THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not Reportable
Case No: D619/23
In the matter between:
PAILPAC (PTY) LTD Applicant
and
NUMSA o.b.o. LWANDILE MTHWANE First Respondent
THE METAL AND ENGINEERING
INDUSTRIES BARGAINING COUNCIL Second Respondent
PERUMAL NAIDOO N.O. Third Respondent
Heard: 12 March 2024
Delivered: 13 March 2024
This judgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand- down is deemed to be
13 March 2024
JUDGMENT
2
MAKHURA, J
Introduction
[1] On 4 May 2023, the first respondent referred an unfair dismissal dispute to the
second respondent for conciliation. The dispute was unsuccessfully conciliated
and was later enrolled for arbitration on 7 September 2023. The applicant applied
for legal representation.
[2] On 27 September 2023, the third respondent (commissioner) issued a ruling in
terms of which he dismissed the application for legal representation. The
applicant now seeks to review and set aside the ruling in terms of section 158 of
the Labour Relations Act
1 (LRA). The application is unopposed.
Material facts
[3] The employee was charged for allegedly slapping and kicking his colleague, and
pulling a knife and swiping it on his colleague, resulting in the colleague
sustaining injuries across his face and to his head and back. This was allegedly
committed in full view of the colleagues and members of the public. This
allegation is described by the applicant as assault with intent to do grievous
bodily harm, assault, attempted assault, intimidation, fighting on the applicant’s
premises and many other alternative descriptions.
[4] The commissioner dismissed the application primarily on two grounds - the
matter is not complex and the only issue is the inconsistent application of the
sanction of dismissal.
[5] The applicant contends that ex facie the charge against the employee, the
dispute raises complex legal issues that would require the legal expertise to deal
with the evidence. Further, the applicant contends that legal expertise would be
required to deal with the legal intricacies of each charge or sub- charge and the
requirement both legally and factually to prove each element of the charge or
1 Act 66 of 1995, as amended.
3
sub-charge. It is also argued that the employee raised a legal defence of “private
defence” which would require legal expertise to deal with.
[6] Regarding the comparative ability of both parties, t he applicant contends that its
Human Resources Manager (HR manager) is inexperienced and that his skills
and knowledge are limited as he has no legal background and never presented a
case in arbitration proceedings before, compared to the union official who has
experience in disputes relating to unfair dismissals and has represented the
employee throughout his disciplinary hearing. The applicant contends further that
there will be no prejudice if legal representation is permitted because the first
respondent will also enjoy the same right.
[7] The applicant submitted that the commissioner’s decision overlook ed the
concerns raised by the Labour Appeal Court ( LAC) in Makuleni v Standard Bank
of South Africa and others,
2 (Makuleni) “where the arbitration became unruly and
the evidence largely muddled and confused, as well as protractive, because of
the absence of legal assistance”. The LAC said the following:
‘[7] A request by the appellant to allow legal representation was refused, a
decision not challenged but one the commissioner might well have had
reason to regret. Why it is so often glibly imagined that a matter involving
only disputes of facts which will require credibility finding will be more
appropriately adjudicated without the utility of legal expertise to adduce
the cogent evidence coherently and conduct cogent cross -examination
eludes me. The hearing took several days. There are 1, 287 pages of
evidence, much of it disorganised and sometimes waffling.
[8] The respondent’s case was presented by Mr Abie Phooko, an
employment relations manager of the respondent, who cross-examined
the appellant. It was apparent that the appellant and Mr Phooko already
knew one another, and the evidence is occasionally peppered with asides
knew one another, and the evidence is occasionally peppered with asides
evidencing this acquaintance. The leading of evidence and the cross -
examination of the appellant by Mr Phooko was what is to be expected
2 (2023) 44 ILJ 1005 (LAC); [2023] ZALAC 4.
4
from a layperson. The leading of evidence was reasonably coherent,
being structured upon the reading of the statements mentioned into the
record, but predictably the witnesses wandered off the point and often,
but not always, offered no actual substantiation of the key grievance and
were not brought back to the point in issue, leaving it to dangle. The
cross-examination of the appellant was largely unhelpful in achieving the
legitimate objectives of cross examination, often descending into
arguments and the inappropriate soliciting of opinions.’
Analysis
[8] Section 158(1B) of the LRA provides that this court may not review any CCMA’s
or bargaining council’s decision or ruling made during conciliation or arbitration
proceedings in terms of the LRA before the issue in dispute has been finally
determined, unless it is just and equitable to do so. The question therefore is
whether it is just and equitable for this court to interfere with the commissioner’s
ruling?
[9] Legal representation in this matter is regulated by Rule 17 of the Rules for
Conciliating and Arbitrating Disputes in the Metal and Engineering Industries
Bargaining Council (MEIBC Rules). This rule is the equivalent of Rule 25 of the
Conduct of Proceedings before the CCMA
3 (CCMA Rules). In terms of Rule
17(3)(b) of the MEIBC Rules , the commissioner has the discretion to determine
whether a party should be permitted legal representation. The question before
the commissioner with regard to determining an application for legal
representation i s whether it w ould be unreasonable to expect the applicant to
deal with the dispute without legal representation. The commissioner found that it
would not be unreasonable for the applicant to be expected to deal with the
matter without legal representation.
3 GN 194 of 21 February 2020: Rules for the conduct of proceedings before the Commission for
Conciliation, Mediation and Arbitration.
5
[10] In Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and
others,4 the LAC reaffirmed that the purpose of the LRA was to provide a speedy,
cheap and informal dispute resolution system. Further, the LAC found that it
would be untenable if the right to legal representation in conduct and incapacity
disputes were to be absolute or a general right.
