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[2013] ZASCA 118
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Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern Provinces (005/13) [2013] ZASCA 118; [2013] 11 BLLR 1057 (SCA); [2014] 1 All SA 125 (SCA); 2014 (2) SA 321 (SCA); (2013) 34 ILJ 2779 (SCA) (20 September 2013)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case No: 005/13
In the
matter between:
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
...............................................................
FIRST
APPELLANT
THE
DIRECTOR, COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
..........................................................
SECOND
APPELLANT
THE
MINISTER OF LABOUR
......................................................................
THIRD
APPELLANT
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
.....................................................
FOURTH
APPELLANT
and
THE LAW
SOCIETY OF THE NORTHERN
PROVINCES
(INCORPORATED
AS THE LAW SOCIETY OF
THE
TRANSVAAL)
...............................................................................................
RESPONDENT
Neutral citation:
CCMA v Law Society, Northern Provinces
(005/13)
[2013] ZASCA 118
(20 September 2013).
Coram:
Nugent, Malan, Wallis JJA, Van der Merwe and Swain AJJA
Heard:
6 September 2013
Delivered: 20 September 2013
Summary:
Labour Relations Act 66 of 1995
– constitutionality
of
rule 25(1)(
c
) of the rules of the Commission for
Conciliation, Mediation and Arbitration –
ss 9(3)
,
22
,
33
and
34
of Constitution.
________________________________________________________________________
ORDER
________________________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria (Tuchten J
sitting as court of first instance).
1. The appeal is upheld with costs including the costs
of two counsel.
2. The order of the court below is set aside and
replaced with the following:
‘
The application is dismissed
with costs including the costs of two counsel.’
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
MALAN J
(Nugent, Wallis JJA and Van der Merwe and Swain AJJA
concurring):
[1] This appeal is concerned with the
constitutionality of rule 25(1)(
c
)
of the rules for the conduct of proceedings before the Commission for
Conciliation, Mediation and Arbitration (CCMA),
1
a matter that was left open by the
Constitutional Court in 2009.
2
The subrule limits the right to legal representation in
CCMA arbitration proceeedings concerning the fairness of dismissals
for
misconduct or incapacity and subjects it to the discretion of the
commissioner, unless the commissioner and all the parties consent.
Tuchten J in the North Gauteng High Court declared the subrule to be
unconstitutional and invalid but suspended the declaration
of
invalidity for a period of 36 months to enable the parties to
consider and promulgate a new subrule. He made no order as to
costs.
The appeal is with his leave.
Basis of the application
[2] The application of the Law Society of the Northern
Provinces was based on the grounds that the subrule unfairly
discriminated
against legal practitioners
3
in violation of s 9(3) of the Constitution and the
provisions of the Promotion of Equality and Prevention of Unfair
Discrimination
Act 4 of 2000 (the Equality Act); that it infringed s
22 of the Constitution which guarantees every person the right to
choose
his or her trade, occupation and profession freely; and that
the exclusion of legal representation infringed s 34 of the
Constitution
which ensures that every person has the right to have
any dispute that can be resolved by the application of law resolved
in a
fair public hearing before a court or another independent and
impartial tribunal or forum. It was further contended that legal
representation was denied in CCMA arbitrations on the basis that they
were of an administrative nature. In fact, the Law Society
submitted,
these proceedings were more akin to judicial proceedings. Following
this, the further submission was made that s 3(3)
of the promotion of
Administrative Justice Act 3 of 2000 (PAJA) was irrelevant in
determining the constitutionality of the subrule.
[3] A right to legal representation exists for the
benefit and protection of litigants. In this case the Law Society
does not purport
to be pursuing the interests of those who use the
services of the CCMA. Indeed, there is not the slightest suggestion
in its papers
that the restriction on the right to legal
representation causes hardship to or has operated to the prejudice of
those affected
by it. Nor is there any suggestion that the major
parties concerned with labour disputes – employers’
organisations
and trade unions – support the application of the
Law Society. The sole concern of the Law Society in bringing this
litigation
is that the subrule denies work to its members. Nothing in
the Constitution nor any decided cases suggests that lawyers have a
right to receive business. Where they receive business through the
operation of the courts or other tribunals that is because their
clients have a right to employ their services and not because they
have a right to provide them.
Rule 25
[4] Rule 25 provides as follows:
‘
Representation before the
commission.—(1) (
a
) In
conciliation proceedings a party to the dispute may appear in person
or be represented only by—
(1) a director or employee of that party and if a close corporation
also a member thereof; or
(2) any member, office bearer or official of that party’s
registered
trade union
or registered employers’
organisation.
