Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and Another (JA 1/05) [2008] ZALAC 13; [2009] 4 BLLR 299 (LAC); (2009) 30 ILJ 269 (LAC) (5 December 2008)

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[2008] ZALAC 13
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Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and Another (JA 1/05) [2008] ZALAC 13; [2009] 4 BLLR 299 (LAC); (2009) 30 ILJ 269 (LAC) (5 December 2008)

3
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG.
Case No. JA 1/05
In
the matter between
Netherburn Engineering CC Appellant
t/a Netherburn Ceramics
And
Robert
Modau N.O First Respondent
Commission for Conciliation, Mediation
And Arbitration
Jane Moabelo Second Respondent
___________________________________________________________
JUDGMENT
­­­­­­­­­­­­­­­­­­­­___________________________________________________________
ZONDO JP
Introduction
[1] I have had the benefit of reading the judgment
prepared by Musi JA in this matter. I agree with him that the appeal
falls to
be dismissed. However, the approach I adopt to dispose of
the matter is somewhat different from the approach he has adopted.
For
that reason I set out below my reasons for the conclusion that
the appeal falls to be dismissed.
[2
] This
is an appeal against part of a judgment of the Labour Court in an
application in which the appellant sought certain orders
including an
order the effect of which would have been a declarator that there is
an absolute right to legal representation for
parties appearing
before the Commission for Conciliation, Mediation and Arbitration
(“
the CCMA
”)
in arbitrations relating to disputes about dismissals for misconduct
and incapacity. The appeal was unopposed but, after
hearing argument,
this Court requested Mr MJD Wallis SC of the Durban Bar to act as
amicus curiae so that we could have the benefit
of different
arguments. Mr Wallis kindly agreed to assist the Court in this way
and, with the assistance of his junior, Mr P.J
Wallis, he furnished
us with very extensive written argument which we have found very
helpful. This Court is deeply indebted to
Mr Wallis and his junior
for their assistance.
[
3] The
third respondent in this matter was previously employed by the
appellant but was dismissed for misconduct. A dispute arose
between
the appellant and the third respondent about the fairness of that
dismissal. The dispute was referred to the CCMA, the
second
respondent in this matter, for conciliation. After conciliation had
failed, the first respondent, a commissioner of the
CCMA, was
assigned to arbitrate the dispute.
Proceedings
in the CCMA
[4
] On
the date of the arbitration, the managing member of the appellant, Mr
Featherstone, brought along to the arbitration an attorney,
Mr
Higgins, to represent the appellant. The third respondent was
represented by Mr Sibiya, an official of a trade union called
South
African Scooter and Transport Allied Workers Union. Mr Sibiya
objected to the appellant being represented by an attorney.
It seems
that the appellant’s attorney thereupon moved an application
from the bar asking the commissioner to allow the appellant
to be
represented by an attorney. It was competent to move such an
application in the light of the provisions of sec 140(1) of
the
Labour Relations Act, 1995 (Act 66 of 1995) (“
the
Act
”).I do
not propose to quote those provisions at this stage in this judgment
but will do so in due course.
[5] Mr Sibiya opposed the
application. The application was based on an allegation that Mr
Sibiya was an experienced trade unionist
who had previously appeared
in many labour disputes before different tribunals whereas Mr
Featherstone would be handling such a
matter on his own for the first
time if the appellant was not allowed legal representation. The
commissioner dismissed the application
on the basis that he had
considered the relevant statutory factors relevant to the exercise of
his statutory discretion to allow
or refuse legal representation and
found that there was no proper basis to allow the appellant to be
represented by an attorney.
[6
] After
the commissioner had refused the appellant’s application to be
allowed to be represented by an attorney, the commissioner
was asked
to postpone the arbitration pending a review application which the
appellant wanted to bring in the Labour Court to have
his ruling set
aside. The commissioner also refused the application for a
postponement. Thereafter both Mr Featherstone and Mr
Higgins left the
arbitration proceedings. The commissioner continued with the
arbitration in the absence of the appellant. The
commissioner
subsequently issued an award in terms of which he found that the
third respondent’s dismissal was unfair and
ordered the
appellant to reinstate her with immediate effect and pay her a
certain amount by way of compensation.
Review
application in the Labour Court
[7
] The
appellant subsequently brought an application in the Labour Court to
have the decision of the commissioner reviewed and set
aside. The
Labour Court, through Landman J, dismissed that application. No order
as to costs was made. The Labour Court later granted
the appellant
leave to appeal to this Court against its order. Hence, this appeal.
The
appeal
[
8] When
the commissioner made his decision refusing the appellant’s
application for leave to be represented by an attorney,
sec 140(1) of
the Labour Relations Act 66 of 1995 (“
the
Act
”)
provided as follows with regard to legal representation in
arbitrations relating to disputes about dismissals for misconduct
and
incapacity:
“
(1)
If
the dispute being arbitrated is one 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
section 138 (4), are not entitled to be represented by
a legal
practitioner in the arbitration proceedings unless –
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 arbitration of the dispute.”
[9
] Sec
140(1) was subsequently repealed but the CCMA Rules which were
subsequently promulgated contained provisions that are materially
the
same as the repealed provisions of sec 140(1) of the Act.
Furthermore, the repealed provisions of sec 140 became part of
transitional
provisions.
[10
] A
study of sec 140(1) reveals that the general rule in terms of sec
140(1) of the Act is that there is no right to legal representation

in arbitrations relating to disputes concerning dismissals for
misconduct or incapacity. However, there are certain exceptions
to
that general rule. The exception provided for under par (a) is that
a party to such arbitration proceedings is entitled to
legal
representation if the commissioner and all other parties agree that
it be represented by a “
legal
practitioner
”.
The exception provided for in par (b) relates to a situation in which
the commissioner concludes that it is unreasonable
to expect a party
to deal with the dispute without legal representation after
considering certain factors which are listed in subparagraphs
(i) to
(iv). Those factors are the nature of the questions of law raised by
the dispute, the public interest and the comparative
ability of the
opposing parties or their representatives to deal with the
arbitration of the dispute. Par (a) did not apply. Under
paragraph
(b) only (iv) seems to have been relied upon by the appellant to
contend that it be granted leave to be represented by
an attorney.
Although in the founding affidavit in the review application, the
deponent thereto said that the dispute was complex,
he did not
substantiate that statement nor has it ever been subsequently
substantiated. This means that the commissioner had to
deal with the
application for leave to be represented by an attorney in
circumstances where sec 140(1)(a) did not apply nor did
sec
140(1)(b)(i), (ii) and (iii).
[11
] The
appellant indicated in its heads of argument that how the
commissioner exercised his discretion was no longer being challenged

in these proceedings. If one were to proceed on the basis that the
commissioner could grant or refuse a request for legal representation

in accordance with the provisions of sec 140(i)(b), there would be no
doubt that, having regard to the appellant’s founding

affidavit, the appellant failed to make out a case. The terms of sec
140(1) are such that, since its request for leave to be represented

by an attorney would have been based on sec 140(1)(b), the appellant
would have had to persuade the commissioner to make the conclusion

envisaged in sec 140(1)(b) because, without such a conclusion, the
appellant could not be granted leave to be represented by an

attorney. That conclusion would be to the effect that it would be
unreasonable to proceed with the arbitration without the appellant

being represented by an attorney. In its founding affidavit the
appellant did not even begin to make out such a case.
[12
] What
the appellant’s case really is seems to keep changing from time
to time. Its case before the Labour Court and before
us was that it
had an “
absolute
”
right to legal representation in the arbitration proceedings before
the commissioner in this case. That was not its case
before the CCMA
when it applied for leave to be allowed to be represented by an
attorney in those proceedings. This is apparent
from a reading of
those parts of the founding affidavit in which the deponent explained
what happened in those proceedings. When
one reads the founding
affidavit – which is where the appellant was required to make
out its case since the proceedings in
the Labour Court were motion
proceedings – one will see that it is not the appellant’s
case that sec 140(1) of the
Act is unconstitutional and that the
appellant sought to have it declared unconstitutional.
[13
] A
submission is made in par 4.19 without any substantiation at all that
the appellant “
has
a constitutional right to legal representation
”
“
especially so
as the CCMA is not a voluntary process (sic) but one which is forced
upon employers.
”
It was not pointed out in the founding affidavit where in the
Constitution that right to legal representation is provided
for. And
yet at page 14 of the judgment of the Labour Court (p. 105 of the
record) that court recorded that it was the appellant’s
case
“
that s 140(1)
of the LRA (as it read at the time of the arbitration proceedings) is
inconsistent with the provisions of the Constitution
of the Republic
of South Africa 108 of 1996 and that this Court should therefore make
an order declaring that s140(1) is constitutionally
invalid. See
section 172(2) of the Constitution
.”
I pause here to point out that in the notice of motion no such relief
was sought and in the record there is no evidence
that an application
was made to seek an amendment of the relief sought in the Notice of
Motion. That being the case, Counsel for
the appellant who appeared
in that Court – not the Senior Counsel who appeared for the
appellant before us – must have
sought that order in oral
argument.
[1
4] Mr
Wallis understood that this was the appellant’s case and dealt
with the matter on that understanding in his written
argument but
Counsel for the appellant, in their written reply thereto, made it
clear that they did not seek an order striking
sec 140(1) down as
unconstitutional. However, they conceded that in par 1.3 of the
appellant’s heads of argument the appellant
said that its
attack was against the validity of sec 140(1) of the Act and that the
section is unconstitutional. In fact par 1.3
of the appellant’s
heads of argument reads thus:
“
In the current proceedings
the appellant makes nothing of the manner in which the arbitrator
exercised the discretion conferred
by sec 140 to deny a litigant the
right to legal representation in proceedings before the CCMA. Instead
the appellant attacks the
validity of the section itself: it
contends, as it did before Landman J, that the section is
unconstitutional.”
[15] In its written argument submitted in response to Mr
Wallis’ written argument, the appellant says it is not true
that
it seeks an order that strikes sec 140(1) of the Act down. It
says in paras 5.1 and 5.2 of that reply:
“
5.1 What Netherburn submits is that the first
respondent (“the Commissioner”), in basing his decision
rejecting the
application for legal representation on s 140(1),
brought into account a legal provision that is constitutionally
invalid and so-committed
a reviewable irregularity.
CCMA commissioners have no power to make an order
declaring a statutory provision to be unconstitutional, for they do
not enjoy
the status of a superior court. They do, however, have
the power to decline to enforce the provisions of a statute that
violate
the Bill of Rights and this is so whatever the nature of
the statute.”
In the resulting review, the Labour Court has the
same power and, in addition, at least the power to strike down the
section
on the grounds that it was a provision in a labour statute
that violated the Bill of Rights. So much as we have already
pointed
out, is conceded by the amici. In the ensuing appeal this
Court naturally has at least the selfsame power. The power is one

