THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-096502
In the matter between:
FRANK MALULEKA Applicant
and
NATIONAL HEALTH LABORATORY
SERVICES
First Respondent
CCMA - JOHANNESBURG Second Respondent
COMMISSIONER ALLAN KAYNE N.O. Third Respondent
Summary: (Urgent application to review a ruling on legal representation in a
misconduct dismissal case – consideration of Rule 25(1)(c) of the CCMA Rules and
s 145(1B) of the Labour Relations Act - application for legal representation based on
medical grounds – Clear right not established)
JUDGMENT
LAGRANGE, J
(1) Reportable: NO
(2) Of interest to other Judges: Yes
05 June /2026
Signature Date
2
Introduction
[1] This is an urgent application to review and set aside a ruling by an arbitrator
presiding in an unfair dismissal for misconduct case. On 13 April 2026, t he
arbitrator refused to admit legal representation on medical grounds. On 11
December 2025, Maluleka had previously unsuccessfully applied for legal
representation. On that occasion he sought to rely on the provisions of CCMA
Rule 25 which permit exceptions to the prohibition against legal representation
in misconduct dismissal cases, on certain grounds1.
Factual background
The first ruling on legal representation
[2] To contextualise the present application, it is necessary to briefly detail the first
unsuccessful application for legal representation.
[3] The arbitration proceedings were initially scheduled for hearing on 28
November 2025. On that date, the Applicant did not attend the arbitration
proceedings due to ill health, and the matter did not proceed. During that sitting,
the Applicant, through his legal representative, made an application to be
granted legal representation in the arbitration proceedings. As mentioned, the
arbitrator refused the application on 11 December 2025.
[4] The Commissioner found that the dispute was not complex in either a factual or
legal sense. The matter involved a straightforward determination of whether the
1 Viz: ‘Rule 25 (1)(c) Restriction on legal representation
If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the Basic Conditions
of Employment Act, or 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, a party is not entitled to be represented
by a legal practitioner or a candidate attorney in the proceedings unless—
(i) the commissioner and all the other parties consent; or
(ii) the commissioner concludes that it is unreasonable to expect a party to deal with the dispute
without legal representation, after considering—
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.’
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alleged misconduct had occurred and whether the Applicant had breached an
instruction. The primary factual allegation is that the Applicant disclosed a
confidential Special Investigating Unit (SIU) report to an individual who was
implicated in that report. It was alleged Maluleka had previously been given a
direct instruction not to disclose the contents of the report to any third party
without prior approval , but nevertheless he did so in contravention of that
instruction. The arbitrator was of the view that the case turned largely on factual
issues and did not raise any novel or complicated legal questions. He expressly
stated that he was unconvinced that there were any questions of law requiring
legal representation.
[5] The arbitrator also noted that the Applicant was himself legally trained, having
been admitted as an advocate in 2005. Although the employer’s representative
also possessed legal qualifications, the arbitrator observed that any disparity
between the parties was not such as to justify the granting of legal
representation. Indeed, if anything the Applicant’s legal training and experience
placed him in a position adequately to present his case without the need for
legal representation.
[6] The arbitrator rejected the submission that legal representation was required
because the disciplinary proceedings had involved legal representatives and an
evidence leader for the employer. He rejected this as a basis for allowing legal
representation at arbitration, holding that to do so would merely perpetuate
complexity that had already been introduced at the disciplinary stage. In his
view, arbitration proceedings should not adopt an unnecessarily legalistic or
adversarial character where the dispute itself did not warrant it.
[7] Having regard to all these factors, the Commissioner concluded that legal
representation was not necessary for the fair determination of the dispute. He
found that granting such representation would serve only to complicate what
found that granting such representation would serve only to complicate what
was otherwise a relatively simple dismissal dispute.
The second ruling on legal representation
[8] The arbitration was rescheduled for 26 January 2026, but again postponed due
to Maluleka’s ill health, and ultimately came before the arbitrator on 30 and 31
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March 2026, when a second application for legal representation had to be
considered.
[9] This time, the application was premised on medical grounds, in contrast to the
first application which had been based on the test set out in Rule 25. The
Laboratory also opposed this application.
[10] The application was supported by a medical report dated 3 March 2026
prepared by a clinical psychologist, Dr Boitumelo Shayi, who recorded that the
Applicant was experiencing psychological distress and recommended that he
be supported by a representative during the arbitration proceedings given his
compromised mental state. The application was only served on 26 March 2026
a few days before the arbitration was to resume, ostensibly because of the
difficulty of getting the psychologist to sign a confirmatory affidavit. No
explanation was provided why the medical grounds for this application only
came to light in March and were not evident at the time the first application was
brought.
[11] The psychologist reported that Maluleka was experiencing significant
psychological distress characterised by symptoms of anxiety and depression.
These conditions might impair both his emotional state and cognitive
functioning. In practical terms, the psychologist indicated that these
impairments could compromise Maluleka’s ability to represent himself
effectively in the CCMA proceedings. In particular, the report stated that his
condition might affect his ability to provide clear and coherent testimony.