(
b
) In any arbitration proceedings, a party to the
dispute may appear in person or be represented only by:
(1) a legal practitioner;
(2) a director or employee of that party and if a close corporation
also a member thereof; or
(3) any member, office-bearer or official of that party’s
registered
trade union
or a registered employers’
organisation.
(
c
) If the dispute being arbitrated 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,
the parties, despite subrule 1 (
b
), are not entitled to
be represented by a legal practitioner in the proceedings unless—
(1) the commissioner and all the other parties consent;
(2) the commissioner concludes that it is unreasonable to expect a
party to deal with the dispute without legal representation,
after
considering—
(
a
) the nature of the questions of law raised by the dispute;
(
b
) the complexity of the dispute;
(
c
) the public interest; and
(
d
) the comparative ability of the opposing parties or their
representatives to deal with the dispute.
(2) If the party to the dispute objects to the
representation of another party to the dispute or the commissioner
suspects
that the representative of a party does not qualify in terms
of this rule, the commissioner must determine the issue.
(3) The commissioner may call upon the representative to
establish why the representative should be permitted to appear
in
terms of this Rule.
(4) A representative must tender any documents requested
by the commissioner in terms of subrule (3), including constitutions,
payslips, contracts of employment, documents and forms, recognition
agreements and proof of membership of a trade union or employers’
organisation.’
The effect of these provisions is
that in
conciliation
proceedings legal representation is
not allowed at all. The reason is obvious: conciliation is not
coercive. In
arbitration
proceedings, however, legal
representation is permitted on an unqualified basis except where the
dispute is concerned with the fairness
of dismissals for misconduct
or incapacity. But legal representation (as opposed to representation
by other representatives such
as trade union officials) is not
excluded in the latter cases altogether and it is permitted in the
circumstances set out in rule
25(1)(
c
)(1)
and (2), that is, where the Commissioner and all parties consent; or
the Commissioner is of the view that it is unreasonable
to expect a
party to proceed without legal representation after taking account of
the factors referred to, including the complexity
of the matter and
the comparative ability of the parties or their representatives to
deal with the dispute.
The CCMA
[5] The CCMA plays a central role in the resolution of
labour disputes. During the year ending March 2011 154 279
referrals
were made to it.
4
It was established by s 112 of the LRA on 1 Janaury
1996. It is an independent organisation (s 113) with jurisdiction
throughout
the Republic (s 114). Its primary functions are to
resolve, through conciliation, disputes referred to it (s 115(1)(
a
)),
and to arbitrate disputes that remain unresolved (s 115(1)(
b
)).
The commissioners, who must be ‘adequately qualified persons’
(s 117), have wide powers to resolve a dispute (s
142) and –
‘
may conduct the arbitration in a manner
that the commissioner 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’ (s 138(1) of the LRA).
5
A party to a dispute may, subject to the commissioner’s
discretion, give evidence, call witnesses, cross-examine the other
party’s witnesses and address concluding argument to the
commissioner (s 138(2)). Within fourteen days of the conclusion
of
the arbitration the commissioner must issue an arbitration award
‘with brief reasons’ (s 138(7)(
a
)).
A settlement agreement may be made an arbitration award (s 142A). An
arbitration award issued by a commissioner is final and
binding and
may be enforced as if it were an order of the Labour Court (s 143(1)
but may be reviewed (s 145).
Judgment of the court below
[6] Tuchten J found in favour of the Law Society,
although his judgment is not primarily based on the causes of action
articulated
in the founding papers. He rather based his judgment on
the principle of legality, which was not expressly relied upon by the
Law
Society, and a perceived inconsistency between the subrule and s
3(3) of PAJA. The principle of legality,
6
he said, required the exercise of public power to be
lawful. It must be neither arbitrary nor irrational. The rules of the
CCMA
themselves, the framing of which is an example of an
administrative decision,
7
must be rational. But, he continued, it did not follow
that a rule or other administrative decision may be set aside if it
was imperfect
or if its purpose could have been achieved in a better
way. Only when the decision, on a consideration of the reasons for
it, was
such that no reasonable person could have taken it will it be
set aside for irrationality.
[7] He considered the subrule to be irrational and
arbitrary and did not accept any of the reasons advanced by the CCMA
for the
exclusion of legal representation in cases of misconduct and
incapacity (see below paragraphs 10 ff). He thought that the
dismissal
of an employee was always a serious matter for the
employee. Nor did he accept the evidence that the presence of lawyers
within
the arbitration process would oftenlead to obfuscation,
unnecessary complication of the issues and time wasting. Although
this
may occur, he thought that the solution was to appoint presiding
officers who could deal appropriately with such conduct. In the
vast
majority of cases, he said, lawyers contributed to the efficient and
speedy resolution of disputes. He disagreed with the
view
8
that the commissioner could determine beforehand whether
a matter was complex and allow representation accordingly.
