation, it has been held, should be allowed for purposes of making such request. The request should be motivated with reference to the factors mentioned in rule 25(1)(c)(2) or other relevant considerations. [See DuToit et al ‘Labour Relations Law – A Comprehensive Guide’ (2015) LexisNexis 6th ed. 150-151].

According to John Grogan ‘Labour Litigation and Dispute Resolution’ (2014) 2nd ed. Juta 174, while some have regarded the limitation on the right to parties to be represented by legal practioners as of doubtful constitutional validity, the Labour Court, Labour Appeal Court, Supreme Court of Appeal and the Constitutional Court have held that this restriction does not infringe the Constitution because Commissioners retain the discretion to allow legal representation. [See Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others (2009) 30 ILJ 1521 (CC); Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) [2013] 11 BLLR 1057 (SCA)].

The discretion vested in the Commissioner must be exercised ‘judicially’ – i.e. after consideration of such factors as:
– the complexity of the matter;
– the comparative ability of the parties to represent themselves; and
– the ‘interests of justice’.
Grogan at 174 makes the observation that for a short while, the exclusion of legal representatives from arbitration concerning dismissals for misconduct and incapacity was declared unconstitutional by the High Court but has now been declared perfectly constitutional by the SCA. [See Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) (2013) 34 ILJ 2779 (SCA)].

RULE 25 – THE 2019 AMENDMENTS
Van Eck supra at 721 refers to the amendment to Rule (1)(a) that apart from streamlining the wording of the rule it remains substantially the same. It reads as set out below:
In conciliation proceedings a party to the dispute may appear in person or be represented only by –
(i) if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member or employee of that close corporation;
(ii) any member of that party’s registered trade union or registered employers’ organization or an office bearer or official as defined in the Act;

Rule 25(1)(a)(v) stipulates ‘if a party is the department of labour, any employee or official of the department of labour.’

Van Eck at 722 makes the observation that it is unclear why it was necessary to include this provision only in respect of the Department of Labour.

An important provision as regards arbitration proceedings is that candidate attorneys as persons eligible to represent parties during arbitration. This amendment is to be welcomed in that it allows candidate attorneys an ideal opportunity to gain experience.

Although allowing legal representation during arbitration proceedings, CCMA Rule 25(1)(c) contains significant limitations to this right.
As was referred to above in the event of a dismissal for misconduct or incapacity, legal representatives were excluded from arbitration proceedings.
Rule 25(1)(c) stipulates:
‘(c) If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or 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, a party is not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless –
(i) the Commissioner and all the other parties consent;
(ii) the Commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering –
• 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.’
It follows that legal practitioners and candidate attorneys are also automatically excluded from arbitration proceedings involving compliance orders pertaining to the BCEA and the NMWA.

According to Van Eck at 723 in a notable development, the right to be legally represented has now explicitly been excluded during facilitations of large-scale retrenchments as contemplated in section 189A (3) of the LRA. [See new Rule 25(1)(e)].

The amended rules retained the limitations on the activities of legal representatives. However, it clarifies the way in which an application should be brought for legal representation as long as it is in the interests of justice.
The new Rule 25(6) provides that:
‘(6) Despite the provisions of this Rule, but subject to the provisions of sub-rule (1)(f), the Commissioner may, on application brought in accordance with Rule 31, allow a person not contemplated in sub-rule (1) to represent a party at arbitration proceedings before the commission, after considering –
(a) whether it is unreasonable to expect the applicant party to deal with the dispute without representation, after considering the factors set out in sub-rule 1(c)(ii)(a) to (d);
(b) the reason why a person contemplated in Rule 25(1)(b) cannot represent the applicant party, which includes affordability, if applicable;
(c) the ability of the proposed representative to meaningfully represent the applicant;
(d) whether the proposed representative is subject to the oversight and discipline of a professional or statutory body;
(e) whether the proposed representative will contribute to the fairness of the proceedings and the expeditious resolution of the dispute;
(f) prejudice to the other party; and
(g) any other relevant factors.

According to Van Eck at 725 Rule 25(6) is in direct response to a judgement by Van Niekerk J in the matter ‘The Casual Workers Advice Office (CWAO) & others v CCMA & others 20 September 2016 case no J645/16 unreported; Practice note 2/2016 issued by the CCMA.

In the light of the above amendments and the cited case law supra the Commissioner should after application of the mind to a request for representation, the presiding Commissioner has an unfettered discretion regarding the category of persons to be permitted during arbitration proceedings.

The Commissioner has a freedom of choice to permit representation of a person as long as it enhances the fairness of the proceedings and the expeditious resolution of the dispute. This is subject to the bringing of a proper application and the opportunity for the opposing party to contest such application.

On a practical level this gives effect to what is already occurring at the CCMA. CCMA Commissioners generally do permit parties to be represented in instances where the parties agree to representation or where a substantive application has been lodged. [See Van Eck at 725].

In conclusion in a recent article published by ENSafrica ‘New decision may deprive commissioner discretion to refuse legal representation in CCMA and bargaining council arbitration proceedings’ the author announced, ‘A recent landmark decision of the of the South African Metal and Engineering Industries Bargaining Council could see Commission for Conciliation, Mediation and Arbitration (“CCMA”) commissioners stripped of their discretion in granting legal representation for those involved in unfair dismissal disputes arising from misconduct or incapacity.’

As authority for the aforesaid opinion reference was made to an arbitration award, Coetzee v Autohaus Centurion, Mr Coetzee’s attorney argued that the Legal Practice Act, 2014 (the “LPA”) deprives Commissioners of their discretion to refuse legal representation, whatever the Rules of the bargaining council or the CCMA might say.
Noting that the LPA gives advocates and attorneys (including candidate attorneys) the right to appear in any court or tribunal (this right is endorsed in terms of section 25(2) and 25(5) of the LPA), the Commissioner was of the view that the rules of the CCMA and bargaining councils conferring discretion on commissioners to refuse to allow legal representation in cases involving dismissals for misconduct or incapacity could no longer apply. He accordingly held that he was obliged to permit both parties legal representation.

With due respect to the Commissioner’s reasoning the writer submits that the intention of the legislature with the enactment of the LPA could be found in the preamble to the Act. It could be summarized that the purpose of the LPA is to bring the legal profession in line with constitutional imperatives so as to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic; to provide for the establishment, powers and functions of a single South African Legal Practice Council and Provincial Councils in order to regulate the affairs of legal practitioners and to set norms and standards.
To provide for the establishment of an Office of a Legal Services Ombud and for the appointment, powers and functions of a Legal Services Ombud; to provide for a Legal Practitioners’ Fidelity Fund and to provide for the establishment, powers and functions of a National Forum on the Legal Profession; and to provide for matters connected therewith.

It can hardly be argued that the provisions of the LPA annulled the discretionary powers vested in CCMA Commissioners as regards legal representation as pronounced by the Courts in Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO & others (2009) 30 ILJ 1521 (CC); Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) [2013] 11 BLLR 1057 (SCA); Commission for Conciliation, Mediation and Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of Transvaal) (2013) 34 ILJ 2779 (SCA)].

In Mustek Ltd v Tsabadi NO and others [2013] 8 BLLR 798 (LC) the court held at [13] ‘To argue that a Commissioner is bound by the findings of another Commissioner is repugnant to the rules of precedent.’

Therefore, it cannot be said that other Commissioners are bound by the Coetzee v Autohaus Centurion award.

Johann Scheepers.
3 September 2019

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