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[2012] ZAGPPHC 224
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Law Society of the Northern Provinces v Minister of Labour and Others (61197/11) [2012] ZAGPPHC 224; 2013 (1) SA 468 (GNP); [2013] 1 BLLR 105 (GNP); (2012) 33 ILJ 2798 (GNP); [2013] 1 All SA 688 (GNP) (15 October 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
CASE
NO: 61197/11
DATE:15/10/2012
In
the matter between:
THE
LAW SOCIETY OF THE NORTHERN
PROVINCES
.................................
Applicant
and
MINISTER
OF
LABOUR
........................................................................................
First
Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
...................................................................................................
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
….................................................................
Third
Respondent
DIRECTOR
FOR THE COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
...........................................
Fourth Respondent
JUDGMENT
Tuchten
J:
1
The applicant Law Society moves the court for a declaration that
subrule 25(1 )(c) of the rules of the third respondent ("the
CCMA") is unconstitutional. The Minister of Justice and
Constitutional Development abides the decision of the court. The
application is opposed by the remaining respondents, to whom I shall
for convenience refer as the respondents.
2.
The rules of the CCMA govern arbitrations conducted in terms of the
Labour Relations Act, 66 of 1995 ("the LRA"). The
rules
were made by the CCMA pursuant to s 115(2A) of the LRA which confers
upon the CCMA a wide competence to regulate the manner
in which such
arbitrations are conducted.
1
3.
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.
4.
Pursuant to that power, the CCMA enacted rule 25 which reads in
relevant part:
(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 employer's 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 registered employer's 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 [sic] 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, [my emphasis]
5.
Every attorney, notary and conveyancer in Gauteng, Mpumalanga,
Limpopo and portions of North West Province is a member of the
Law
Society. The Law Society is empowered by statute and the common law
to maintain and enhance the status of the profession, generally
to
represent its members and to deal with and protect all matters
touching upon the interests of the profession. On these grounds,
amongst others, the Law Society contends that it has standing to
attack the constitutional validity of the impugned subrule.
6.
In their answering affidavit, the respondents disputed the Law
Society's claim of standing but no argument was addressed to me
on
this question and the case proceeded without any challenge to the Law
Society's standing. This approach was a wise one. One
of the grounds
of attack was that the impugned subrule offends against the rights of
members of the Law Society in relation to
the free choice of their
profession as entrenched in s 22 of the Bill of Rights. I need not
consider for this purpose whether s
22 is legitimately implicated in
this case. At the level of jurisdiction, the question is not whether
the applicant has made out
a good case but what case, good or bad,
the applicant has in fact made out.
2
That being so, the applicant may properly rely on the objective
unconstitutionality of the measure for the relief sought, even
though
the right unconstitutionally infringed is not that of the applicant
but of some other person.
3
7.
The CCMA is a statutory body established with effect from 1 January
1996 under s 112 of the LRA.
4
It plays an important, indeed vital, role in the resolution of
disputes falling under the ambit of the LRA. It must attempt to
resolve through conciliation, any dispute referred to it in terms of
the LRA and, if a dispute referred to it remains unresolved,
arbitrate such dispute if certain jurisdictional prerequisites are
present.
5
The CCMA is independent of the State, any political party, employer
or representative of any employer or employee.
6
8.
The dispute resolution work of the CCMA is done through
commissioners, who are appointed under s 117 of the LRA and must be
"adequately qualified persons". The first step in a dispute
referred to the CCMA is conciliation.
7
If that does not work within the periods contemplated, the
commissioner must certify that fact in accordance with the procedure
prescribed.
8
9.
Once conciliation has failed, the LRA provides for the dispute which
was the subject of the conciliation proceedings to be resolved
through arbitration before a commissioner appointed by the CCMA
itself, again if certain jurisdictional prerequisites have been
established.
9
There are fairly elaborate provisions for objection to the individual
commissioner appointed to hear the arbitration. The parties
are even
given a say, if they want it, on their "stated preference"
in the choice of commissioner.
10
10.