Frequently,
Tuchten J said, a matter which appeared to be simple
turned out to be complex. Nor did he accept that one could determine
a priori
that one
category of cases was not complex irrespective of the merits of the
individual matters and provide in general for the exclusion
of legal
representation in them. The court below was urged not to fix things
that were not broken. Despite the weighty considerations
underlying
the subrule and its application since 1995, he nevertheless found it
to be arbitrary and irrational.
[8] Tuchten J further held, although it was not
contended by the Law Society, that rule 25(1)(
c
)
was inconsistent with s 3(3)(
a
)
of PAJA which provides:
‘
In order to give effect to the right to
procedurally fair administrative action, an administrator may, in his
or her or its discretion,
also give a person referred to in
subsection (1) an opportunity to –
obtain assistance and, in serious or complex cases, legal
representation ...’
Tuchten J found that the subrule did not, as does s
3(3)(
a
) of PAJA,
confer a discretion in a serious case which is not also a complex
case. The subrule also, so he said, impermissibly trenched
upon the
discretion conferred by s 3(3)(
a
)
of PAJA in relation to serious cases.
[9] He dismissed as irrelevant the argument that a
change in the subrule to allow legal representation would
significantly increase
the work load of the CCMA and impair its
ability to perform its core functions. Nor did he consider the effect
of his order and
its implications for, for example, legal aid. No
evidence of the cost and other implications was in fact placed before
him. In
the result, Tuchten J found that the appellants had not
established that the limitation of the right to legal representation
was
reasonable and justifiable. The limitation, he found, was
arbitrary. It was irrational to draw a distinction between the
different
types of disputes on the basis that the bulk of
arbitrations involved cases of dismissal for misconduct or
incapacity. As I will
show, he misconstrued the test for rationality
and conflated it with an inquiry in terms of s 36 of the
Constitution.
Historical context
[10] Section 115(2A)(
k
)
empowers the CCMA to regulate in its rules ‘the right of any
person or category of persons to represent any party in any
conciliation or arbitration proceedings’. Rule 25 was enacted
pursuant to this power. Its precursors, ss 138(4) and 140(1)
of the
LRA, were repealed by s 12 of
Labour Relations Amendment Act 12 of
2002
but were in materially similar form as
rule 25(1)(
b
)
and (
c
)
of the r
ules of the CCMA.
9
Transitional provisions were provided for in item 27 of
Part H of Schedule 7 to the LRA.
[11] The historical context of the
subrule is described by Ms Nerine Beverlee Kahn, the director of the
CCMA in her answering affidavit.
Rule 25(1)(
b
)
and (
c
)
and its precursors came about as part of the process of establishing
a new labour dispensation. The process is described in the
Explanatory Memorandum prepared by the Ministerial Legal Task Team in
January 1995.
10
An initial draft Bill was produced by
the Task Team in order to assist the social partners to reach
consensus on a new labour relations
dispensation for South Africa.
11
Kahn described the eventual passing
of the LRA as ‘a product of a unique and important process of
social dialogue in the formulation
and implementation of labour
laws’.
[12] In compliance with the
Republic’s international obligations the
National Economic,
Development and Labour Council Act 35 of 1994
was enacted, and the
Council established in 1995 in terms of
s 2
of that Act. The Council
consists of members who represent organised business, organised
labour, organisations of community and
development interest and the
state (s 3). The Council is obliged to ‘consider all proposed
labour legislation relating to
labour market policy before it is
introduced in Parliament’ (s 5(1)(
c
)).
The governing body of the CCMA inter alia consists of members
nominated by the NEDLAC members representing organised labour,
organised business and the state (s 116 of the LRA). The governing
body makes the rules of the CCMA under the powers given by s
115(2A)
of the LRA. The draft Labour Relations Bill was tabled before NEDLAC
in February 1995.
[13] In the initial draft submitted
to NEDLAC the Task Team had proposed significant limitations on the
right of parties to be legally
represented in proceedings before the
Commission. This was motivated in the Explanatory Memorandum as
follows:
12
‘
International research shows that our
system of adjudication of unfair dismissals is probably one of the
most lengthy and most expensive
in the world. And yet it fails to
deliver meaningful results and does not enjoy the confidence of its
users. Not surprisingly,
dismissals trigger a significant number of
strikes.
‘
The draft Bill explicitly regulates unfair
dismissal and clearly states the permissible and impermissible
grounds for dismissal.
The procedural requirements for fair dismissal
are clarified as are competent remedies. A speedy, cheap and
non-legalistic procedure
for the adjudication of unfair dismissal
cases is provided.’