[12] The respondent opposed the application on multiple grounds. First, it argued
that the application was fatally defective due to non- compliance with Rule 31 of
the CCMA Rules, in that it was filed late without any accompanying application
for condonation, despite Maluleka having been aware of the hearing date well
in advance. Secondly, it contended that medical incapacity was not one of the
factors listed in Rule 25 governing legal representation and therefore was not a
factors listed in Rule 25 governing legal representation and therefore was not a
relevant consideration. Thirdly, the respondent attacked the evidential value of
the psychologist’s report, arguing that it amounted to hearsay because it was
not properly confirmed, and even if considered, it did not establish that
Maluleka was incapable of representing himself. The respondent further
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suggested that Maluleka’s conduct reflected a lack of bona fides and an
attempt to delay the proceedings, particularly given that he was present at the
hearing and able to participate. Finally, it invoked the doctrine of functus officio,
submitting that the previous ruling refusing legal representation was final and
binding, and could not be revisited.
The Arbitrator’s Reasoning
[13] In analysing these submissions, the arbitrator first addressed the procedural
objection relating to lateness. Although he expressed reservations about the
adequacy of the explanation for the delay, he relied on Rule 31(10), read
together with section 138 of the Labour Relations Act, to affirm his broad
discretion to determine applications in a manner he considered appropriate in
order to deal with the substantial merits of the dispute fairly and expeditiously.
He emphasised that fairness is the primary consideration in CCMA proceedings
and accordingly decided to entertain the application on its merits despite its
procedural deficiencies.
[14] The arbitrator then considered the argument based on the functus officio
principle. He accepted that, in general, once a decision-maker has made a final
ruling, he or she is ordinarily precluded from revisiting it, in order to promote
finality and legal certainty. However, he qualified this principle by observing that
in the context of arbitration proceedings, it is not uncommon for multiple
applications of a similar nature to be brought at different stages, and that where
a subsequent application is based on materially different facts or
circumstances, it does not offend the principle of functus officio to consider it
afresh. He accordingly found that the present application, being grounded in
new medical evidence rather than the factors previously advanced, was
properly before him for determination.
[15] Turning to Rule 25(1)(c), the arbitrator noted that legal representation is not
permitted in misconduct or in capacity dismissal disputes unless specific
permitted in misconduct or in capacity dismissal disputes unless specific
conditions are met. These include consent or a finding that it would be
unreasonable for a party to proceed unrepresented, having regard to factors
such as complexity, legal issues, public interest, and comparative ability.
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[16] Relying on authority from the Supreme Court of Appeal 2, he held that these
factors are not exhaustive and that other relevant considerations may be taken
into account. This opened the possibility that medical or psychological factors
could be considered in assessing whether legal representation is warranted.
[17] The arbitrator subjected the psychologist’s report to careful scrutiny. He
distinguished between a medical certificate establishing incapacity to attend
proceedings and a medical report making recommendations on legal
representation. He held that the latter cannot be accepted without question and
must be properly tested. In this case, the report was found to have limited
evidential value because it was not properly confirmed by the psychologist
under oath. Further, the confirmatory affidavit merely confirmed Maluleka ’s
version rather than the report itself, and the delay in filing the application
undermined its credibility.
[18] Even if he accepted the report at face value, the arbitrator found that it did not
establish incapacity. The report indicated only that Maluleka’s condition may
compromise his effectiveness and recommended legal representation be
provided as “support”, rather than demonstrating how his condition prevented
him from representing himself.
[19] He further noted that Maluleka Maluleka was present and able to participate in
proceedings and there was no indication he could not testify . He also noted
Maluleka already had access to an attorney outside the strict confines of
representation.
[20] The arbitrator emphasised that, if Maluleka ’s condition genuinely impaired his
ability to proceed, a postponement remained available. He considered this a
more appropriate remedy than granting legal representation, given the CCMA’s
preference for informality and limited legal intervention. The applicant argued
that this reasoning was contradictory, because it conceded that he might be too
that this reasoning was contradictory, because it conceded that he might be too
ill to participate, but refused legal representation on the basis he was able to
participate.
2 Commission for Conciliation, Mediation and Arbitration and Others v Law Society of the Northern
Provinces [2013] 11 BLLR 1057 (SCA); 2014 (2) SA 321 (SCA); (2013) 34 ILJ 2779 (SCA) at
paragraph 21.
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[21] In conclusion, the arbitrator held that Maluleka had failed to demonstrate that it
would be unreasonable to expect him to proceed without legal representation.
He therefore exercised his discretion to refuse legal representation.
Evaluation
[22] Given that the arbitration was due to resume on 25 May, I accept that there was
a need to launch the application on an expedited basis, assuming for the time
being Maluleka has a clear right to representation. Unfortunately, owing to a
number of other pressing urgent applications it was not possible to hand down
judgment before then.
[23] In effect this is an urgent application for final relief. Accordingly, Maluleka must
demonstrate a clear right to the relief sought, actual harm or a well grounded
apprehension of harm and the absence of a satisfactory alternative remedy.