When a commissioner resolves a dispute by arbitration under the
provisions of the LRA, he
11
is given wide powers akin to those afforded to litigants in a civil
trial in a High Court. For example, he may subpoena potential
witnesses, duces tecum if he so decides, including expert witnesses,
and require witnesses to testify under oath or affirmation.
In
addition, he may after obtaining authorisation in the manner
prescribed under the LRA, enter premises and seize writings and
other
things relevant to the resolution of the dispute and take statements
from persons willing to make them about any matter relevant
to the
dispute.
12
11.
Persons subpoenaed by a commissioner and others, including those who
appear in an arbitration in a representative capacity,
may be
punished for contempt of the CCMA, again pursuant to a fairly
elaborate procedure.
13
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.
14
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
13.
As with civil disputes which come before a court, the parties to an
arbitration before a commissioner may settle the matter.
But if the
arbitration proceeds, within 14 days of the conclusion of the
arbitration proceedings (unless the Director of the CCMA
("the
Director") extends this period), the commissioner must issue an
arbitration award with brief reasons. The CCMA
must then serve a copy
of the award on each party to the dispute or the representative of
each such party and file the original
of that award with the
registrar of the Labour Court.
16
A settlement may also be made an arbitration award.
17
14.
An arbitration award is final and binding.
18
There is no appeal against an arbitration award but an award may be
reviewed.
19
15.
An arbitration tribunal constituted under the LRA is not a court. A
commissioner conducting a CCMA arbitration is performing
an
administrative function.
20
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.
21
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.
22
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
23
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.
17.
Before I turn to the merits of the constitutional challenge, I must
deal with three points in limine raised by the respondents,
on
appropriate notice to the Law Society. The first point is that to the
extent that the challenge is based on unfair discrimination
as
proscribed by s 9 of the Bill of Rights, the case should have been
brought in the Equality Court and not the High Court. The
essential
submission in this regard is that by enacting the Promotion of
Equality and Prevention of Unfair Discrimination Act,
24
("the Equality Act") the legislature deprived the High
Courts, in favour of the Equality Court, of their jurisdiction
to
adjudicate constitutional challenges based on an alleged act of
unfair discrimination. The thrust of the argument is that our
law is
clear that where legislation is enacted to give effect to a provision
in the Constitution, a litigant may not rely on the
Constitution
directly but must bring its challenge under such legislation.
18.
In my view, I am precluded by higher authority from even considering
this point. In Monong & Associates (Pty) Ltd v Department
of
Roads and Transport, Eastern Cape, and Others (No 2),
25
it was held that a person who is victim of discrimination is not
precluded by the Equality Act from bringing proceedings in the
ordinary course in a High Court.. Counsel for the respondents
submitted that the conclusion in Monong was arrived at perincuriam
and that I am thus not bound by it. I am quite unable to agree. I
shall however give brief reasons why I think the argument is
unsound.
In Makhanya, supra, at para 25 the SCA held that the question whether
one court rather than another has jurisdiction must
be determined by
an analysis of the relevant measures governing the position. From
inception of our constitutional dispensation,
the High Courts have in
the main been the courts to which litigants have turned for
constitutional protection, particularly in
the case of a challenge to
legislation or conduct alleged to be constitutionally uncompliant.
Section 169 of the Constitution provides
that a High Court may decide
any constitutional matter except a matter reserved for the
Constitutional Court or a matter assigned
to another court of a
status similar to a High Court.
19.
Leaving aside the question whether an Equality Court is a court of a
status similar to a High Court, in general or when its
presiding
officer is not a judge, the powers "assigned" to the
Equality Court do not expressly include the determination
of
constitutional challenges. They do, however, include the powers to
make orders similar to those within the competence of the
High Court,
including restraining conduct and awarding damages in relation to
unfair discrimination, hate speech and harassment
related to (I
summarise) sex, gender, sexual orientation or membership of a group.
26
20.