that arguably should be exercised if the court concludes that s
140(1) of the LRA does indeed constitute a violation but its

exercise is of no direct relevance to the present appeal.
It follows that, in these proceedings, it is a
matter of no consequence whether, in the face of a violation of the
Bill of Rights,
the court has power to strike down the offending
section or not. The true question is whether a court or tribunal
has jurisdiction
to decline to enforce a statutory provision that
it considers to constitute such a violation. Every adjudicative
body, whatever
its nature, has such jurisdiction.”
The case which the appellant now pursues in terms of the
above written response to Mr Wallis written argument is completely
different
from the case which is contained in its founding affidavit
in the review application in the Labour Court. Its case in the
founding
affidavit is reflected in paragraphs 12 and 13 above.
[16] That is a different case from the case that one
finds in the appellant’s notice of appeal as being the
appellant’s
complaint against the judgment of the Labour Court.
In par 1.4 of the notice of appeal the appellant stated its complaint
as being
that the learned Judge in the Court a quo “
erred
in that he failed to find
:
1.4 that section 140(1) constitutes such an
enactment, cannot be so justified and, being in contravention of the
Constitution, must
be struck down as void.”
Indeed, in a letter addressed to the Minister of Labour
dated 24 March 2005 which is in the record the appellant’s
attorney
inter alia said:
“
In so far as our client intends challenging
the constitutionality of
Section 140
of the
Labour Relations Act 66
of 1995
, albeit repealed, you are invited to join or intervene in the
matter.”
That letter was written after the Court a quo had
granted the appellant leave to appeal. Some time earlier – in
2002- when
the matter was still pending in the Labour Court,
Sutherland AJ, sitting in the Labour Court, had issued an order by
consent postponing
the matter sine die. Paragraphs 2, 4 and 5 of the
order that he issued on that occasion read as follows:
“1. ……
By consent it is directed that all issues
constitutional and non-constitutional will be argued when the matter
is set down again.
…
The Minister of Labour will take such steps as he
deems fit to join this application as a party within 30 days of the
date of
this order.
The Minister, if he joins the application, shall
within 10 days of joining file such papers as he deems appropriate
in terms of
the rules of the Court.”
[17] It must also be pointed out that, when the appeal
was argued before us by the appellant’s Counsel, he handed up a
draft
order which he asked us to grant if we were inclined to uphold
the appeal. The relevant orders that were sought by the appellant
in
terms of that draft order read thus:
“
1. The appeal against the order of Landman J
in the Court a quo dated 22 August 2003 confirming the first
respondent’s ruling
in terms of s 140(1) of the Labour
Relations Act 66 of 1995 (“the Act”) that the appellant
is not entitled to legal
representation is upheld and his order is
set aside.
In terms of s 172(2) of the Constitution Act 108 of
1996 (‘the Constitution’) –
section 140(1) of the Act is declared to be
inconsistent with the Constitution and is accordingly invalid to
the extent that
s140(1) of the Act fails to accord a party to a
dispute about a dismissal related to conduct or capacity with an
absolute right
of legal representation;
section 140, as it stood prior to its repeal, is
deleted in its entirety.”
There were other orders sought in the draft which
related to this Court directing the Registrar of this Court to lodge
a copy of
its order with the Registrar of the Constitutional Court.
It is not necessary to quote those orders.
[18] The result is that in the notice of motion and the
founding affidavit the appellant sought to pursue one case. In oral
argument
before the Labour Court it pursued a different case. In the
notice of appeal it sought to pursue the same case it had pursued in

oral argument before the Labour Court. Before us in oral argument it
pursued the same case that it had pursued in oral argument
before the
Labour Court which was different from its case in the papers. After
reading Mr Wallis’ written argument in response
to the oral
argument it had pursued before us in the absence of opposition, the
appellant changed its mind and informed us and
Mr Wallis in its
replying written argument that its case was not the one it had in
fact pursued in oral argument but was another
one. That other one was
a new case altogether.
[19] The frequency with which the appellant’s case
has been changing in this matter as the case proceeded at different
stages
of its journey reminds me of what Lord Russell of Killowen
said in Electric and Musical Industries, Ld and Boonton Research
Corporation,
Ld v Lissen, Ld and Another
56 R.P.C 23
(HL) at 40 lines
24-35 about “
those who seek to depart
from the natural meaning of language …
”.
That was a case concerning the infringement of a patent and the
construction of a patent specification. There Lord Russell
said:
“
The Appellants, however, contend for a narrow
construction and, as is usually the fate of those who seek to depart
from the natural
meaning of language and to read in words which are
absent, the contention seems to vary from time to time. They
sometimes say it
is limited to a method of controlling amplification
when used for the purpose of accommodation weak and strong signals.
They sometimes
say it is limited to a method of amplification by the
use of a valve having a characteristic curve which possesses what has
been
called a long tail and which can be operated on throughout its
whole length without introducing excessive distortion. In the
argument
before your Lordships it was contended that the claim was
limited to a method of adjusting transmission which consists of
variation
of amplification as distinct from amplification
simpliciter.”
[20] In the light of all of the above there can be no
doubt that for some time the appellant sought an order striking down
sec 140
as being inconsistent with the Constitution. It could not
have been open to it to argue for such an order on the papers that it

had filed in the review application which did not contain such a
case. What I have set out above demonstrates that in so far as
the
amici understood the appellants’ case to be one in terms of
which sec 140 of the Act would be struck down, they were
not in
error. It is the appellant’s Counsel who are in error when they
say that that was not their case.
[21] As I have said above the appellant now says it does
not seek an order striking down sec 140. So what order does it seek
and
what is its case? I guess I should go to the appellant’s
notice of appeal to find out what order it seeks which it says the

Labour Court should have made instead of the order that it made. The
first error that the appellant says in its notice of appeal
the Court
a quo made was in finding that “section 140 of the Labour
Relations Act 66 of 1995 (“
the LRA”)
“
is in conformity with the provisions of
the Constitution of the Republic of South Africa 108 of 1996 (“the
Constitution”)
despite its prohibition on the legal
representation of a party unless the conditions in the section are
satisfied
.”
[22] In paragraphs 1.1 to 1.4 of the Notice of Appeal
the appellant sets out what it says the Court a quo erred in not
finding.
Paragraphs 1.1 to 1.4 are to the effect that the Court a quo
erroneously failed to find that:
“
1.1
sections 1(c), 23(1),
33(1) and 34 of the Constitution or one or other of them (‘the
Bill of Rights provisions’) confer,
at the very least, a
general right to representation by a lawyer in proceedings before a
public body in which the rights of a person
are positively
determined;
the Bill of Rights provisions amend the common law
to the extent that it recognizes no such general right;
that a statutory enactment can place no general
prohibition on such right of representation nor impose a
general requirement on a litigant to justify
his or her entitlement to such representation unless such
limitation is justified
under section 36 of the Constitution;
that section 140(1) constitutes such an enactment,
cannot be so justified and, being in contravention of the
Constitution, must
be struck down as
void
;”
Other alleged errors of the Court a quo are set out
under paragraph 2 of the notice of appeal but they all have one aim
and one
aim only and that is that, because of those alleged errors,
the Court a quo failed to conclude that sec 140 is inconsistent with

sections 1(c), 23(1), 33(1) and 34 of the Constitution.
[23] The appellant’s case now is that it does not
seek an order striking down sec 140 but, whatever its case is, it
says it
seeks that the Court should conclude that sec 140 is
unconstitutional in the light of the sections of the Constitution
referred
to earlier. The question that arises is: Suppose, for the
sake of argument, that we reach that conclusion, what order should we

