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[2014] ZALAC 51
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JA90/2013) [2014] ZALAC 51 (1 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no:
JA90/2013
Not Reportable
In the matter between:
NATIONAL
UNION OF
MINEWORKERS
First Appellant
TAOLE ELIAS
MOHLALISI
Second Appellant
and
COMMISSION FOR
CONCILIATION
First Respondent
MEDIATION AND
ARBITRATION
DIALE SIMON NTSOANE
N.O
Second Respondent
TWO RIVERS PLATINUM
MINE
Third Respondent
Heard:
26 August 2014
Delivered:
01 October 2014
Summary:
Legal representation at the CCMA- Employee requesting legal
representation two working days prior to arbitration proceedings-
commissioner refusing legal representation taking into account
comparative ability of the parties and their representatives to
deal
with the dispute- Commissioner not mentioning complexity of the
dispute and interest of justice - such omission does not lead
to
inference that these factors were not considered where Commissioner
alive to factors listed in Rule 25(1)(c) - dispute of sexual
harassment neither complex to warrant legal representation nor of
public interest. Labour Court upholding commissioner’s
ruling.
Refusal of Legal representation not unconstitutional. Appeal
dismissed.
Coram:
Tlaletsi DJP, Musi JA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE AJA:
[1]
This is an appeal against the judgment of the Labour Court (per
Boqwana J) in a review application in which it upheld the
Commissioner’s
ruling in the arbitration proceedings refusing
to allow the second appellant legal representation in terms of Rule
25(1)(c) of
the CCMA Rules.
[2]
The second appellant was an employee of the Two Rivers Platinum Mine
(“the third respondent”) until his dismissal
on four
charges of sexual harassment on 2 April 2007. The second appellant
referred an unfair dismissal dispute in terms of s 185
of the Labour
Relations Act 66 of 1995 (“the LRA”) to the Commission
for Conciliation, Mediation and Arbitration (“the
CCMA”)
for conciliation and arbitration. The Commissioner in the arbitration
proceedings dismissed the dispute on the basis
that it concerned
victimisation, and an automatically unfair dismissal, which the CCMA
had no jurisdiction to arbitrate. Dissatisfied,
the appellants
referred the matter to the Labour Court on review, where Francis J
set aside the arbitration award, and referred
the dispute back to the
CCMA for arbitration by a different commissioner.
[3]
After receiving notice of set down of the arbitration hearing for 29
June 2010, the appellants made application to the CCMA
on 24 June
2010, for the second appellant to be permitted legal representation
at the arbitration proceedings. On 29 June 2010,
the second appellant
attended the hearing with his legal representative. The third
respondent opposed the application for legal
representation but did
not file opposing papers. The sum total of the Commissioner’s
reasons for dismissing the application
for legal representation is
this:
‘
The
applicant was charged and dismissed for sexual harassment. The rules
on representation are clear: the commissioner has to exercise
his
discretion whether or not to allow legal representation. The
applicant is a member of the trade union which represented him
at the
disciplinary hearing and again at the conciliation. If legal
representation is denied the applicant will not suffer any
prejudice
because the union will step in. If legal representation is allowed
the playing field will not be level and that will
prejudice the
respondent.
If the union wanted to
apply for legal representation they could have done so in time to
give the respondent time to brief their
attorney. One does not launch
an application on Thursday for the hearing sitting on Tuesday.’
[4]
Having disallowed the second appellant legal representation at the
arbitration proceedings, the Commissioner advised him to
call the
union (cited as the first appellant in this appeal) to represent him
at the arbitration proceedings. Mr Moeketsi Mokoena
(“Mr
Mokoena”), an official of the union informed the Commissioner
that the second appellant intended to take the ruling
on review. He
also requested a postponement of the arbitration proceedings on the
basis that he was unable to represent the second
appellant as he was
not
au fait
with the matter, and that Mr Mampuru, the union
official who was familiar with the matter, was not available to
represent the second
appellant at the hearing due to ill-health. The
Commissioner dismissed the application for a postponement on the
basis that the
second appellant ought to have prepared for the
eventuality of the application being refused, and made arrangements
for his union
representative to be available for the hearing. Mr
Mokoena then excused himself and left the hearing, and so too did the
second
appellant. The Commissioner then dismissed the matter.