Constitutional challenges are frequently based on several sections of
the Bill of Rights. It would be most obstructive, to put
it mildly,
to the due administration of justice if a constitutional challenge
against a single action or complex of actions which
involved, say,
alleged infringements of the Bill of Rights in relation to children,
education, language and culture and equality,
had to be decided in
two separate hearings. Legislation purporting to achieve that result
might well fall foul of the protection
of the right of access to
justice under s 34 of the Bill of Rights. If the legislature wished
to abridge the jurisdiction of the
High Courts in so singular a
manner, I would expect it to have done so in the clearest of
language. Absent such clarity of expression,
there is thus, in my
view, no basis for concluding that the wide powers of constitutional
scrutiny vested in the High Court by
s 169 have in any way been
abridged by the enactment of the Equality Act.
21.
In the alternative, counsel for the respondents submitted that the
High Courts have concurrent jurisdiction with the Equality
Courts to
determine such challenges and that in the exercise of my discretion,
I should decline jurisdiction in favour of the Equality
Court.
Assuming, against my finding, that this concurrency exists at the
level of discretion, I must firmly decline the invitation.
Firstly,
no such argument was made in the papers so the Law Society has not
had an opportunity to deal with the question at a factual
level.
Secondly, the
present
challenge was launched by notice of motion bearing the stamp of the
registrar of 28 October 2011, ie almost a year ago.
The merits of the
matter were fully argued before me. The procedure in the Equality
Court requires an "inquiry" which
would take considerable
time to complete. Thirdly, there is no good reason to vitiate the
alleged choice of forum made by the Law
Society in favour of the High
Court. Where a litigant has chosen in good faith one of two or more
available forums for its constitutional
challenge, such choice should
wherever possible be respected. Fourthly, as a matter of policy, the
High Courts should, in my view,
jealously guard their preeminent
position as the arbiter of first instance of constitutional matters
and should not, where there
is jurisdiction concurrent with a court
of similar status, decline jurisdiction unless it has plainly been
shown that such court
of similar status is, by reason of its
specialist character, better suited to determine the particular
constitutional matter placed
before it. There is no reason why an
Equality Court, even manned as it must be by a presiding officer
steeped in the inwardnesses
of matters relating to social context and
applicable uniform norms, standards and procedures, should be better
placed to decide
this case. And fifthly, I myself have received the
training contemplated by the Equality Act.
27
The first point in limine must therefore fail.
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,
28
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.
25.
In paragraph 28 of its founding affidavit the Law Society attacked
the distinction drawn as follows:
There
appears to be no reasonable or constitutional rationale why only
practising legal practitioners have a qualified right to
appear in
dismissal disputes involving conduct or capacity.
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.
29
The rules of the CCMA themselves, the framing of which is itself an
example of an administrative decision,
30
must be rational.
27.
This does not mean that a rule, or any other administrative decision,
may be set aside for irrationality if it is shown that
the decision
is not perfect in conception or execution or its purpose could have
been better achieved in another way. It is only
when the decision is
such that no reasonable person could have taken it that it will be
set aside on this ground. The best way
to determine whether or not a
decision is rational is to examine it in the light of the reasons
advanced to justify the decision.
31
28.
What are the reasons for the exclusion? I have the benefit of a great
deal of compelling evidence from the Director herself,
from Winifred
Everett, who is a seasoned senior commissioner, and from Ian Macun, a
sociologist. The thrust of this evidence is
that the system within
which the CCMA functions is the product of a very particular social
and legal context, negotiated by a variety
of social partners. The
restrictions on legal representation are part of this context and the
product of these negotiations. The
negotiating parties agreed that
arbitration litigants should enjoy an unqualified right to legal
representation in all arbitrations
other than those concerning
dismissals for misconduct or incapacity. The Director says in her
affidavit that it is inherent in
the structure of the adjudication of
disputes by the CCMA that
...
disputes about whether individuals] or groups of employees have
breached company rules or are incapacitated to an extent that
justifies their dismissal are less serious, are regulated by a
detailed code of practice, and should be adjudicated swiftly and
with
the minimum of legal formalities.
29.
