Rule 25 of the Commission for Conciliation, Mediation and Arbitration (“CCMA”) Rules deals with legal representation at the CCMA during arbitration proceedings.
Rule 25 states the following:
A legal practitioner and a candidate attorney may automatically represent a party as follows:
- In all in limine hearings, irrespective of the nature of the underlying dispute;
- In all arbitration hearings other than:
- dismissals based on conduct;
- dismissals based on capacity (performance or ill health);
- referrals in terms of section 69(5) [where an employer refers a dispute concerning a compliance order that was issued against that employer in terms of section 69 of the BCEA, to the CCMA];
- section 73 of the BCEA [to have a compliance order made an award]; and
- section 73A of the BCEA [claims for failure to pay any amount owing in terms of the National Minimum Wage Act 2018, a contract of employment, a collective agreement, or sectoral determination].
Where representation by a legal practitioner and candidate attorney is NOT automatically permitted at arbitration, the presiding commissioner may allow such representation if:
- the commissioner and all the other parties’ consent;
- 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.
What the above illustrates is that, according to the CCMA Rules, parties generally do not have an automatic right to legal representation, unless the matter falls within the categories of exceptions to the general rule.
If a party wishes to have legal representation at the CCMA, they must apply for it. The CCMA commissioner will decide, based on the merits of that application, whether or not the party will be allowed legal representation. Generally, however, if both parties agree to have legal representation, the CCMA will, in most cases, allow it. Should an application for legal representation be denied, the unsuccessful party can have the decision reviewed.
Some would argue that Rule 25 of the CCMA Rules limits the right to legal representation at the CCMA and thus has the effect of disadvantaging the party seeking assistance. However, it is important for parties to note that the CCMA is not a court of law, and therefore the right to legal representation cannot be automatic. Rule 25(1)(c) to allow parties access to legal representation in deserving cases.
Rule 25 of the CCMA Rules and its limitations have been challenged due to its alleged unconstitutional nature in that limits the rights of parties to have legal representation at the CCMA. However, in In Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (incorporated as the Law Society of the Transvaal) [2014] 1 All SA 125 (SCA), the Supreme Court of Appeal upheld the constitutionality of Rule 25, reaffirming that its limitations are consistent with the objectives of the Labour Relations Act to ensure accessible and affordable dispute resolution. While the right to legal representation is essential, the court recognised that it is not absolute and can be limited to serve the broader goal of fair and efficient arbitration.
The importance of Rule 25 is that it encourages fairness in CCMA proceedings. If, for example, legal representation were an automatic right, most parties who are not able to afford lawyers would be disadvantaged if they were up against a legally represented opponent, especially in misconduct or incapacity cases. It is thus imperative that legal representation is only allowed when absolutely warranted.
If you are of the view that your matter falls within the scope of cases that automatically qualify for legal representation, ensure that you approach an attorney that is suitably qualified to handle the matter. More importantly, if you are of the view that your matter will not automatically be permitted legal representation, you should also consult a suitably qualified legal representative to assist you with preparing an application in terms of section 25(1)(c) of the CCMA Rules to motivate why representation should be allowed.
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
Add a Comment