then make if we are not asked to strike sec 140 down? In par 8.2 of
the appellant’s written argument in response to the amici’s

written argument the appellant states in the last sentence thereof
that
“(t)he argument mounted on behalf
of [the appellant] is that the restriction [to legal representation
in sec 140] constitutes
a violation of the Bill of Rights and, being
unconstitutional, should not be enforced
.”
In the light of all of the above it would seem that the appellant’s
case is that because, in its contention, sec
140 is unconstitutional,
the commissioner should have declined to enforce it and that his
failure to refuse to enforce it constitutes
a reviewable
irregularity. The appellant contends that, therefore, the order that
should be made would then be one setting aside
the arbitration award
issued by the commissioner and remitting the dispute to the CCMA to
be arbitrated afresh by another commissioner
who will have to allow
the appellant to be represented by an attorney.
[24] The above approach is premised on the allegation
that the commissioner committed a reviewable irregularity in failing
to refuse
to act in accordance with sec 140 of the Act. In other
words the appellant is saying that the commissioner should have
ignored
sec 140(1) and dealt with the matter on the basis that the
appellant had an absolute right to legal representation before him
for
which it did not need to apply.
[25] Two difficulties immediately present themselves to
me about this case that the appellant now seeks to argue. The first
one
is that this is not part of the case foreshadowed in the
appellant’s founding affidavit. The application papers that
were
served on the commissioner, on the basis of which he would have
decided that he was not going to oppose the appellant’s
application
in the Court a quo did not give him notice that this was
part of the bases upon which the appellant would seek to have his
award
reviewed and set aside. He was told of a completely different
case. The appellant’s case as foreshowed in the founding
affidavit
attacked his failure to grant the appellant legal
representation because of a supposed disparity in the abilities of Mr
Featherstone
and Mr Sibiya and not because sec 140 was an
unconstitutional provision which he should have ignored. In my view
it is not open
to the appellant to now argue a case which it did not
foreshadow in its founding affidavit, particularly where the new case
is
based on blaming the commissioner for not doing something that he
was not asked to do. He has not been given an opportunity to defend

himself against that accusation. To allow the appellant to argue such
a case would offend the
audi alteram partem
rule because, if the commissioner and the employee side were to have
been notified of this new case in the founding affidavit,
they may
have decided to oppose or to file affidavits.
[26] When you are a party to a dispute or when you were
the arbitrator or presiding officer in some proceedings and one of
the parties
brings a review application, you, of course, read the
papers to understand what the applicant’s case is and to decide
whether
to oppose or to consent to the order sought or to abide the
decision of the Court. What you do will depend partly upon the view

you take of the applicant’s case as disclosed in the papers.
If, after reading the applicant’s papers, you conclude
that
there is absolutely no case for you to answer in the light of the
contentions or the grounds of the application as disclosed
in the
founding affidavit and you decide to abide the decision of the Court,
you would feel legitimately aggrieved if you subsequently
learn’t
that the award was set aside by the Court not on the grounds
contained in the founding affidavit but on grounds that
were advanced
in oral argument which were not foreshadowed in the founding
affidavit and without you being afforded an opportunity
to oppose the
new case. On my understanding the rule that in motion proceedings the
applicant must make his case in his founding
affidavit and that you
stand or fall by your papers has not been abolished and still
applies. It serves a very useful purpose in
terms of fairness.
[27] There is nothing that can be done to remedy that
situation now because the commissioner cannot be invited to say
something
about that at appeal level. This Court is sitting in
judgment of the judgment of the Labour Court and, as a general rule,
it must
decide the appeal on the basis of the same information that
was before the Labour Court. Before the Labour Court the commissioner

had not been given notice of such point so that he could be given an
opportunity, if he so desired, to file an affidavit defending
himself
against such an allegation. On the basis of this point alone, I would
conclude that the appeal falls to be dismissed because
the alleged
unconstitutionality of sec 140 of the Act constitutes the sole and
entire basis of the appellant’s appeal. If
that attack falls
outside the case foreshadowed in the papers that would be the end of
the appeal.
[28] In the approach I have taken in this matter I am
fortified by what the Constitutional Court recently said in par 67 of
its
as yet unreported judgment in CUSA v TAO YING Metals Industries
and others, case no CCT 40/07 handed down on the 18
th
September 2008. In par 67 that Court said in part through Ngcobo J:
“
In particular, the LRA specifies the grounds
upon which arbitral awards may be reviewed.
A
party who seeks to review an arbitral award is bound by the grounds
contained in the review application. A litigant may not on
appeal
raise a new ground of review.
To
permit a party to do so may very well undermine the objective of the
LRA to have labour disputes resolved as speedily as possible.”
[29] In my view the principle affirmed by the
Constitutional Court in this passage applies with equal force to both
arbitration
awards and other rulings that commissioners of the CCMA
may be called upon to make in the process of arbitration or on
preliminary
points when such rulings or awards are taken on review to
the Labour Court. The principle also means that a party is bound by
the
grounds of review contained in the review application unless it
has subsequently amended or supplemented them which it can do with

the leave of the Court or if the Rules of Court permit. Ngcobo J said
at par 68 of the CUSA judgment that there was one qualification
to
the principle contained in the passage quoted above. That is a
qualification to the principle stated in the first two sentences
of
par 67. That principle is: “
Subject to
what is stated in the following paragraph, the role of the reviewing
court is limited to deciding issues that are raised
in the review
proceedings. It may not on its own raise issues which were not raised
by the party who seeks to review an arbitral
award
.”
The qualification was stated in par 68 thus:
“
These principles are, however, subject to one
qualification. Where a point of law is apparent on the papers, but
the common approach
of the parties proceeds on a wrong perception of
what the law is, a court is not only entitled, but is in fact also
obliged,
mero motu
,
to raise the point of law and require the parties to deal therewith.”
[30] What the Constitutional Court said in paragraphs 67
and 68 about the role of a review court is true of a party in motion
proceedings
in general including a review application. In motion
proceedings a part stands or falls by his papers. Accordingly, a
party which
brings a review application is bound by the grounds of
review set out in his founding papers. He cannot in oral argument
argue
on the basis of different grounds of review except if such
ground can be said to be apparent from the review application. In
this
case the applicant does not pursue the grounds of review
contained in the founding affidavit but seeks to argue the case on
the
basis of grounds which are nowhere to be found in the review
application. The grounds it seeks to pursue are not grounds of review

that can be said to be apparent from its review application. That
cannot be allowed.
[31] As I have already said, I would dismiss the
appellant’s appeal on the ground that the case that it now
seeks to argue
is not one that was foreshadowed in its review
application and it is not permissible for it to do so and, as it no
longer pursues
the case contained in its founding affidavit, the
application falls to be dismissed.
[32] There is another point about the case which the
appellant now seeks to argue. The appellant says that the
commissioner should
not have acted in terms of sec 140(1) of the Act
because it had an absolute right to legal representation. But the
appellant did
not say to the commissioner on the day of the
arbitration: As employer I have an absolute right to legal
representation and that
is why I have brought an attorney with me and
I insist on exercising my right! On the contrary, the appellant moved
an application
before the commissioner based on sec 140(1) of the Act
and asked the commissioner to exercise his power in terms of 140(1)
of the
Act in favour of the appellant and allow the appellant to be
represented by an attorney. Accordingly, it is the appellant itself

which asked the commissioner to deal with the matter on the basis of
sec 140(1) of the Act. That being the case, how can the appellant
now
turn around and say that the commissioner committed a reviewable
irregularity by dealing with the matter in terms sec 140 of
the Act
when it itself asked the commissioner to do so? In my view the
appellant cannot do so. Such conduct on the part of the
commissioner
cannot, in those circumstances, constitute a gross irregularity. On
this ground alone I would also dismiss the appellant’s
appeal.
[33] Furthermore, in contending that the commissioner
should have declined to give effect to the provisions of sec 140(1),
the appellant
is in effect contending that the commissioner should
have defied a statutory provision that told him what to do whenever a
party
wished to have legal representation. Sec 140(1) governed that
situation and informed the commissioner when he could grant a party

leave to be legally represented and when he could or should refuse.
The appellant wished to be legally represented. Once the commissioner

became aware that the appellant wished to be granted leave to be
represented by an attorney, he had no choice but to apply the