The unchallenged and cogent evidence placed before me by the
respondents is that the system of workplace arbitration works in
manner acceptable to the social partners, with their wide range of
sometimes disparate interests, who negotiated the system. I
was
properly cautioned in argument against the error of trying to fix
that which is not broken.
30.
The views of the CCMA and its Director, representing as they do the
democratically approved specialist response to the challenge
of
resolving workplace disputes, must be accorded substantial weight and
be treated by a High Court, which lacks the specialist
expertise of
the Labour Court, with a degree of deference. But I cannot agree that
a dismissal of an employee is never a serious
matter - for the
employee. In a great number of cases, the employee's job will be his
major asset. The loss of your major asset
is a serious matter.
Whether the dismissal is a serious matter for the employer is a
different question, particularly where the
job done by the allegedly
offending employee is a humble one, in respect of which the supply of
job seekers exceeds the demand
of potential employers. And whether
the Constitution and applicable legislation permit a differentiation
in relation to legal representation
at CCMA arbitrations where the
dispute is serious for the one party and less than serious for the
other, is outside the scope of
the dispute before me and, therefore,
this judgment.
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
32
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
33
and condonation for non-compliance with time frames provided for in
the rules.
34
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).
I
am mindful of the subtle balances that must inevitably be present in
our system of workplace dispute regulation. But of course
any such
balances which are translated into legislation or administrative
action must pass constitutional muster. An administrator
as that term
is used in PAJA has a discretion under s 3(3)(a) to give a person
whose rights are materially and adversely affected
by administrative
action an opportunity to obtain legal representation both in serious
and in complex cases.
35.
In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and
Others 4 BLLR 299 LAC, Musi JA found that s 141 (1) of the
LRA was
rational. He held that the admitted seriousness of arbitrations
concerning dismissals for misconduct did not of itself
justify legal
representation.
35
The learned judge was dealing with a situation in which the
provisions of s 3(3)(a) of PAJA (which I shall quote below) found no
application because the LRA expressly dealt with the question of
legal representation and therefore ousted s 3(3)(a) of PAJA.
36.
Musi JA further found the distinction between the absolute right of
legal representation in CCMA arbitrations other than dismissals
for
misconduct or incapacity and the discretionary right afforded where
an the fairness of such a dismissal was in issue to be
justified.
36
The learned judge of appeal found that a commissioner could routinely
determine before the arbitration started whether legal representation
was appropriate. I respectfully disagree. It fairly frequently
happens that a case which appears before it starts to be
straightforward
turns out to be complex. The learned judge further
concluded that it was rational to make the distinction because
dismissals based
on misconduct and incapacity constitute by far the
bulk of the disputes arbitrated by the CCMA.
37
Again, I respectfully disagree. To identify one category of case a
priori (by reasoning from assumed axioms) for different treatment
irrespective of the merits of each individual case seems to me the
essence of arbitrariness.
37.
And finally, much of the reasoning of Musi JA is founded on the fact
that s 141(1), the measure which the learned judge was
examining, was
national legislation. The effect of this, as I touched upon above,
was that the provisions of s 3(3)(a) of PAJA
were not required in
that context to be observed. That alone in my view distinguishes
Netherburn from the present enquiry.
38.
In my view rule 25(1 )(c) is not consistent with s 3(3)(a) of PAJA,
which reads in relevant part:
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)38 an opportunity to-
(a)
obtain assistance and, in serious or complex cases, legal
representation .... [my emphasis]
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.
40.
The respondents complain that a change to the current regime which
permits legal representation might significantly add to the
work load
of the CCMA and thus impair its ability to perform its core
functions. As a matter of principle, I do not think I should
take
this into account. As was held in Sidumo, supra, para 77:
Employees
are entitled to assert their rights. If by so doing a greater volume
of work is generated for the CCMA, then the State
is obliged to
provide the means to ensure that constitutional and labour law rights
are protected and vindicated.
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.39 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.
44.
The parties were agreed that the declaration should be suspended for
a period of 36 months to enable the relevant parties to
consider and
promulgate a new subrule and that there should be no order as to
costs.