Is it appropriate for the court to intervene at this juncture in the arbitration?
[24] The primary question is whether this application should be entertained at all. In
2014 a new provision was added to s 145 of the Labour Relations Act, 66 of
1995, expressly restricting the power of the court to review rulings in part -heard
arbitration proceedings, viz:
‘(1B) The Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices of the
Commission or any bargaining council in terms of the provisions of this Act
before the issue in dispute has been finally determined by the Commission
or the bargaining council, as the case may be, except if the Labour Court
is of the opinion that it is just and equitable to review the decision or ruling
made before the issue in dispute has been finally determined.’
[25] Thus, only if it is just and equitable may the court review an interlocutory
decision. In interpreting the scope for intervention on such grounds under
section 145 (1B), in South African Cabin Crew Association obo Members and
another v South African Airways (SOC) Ltd and others 3 the Labour Appeal
another v South African Airways (SOC) Ltd and others 3 the Labour Appeal
Court affirmed the dictum in South African Broadcasting Corporation (SOC)
3 [2025] 10 BLLR 1048 (LAC)
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Limited v Commission for Conciliation Mediation and Arbitration and Others 4,
namely that
‘… a case must be truly exceptional to warrant a departure from the norm
that a review is appropriate only once the dispute has been finally
determined in a completed arbitration hearing.’
(emphasis added)
Accordingly, Maluleka must establish a right to the relief he seeks, on the basis
that his case is truly one of those exceptional ones warranting intervention, and
that the arbitrator, in the exercise of his discretion, ought to have allowed him
legal representation on the medical grounds he advanced.
[26] The LAC went on to describe the type of truly exceptional cases , which warrant
intervention in media res by way of such a review:
‘[27] Exceptional circumstances justifying judicial intervention in
incomplete proceedings have been found to exist where such
intervention was necessary to prevent illegality, to prevent grave
injustice, or where justice could not otherwise be achieved.
[28] Judicial intervention is all the more justified where a review is
instituted in medias res to challenge and set aside a ruling premised
on a material error of law.’
[27] It is noteworthy that the characterisation of the type of interlocutory ruling or
decision that might warrant intervention is when the effect of the ruling has a
fundamental and decisive impact on the possible outcomes of a case, which
can be corrected before the matter proceeds further.
[28] A ruling by an arbitrator on whether to allow legal representation, while
important, concerns a procedural question which lies entirely within the
arbitrator’s discretion. The type of discretion exercised in making such a ruling
is what is known as a ‘true’ discretion. The arbitrator must weigh competing
considerations and make a value judgment based on fairness. A range of
permissible outcomes is possible, and the decision only stands to be reviewed
if the arbitrator acted capriciously, based the decision on a wrong principle, was
if the arbitrator acted capriciously, based the decision on a wrong principle, was
influenced by irrelevant considerations or failed to consider relevant factors. It
is a decision that a court of review will not readily interfere with. A ruling on
4 (2020) 41 ILJ 493 (LC)
9
legal representation by its nature concerns the conduct of the proceedings and
is not in the nature of a ruling which improperly prevents the substantive merits
of the case being addressed or causes the arbitrator to determine a dispute
which should not be before them.
[29] The arbitrator in this instance considered the question of whether it was
reasonably necessary for Maluleka to have legal representation because of his
mental condition. Ultimately, he was not persuaded that Maluleka had
demonstrated a sufficient connection between his mental condition and his
claimed inability to represent himself in the context of a misconduct dismissal
case lacking complexity and no doubt also being cognisant of his legal
expertise. After evaluating relevant considerations, he exercised his discretion
by disallowing it.
[30] Despite the criticism of the arbitrator’s finding that an alternative remedy was
available in the form of an application for postponement until Maluleka was well
enough to participate, his reasoning is not lacking in rationality. The arbitrator
was plainly sceptical of how legal representation could really address the
mental impairment Maluleka might be suffering from as a result of his
depression and anxiety . However , he was sympathetic to the idea that a
postponement to allow his mental condition to improve was a better way of
dealing with incapacity. Moreover, as this court has observed in a similar
situation, the arbitrator is duty bound to lend a party a helping hand where
appropriate
5.
[31] I am not persuaded that Maluleka has demonstrated his case is t ruly
exceptional, let alone that the arbitrator ought to have exercised his discretion
differently. circumstances which justify the court from departing from the
prohibition against reviews during part -heard arbitration proceedings based on
the medical grounds he advanced.
5 See e.g, Marule v Nonceba NO and Others (Reasons) (2025/112503) [2025] ZALCJHB 377 (28
August 2025) at paragraph [13].
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Order
1. The application is heard as a matter of urgency in terms of Rule 39 of
the Labour Court Rules, and any non- compliance with the said rules is
condoned.
2. The application is dismissed.
3. No order is made as to costs.
_______________________
R Lagrange
Judge of the Labour Court
Appearances:
For the Applicant: --- T Ngobeni of TM Ngobeni Attorneys
For the Respondent: --- N Motshegare
Instructed by: --- Lawtons Inc.