In summary, in a recent article published by ENSafrica, « a new decision could deprive the Commissioner of the discretion to refuse legal representation in the proceedings of the CCMA and the negotiating committees », the author announced: « A recent landmark decision of the South African Metallurgical and Engineering Industries Negotiating Council could result in the Commissioners of the Conciliation Commission, Mediation and Arbitration (CCMA) are deprived of their discretion when it comes to unjustified termination disputes due to fault or incapacity.â This means that the matter is dealt with by the Commission during arbitration and both parties can benefit from legal representation. The problem would only exist if the defendant and the plaintiff do not agree that legal representation is allowed. In light of the above changes and the jurisprudence cited above, the Commissioner should have full discretion as to the class of persons who may be admitted during the arbitration, after applying the notice to a request for representation. The right to have disputes settled by a tribunal « or other independent and impartial place » (Constitution, Article 34) did not necessarily imply a right to legal representation in CCMA arbitration. Nor could employers reasonably claim, like Netherburn, that they had been discriminated against by being denied the right to a lawyer because the rule affected all employers equally and affected employees equally. The CCMA is an institution that follows its own rules and guidelines. This means that the CCMA deals with various issues and is bound by the rules of the CCMA and the Industrial Relations Act. In some cases, legal representation by the CCMA is not permitted. To better understand this concept, it is important to know what legal representation is and what it is. The Conciliation, Mediation and Arbitration Commission (CCMA) is a forum where labour disputes can be resolved quickly and efficiently with a minimum of legal formalities and procedures. Legal representation occurs when a lawyer with the right to appear before the Supreme Court, who practises as a lawyer, has the right to represent a client.
In this case, it would be a question of representing an employer or the employee at the CCMA. As a result, arbitrators have rendered adversarial arbitral awards concerning legal representation, particularly in conciliation and arbitration proceedings. It was inevitable that legal restrictions on legal representation would be challenged in court. [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)]. Employers should take note of this important development, as it can impact their strategy if employees appoint legal representatives to the CCMA or bargaining boards. 3. Public interest: While we recognize that the CCMA should not be too legalistic in its decision whether or not to authorize a legal representative, the CCMA will always keep in mind that the Constitution provides for legal representation and does not frivolously reject legal representation. Consequently, Article 140(1) of the GRA was repealed. The CCMA Board of Directors issued rules of April 30, 2004 reflecting the deleted sections of the LRA dealing with representation, namely sections 138(4), 140(1), 145(4). [See Necklace âLe right to legal representation under the LRGÂ (2003) 24 ILJ 753; Bosch et al âThe Conciliation and Arbitration Handbookâ (2004) LexisNexis 272 â 280].
Taking due account of the Commissioner`s reasoning, the author argues that Parliament`s intention to adopt the PLA is to be found in the preamble to the Act. It could be summarized that the objective of the PCPA is to bring the legal profession into conformity with constitutional requirements in order to facilitate and enhance an independent legal profession that broadly reflects the diversity and demographics of the Republic; provide for the establishment, powers and functions of a South African Legal Practice Council and single provincial councils to regulate the affairs of legal professionals and to set norms and standards. The drafters of The Industrial Relations Act 66 of 1995 were supposed to create a conciliation procedure free from the technical details that sometimes burdened legal disputes before the former Labour Court. To this end, they established the Conciliation, Mediation and Arbitration Commission and expressly instructed the Commissioners to deal with arbitration proceedings « with a minimum of legal formalities » (Article 138(1)). But the authors went further. They provided, in Article 140(1) of the LRA, that `legal professionals` (that is to say, practising lawyers) may represent the parties in disputes relating to dismissals relating to the conduct or legal capacity of employees only if the Commissioner and all the other parties have given their consent or, if one of the parties has objected, if the Commissioner so decides, taking into account the nature of the legal issues raised by the litigation and its complexity. the public interest and the comparative capacity of counterparties to regulate arbitration themselves. In general, a party may be represented by counsel in arbitration proceedings, except in disputes relating to alleged unfair dismissals for legal misconduct or incapacity [CCMA Rule 25(1)(c)].
In such matters, legal representation is excluded unless: « Our decision-making system on unjustified termination disputes is, contrary to initial intentions, highly legalistic and costly. The Labour Court formally conducts its proceedings on the model of a court and adopts a strictly adversarial approach to the hearing of cases. Judgments are lengthy, fairness is determined by reference to established legal principles, and in an essentially adversarial system, the presentation of a case by the lawyer has inevitably set a precedent. Legalism undermines the system`s goals of fairness, speed, accessibility and informality. According to the Constitution of the Republic of South Africa, everyone has the right to representation. Under Article 25 of the Rules of Procedure before the CCMA, a legal representative is not authorised to represent a party in proceedings if the dispute is a dismissal relating to fault or incapacity. In these circumstances, the party wishing to appoint a legal representative must obtain the consent of the Commissioner and the other party or make a formal request. The application must satisfy the Commissioner that legal representation should be allowed, given the complexity of the dispute, the nature of the legal issues raised, the comparability of the parties in resolving the dispute, and public interest considerations. A lawyer is defined as « any person admitted as a lawyer or advocate in the Republic » [§ 213]. The term has been interpreted restrictively and is limited to persons who are not only admitted but also in practice.
Given that authority for the above-mentioned notice was referred to an arbitral award, Coetzee v. Centurion Car Dealership, counsel for Mr. Coetzee argued that the Legal Practice Act, 2014 (the « PCPA ») deprives commissioners of their discretion to deny legal representation, regardless of the rules of the Bargaining Council or the CCMA. A new decision could deprive a commissioner of the discretion to grant legal representation to the CCMA In Article 711 of Professor van Eck & Kuhn above, the academic authors observed that the Conciliation, Mediation and Arbitration Commission (CCMA) continues to play a central role in labour law in South Africa. In fiscal year 2017-2018, the CCMA received an astonishing 186,902 dispute complaints. For example, 754 transfers are disputed every business day. [See CCMA 19 www.ccma.org.za 2017-2018 Annual Report]. This rule simply stated that « representation of the parties is dealt with in subsections 135(4), 138(4) and 140(1) of the Act » and reproduced the content of those sections in a footnote.