The limitation of the right to legal
representation was motivated in the Explanatory Memorandum as
follows:
13
‘
Legal representation is not permitted
during arbitration except with the consent of the parties. Lawyers
make the process legalistic
and expensive. They are also often
responsible for delaying the proceedings due to their unavailability
and the approach they adopt.
Allowing legal representation places
individual employees and small businesses at a disadvantage because
of the cost.’
[14] The parties to the NEDLAC
negotiations agreed that in arbitration proceedings concerning the
fairness of dismissals for misconduct
or incapacity legal
representation should be permitted only where circumstances justified
it and that it should be in the discretion
of the arbitrating
commissioner whether those circumstances were present. The agreement
was embodied in the now repealed s 140(1)
of the LRA which was
enacted in 1995. Schedule 8 to the LRA contains a Code of Good
Conduct for dismissals. The subrule proceeds
from the premise that
the bulk of cases involving dismissal for misconduct or incapacity
are less serious, in the sense of being
less complex, are regulated
by a code of conduct and should be adjudicated swiftly and with the
minimum of legal formalities. The
parties to the social compromise
were in agreement that legal representation in these cases should not
be required or permitted
unless justified by the nature of the legal
issues that may arise, the complexity of the matter, the public
interest and the comparative
ability of the parties and their
representatives. This was part of the system providing speedy and
cheap access to redress unfair
dismissals and limiting available
remedies, in particular by capping compensation.
14
[15] This recalls the words of Zondo
JP in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & others
:
15
‘
Anyone who has had anything to do with our
labour law and the dispute resolution system in the labour field will
know that, by far,
the majority of cases that affect employers and
employees and that “consume” public resources are
dismissal cases and
most of the dismissal cases are those relating to
dismissal for misconduct. The legitimate Government purpose in
relation to the
provision of compulsory arbitration under the Act was
to provide a speedy, cheap and informal dispute-resolution system. If
you
failed to achieve that goal in regard to disputes concerning
dismissals for misconduct, you would never achieve that goal in
respect
of the entire Act.
If one has a look at all the cases in which the Act provides for a
right to legal representation, one will note a common denominator
to
the cases. That is that of all these cases occur very seldom. Indeed,
they are few and far between. Furthermore, the issues
that arise in
most of them can be quite technical, for example, demarcations,
essential services and others.
If provision was to be made for an absolute or general right to legal
representation in respect of such disputes, that would make
a serious
contribution towards taking our new dispute-resolution system in the
1995 Act back to the pre-1994 dispute-resolution
system under the
Labour Relations Act 28 of 1956 which had become totally untenable by
the time the 1995 Act was passed. That cannot
be done.’
[16] The dispute resolution system
under the LRA requires that disputes under this Act first be resolved
through conciliation before
they can be referred to arbitration (s
133 of the LRA). The dismissal disputes that may be referred to the
commission are ‘automatically
unfair dismissals’ (s 187),
dismissals based on ‘operational requirements’ (s 189A)
and dismissals based on the
employee’s misconduct or incapacity
(s 188). As Ms Kahn stated in her answering affidavit, dismissals of
the first two kinds
may give rise to more serious legal and
industrial relations consequences. Those in the third category, she
continued, are regarded
as the most common and least complicated
disputes that arise in the workplace; they usually involve one worker
only and not the
whole workforce. It is thus in this sense that she
termed them less ‘serious’. No one can dispute that a
dismissal
may entail ‘serious’ consequences for an
employee. This, however, is not the issue. The reason for limiting
legal representation
as provided for in the subrule is not the
gravity of the consequences of the dismissal for the employee.
Disputes of different
kinds are resolved by the CCMA. In some legal
representation may be had as of right. The latter category includes,
inter alia
,
disputes concerning organisational rights, collective agreements,
workplace fora and the disclosure of information.
16
See, for example, the disputes
referred to in sections 22, 24, 38, 62 and 74 of the LRA. These
disputes are inherently more technical
and legalistic and often
require the interpretation of contracts and legislation.
17
The subrule thus deals with a certain
category of disputes, not involving organisational disputes, and it
is legitimate to provide
different methods of resolving them.
18
[17] Dismissal disputes comprise more than 80 per cent
of all matters referred to the CCMA. A large majority of these
disputes concern
disputes for misconduct and incapacity. The evidence
of Ms Kahn shows that approximately 80 per cent of dismissal disputes
relate
to dismissals for misconduct. The statistics for the three
years from 2008 to 2011 recorded the presence of a legal
representative
only in cases where awards were made. During this
period some 68 137 awards in unfair dismissal cases were made:
1 948
relate to dismissals for incapacity and 30 559 to
dismissals for misconduct. Legal representation was present in 6 028
of all unfair dismissal cases, and in 174 incapacity dismissal cases
and in 2 975 misconduct dismissal matters. Ms Kahn attributes
the apparent discrepancy in these figures to the fact that employees
state that they do not know the reason for their dismissal.