provisions of sec 140. Complying with the statutory provisions in sec
140(1) could not constitute a gross irregularity on the part
of the
commissioner. Instead what could and would have constituted a gross
irregularity on the part of the commissioner would have
been his
conduct if he had done exactly what the appellant now says he should
have done, namely, ignore sec 140(1) of the Act and
deal with the
matter as if sec 140(1) was not there and did not govern the
position.
[34] Accordingly, on this ground as well I would dismiss
the appellant’s appeal. However, assuming that the appellant is
entitled
to argue the case that it seeks to argue on appeal, I shall
deal with it.
[35] The appellant advanced two further contentions in
support of its appeal against the order of the Labour Court. It
referred
to the first contention as the broad argument and to the
second one as the narrow argument. I deal hereunder with each in
turn.
[36] Under the broad attack on sec 140(1) of the Act the
appellant contends that sec 1(c), 9, 23(1), 33(1) and 34 of the
Constitution
confer an absolute right of legal representation in
unfair dismissal proceedings before the CCMA. It argues that that
absolute
right flows from the fact that the CCMA:
(a) is a public and not a domestic tribunal;
(b) is required to determine a case in which one private
person seeks to vindicate the rights conferred on him/her by statute
in
proceedings which are in the nature of a civil suit brought
against another person;
(c) considers facts and circumstances placed before it
and has to determine disputes by the application of law and/or a
discretionary
power conferred by law.
(d) performs its functions in circumstances in which the
proceedings are potentially complex in nature and grave in
consequence.
[37] It is necessary to have regard to those provisions
of the Constitution which the appellant contends confer an absolute
right
to legal representation on a party in arbitration proceedings
concerning unfair dismissal disputes relating to conduct or capacity

before the CCMA. The first is sec 1(c).
Sec 1(c) reads:
“
The Republic of South Africa is one,
sovereign, democratic state founded on the following values:
the Supremacy of the Constitution and the rule of
law”
The next one is sec 9. I shall deal with sec 9 last. The
next one is sec 23(1). Sec 23(1) reads:
“Everyone has the right to
fair labour practices.”
Then there is sec 33(1). Sec 33(1) reads:
“
(1) Everyone has the right to administrative
action that is lawful, reasonable and procedurally fair.”
[38] With regard to sec 1(c) I shall assume that it is
competent for this Court to assess the constitutionality of sec 140
of the
Act against provisions of the Constitution that fall outside
the Bill of Rights. On that assumption I have no hesitation in saying

that there is nothing in sec 1(c) which confers the general or
absolute right to legal representation in arbitration proceedings

before the CCMA relating to disputes about dismissals for misconduct.
The appellant’s contention is completely devoid of
merit. The
same conclusion applies to the contention based on sec 23(1), 33 and
34 of the Constitution. With regard to sec 23(1)
it must be
remembered that the Act is the legislation that was enacted to give
effect to, inter alia, the right to fair labour
practices provided
for in sec 23(1) of the Constitution. With regard to sec 23(1) no
reference is made to a right to legal representation.
In any event,
although the Constitutional Court has held in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others CCT 85/06
that arbitration proceedings conducted by the CCMA in respect of
dismissals for misconduct constitute administrative action, it
has
held that the provisions of the Promotion of Administrative Justice
Act – which is the legislation that was enacted to
give effect
to the right to just administrative action provided for in sec 33(1)
of the Constitution – does not apply to
arbitration proceedings
conducted in terms of the Act by the CCMA in respect of dismissal
disputes.
[39] Sec 34 of the Constitution reads:
“
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”.
Sec 34 makes no mention of a general or absolute right
to legal representation. The only conceivable basis upon which it
could be
argued that sec 34 provides for such a right would be to say
that there can be no fair public hearing such as is contemplated by

sec 34 without legal representation for a party that wants legal
representation in a public hearing. Quite obviously there would
be no
merit in such argument because sec 34 does not have the effect that
since February 1997 – when the Constitution came
into operation
– every party to a dispute that is the subject matter of a
public hearing by a tribunal or other forum which
is not court of law
where it resolves disputes by the application of law has a right to
legal representation. In my view that is
not only not the law but
also it is not desirable that it should be the law. Once again the
appellant’s reliance upon sec
34 of the Constitution in support
of its contention is, in my view, fundamentally flawed.
[40] The appellant’s broad attack has as its point
of departure the submission that at common law a party to proceedings
before
an administrative body such as the CCMA has a right to legal
representation albeit not in every case. Mr Wallis has submitted that

this premise of the appellant’s case is fundamentally flawed
because that is not a correct statement of the legal position.
I
agree with Mr Wallis. The position at common law is and, as far as I
am aware, has been for ages, that before such bodies there
is no
general right to legal representation but that in certain
circumstances a party may be entitled to legal representation,
for
example, if the matter involves complex legal issues. What the
appellant has sought to do in stating the legal position as
it has
done is to take the exception and make it the norm and take the norm
and make it the exception. That is putting the principle
upside down.
At common law there is no general or absolute right to legal
representation in proceedings before administrative bodies.
The
rejection of the appellant’s proposition in this regard
disposes of a large part of its argument because much of its
various
arguments were dependent upon the appellant’s proposition in
this regard being correct.
[41] Section 9 of the Constitution also does not provide
for any right to legal representation, let alone an absolute right to
legal
representation. Sec 9(1) of the Constitution reads:
“
Everyone is equal before the law and has the
right to equal protection and benefit of the law.”
[42] The appellant’s so-called narrow argument
also relies partly on sec 9 of the Constitution. The appellant
submitted that
sec 140(1) of the Act conflicts with sec 1(c) and sec
9 of the Constitution in that it is arbitrary in its effect and
unequal in
its operation. Conflating that part of the narrow argument
that is based on arbitrariness and the part based on inequality, the

appellant submitted that unequal treatment is normally justifiable if
it is rationally connected to a legitimate government purpose.

Counsel for the appellant pointed out that by parity of reasoning,
unreasonable legislation generally produces no actionable complaint

where it is rationally connected to a legitimate government purpose.
Ultimately, Counsel for the appellant pointed out in their
heads of
argument that the attack under the broad heading recognises that the
regime created by section 140(1) will be defended
on the grounds that
the regime is a justifiable limitation of the right to legal
representation. He pointed out that the “
attack
on the narrow ground takes those justifications and responds to them
by point[ing] out that, even if they have substance
in principle, the
section fails properly to give effect to them.
”
[43] A careful consideration of the appellant’s
argument actually reveals that, once it is accepted that neither the
common
law nor the Constitution provides for an absolute or general
right to legal representation in proceedings before administrative

bodies, there is nothing actually left of the appellant’s
appeal and it becomes unnecessary to discuss many of the arguments

advanced because they were all based upon the premise that there is
such a general or absolute right. There is no point in discussing
any
limitation to that right because there is no right to limit in the
first place. If there is an argument to consider, it may
be one that
says the Act provides for a right to legal representation in regard
to many arbitrations that it provides for but excludes
that right in
respect of arbitrations concerning disputes about dismissals for
misconduct and such exclusion is irrational or arbitrary.
[44] To the extent that the Act provides for legal
representation in certain arbitrations but does not treat arbitration
proceedings
relating to dismissals for misconduct equally or in the
same way, there is justification for such limitation. Those cases in
which
the Act may be providing for a right to legal representation
are different from cases of dismissal for misconduct. 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.
[45] 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 all of 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.
[46] 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, 1956 which had
become totally untenable by the time the 1995 Act was passed. That
cannot
be done.
[47] In conclusion I find that the appellant’s
contention that there is a general or absolute right to legal
representation
before the CCMA in arbitration proceedings concerning
disputes about dismissals for misconduct or incapacity falls to be
rejected
because there is no such right. However, even if there was
such a general right to legal representation in arbitration
proceedings
before the CCMA, I would be satisfied that the exclusion
thereof or its limitation in those arbitration proceedings that
relate
to dismissals for misconduct was fully justifiable and
justified. Accordingly, the appeal must fail. As the appeal was
unopposed,
the issue of costs does not arise.
[48] In the premises the appeal is dismissed.
ZONDO JP
I agree.
JAPPIE JA
Appearances:
For the appellant : Mr M.S.M Brassy SC
Instructed by : Bowman Gilfillan Inc
For the respondents : No appearance
At the request of the
Court as Amici : Mr M.J.D Wallis SC
(with Mr P.J Wallis).
Date of judgment : 5 December 2008
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
Case No.: JA1/2005
In the case between:
NETHERBURN
ENGINEERING CC
Applicant
t/a NETHERBURN
CERAMICS
and
R MUDAU AND TWO
OTHERS
Respondent
JUDGMENT
_____________________________________________________
H.M. MUSI, J.A.
INTRODUCTION
[1] This appeal concerns
the constitutionality of section 140(1) of the Labour Relations Act
no. 66 of 1995 (“the LRA”)
which restricts the right to
legal representation in arbitration proceedings conducted under the
auspices of the Commission of
Conciliation, Mediation and Arbitration
(“the CCMA”) concerning unfair dismissals based on
misconduct and incapacity.
It is an appeal against a judgment of
Landman J delivered in the Labour Court on 31 August 2003. The
appeal is before this Court
with leave for the court
a
quo
.
The judgment of the court
a
quo
is
reported as Netherburn Engineering CC t/a Netherburn Ceramics v R
Mudau and Others (2003) 24 ILJ 1712 (LC).
[2] The matter arises
from the dismissal by the appellant of Miss Jane Moabelo, the third
respondent, from its employ on account
of alleged misconduct.
Conciliation having failed, the dispute was arbitrated by the first
respondent under the auspices of the
CCMA, the second respondent.
When the parties initially reported for the arbitration hearing, the
appellant was represented by
an attorney. The arbitrator, acting in
terms of section 140(1) of the LRA, refused to allow legal
representation, whereupon the
appellant requested a postponement as
the director representing it had not been prepared to conduct its
case on his own. The application
was refused, whereupon the director
walked out together with his attorney and the hearing continued in
the appellant’s absence.
The arbitrator ruled that the third
respondent’s dismissal had been unfair and ordered the
appellant to pay her compensation.
[3] The matter was taken
on review to the Labour Court. The latter Court set aside the
arbitration award on the basis that the
arbitrator had misdirected
himself in refusing to grant the applicant a postponement and
proceeding with the hearing in its absence.
It referred the matter
to the CCMA for a hearing
de
novo
.
[4] The appellant had
argued as part of the review grounds that it was entitled to legal
representation as of right and that insofar
as section 140(1)
purported to subject the exercise of such right to discretion by a
commissioner of the CCMA, it was in conflict
with the Constitution.
It thus sought an order directing the CCMA to allow it legal
representation at the new hearing. The court
a
quo
ruled against the appellant on this point and declined to grant the
additional order sought. It is against the latter decision
that the
appellant now appeals.
[5] I should point out at
once that this constitutional challenge was not foreshadowed in the
appellant’s founding affidavit
in its review application. It
would seem to have been raised for the first time in argument before
the court
a
quo
.
But then the court
a
quo
allowed it to be argued and ultimately decided it. Leave to appeal
to this court was granted precisely because the court
a
quo
was
of the view that another court could come to a different conclusion
on the same issue. In my view, it would, in the circumstances,
be in
the interest of justice that we deal with the issue notwithstanding
the fact that it was not part of the applicant’s
review
application.
[6] I should mention at
this junction that the Ministers of Labour and of Justice and
Constitutional Development were notified of
the constitutional
challenge in the court
a
quo
but
neither Minister deemed it necessary to intervene in the proceedings.
When the matter came to this court, the Minister of
Labour was again
notified but again declined to intervene. On the other hand, the
respondents did not oppose the appeal in this
Court, so that it was
heard as an unopposed matter. However, having heard counsel for the
appellant we felt that we needed the
benefit of another view on the
matter and advocate M. J. D. Wallis SC was invited to act as
amicus
curiae
and to submit written submissions. He obliged and submitted full
heads of argument with the assistance of Adv. P. J. Wallis.
Counsel
for the appellant then filed further heads of argument in response to
the points raised by the
amici
curiae
.
JURISDICTION
[6] The appeal was
initially argued on the basis that this Court has jurisdiction to
pronounce on the constitutionality of the statutory
provision under
attack and to strike the provision down if it was found to be
unconstitutional. However, the
amici
curiae
have suggested that the matter is not that straightforward. They
argued that this Court’s jurisdiction is limited to striking