[5]
The second appellant took the matter on review to the Labour Court.
The Labour Court reviewed and set aside the postponement
and
dismissal rulings of the Commissioner, and remitted the matter to the
CCMA for hearing
de novo
before another commissioner on the
grounds that the refusal by the Commissioner to grant a postponement
amounted to a gross irregularity.
The Labour Court, however, found
that “the decision of the Commissioner on legal representation
stands and cannot be entertained
by the new commissioner”.
[6]
The Labour Court found that the second appellant’s application
for legal representation was without merit for the following
principal reasons: Since the appellants had filed the application for
legal representation only a few days before the hearing of
the
matter, the third respondent did not have sufficient time to file
opposing papers, and was therefore entitled to make submissions
on
the facts and law at the hearing of the matter. To the extent that
the appellants claimed prejudice, for the failure of the
third
respondent to file opposing papers, the Labour Court found that the
prejudice was self-created as the appellants were well
aware of the
date of set down but chose to launch the application for legal
representation on the Thursday preceding the Tuesday
on which the
matter was set down for arbitration before the Commissioner. The
Labour Court furthermore confirmed the decision of
the Commissioner
not to allow the second appellant legal representation at the
arbitration proceedings on the basis that the Commissioner
had
applied his mind to the relevant factors on whether legal
representation should have been granted, and correctly came to the
conclusion that it should not as the union, which had represented the
second appellant at both the disciplinary hearing and the
conciliation proceedings, would step in if legal representation was
denied. The Labour Court furthermore found that the Commissioner
had
looked at the comparative ability of the representatives and
correctly found that “if legal representation is allowed
the
playing field will not be level and that would prejudice the third
respondent”. In relation to the discretion afforded
to the
Commissioner in terms Rule 25(1)(c) of the CCMA Rules to allow or
disallow legal representation, the Labour Court found:
‘
Glancing
through the application papers submitted at the CCMA by the
applicants, I am not convinced that they demonstrated that
the matter
was so complex that it required legal representation, that the
question of law needed a lawyer to deal with and raised
issues of
public interest that required legal representation. The case that the
second applicant had to allegedly meet was that
of misconduct
relating to an alleged sexual harassment. The applicants’
application for legal representation does not state
why the facts of
the case required consideration of legal representation. The grounds
of review do not demonstrate that either.
In that regard the grounds
relating to legal representation must fail.’
[7]
The appellants now seek to appeal the decision of the Labour Court on
the grounds that the Labour Court erred in confirming
the
Commissioner’s application of Rule 25(1)(c) of the CCMA Rules,
which they contend is unconstitutional as it denies
a party in
a CCMA arbitration the right to be represented by a qualified and
competent legal representative to protect his or her
constitutional
right to fair labour practices. In addition, the appellants contend
that the Commissioner committed a gross irregularity
by failing to
consider the factors relevant to the determination of an application
to be allowed legal representation at CCMA proceedings.
[8]
Rule 25(1)(c) of the CCMA Rules provides:
‘
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.’
In
Commission
for Conciliation, Mediation & Arbitration and Others v Law
Society of the Northern Provinces (Incorporated as the
Law Society of
the Transvaal),
[1]
the Supreme Court of Appeal observed as follows in relation to Rule
25(1)(c):
‘
The
subrule indeed allows the commissioner considerable latitude in
allowing legal representation. It may be allowed where the
commissioner and all the parties agree. In addition, the commissioner
may allow it in exercising his or her discretion when he or
she
considers that it is 'unreasonable to expect a party to deal with the
dispute without legal representation' after consideration
of the
listed factors. The listed factors are: the nature of the questions
of law raised by the dispute; the complexity of the
dispute; the
public interest; and the comparative ability of the opposing parties
or their representatives to deal with the dispute.
The subrule does
not disallow other forms of representation. Nor does it exclude the
consideration of other relevant considerations.
These factors may
well, in a given case, include the seriousness of the individual
consequences of a dismissal, assuming that this
is not already
encompassed by the subrule, which I doubt.‘ [Footnote omitted]
[9]
The appellants had made application to the Commissioner in terms of
Rule 25(1)(c) of the CCMA Rules to be allowed legal representation.