One or
both parties have been legally represented in approximately 10 per
cent of dismissal disputes that have proceeded to arbitration.
There
is no significant difference between cases where the parties are
entitled to be represented as of right and those where their
representation is subject to the commissioner’s discretion.
Right to legal representation in the CCMA?
[18] The CCMA is not a court.
19
Arbitration proceedings in the CCMA constitute
administrative action and a commissioner conducting a CCMA
arbitration is performing
an administrative function.
20
Administrative tribunals, generally, are required to
take decisions that are consistent with PAJA.
21
However, the Constitutional Court held that PAJA does
not apply to the review of CCMA arbitrations and said that s 145 of
the LRA
was ‘suffused’ with the constitutional standard
of reasonableness: namely whether the decision is such that it could
not be reached by a reasonable decision maker.
22
The provisions of the LRA must be interpreted in
compliance with the Constitution (s 3 of the LRA). Section 33(1) of
the Constitution
states that everyone has the right to administrative
action that is lawful, reasonable and procedurally fair. But the
contention
that this requires there to be a right to legal
representation in every case of a hearing before an administrative
tribunal such
as the CCMA, is contrary to long-standing and binding
authority.
[19] The courts have consistently denied entitlement to
legal representation as of right in fora other than courts of law.
23
As Innes CJ said:
24
‘
No Roman-Dutch authority was quoted as
establishing the right of legal representation before tribunals other
than courts of law,
and I know of none.’
The common law, however, recognises a right to a
procedurally fair hearing in civil and administrative matters which
may, in the
circumstances of the case, require recognition of the
right to legal representation.
25
The Bill of Rights expressly refers to the right ‘to
choose, and to consult with, a legal practitioner’ (s
35(2)(
b
)), and ‘to
choose, and be represented by, a legal practitioner’ (s
35(3)(
f
)), but this is
said in the context of an arrest for allegedly committing an offence
(s 35(1)) and the right to a fair criminal
trial (s 35(3)). Section
33 dealing with just administrative action contains no reference to
such a right.
26
Nor does PAJA, which was enacted to give effect to the
right to administrative action that is lawful, reasonable and
procedurally
fair and to the right to be given written reasons where
rights have been adversely affected, refer to such an absolute
right.
27
Instead it confirms the common law.
28
In
Hamata
Marais
JA concluded:
29
‘
In short, there is no constitutional
imperative regarding legal representation in administrative
proceedings discernible, other
than flexibility to allow for legal
representation but, even then, only in cases where it is truly
required in order to attain
procedural fairness.’
He further said that, although there was no common law
imperative to allow legal representation, the common law nevertheless
required
disciplinary proceedings to be fair and if:
30
‘
in order to achieve such fairness in a
particular case legal representation may be necessary, a diciplinary
body must be taken to
have been intended to have the power to allow
it in the exercise of its discretion unless, of course, it has
plainly and unambiguously
been deprived of any such discretion’.
Section 3(3)(
a
)
of PAJA
[20] Tuchten J found that rule 25(1)(
c
)
was inconsistent with s 3(3)(
a
)
of PAJA because the subrule rule did not confer a discretion in a
serious case which was not also complex. I do not think that
PAJA
applies to the procedures adopted by CCMA arbitrators. Neither s 33
of the Constitution nor PAJA precludes specialised legislative
regulation of administrative action alongside general legislation
such as PAJA. However, such specialised regulation must comply
and be
consistent with s 33.
31
PAJA, as I have said, does not apply to the review of
CCMA arbitrations. The LRA sets out in specific terms in ss 138 and
142 how
CCNA arbitrations are to be conducted. The reasoning that led
the theConstitutional Court in
Sidumo
to hold that the LRA created a self-contained regime for
reviews of arbitration awards equally applies to the separate regime
it
created in those sections for the fair conduct of arbitrations by
the CCMA. PAJA was accordingly inapplicable in this case.
[21] In any event, Tuchten J in coming to his conclusion
ignored the impact of the discretion afforded a commissioner by the
subrule.
A request for legal representation may be made at any time
and not necessarily at the outset of the arbitration. The subrule
indeed
allows the commissioner considerable latitude in allowing
legal representation. It may be allowed where the commissioner and
all
the parties agree. In addition, the commissioner may allow it in
exercising his or her discretion when he or she considers that
it is
‘unreasonable to expect a party to deal with the dispute
without legal representation’ after consideration of
the listed
factors. The listed factors are: 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. The
subrule does not
disallow other forms of representation. Nor does it exclude the
consideration of other relevant considerations.