down only those statutory provisions which are in violation of the
rights enshrined in chapter 2 of the Constitution. The reason
for
this proposition is that since the Labour Court and this Court are
creatures of statute, they have jurisdiction only in respect
of those
matters that have been assigned to them by statute. It was argued
that whereas section 172(2) of the Constitution grants
the Labour
Court, as a court of similar status with the High Court, the power to
pronounce on the validity of an Act of parliament,
this power relates
only to matters that have been specifically assigned to the Labour
Court. Counsel referred to section 157(2)
of the LRA which provides
that the Labour Court has concurrent jurisdiction with the High Court
on alleged or threatened violations
of any fundamental right
contained in chapter 2 of the Constitution arising
inter
alia
from
employment relations and the administration of the laws which fall
under the responsibility of the Minister of Labour and submitted
that
this jurisdiction is confined to considering the validity of
statutory provisions impinging on the rights contained in chapter
2.
In the result, so it was contended, the Labour Court, and
consequently this Court, have no jurisdiction in respect of
violations
of the rights falling outside chapter 2, like the legality
provisions contained section 1 of the Constitution.
[7] In response, counsel
for the appellant made a somewhat puzzling submission. He said that
the
amici
have missed the point, that the appellant does not seek to have the
impugned provision struck down. It is apposite to quote from
the
additional heads of argument.
“
5.1 What Netherburn submits is
that the first respondent (“the Commissioner”), in basing
his decision rejecting the
application for legal representation on s
140(1) brought into account a legal provision that is
constitutionally invalid and so
committed a reviewable irregularity.
CCMA commissioners have no power to
make an order declaring a statutory provision to be
unconstitutional, for they do not enjoy
the status of a superior
court. They do, however, have the power to decline to enforce the
provisions of a statute that violate
the Bill of Rights and this is
so whatever the nature of the statue.”
Counsel goes on to state
the following:
“
5.4 It follows that, in these
proceedings, it is a matter of no consequence whether, in the face of
a violation of the Bill of Rights,
the court has a power to strike
down the offending section or not. The true question is whether a
court or tribunal has jurisdiction
to decline to enforce a statutory
provision that it considers to constitute such a violation. Every
adjudicative body, whatever
its nature, has such jurisdiction.”
[8] I say that this
submission is puzzling because the essence of the appellant’s
case has always been that section 140(1)
is unconstitutional and that
it should be struck down. In fact counsel adopted this stance
throughout the course of his oral argument.
He made it clear that he
considered section 140(1) to be...
“
totally inconsistent and
incoherent that it has to be struck down on the ground of
irrationality”.
The point, however, is
that even if we were to approach this appeal on the narrow basis that
the commissioner committed an irregularity
in the sense that he based
his decision on an invalid statutory provision, we will still have to
rule on the question of whether
the provision is indeed
unconstitutional and therefore invalid.
[9] In my view, the
Labour Court does have jurisdiction to decide on the validity of the
impugned provision where it allegedly violates
any of the rights
enshrined in the Constitution and not only those contained in chapter
2. Section 157(1) of the LRA provides:
“
Subject to the Constitution and
section 173, and except where
this
Act
provides otherwise, the
Labour Court has exclusive jurisdiction in respect of all matters
that elsewhere in terms of
this
Act
or in terms of any
other law are to be determined by the Labour Court.”
What this means is that
the LRA is not the only source of the powers of the Labour Court but
that other laws may confer jurisdiction
on it. One such law is the
Constitution which, in terms of section 172(2), gives the Labour
Court the power to enquire into and
make orders concerning the
constitutional validity of an Act of Parliament.
[10] But of course this
does not mean that the Labour Court can pronounce itself on the
constitutional validity of any statutory
provision. Its powers are
confined to constitutional disputes arising from employment and
labour relations. See
CHIRWA
v TRANSNET LTD AND OTHERS
[2007] ZACC 23
;
2008 (3) BCLR 251
(CC) at 286 par. 115. Quite clearly the
constitutionality of the impugned provision falls within the
jurisdiction of the Labour
Court and this Court. Regarding the
submission that such jurisdiction is confined to threatened
violations of the fundamental
rights enshrined in chapter 2 of the
Constitution and not the rights embodied in section 1 of the
Constitution, it has been laid
down by the Constitutional Court that
the values embodied in section 1 of the Constitution do not give rise
to enforceable rights
but are rather guiding principles that inform
the application and interpretation of all other provisions of the
Constitution.
See
CHIRWA
v TRANSNET
,
supra
at paragraphs 74 and 75.
THE IMPUGNED
PROVISION
[11] It is important to
reproduce section 140(1) of the LRA. As it is closely linked to
section 138(4) it becomes necessary to
reproduce the latter section
as well. I quote these sections in the order in which they appear in
the Act. Section 138(4) provides
as follows:
“
In any arbitration proceedings,
a party to the dispute may appear in person or be represented only
by:
a legal practitioner;
a director or employee of the party;
or
any member, office-bearer or official
of that party’s registered trade union or a registered
employer’s organisation.”
Section 140(1) provides
as follows:
“
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 section 138(4), are not entitled to be
represented by a legal
practitioner in the proceedings unless-
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.”
The first ground of
attack
[12] The first of the
several grounds upon which the constitutionality of section 140(1) of
the LRA is attacked, is that it infringes
the rule of law
encompassing the legality principle enshrined in section 1(c) of the
Constitution as well as certain rights contained
in chapter 2 of the
Constitution, namely the right to equality (section 9), the right to
fair labour practices (section 23(1)),
the right to administrative
action that is lawful, reasonable and procedurally fair (section
33(1)) and the right to have access
to courts and other tribunals
(section 34). In oral argument, counsel for the appellant referred
to this ground as the rights
or broad argument. It is dubbed a
“rights argument” because it implicates the infringement
of rights and is based
on the constitutional principle that one of
the constraints of the exercise of legislative power is that it must
not infringe on
the rights contained in the Bill of Rights. See
NEW
NATIONAL PARTY OF SOUTH AFRICA v GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS
[1999] ZACC 5
;
1999 (3) SA 191
(CC) par. 20;
AFFORDABLE
MEDICINES TRUST AND OTHERS v MINISTER OF HEALTH OF THE RSA AND
ANOTHER
[2005] ZACC 3
;
2005 (6) BCLR 529
(CC) par. 76. The argument proceeds from the
premise that these provisions, either individually or collectively,
provide for a
right to legal representation in unfair dismissal
proceedings before the CCMA. Of course none of these provisions
contain any
mention of legal representation, so that the argument
boils down to saying that such right must necessarily be inferred.
In my view, this ground
of attack can best be considered with reference firstly to the common
law position regarding legal representation
in proceedings before
statutory bodies and other tribunals.
The
common law position
[13] At common law the
basic requirement for the conduct of proceedings before statutory
bodies and domestic tribunals is that
there must be conformity with
the principles of natural justice to ensure procedural fairness. The
issue of legal representation
is regulated by whatever statute,
regulation or rule that may be applicable, which may allow or
preclude it. Where it is neither
allowed nor prohibited, the
tribunal has a discretion to allow it in appropriate circumstances.
In short, there is no absolute
right to legal representation. See
DABNER
v SOUTH AFRICAN RAILWAYS AND HARBOURS
1920 AD 583
at 598;
DLADLA
AND OTHERS v ADMINISTRATOR, NATAL, AND OTHERS
1995 (3) SA 769
(NPD).
[14] The matter of
HAMATA
AND ANOTHER v CHAIRPERSON, PENINSULA TECHNIKON INTERNAL DISCIPLINARY
COMMITTEE, AND OTHERS
2002 (5) SA 449
(SCA) is of particular significance because it was
decided after the advent of constitutionalism in South Africa. There
the Supreme
Court of Appeal reaffirmed that at common law there is no
“entitlement as of right to legal representation” in
proceedings
before statutory bodies and other tribunals and that the
Constitution has not abrogated the common law position. The court
expressed
itself as follows at p. 458 C:
“
In short there is no
constitutional imperative regarding legal representation in
administrative proceedings discernable, other than
flexibility to
allow for legal representation but, even then, only in cases where it
is truly required in order to obtain procedural
fairness.”
But then the court made
an important qualification to the common law. It said that under the
Constitution it is imperative to allow
for flexibility so that
tribunals are vested with a discretion to permit legal representation
in appropriate circumstances where
legal representation is necessary
in order to ensure procedural fairness and that a rule that prohibits
the exercise of a discretion
cannot pass muster under the
Constitution. In this way the court brought the common law in line
with the underlying values for
the Constitution. The decision in
HAMATA
was followed in
MEC:
DEPARTMENT OF FINANCE, ECONOMIC AFFAIRS & TOURISM, NORTHERN
PROVINCE v MAHUMANI
(2005) 2 ALL SA 479
(SCA).
The position under
PAJA
[15] The enactment of the
Promotion of Administrative Justice Act no. 302 of 2000 (PAJA) sheds
light on the issues under consideration.
This Act was passed
specifically in order to give effect to section 33 (1) of the
Constitution providing for the right to administrative
action that is
lawful, reasonable and procedurally fair. The only section in this
enactment that bears on legal representation
is section 3(2)(a) and
it is significant that it confers no right to legal representation in
proceedings before administrative
tribunals but rather confers a
discretion on an administrator to give “an opportunity to
obtain assistance and, in serious
or complex cases, legal
representation”. This is, in my view, a restatement of the
common law as subsumed in the Constitution
and I can find no
fundamental difference between it and the impugned provision. In
enacting PAJA, Parliament was implementing
a constitutional mandate
and would have had the values of the Constitution in mind. As was
stated in
HAMATA
(at
457) there was what can only be construed “a deliberate
omission to award or recognise” a general right to legal