[11] In Trustees for the time being of the National Bioinformatics Network Trust v
Jacobson and others5, the Labour Court, per Van Nieker k J (as he then was),
held that:
‘The limitation on the right to legal representation is an integral element of a
system of expeditious and i nformal dispute resolution. The default position
established by rule 25 of the CCMA Rules is that in cases of dismissal for
misconduct and incapacity, a party to arbitration proceedings is not entitled to be
represented by a legal practitioner unless the commissioner and the parties
consent, or the commissioner concludes, after considering specified factors, that
it is unreasonable to expect a party to deal with the dispute without legal
representation.’
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[12] The court held that the fact that the dispute may raise intri cate legal questions
concerning the law are all issues that may be addressed in due course should
the applicant seek later to review the award and to subject the commissioner's
decisions and the reasons underlying them to scrutiny by this court. 7 This matter
was decided in the context of an urgent application to stay the continuation of
arbitration proceedings pending a review of the legal representation ruling.
[13] The application lacks merit and falls to be dismissed. It is common cause that the
issue in dispute, the unfair dismissal dispute, has been finally determined. This
court must be slow to interfere in incomplete arbitration proceedings.
8 No case
has been made out why this court should interfere with the ruling at this stage of
4[2008] ZALAC 13; [2009] 4 BLLR 299 (LAC) at paras 44 – 46.
4[2008] ZALAC 13; [2009] 4 BLLR 299 (LAC) at paras 44 – 46.
5 [2009] ZALC 35; (2009) 30 ILJ 2513 (LC).
6 Ibid at para 5.
7 Ibid at para 6.
8 See Trustees for the time being of the National Bioinform atics Network Trust v Jacobson and others
(supra).
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the arbitration proceedings. On this basis alone, the application must be
dismissed.
[14] Regardless, the application remains without merit. There is no question of law
that this dispute raises which cannot be dealt with by an HR m anager. There is
only one charge against the employee, which is that he slapped, kicked and
swiped a knife on his colleague in full view of the other employees and members
of the public. The applicant submitted that the victim, who is its employee,
sustained physical injuries which have been recorded in the form of, amongst
others, photographs.
[15] During arguments, Mr Van Niekerk, appearing on behalf of the applicant,
submitted that another important aspect of the case is the place where the
incident took place. He submitted that the incident took place outside the
applicant’s premises and that this raises another legal complexity. The charge
sheet states that the incident took place “just outside” the applicant’s premises at
approximately 18h05. However, the employee is also accused of fighting on the
applicant’s premises. Other than these two refer ences, no case has been
pleaded to demonstrate why this is a legal complexity that its HR manager
cannot deal with, and why this court should interfere with the ruling at this stage.
[16] The matter turns on whether there was assault or not and sanction. There is
nothing complex about this that the HR manager cannot deal with. The
application for legal representation is, in my view, based on the applicant’s desire
and/or preference to be legally represented.
[17] The applicant has profoundly misconceived the remarks made by the LAC in
Makuleni. If the applicant’s argument is followed to its logical conclusion, all
applications for legal representations will succeed, thereby changing the default
position that legal representation is not permitted in arbitration proceedings
relating misconduct and incapacity dispute, against the clear intention of the
relating misconduct and incapacity dispute, against the clear intention of the
Legislature. In Makuleni, the issue in dispute was finally determined. The LAC did
not have to speculate how the parti es would present their respective cases and
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how the commissioner would handle and direct the proceedings , which is what
the applicant is calling for in this matter . Further, the proceedings were not
tainted to warrant referring the matter back to arbitration in order for both parties
to have a fair hearing. Both parties were given a fair hearing. That the LAC
suggested that the arbitrator may have regretted refusing legal representation or
that the presentation of evidence was disorganised and the parties were waffling
cannot be a basis for granting an application for legal representation.
[18] The applicant has an HR manager. To suggest, as the applicant seems to, that
its HR manager is inexperienced and not capable of representing it at arbitration
proceedings dealing with misconduct disputes is a vote of no confidence in its
manager. It is again a matter of preference. The fact that he has no legal
background is irrelevant. Further, that he never presented a case in arbitration
proceedings is not, on its own, determinative of the issue, particularly considering
that the employee is represented by a union official who equally has no legal
background. The HR manager may be prepared and guided by the applicant’s
legal practitioner on how to present the case during arbitration proceedings. No
case has been made out as to why it could not exercise this option and why its
HR manager would still not be capable of presenting the case after the
preparation and guidance. Accordingly, this inexperience argument must be
rejected.
[19] The applicant argued, speculatively that:
‘The time and expenses of both parties would be wasted through a lengthy
process that the Applicant submits would properly be reviewed and set aside in
any event based on the grounds in this application.’
[20] Ironically, it is now more than 6 months since the sitting of the arbitration
proceedings. The employee was dismissed on 14 April 2023. It is therefore 11
months since his dismissal and the arbitration dispute is yet to commence.
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[21] The application is misguided, based on speculation and conjecture, and a waste
of time. It has only frustrated and undermined the informal dispute resolution
mechanisms and the overall object of the LRA. The applicant has succeeded in
that the second respondent has not enrolled the matter again, despite there
being no order interdicting it from continuing with arbitration. This application
does not suspend the commissioner’s ruling to refuse legal representation and
there is no valid reason for the second r espondent not to proceed to enrol the
dispute for arbitration.
Conclusion
[22] Accordingly, the application is dismissed on the basis that it is not just and
equitable for this court to interfere with the commissioner’s ruling.
[23] In the premises, the following order is made:
Order
1. The application is dismissed.
2. The second respondent is ordered to enrol the unfair dismissal dispute for
arbitration.
3. The Registrar is directed to serve a copy of this judgment on the second
respondent.
____________________
M. Makhura
Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Adv. G van Niekerk SC
Instructed by: Barkers Attorneys