32
These factors may well, in a given case, include the
seriousness of the individual consequences of a dismissal, assuming
that this
is not already encompassed by the subrule, which I doubt.
33
The commissioner must, if satisfied that it is
appropriate to do so, also determine a dispute about legal
representation if one
of the parties objects or if he or she suspects
that the representative does not qualify in terms of the rule. In
addition, in
terms of s 191(6) of the LRA the Director of the CCMA
must on request by a party refer a dispute about the fairness of a
dismissal
or an unfair labour practice to the Labour Court after
considering the reason for the dismissal, the questions of law
raised, the
complexity of the dispute, any conflicting arbitration
awards and the public interest. A party is of right entitled to legal
representation
in the Labour Court (s 161). The subrule and other
provisions of the LRA are therefore sufficiently flexible to allow
for legal
representation in deserving cases.
Rationality of the rule
[22] Tuchten J concluded that the subrule was arbitrary
because it identifies one category of cases for diffferent treatment
irrespective
of the merits of the individual cases. The
constitutional requirement of rationality is an incident of the rule
of law which requires
all public power to be sourced in law. When
making laws the legislature is constrained to act rationally and not
capriciously or
arbitrarily. It must act to achieve a legitimate
government purpose. A decision whether a legislative provision or
scheme is rationally
related to a governmental object entails an
objective enquiry.
34
As it was stated by the Constitutional Court:
35
‘
It is by now well settled that, where a
legislative measure is challenged on the ground that it is not
rational, the court must
examine the means chosen in order to decide
whether they are rationally related to the public good sought to be
achieved.
It remains to be said that the requirement of rationality is not
directed at testing whether legislation is fair or reasonable
or
appropriate. Nor is it aimed at deciding whether there are other or
even better means that could have been used. Its use is
restricted to
the threshold question whether the measure the lawgiver has chosen is
properly related to the public good it seeks
to realise. If the
measure fails on this count, that is indeed the end of the enquiry.
The measure falls to be struck down as constitutionally
bad.’
The fact that the subrule distinguishes between
different kinds of cases does not per se render the rule irrational.
36
The history of the subrule and the nature of the
historical compromise reached show that the bulk of cases referred to
the CCMA
involve unfair dismissals for incapacity and misconduct. The
legislature identified these matters as the appropriate category
where
the policy considerations underlying the need to exclude legal
representation should find application. The courts cannot interfere
with rational decisions that have been made lawfully on the ground
that they consider a different decision preferable.
37
The judge in the court below disregarded the considered
judgment of the experts who first drafted the LRA; the social
partners at
NEDLAC who endorsed their views on the proper approach to
legal representation before the CCMA and the extensive experience of
the CCMA and the labour courts that an automatic right to legal
representation in these cases was inconsistent with the aim of
expeditious and inexpensive resolution of these disputes. He did so
without any evidence to support his own views.
Section 9(3) of the Constitution
[23] Section 9(3) of the Constitution provides that the
State may not unfairly discriminate, directly or indirectly, against
anyone
on one or more grounds, including race, gender etc.
38
[24] The Law Society challenged the subrule apparently
on the basis that it unfairly discriminates against legal
practitioners who
are admitted as attorneys and advocates and are in
private practice. It contended that whereas directors of companies,
and other
legal persons, members of close corporations and trade
union officials may as of right appear in any arbitration, legal
practitioners
may do so in dismissal cases for misconduct or
incapacity only at the discretion of the commissioner. Nor, the
argument went, is
there a similar prohibition against a union
official or director of a company who may be legally qualified.
However, it is not
the case of the Law Society that its members were
denied recognition of their inherent dignity by the subrule,
39
nor that the alleged discrimination relates to one or
more of the grounds listed in chapter 2 of the Equality Act.
40
This is fatal to its contentions as the jurisprudence of
the Constitutional Court amply demonstrates that infringements of
equality
rights are inextricably linked to infringements of dignity
and there are none in this case.
Freedom of trade
[25] The Law Society also relied on s 22 of the
Constitution to challenge the validity of the subrule. The section
ensures that
‘[e]very citizen has the right to choose their
trade, occupation or profession freely. The practice of a trade,
ocupation
or professsion may be regulated by law’. The Law
Society’s founding papers barely deal with the effect of the
subrule
on its members’ choice of a trade, occupation or
profession. The deponent stated that the effect of the rule was to
exclude
practising attorneys and advocates from proceedings for which
he or she was particularly skilled. Section 22 embraces both the
right to choose a profession and the right to practise the chosen
profession.