representation and that “section 3(2)(a) recognises and
reaffirms what had long been axiomatic in the common law, namely,

that a fair administrative procedure depends on the circumstances of
each case”.
[16] The
amici
curiae
referred to the case of
RUSTENBURG
PLATINUM MINES LTD (RUSTENBURG SECTION) v THE COMMISSIONER OF
CONSILIATION, MEDIATION AND ARBITRATION AND OTHERS
(2006) 27 ILJ 2076 (SCA) which was decided after the judgment of the
court
a
quo
and
whilst this appeal was pending. It was there held that the arbitral
decisions of the commissioners of the CCMA constitute
administrative
action as defined in PAJA and that the latter Act overrides the LRA.
The court laid down that commissioners of
the CCMA should be guided
by the provisions of PAJA in the conduct of arbitration proceedings.
Although this case dealt with the
provisions of section 145(1) of the
LRA, its decision is equally applicable to all the provisions of the
LRA relating to conduct
of arbitration proceedings before the CCMA.
The effect of this judgment is that section 3(2)(a) of PAJA would
take precedence
over the provisions of both section 138(4) and
section 140(1) of the LRA, which would mean that legal representation
in all CCMA
arbitration proceedings would be subject to the
discretion of the presiding commissioner. The
amici
curiae
submitted on this basis that the appellant should have directed its
constitutional challenge to section 3(2)(a) of PAJA. This
is
tantamount to saying that the present appeal is futile.
[17] The decision in
RUSTENBURG
PLATINUM MINES
,
supra
has since been overruled by the Constitutional Court in
SIDUMO
AND ANOTHER v RUSTENBURG PLATINUM MINES LTD AND OTHERS
[2007] ZACC 22
;
2008 (2) BCLR 158
(CC). Whilst agreeing that the awards of the CCMA
constitute administrative action as defined in PAJA, the court
nonetheless ruled
that the provisions of PAJA cannot take precedence
over those of the LRA in the adjudication of employment and labour
disputes
and therefore that CCMA arbitrations must be conducted in
terms of the provisions of the LRA. It is significant that even
though
the issue of legal representation in proceedings before the
CCMA did not pertinently arise in
SIDUMO
,
passages in the majority judgment reveal that the Constitutional
Court was aware of the provisions of the LRA that limit the rights
to
legal representation in such proceedings. In distinguishing between
the CCMA as an administrative tribunal and a court of law,
the court
had this to say at p. 184, par. 85:
“
The CCMA is not a court of law.
A commissioner is empowered in terms of section 138(1) to conduct
the arbitration in a manner that
he or she considers appropriate in
order to determine the dispute fairly and quickly but with the
minimum of legal formalities.
There is no blanket right to legal
representation.”
And at p. 191, par. 118
the court acknowledges that employees are usually not represented and
this is linked to the informal nature
of the proceedings and the need
for a speedy resolution of labour disputes.
[18] It is not without
significance that
SIDUMO
endorsed what was stated in
BATO
STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) par. 25 to the effect
that PAJA is a codification of the common law grounds of review, so
that administrative review now proceeds
under PAJA. In stating this,
the Constitutional Court, like the SCA in
HAMATA
,
supra
and
RUSTENBURG
PLATINUM MINES
,
supra
,
was aware of the common law, now subsumed in PAJA, which vests
administrative tribunals with a discretion in matters of legal

representation. And PAJA is sourced directly from the Constitution.
Distinguishing
the CCMA from other tribunals
[19] The appellant was
clearly aware of the common law position and, in particular, it did
not challenge the authority of the
HAMATA
judgment. For that reason the appellant made it clear that it did
not argue that the Constitution provides for an absolute right
of
legal representation in all proceedings before administrative
tribunals. The appellant sought a way out by drawing a distinction