In exercising his discretion in terms of Rule 25(1)(c) on whether to
allow the second appellant legal representation in the arbitration
proceedings before him, the Commissioner was required to take into
account 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 parties or their representatives to deal
with the
dispute. The only factor referred to by the Commissioner in his
ruling, in the application for legal representation, is
the
comparative ability of the opposing parties or their representatives
to deal with the dispute. The appellant contends that
this gives rise
to an inference that the Commissioner failed to give consideration to
the other factors in Rule 25(1)(c) of the
CCMA Rules. In dealing with
a discretionary decision such as is provided for in Rule 25(1) (c) of
the CCMA Rules, the court must
consider whether the arbitrator
properly took into account all the factors listed in the Rule in
coming to its decision, and whether
the decision arrived at is
justified.
[2]
It is clear from
the ruling that the Commissioner was alive to the factors listed in
Rule 25(1)(c) as he made specific mention
of the Rule in his ruling.
Surely, no other inference but that the Commissioner did in fact
consider the other factors listed in
Rule 25(1)(c) can be drawn from
this.
[11]
To my mind, the decision arrived at by the Commissioner in his ruling
was completely justified for the following reason. As
indicated, the
third respondent dismissed the second appellant after he was found
guilty of four charges of sexual harassment.
The primary question for
determination at the arbitration would therefore turn on whether the
second appellant’s conduct
constituted sexual harassment as
defined in the
Labour Relations Act. In
my view, no difficult
questions of law or fact arise requiring “a lawyer with
advanced skills in litigation” as contended
for by the
appellants. The dispute is furthermore neither complex nor does it
involve issues of public interest. As demonstrated
in the
Commissioner’s ruling, the comparative abilities of the parties
and their representatives clearly weighed against
allowing the second
appellant legal representation, as it would have upset the level
playing field, causing prejudice to the third
respondent whose
representative was not legally trained. At the hearing of the appeal,
counsel for the appellants contended that
the union representative
who had represented the second appellant at the conciliation
proceedings, and thereafter at the first
arbitration hearing, does
not possess the requisite skills to represent him at the arbitration.
This contention is manifestly unfounded,
as no such allegation is
made in the appellants’ founding affidavit. In the
circumstances, I find that it was not unreasonable
for the
Commissioner to have expected the second appellant to deal with the
dispute without legal representation. The appeal against
the judgment
of the Labour Court confirming the Commissioner’s ruling on the
question of legal representation must, for this
reason, fail.
[12]
In relation to the further ground of appeal that Rule 25 of the CCMA
Rules is unconstitutional, as it denies the second appellant
the
right to legal representation, this Court held in
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau NO and Others
[3]
that the now repealed s 140(1) of the LRA, which was the predecessor
to Rule 25 of the CCMA Rules was not unconstitutional. More
recently,
in
Commission
for Conciliation Mediation and Arbitration and Others v Law Society
of Northern Provinces,
[4]
the Supreme Court of Appeal found Rule 25 to be constitutional. It
stated thus in relation to the right to legal representation
in
fora
other than courts of law:
‘
The
courts have consistently denied entitlement to legal representation
as of right in fora other than courts of law. As Innes CJ
said:
“
No
Roman-Dutch authority was quoted as establishing the right to legal
representation before tribunals other than courts of law,
and I know
of none.”
The common law, however,
recognises a right to a procedurally fair hearing in civil and
administrative matters which may, in circumstances
of the case,
require recognition of the right to legal representation. The Bill of
Right expressly refers to the right “to
choose, and to consult
with, a legal practitioner” (section 35(3)(f)), but this is
said in the context of an arrest for allegedly
committing an offence
(section 35(1)) and the right to a fair criminal trial (section
35(3)). Section 33 dealing with just administrative
action contains
no reference to such a right. Nor does PAJA, which was enacted to
give effect to the right to administrative action
that is lawful,
reasonable and procedurally fair and the right to be given reasons
where rights have been adversely affected, refer
to such an absolute
right. Instead it confirms the common law. In
Hamata
, Marais
JA concluded:
“
In
short, there is no constitutional imperative regarding legal
representation in administrative proceedings discernible, other
than
flexibility to allow for legal representation but, even then, only in
cases where it is truly required in order to attain
procedural
fairness.”’