41
Limitations on the right to freely choose a profession,
it was said,
42
are not to be lightly tolerated:
‘
But we live in a modern and industrial
world of human interdependence and mutual responsibility. Indeed we
are caught in an inescapable
network of mutuality. Provided it is in
the public interest and not arbitrary or capricious, regulation of
vocational activity
for the protection both of the persons involved
in it and of the community at large affected by it is to be both
expected and welcomed.’
The rule does not purport to regulate entry into the
profession, nor does it affect the continuing choice of practitioners
to remain
in the profession.
43
It only impacts on a litigant’s right to be
represented in a particular forum. For the reasons considered above
the subrule
meets the rationality standard.
44
Section 34 of the Constitution
[26] The Law Society contended that the subrule was in
conflict with s 34 of the Constitution. Section 34 provides:
‘
Everyone has the right to have any dispute
that can be resolved by the application of law decided in a fair
public hearing before
a court or, where appropriate, another
independent and impartial tribunal or forum.’
In advancing this contention the Law Society relied on
Badingdawo & others v Head of the Nyanda
Regional Authority & another: Hlantlalala v Head of the Western
Tembuland Regional
Authority & others
,
45
a judgment in which Madlanga J held that, despite the
absence of a provision to that effect in the Interim Constitution 200
of 1993,
a party to civil proceedings was entitled to legal
representation as of right, because:
‘
[T]he right of access to court and of
having justiciable disputes settled by courts would be rendered
entirely nugatory if, in respect
of civil proceedings, it were to be
held that there is no constitutional right to legal representation.’
However, he was dealing with regional authority courts
established under the Regional Authority Courts Act 13 of 1982
(Transkei),
which are courts and not administrative tribunals. There
is no unqualified constitutional right to legal representation before
administrative tribunals.
46
As
I have said above, the Law Society did not present any evidence that
the subrule works hardship on parties to CCMA arbitrations
or point
to any instance where there has been a refusal of legal
representation prejuding a party.
[27] For all these reasons the appeal should be upheld.
Order
The appeal is upheld with costs including the costs of
two counsel.
The order of the court below is set aside and replaced
with the following:
‘
The application is dismissed
with costs including the costs of two counsel.’
____________________
F R MALAN
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANTS: G J Marcus SC (1
st
, 2
nd
&
3
rd
Appellants)
N Rajab-Budlender (1st & 2
nd
Appellants)
Z Z Matebese (3
rd
& 4
th
Appellants)
N Tuli (1
st
& 3
rd
Appellants)
INSTRUCTED BY: Bowman Gilfillan (1
st
& 3
rd
Appellants)
Pretoria
CORRESPONDENTS:
Matsepes Inc
Bloemfontein
ON
BEHALF OF 3
rd
& 4
th
APPELLANTS:
The State Attorney
Pretoria
The State
Attorney
Bloemfontein
FOR RESPONDENT: J G Rautenbach SC
M Makgato
INSTRUCTED
BY: Rooth and Wessels Inc Pretoria
CORRESPONDENTS:
Naude Attorneys
Bloemfontein
1
Rules
for the Conduct of Proceedings before the CCMA, GN R1448,
GG
25515, 10 October 2003.
2
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & others
2010 (2) SA 269
(CC) paras 9 and 13.
3
A
legal practitioner is ‘any person admitted to practise as an
advocate or an attorney in the Republic’ (s 213
of the
Labour Relations Act 66 of 1995 (the LRA). See
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & others
[2009] 4 BLLR 299
(LAC) para 27 per Musi JA.
4
Andrew
Levy and Tanya Venter (eds)
The Dispute Resolution Digest 2012
Tokiso Dispute Settlement
(2012) at 23.
5
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) para 85.
6
See
Judicial Service Commission & another v
Cape Bar Council & another
2013
(1) SA 170
(SCA)para 21.
7
See
Minister of Health & another v New
Clicks South Africa (Pty) Ltd & others (Treatment Action
Campaign & another as
Amici Curiae)
2006
(2) SA 311
(CC) para 135
.
8
Musi
JA in
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau
NO & others
[2009] 4 BLLR 299
(LAC) para 38.
9
GN
R961,
GG
23611 of 25 July 2002.
10
Published
in (1995) 16
ILJ
278.
11
(1995)
16
ILJ
at 280.
12
(1995)
16
ILJ
at 285.
13
(1995)
16
ILJ
319.