between dismissal proceedings before the CCMA and proceedings before
other tribunals. It was contended that in regard to unfair
dismissal
dispute proceedings before the CCMA sections 1(c), 9, 23(1), 33(1)
and 34 of the Constitution provide for an absolute
right to legal
representation whereas this is not the case with proceedings before
other tribunals. The basis of this distinction
is the allegedly
peculiar nature of the function performed by the CCMA when
arbitrating unfair dismissal disputes. The features
or
considerations that are said to make the CCMA different from the
other tribunals are the following:
that the CCMA is a
public tribunal which is required to determine conflicting claims by
private persons or entities based on the
rights conferred by
statutes;
that it determines the
issues by a consideration of the facts put before it and the
application of the law to the facts;
that the issues are
potentially complex and the consequences always grave for the
parties and that such proceedings are in the
nature of a civil
dispute in a court of law.
[20] The first difficulty
I have with this proposition is that there is no basis either in the
common law or under the Constitution
for distinguishing between the
CCMA and other statutory tribunals. They all perform similar
functions and the same principles
underlie the manner in which they
operate. Although each of the various public tribunals deals with a
different subject matter,
in all cases the disputes range from the
simple to the complex, the potential for complexity is always lurking
and the consequences
for the parties may be grave. The
considerations referred to above are present in varying degrees in
all disputes involved in
proceedings before other statutory tribunals
and are not peculiar to the CCMA. No wonder when the presiding judge
asked the appellant’s
counsel what would distinguish the
function of the CCMA from, say, that of the Liquor Licensing Board,
counsel could not give a
direct answer. He instead shifted the focus
away from inferring an automatic right to legal representation in the
Constitution
to locating such a right in the provisions of the LRA.
[21] The other problem is
that the proposition presupposes that the nature of the function of
the CCMA is peculiar in respect of
proceedings involving unfair
dismissals and not so when it arbitrates other types of dispute. In
other words, the CCMA, like a
chameleon, changes colours, becoming
green when it arbitrates dismissal disputes and yellow when it
arbitrates other types of dispute.
And why would the Constitution
confer an entitlement to legal representation as of right in respect
of unfair dismissal proceedings
and withhold it in respect of other
proceedings? In my view, the distinction sought to be drawn between
the CCMA when arbitrating
unfair dismissal disputes, on the one hand,
and when arbitrating other types of dispute and other tribunals, on
the other, is artificial.
The attack under the broad argument stands
to fail.
The
rationality challenge
[22] The main thrust of
the appellant’s case was that section 140(1) is irrational. As
counsel for the appellant put it,
all the appellant’s grounds
of attack converge in a rationality challenge. This challenge is
mounted under two further grounds.
In oral argument counsel for the
appellant referred to these as the “implicated” argument
and the equality argument.
They are two sides of the same coin, for
as counsel conceded, the same rationality test is valid for both
grounds. Before dealing
with these grounds I should mention that the
amici
curiae
correctly pointed out that rationality as a constitutional principle
derives from the rule of law provision of section 1(c) of
the
Constitution, which encompasses the principle of legality. However,
the
amici
submitted that this court cannot entertain the challenges based on
this provision on the basis of their earlier submission that
the
jurisdiction of the Labour Court (and this court) is confined to a
consideration of the challenges implicating the rights contained
in
the Bill of Rights provision of the Constitution.
[23] I have already
indicated that this submission cannot be correct. It emanates from
the wrong proposition made by the appellant
to the effect that the
right to legal representation can be sourced from section 1 of the
Constitution. As pointed out in par.
[10] above, section 1 does not
confer enforceable rights. Moreover rationality is one of the
yardsticks or standards by which
the constitutionality of all
statutory enactments, and indeed the exercise of all public power by
the executive and other functionaries,
is tested. This test of
rationality has been stated in various constitutional court judgments
as entailing that there must be
a rational connection between the
challenged statutory provision and the achievement of a legitimate
government purpose. Absent
such connection and the provision is
irrational and unconstitutional. See
NEW
NATIONAL PARTY OF SOUTH AFRICA v GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS
,
supra
par. 19;
PHARMACEUTICAL
MANUFACTURERS OF SA: IN RE EX PARTE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
[2000] ZACC 1
;
2000 (2) SA 674
(CC) par. 85;
AFFORDABLE
MEDICINES TRUST AND OTHERS v MINISTER OF HEALTH OF THE RSA AND
ANOTHER
supra
at par. 74.
[24] Under the implicated
argument the appellant engaged in an analysis of the impugned
provision in relation to section 138(4)
and other provisions of the
LRA, and sought to show that the provision is irrational. Central to
this argument are two propositions.
The first is that section 138(4)
is an overarching provision that confers a general right of legal
representation in arbitration
proceedings under the auspices of the
CCMA and that section 140(1) is an exception that restricts such
right. The second proposition
is that the restriction on legal
representation embodied in the impugned provision applies only to
practicing lawyers.
Are
only practicing lawyers excluded?
[25] The proposition that
only practicing lawyers are excluded permeates all the facets of
debate under the present heading and
is the common denominator in
almost all of the instances cited for the alleged irrationality of
the provision. The basis of the
proposition is that the
employer-companies can take into their employ persons admitted to
practise as advocates or attorneys and
that these can then represent
them in CCMA arbitrations. Likewise trade unions can take into their
employ admitted advocates or
attorneys who can then represent them.
Furthermore it is contended that academic lawyers and other legally
qualified people are
not excluded, so that whereas section 140(1)
purports to prohibit legal representation, in practice it fails to
achieve this purpose
and therein lies the irrationality, so the
argument goes.
[26] The problem with
this proposition is that it misconstrues the definition of legal
practitioner. Section 213 of the LRA defines
legal practitioner as
“any person admitted to practise as an advocate or an attorney
in the Republic”. This means
that as long as a person is
admitted either as an advocate or attorney, whether he/she is in
private practice or not, he/she is
excluded from representing parties
in proceedings contemplated in section 140(1). It stands to reason
that an admitted advocate
or attorney employed by a company or a
union cannot appear in such proceedings in the disguise of a company
executive or union
representative. The same would be the case with a
university professor or lecturer. As long as he/she is admitted as
an advocate
or attorney, he/she is excluded. That leaves only
persons who are legally qualified but are not admitted as either
advocate or
attorney. It can be accepted that there would be very
few people countrywide sitting with either a B.Proc or LL.B who would
not
have been admitted as either an attorney or advocate. This is so
because those who study the law have as their ultimate objective
to
qualify as either attorney or advocate and even those who do not
practise want the designation because of the esteem that goes
with
it. That is why university lecturers generally get themselves
admitted as either attorney or advocate and people with LL.B.
degrees
employed in government departments and private institutions generally
prefer to be admitted as advocates precisely because
of the esteem
that goes with that designation. The fact that a negligible number
of pseudo lawyers can represent parties via the
backdoor cannot
justify the conclusion that the provision fails to achieve its
purpose and is irrational. In this regard there
is nothing stopping
the CCMA from verifying in each case whether a representative is an
admitted attorney or advocate.
[27] The contention that
the impugned section fails to achieve its purpose because it excludes
only practicing lawyers features
prominently in another contention
made on behalf of the appellant, namely, that it is impossible to
identify what is the legitimate
government purpose that the section
is meant to serve. In this regard the appellant identified four
possible reasons why legal
representation is excluded. Firstly, the
need to ensure that there is equality in the capacity of the
employers and employees
to conduct their respective cases or, to
adopt the phraseology of counsel for the appellant, to ensure parity
of arms. Secondly,
to curtail legalism and keep the proceedings
informal. Thirdly, to minimise delays occasioned by the need to
accommodate the schedules
of lawyers. Fourthly, the notion that
individual unfair dismissals are generally unimportant or simple, to
again adopt the phraseology
employed by counsel for the appellant.
[28] The thrust of the
appellant’s argument in this regard is that the whole purpose
of achieving parity of arms, minimising
delays and making the
proceedings informal, is defeated because non-practising lawyers can
appear. This, it was argued, rendered
the impugned provision
irrational. Much emphasis was placed on the consequences of unfair
dismissals. The appellant’s counsel
said that when a person’s
livelihood or the legality of an employee’s dismissal is at
stake, it is a grave matter and
submitted that every dismissal
dispute holds grave consequences for the parties. Counsel echoed the
sentiments attributed to Lord
Denning in
PETT
v GREYHOUND RACING ASSOCIATION LTD
(1969) 1 QB 125
(CA)
1998 (2) ALL ER 545
, to the effect that the fact
that a man’s livelihood is at stake, is a grave matter. It was
submitted that rather than subjecting
the grant of legal
representation to a discretion, logic demands that there should in
fact be representation as of right. It was
further contended that it
is absurd to expect a commissioner of the CCMA to properly determine
beforehand whether the matter is
complex or not in order to be able
to exercise his/her discretion either way and that the matter is
compounded by the fact that
once a discretion is exercised against
the grant of legal representation, it cannot be reversed if it should
later become apparent
that the matter is in fact complex.
[29] In my view, the
answer to the contentions around the gravity and complexity of
individual unfair dismissal disputes, has been
provided by the
amici
curiae
.
The issue is not the gravity of the consequences of the dismissal
but rather the complexity thereof. This is so because dismissal
will
always entail adverse consequences for the employee, in particular.
It is the nature and complexity of the issues, both of
fact and of
law involved, whether the issues implicate the public interest and
the comparative ability of the parties or their
representatives to
adequately deal with the issues that inform the decision whether to
permit legal representation. A commissioner
will always be able to
determine these by making proper enquiries ahead of the hearing and
he/she does not need powers of divination
to do this. Nor is there
merit in the suggestion that only the parties can determine
complexity. Besides, if there is unanimity
amongst the parties that
the issues are complex, they can consent to legal representation.
And there are ample remedies available
to the party who feels that
the refusal to permit legal representation has resulted in an unfair
process. In addition, a party
who is convinced that the issues are
complex and genuinely fears that the commissioner may not appreciate
this, can have recourse
to the provisions of section 191(6) of the
LRA.
Contrasting
section 138(4) and section 140(1)
[30] I now turn to
consider the proposition that section 138(4) provides for an
automatic right of legal representation and that
section 140(1) is an
exception to it that limits such right. The matter can best be
approached by first determining what is the
purpose that the impugned
provision is meant to serve. In this regard, the court
a
quo
referred to the Explanatory Memorandum on the Labour Relations Bill
as published in (1995) 16 ILJ 70 (the Memorandum). The Memorandum