45.
I accordingly make the following order:
1.
Rule 25(1 )(c) of the Rules of the Commission for Conciliation,
Mediation and Arbitration is declared to be inconsistent with
the
Constitution and invalid;
2.
This declaration of invalidity is suspended for a period of 36 months
to enable the relevant parties to consider and promulgate
a new
subrule;
3.
There will be no order as to costs.
NB
Tuchten
Judge
of the High Court 11 October 2012
For
the applicant: Adv G Rautenbach SC instructed by Rooth Wessels Inc
Pretoria
For
the first respondent:
Adv
G Marcus SC and Adv ZZ Matebese
instructed
by Bowman Gilfillan
Johannesburg
For
the third and fourth respondents:
Adv
G Marcus SC and Adv N Rajab-Budlender
instructed
by Bowman Gilfillan
Johannesburg
1
The
rules were published under Government Notice R1448 in Government
Gazette 25515 of 10 October 2003 and amended from time to
time
thereafter.
2
Makhanya
v University of Zululand
2010
1 SA 62 SCA para 34
3
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
2000
2 SA 1 CC para 29 and cases in fn 32 in that judgment
4
Section
112oftheLRA
5
Section
115oftheLRA
6
Section
113oftheLRA
7
Section
135(1) of the LRA
8
Section
135(5) of the LRA
9
Section
136(1) of the LRA
10
Sections
136(3) to 135(6) of the LRA
11
Or,
as I shall say once and for all, she
12
Sections
142(1) to (6) of the LRA
13
Sections
142(8) to (12) of the LRA
14
Section
138 of the LRA
15
Section
138(6) of the LRA
16
Section
138(7) of the LRA
17
Section
142Aofthe LRA
18
Section
143(1) of the LRA
19
Section
145(1) of the LRA
20
Sidumo
and Another v Rustenburg Platinum Mines and Others
2008
2 SA 24 CC para 88
21
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee, and Others
2002
5 SA 449 SCA para 11. See also
MEC:
Department of Finance, Economic Affairs and Tourism, Northern
Province v Mahumani
[2005]
2 All SA 479 SCA para 11.
22
Zondi
v MEC for Traditional and Local Government and Others
2005
3 SA 589 CC para 101
23
Section
12 of Act 12 of 2002
24
Act
4 of 2000
25
2009
6 SA 589 SCA para 56. See also
Minister
of Environmental Affairs and Tourism v George and Others
2007
3 SA 589 SCA para 17.
26
Section
21(2) of the Equality Act
27
Section
31(4) of the Equality Act
28
The reference to legal practitioners in rule 25 is in fact to those
lawyers admitted to practise as an advocate or attorney in
the
Republic. Section 213 of the LRA. This would include admitted
advocates and attorneys who are not practising as such. In
this
regard, I respectfully agree with the minority judgment of Musi JA
in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
4
BLLR 299 LAC para 26. So a legal practitioner whose name was
removed, or even struck, from the roll and who otherwise qualified
to appear at a CCMA arbitration would have to be allowed to do so.
29
udicial
Service Commission v Cape Bar Council (Centre for Constitutional
Rights as amicus curiae)
[2012]
ZASCA 115 para 21;
Democratic
Alliance v Ethekwini Municipality
2012
2 SA 151 SCA para 21 and cases referred to in that paragraph;
Democratic
Alliance v President of South Africa and Others
[2012]
ZACC 24 paras 29-32
30
Minister
of Health and Another NO v New Clicks South Africa (Pty) Ltd and
Others (Treatment Action Campaign and Another As Amici
Curiae)
2006
2 SA 311 CC para 135
31
Judicial
Service Commission v Cape Bar Council (Centre for Constitutional
Rights as amicus curiae)
[2012]
ZASCA 115 para 44
32
Section
34 of the Bill of Rights
33
Section
34 of the Bill of Rights
34
Section
144 of the LRA
35
Rule
35
36
Para
29 of the judgment of Musi JA
37
Para
37 of the judgment of Musi JA