He further said that,
although there was no common law imperative to allow legal
representation, the common law nevertheless required
disciplinary
proceedings to be fair and if:
“
In
order to achieve such fairness in a particular case legal
representation may be necessary, a disciplinary body must be taken
to
have been intended to have the power to allow it in the exercise of
its discretion unless, of course, it has plainly and unambiguously
been deprived of any such discretion.” ‘Footnote omitted]
The
SCA in
Law Society of Northern Provinces
accordingly found
that Rule 25(1) (c) did not contravene the right to access to court
in s 34 of the Constitution as there was
no unqualified
constitutional right to legal representation before administrative
tribunals. The Constitutional Court subsequently
dismissed the
application for leave to appeal against the judgment of the SCA on
the basis that the application bore no prospects
of success. These
are authoritative findings to which this court is bound, and I find
no reason to differ with them. Accordingly,
the appellants’
appeal on this ground must fail as well.
[13]
The last ground of appeal raised by the appellants is that the Labour
Court erred in not finding that the Commissioner acted
unreasonably
by proceeding with the hearing of the application for legal
representation when the pleadings were not closed, and
the appellants
had not had sufficient opportunity to reply to the third respondent’s
opposition to the application. I consider
this ground of appeal to be
equally without merit for the following reasons. The appellants’
application for legal representation
was launched two court days
prior to the date of set down of the arbitration hearing. The third
respondent was therefore not given
an opportunity to oppose the
application as contemplated in Rule 31 of the CMMA Rules in terms of
which any party who wishes to
oppose an application may deliver a
notice of opposition and an answering affidavit within 14 days from
the day on which the application
was served on that party. It is,
therefore, required of a party who intends to bring an application to
afford the opposing party
sufficient time in which to serve its
opposing papers prior to the commencement of the hearing. The third
respondent was, however,
only presented with the application for
legal representation two working days before the date of hearing, and
could not have reasonably
been expected to comply and enter its
opposing papers within such a short time frame.
[14]
To the extent that the appellants wished to have the application for
legal representation dealt with on an urgent basis, with
truncated
dates for filing of opposing papers, then they were required under
Rule 31(4)(e) of the CCMA Rules to explain in their
founding
affidavit why they were unable to comply with the time frames
prescribed under the Rules. No such explanation appears
from the
appellants’ founding affidavit in the application for legal
representation. However, appellants are seemingly
of the view
that the application for legal representation was brought in
compliance with the CCMA Rules, meriting a postponement
for the third
respondent to oppose the application and file answering papers, if it
so wished.
[15]
Despite the appellants’ non-compliance with the Rule 31(5) of
the CCMA Rules, for failure to provide the third respondent
with a
clear 14 days prior to the date of hearing of the application for
legal representation to file its opposing affidavit, the
Commissioner
proceeded to hear argument from the parties concerning the question
of whether the second appellant should be allowed
representation.
There is, in my view, nothing irregular with the approach adopted by
the Commissioner. Both parties were given
ample opportunity to make
their submissions, where after the Commissioner gave his ruling. In
circumstances where the party facing
potential prejudice for not
being given sufficient time to file opposing papers, elects
nonetheless not to file an opposing affidavit,
but rather to argue
the matter on the applicant’s founding papers and the law, the
adjudicator cannot be faulted for allowing
the proceedings to
continue, provided the other party too, is given the opportunity to
reply. It was certainly not required of
the Commissioner, in
circumstances such as those that prevailed at the hearing of the
application for legal representation, to
have postponed the matter to
give the appellants a further opportunity to respond, in writing, to
the third respondent’s
opposing argument. The second appellant
was in any event required to make out his case for legal
representation in his founding
affidavit, which he clearly failed to
do. Accordingly, the Labour Court correctly dismissed the review
application on this ground
as well.
[16]
In the result, the appeal is dismissed, with no order as to costs.
______________________
F Kathree-Setiloane
Acting Judge of the
Labour Appeal Court
Tlaletsi DJP and Musi JA
concurring
APPEARANCES:
FOR THE APPELLANT:
MES Makinta
Instructed
by ES Makinta Attorneys
[1]
(2013) 34 ILJ 2779 (SCA) para 21.
[2]
Cf:
Kemp
t/a Centralmed v Rawlins
(2009)
30 ILJ 2677 (LAC).
[3]
[2009] 4 BLLR 299 (LAC).
[4]
Commission
for Conciliation Mediation and Arbitration and Others v Law Society
of Northern Provinces
at para 19.