takes into account the experience drawn from the application of the
1956 LRA and points out that under the latter Act resolution
of
labour disputes had, contrary to earlier intentions, become
legalistic in form with the result that the process had become
expensive, inaccessible, protracted and adversarial. The Memo
attributes this to the involvement of lawyers and recommends that
the
best way of correcting the situation is to exclude them from the
process. Now it made be argued that it was unreasonable to
blame
lawyers and to exclude them from the process, but it is not for this
court to decide on issues of reasonableness under the
present
argument. See
NEW
NATIONAL PARTY OF SOUTH AFRICA v GOVERNMENT OF THE REPUBLIC OF SOUTH
AFRICA AND OTHERS
,
supra
at p. 206 C – F.
[31] In my view, the
impugned provision is rationally connected to the purpose of
achieving speedy, cheap, accessible and informal
resolution of labour
disputes. Section 138(1) makes it clear that the expeditious
resolution of the dispute must also ensure that
its substantial
merits are dealt with and as long as this is done, the effectiveness
of the process is ensured as well. It is
noteworthy, as the
amici
curiae
have pointed out, that in spite of pleas to the contrary, Parliament
proceeded to implement the proposals contained in the Memorandum.
It
can therefore not be said that Parliament was not aware of the sort
of criticism raised in this appeal.
[32] It is against this
background encompassing the rationale behind the exclusion of legal
representation that sections 138(4)
and 140(1) should be read.
Subsection 1 of section 138 bears some significance and it is
appropriate to reproduce it. It reads:
“
1. The commissioner may conduct
arbitration in the 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.”
This echoes the theme of
the Memorandum. Section 140(1) concretises such theme and, viewed in
its proper prospective, it is a substantive
provision that gives
effect to the overall purpose of ensuring speedy, cheap and informal
resolution of disputes. This also means
that the impugned provision
is rationally connected to a legitimate government purpose and passes
the test of rationality.
[33] Section 138, on the
other hand, deals with matters of procedure and it is particularly
significant that legal representation
is located within this context
of procedural provisions. This signifies that subsection 4, which is
the only clause containing
the notion of legal representation, is not
a substantive provision. Within the context of the broader scheme of
exclusion of legal
representation in dismissal proceedings,
subsection 4 of section 138 is an exception and should be read
subject to the provisions
of section 140(1). The nature of the
clause can also be gleaned from the fact that legal representation as
such is not mentioned.
Rather the provision mentions a legal
practitioner in the context of people who have
locus
standi
to appear on behalf of parties in arbitration proceedings, like
company executives and trade union officials.
[34] The contention that
section 140(1) constitutes a qualification of the right conferred by
section 138(4) arises from the order
in which the two sections appear
and the wording of section 140(1), especially the insertion of the
phrase “despite section
138(4)”. In my view, this is a
result of inept draftsmanship. A purposive construction of the
provisions leads to the conclusion
I have reached in the preceding
paragraph.
Is the
differentiation arbitrary?
[35] The impugned
provision was also attacked on the basis that it exhibits internal
incoherencies and inconsistencies and discriminates
against employees
dismissed on account of misconduct and incapacity. However, no
unfair discrimination was averred. The criticism
relates to what has
been referred to as mere differentiation. See
PRINSLOO
v VAN DER LINDE AND ANOTHER
1997 (3) SA 1012
(CC) para 24 and 25. The question in this regard is
whether the differentiation is rationally connected to a legitimate
government
purpose and if this threshold is passed, then there will
be no need to consider the two other steps listed in
HARKSEN
v LANE NO AND OTHERS
[1997] ZACC 12
;
1998 (1) SA 300
(CC) par. 45, in order to complete the enquiry to
determine whether a statutory provision offends the equality
provision of the
Constitution. Again, as counsel for the appellant
said, the equality argument collapses in a rationality challenge.
[36] Now I have found
that the impugned provision is rationally connected to a legitimate
government purpose. But that is not the
end of the matter, because
it still has to be assessed whether the differentiation is arbitrary
or, as the appellant averred, incoherent
and inconsistent. See
PRINSLOO
v VAN DER LINDE AND ANOTHER
,
supra
par. 25. Several instances of alleged incoherencies were raised.
One was that the exclusion of legal representation in unfair

dismissal proceedings is arbitrary, since it applies only to
practicing lawyers, an issue that I have already dealt with. Another

point raised relates to the discretion conferred on commissioners of
the CCMA permitting them to allow legal representation in
appropriate
circumstances. It was contended that all dismissals hold grave
consequences or, as counsel put it, gravity is a constant
or
non-variable in all dismissals. Therefore there should be no
discretion at all. In providing for a discretion in some instances

and not in others, the impugned provision is arbitrary, so it was
argued. It was accepted that some dismissal disputes are more

complex than the others, but it was contended that the conferment of
a discretion does not help because a commissioner has no power
of
divination enabling him or her to determine beforehand if a dispute
is complex.
[37] I can find no reason
why a commissioner should not be able to determine beforehand whether
a matter is complex or not. He/she
can do that by making proper
enquiries from the parties as is indeed done in practice. He/she
does not need to be a prophet to
do that. As the
amici
curiae
have pointed out, in the exercise of a discretion conferred by
subsection (b) of the impugned provision, the issue is not the
gravity of the matter but rather its complexity. Apart from
complexity, the commissioner is required to take into account the
nature of the questions of law raised by the dispute, the public
interest and the comparative ability of the opposite parties or
their
representatives to deal with the dispute. These are all issues that
the commissioner can determine by a proper enquiry.
In this regard,
the impugned provision is in fact an improvement on the common law
since it provides guidance, whereas the common
law does not. It
attempts to ensure that where legal representation is needed in the
interests of justice, it should be permitted.
Differentiating
between categories of disputes
subject
to CCMA arbitration
[38] The further question
is whether the impugned provision is arbitrary on the basis that it
differentiates not only between dismissals
and other types of dispute
but also between dismissals on account of conduct and capacity, on
the one hand, and other types of
dismissals, on the other. This
question arises from the fact that there are many disputes that are
also subject to the arbitral
jurisdiction of the CCMA in respect of
which legal representation can be had as of right, and secondly,
because there are some
unfair dismissals in respect of which there is
an automatic entitlement to legal representation. The first
distinction is between
two clearly different categories of dispute:
dismissal disputes on the one hand, and other types of disputes, on
the other. The
latter category includes
inter
alia
disputes
concerning organisational rights, collective agreements, workplace
fora
and the disclosure of information.
[39] The first point to
be made is that treating unfair dismissal disputes differently from
disputes involving organisational rights
and the like, is perfectly
legitimate as it amounts to applying different methods to resolving
different categories of dispute.
Secondly, I endorse the views
expressed by the
amici
curiae
regarding the disputes involving organisational rights, when they
state that “an examination of the type of case under each
head
shows that the disputes are inherently more technical and legalistic
and will most often require the consideration and interpretation
of
contracts and/or statutes”. I think that it was only proper to
make an exception in their case and allow legal representation.
[40] Experience in the
application of the LRA teaches that dismissals on account of
misconduct and incapacity are by far the majority
of disputes that
come before the CCMA for conciliation and arbitration and Parliament
was clearly aware of this, based on the experiences
under the old
Labour Relations Act. The
amici
curiae
have referred to the case statistics compiled by the CCMA which
indicate that of all matters referred to it between 2004 and 2006

about 80% involve unfair dismissals. It makes sense therefore that
the Legislature identified unfair dismissal disputes as the

appropriate category where the policy considerations underlying the
need to exclude legal representation should find application.

Moreover, it is in this category encompassing individual dismissals
where the majority of the disputes are simple and straightforward.
[41] The final question
is: Why exclude dismissals other than those on account of misconduct
and incapacity from the exclusion of
legal representation? I use
these words deliberately because, in my view, the exclusion of legal
representation was intended to
be the norm rather than the exception.
The answer again must be found in the fact that the dismissals based
on conduct and capacity
constitute by far the bulk of the disputes
arbitrated by the CCMA.
[42] In argument
reference was made to
section 191(5)
of the LRA and it was pointed
out that constructive dismissal, dismissal where the employee does
not know the reasons for the dismissal
and unfair labour practice
disputes are, alongside conduct and capacity dismissals, all subject
to compulsory arbitration and yet
legal representation is excluded in
respect of conduct and capacity dismissals. It was contended that
this differentiation is
incoherent and arbitrary. In the first
place, the latter cases are different from dismissals for misconduct
and incapacity. Secondly,
misconduct and incapacity dismissals
constitute by far the bulk of the work of the CCMA and the bargaining
councils. If the exclusion
of legal representation was meant to
achieve the legitimate government purpose of providing for speedy,
cheap and informal resolution
of dispute, then it made sense to
confine it to the majority of the cases.
[43] The figure of unfair
labour practice is a different kettle of fish. On the face of it, it
is a less serious matter than a
dismissal on whatever basis. In
practice, however, it is not an easy matter for an employee to take
on his/her employer alleging
unfair labour practice lest the
challenge triggers dismissal. I would think that an employee would
feel much comfortable if this
could be done through the assistance of
a lawyer who would be better placed to take the necessary precautions
to protect the interest
of the client. And the issues more often
than not turn out to be complex. A perusal of the relevant case law
will illustrate
this.
CONCLUSION
[44] I come to the
conclusion that the impugned provision is not in conflict with the
Constitution. For that reason it is unnecessary
to go into the issue
of whether it is a justifiable limitation as set out in section 36 of
the Constitution. Nor was this issue
sufficiently canvassed in
argument, counsel for the appellant having intimated that if we find
against him on the rationality challenge
that would be the end of the
matter.
[45] I would dismiss the
appeal and, since it was not opposed, there should be no order as to
costs.
______________
H.M. MUSI, J.A.
On
behalf of appellant: Adv. M.S.M. Brassey SC
With
him:
Adv. P.A. Buirski
Instructed by:
Bowman Gilfillan Inc
SANDTON
As
amici
curiae
: Adv.
M.J.D. Wallis SC
With him:
Adv. P.J. Wallis
Instructed by:
Cheadle Thompson &
Haysom Inc
BRAAMFONTEIN
/sp