F
or criticism, see Peter Buirski ‘The
Draft Labour Relations Bill 1995 – The Case for Legal
Representation at its Proposed
Fora for Dispute Resolution’
(1995) 16
ILJ
529
and Neil van Dokkum ‘Legal Representation at the CCMA’
(2000) 21
ILJ
836.
14
An
early suggestion to exclude legal representation in labour disputes
was made by Paul Benjamin ‘
Legal Representation in
Labour Courts’ (1994) 15
ILJ
250.
15
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO & others
[2009] 4 BLLR 299
(LAC) paras 44, 45 and 46.
16
Netherburn
para 39 per Musi JA.
17
Netherburn
para 40 per Musi JA.
18
Netherburn
para 40 per Musi JA.
19
Fredericks
& others v MEC for Education and Training, Eastern Cape, &
others
[2001] ZACC 6
;
2002 (2) SA 693
(CC) paras 30-1;
Sidumo & another
v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC)
paras 80 ff and paras 85-7.
20
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) paras 80 ff and paras 88 and 140.
21
Cf
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) paras 25-26.
22
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) paras 80 ff and para 104. See
Herholdt v Nedbank
Ltd
(701/2012)
[2013] ZASCA 97
(5 September 2013) para 12.
23
Dabner
v South African Railways and Harbours
1920 AD 583
at 598;
Hamata
& another v Chairperson, Peninsula Technikon Internal
Disciplinary Committee & others
2002 (5) SA 449
(SCA) paras
5 ff;
MEC: Department of Finance, Economic Affairs & Tourism,
Northern Province v Mahumani
[2005] 2 All SA 479
(SCA) para 11.
24
Dabner
v South African Railways and Harbours
1920 AD 583
at 598.
25
Hamata
para 5.
26
Hamata
para 8.
27
Hamata
para 9.
28
Referring
to
Bel Porto School Governing Body & others
v Premier, Western Cape & another
[2002] ZACC 2
;
2002
(3) SA 265
(CC) at 295G. See
Minister
of Public Works & others v Kyalami Ridge Environmental
Association & another (Mukhwevho Intervening)
2001
(3) SA 1151
(CC) para 101.
29
P
ara
11.
30
Hamata
para 23 and see
MEC: Department of Finance, Economic Affairs
& Tourism, Northern Province v Mahumani
[2005] 2 All SA 479
(SCA) para 11.
31
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) para 91.
32
Cf
MEC: Department of Finance, Economic Affairs &
Tourism, Northern Province v Mahumani
[2005]
2 All SA 479
(SCA) para 12: it could not have been intended to limit
the commissioner to the listed factors only.
33
Cf
Dladla v Administrator, Natal
1995 (3) SA
769
(N) at 777B-D.
34
Law
Society of South Africa & others v Minister for Transport &
another
2011 (1) SA 400
(CC) paras 32 and 33.
35
Law
Society of South Africa & others v Minister for Transport &
another
2011 (1) SA 400
(CC) paras 34
and 35 and
Pharmaceutical Manufacturers Association of SA
& another: In re Ex parte President of the Republic of South
Africa & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 85 and 86 and see
Affordable Medicines Trust & others v Minister of Health &
others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) paras 75-78.
36
Prinsloo
v Van der Linde & another
1997 (3) SA 1012
(CC) para 25;
President of the Republic of South Africa & another v Hugo
1997 (4) SA 1
(CC) para 31.
37
Bel
Porto School Governing Body & others v Premier, Western Cape &
another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) para 45.
38
The
Law Society also relied on t
he Equality Act but did not
provide any factual basis for its contentions. See Iain Currie and
Johan de Waal
The Bill of Rights Handbook
(2013) 6ed at 244-249.
39
Prinsloo
v Van der Linde & another
1997 (3) SA
1012
(CC) para 31;
President of the Republic of South
Africa & another v Hugo
1997 (4) SA 1
(CC) para 41;
Harksen
v Lane NO & others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) para 50.
40
Currie
and De Waal
at 244 ff.
41
Affordable
Medicines Trust & others v Minister of Health & others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 66.
42
Affordable
Medicines Trust & others v Minister of Health & others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) para 60.
43
Cf
Affordable Medicines Trust & others v Minister of Health &
others
[2005] ZACC 3
;
2006 (3) SA 247
(CC) para 69.
44
No
argument was addressed by the Law Society on the question whether a
valid limitation of s 22 in terms of s 36 of the Constitution
was
involved.
45
Badingdawo
& others v Head of the Nyanda Regional Authority & another:
Hlantlalala v Head of the Western Tembuland Regional
Authority &
others
1998 (2) SACR 16
(Tk) at 31B. Cf
Attorney-General of Lesotho v Mopa
2002
(6) BCLR 645
(Les, CA).
46
See
above paras 18 and 19.