Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (CCT 01/09) [2009] ZACC 10; [2009] 6 BLLR 517 (CC) ; (2009) 30 ILJ 1521 (CC) ; 2010 (2) SA 269 (CC) ; 2009 (8) BCLR 779 (CC) (1 April 2009)

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[2009] ZACC 10
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Netherburn Engineering CC t/a Netherburn Ceramics v Mudau and Others (CCT 01/09) [2009] ZACC 10; [2009] 6 BLLR 517 (CC) ; (2009) 30 ILJ 1521 (CC) ; 2010 (2) SA 269 (CC) ; 2009 (8) BCLR 779 (CC) (1 April 2009)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 01/09
[2009] ZACC 10
NETHERBURN ENGINEERING CC t/aNETHERBURN CERAMICS
Applicant
versus
ROBERT MU
DAU N.O.
First Respondent
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION
Second Respondent
JANE MOABELO
Third Respondent
Decided: 1
April 2009
JUDGMENT
THE
COURT:
This
is an application for leave to appeal against a judgment of the
Labour Appeal Court dated 5 December 2008. The case arises
out of
the dismissal by the applicant of the third respondent, Ms Jane
Moabelo, more than ten years ago, on 26 October 1998.
The time
that has elapsed since the dismissal is cause for significant
concern and in the account of the facts that follows,
we set out
the relevant dates that appear from the record.
Following
upon her dismissal for misconduct, Ms Moabelo referred a dispute to
the Commission for Conciliation, Mediation and
Arbitration (the
CCMA) alleging her dismissal to have been unfair. The arbitration
was set down for hearing on 17 May 2000.
At the hearing, Ms
Moabelo was represented by a trade union official, Mr Sibiya, and
the applicant by an attorney. Mr Sibiya
objected to the applicant
being represented by an attorney in terms of section 140(1) of the
Labour Relations Act 66 of 1995
(the
Labour Relations Act). That
section then reads:
“
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
arbitration proceedings unless—
(a) the commissioner and all
the other parties consent; or
(b) the commissioner concludes
that it is unreasonable to expect a party to deal with the dispute
without legal representation,
after considering—
(i) the nature of the
questions of law raised by the dispute;
(ii) the complexity of the
dispute;
(iii) the public interest;
and
(iv) the comparative ability
of the opposing parties or their representatives to deal with the
arbitration of the dispute.”
It
is clear that this section conferred a discretion upon the
commissioner to determine whether a party should be permitted
legal
representation, even where the other party or one of the other
parties to the dispute opposes legal representation.
In this case,
the commissioner (Mr Mudau) refused to permit the applicant to be
represented by a lawyer and ordered that the
arbitration should
commence immediately. The applicant’s request for a
postponement, on the ground that its managing director
was unable
to proceed immediately without his lawyer, was refused. The
applicant then withdrew from the arbitration. On 13
June 2000, the
commissioner found that Ms Moabelo had been unfairly dismissed and
ordered the applicant to reinstate her in
her employment and to pay
her compensation.
We
pause here to note that after the arbitration had taken place,
section 140(1)
of the
Labour Relations Act was
repealed by
section
28
of the
Labour Relations Amendment Act 12 of 2002
. It was, in
effect, replaced by rule 25(1) of the CCMA Rules which were
promulgated on 25 July 2002.
1
Rule 25(1) provides:
“
If a party to the dispute
objects to the representation of another party to the dispute or the
commissioner suspects that the
representative of a party does not
qualify in terms of the Act, the commissioner must determine this
issue.”
This
provision is not in identical terms to section 140(1). We should
add that the rules as published contain a footnote referring
to
section 135(4) (which dealt with representation at conciliation
proceedings), section 138(4) (which dealt with representation
in
arbitration proceedings other than unfair dismissal proceedings)
and section 140(1).
2
It is not clear why these provisions are footnoted in the Rules,
particularly as they have now all been repealed. This is
a riddle
we do not need to solve in this case: Rule 25(1) had no
application in these proceedings.
The
applicant then sought to review and set aside the award in the
Labour Court. The review was based on the ground that the

commissioner had not provided any rational basis for refusing the
applicant the right to legal representation; that the commissioner

was biased against the applicant; and that the applicant’s
constitutional right to legal representation had been ignored.
The
founding affidavit in the review application asserted that the
applicant had an unconditional constitutional right to
legal
representation. Both the Ministers for Labour and Justice and
Constitutional Development were informed of the constitutional

challenge but neither placed any evidence or argument before the
Labour Court. The review application was heard by the Labour
Court
on 22 August 2003.
On
31 August 2003, the Labour Court handed down its judgment.
3
Landman J held that the commissioner had not misdirected himself
in refusing to permit the applicant to be legally represented.
The
Court also dismissed the attack based on bias. On the
constitutional point, the Court concluded that a right to legal

representation before a statutory tribunal does not exist at common
law. The Court found that arbitration does not constitute

administrative action within the meaning of section 33 of the
Constitution,
4
and that no right to legal representation before an independent and
impartial tribunal is to be found in section 34 of the

Constitution.
5
He also concluded that the commissioner had not infringed the
applicant’s right not to be unfairly discriminated against.
6
However,
the Court held that the commissioner’s failure to postpone the
proceedings once he had barred the applicant’s lawyer
constituted
a misdirection. The Court concluded that the applicant “had
required a breather to be primed by his attorney”
as to how to
present the case.
7
This the commissioner had refused and the Court found that the
arbitration award should accordingly be set aside and referred
back
to the CCMA for arbitration by a different commissioner.
8
The
applicant then sought and obtained leave to appeal to the Labour
Appeal Court. It obtained leave on 3 January 2005 and
concluded
its oral argument before the Labour Appeal Court on 16 March 2006.
There was no opposition in the Labour Appeal
Court and that Court,
without consulting the applicant, appointed an amicus curiae to
make submissions on the constitutional
question. The amicus (Mr
MJD Wallis SC) submitted his written argument on 18 December 2006.
The Labour Appeal Court delivered
judgment on 5 December 2008. Two
judgments were written in that Court, one by Zondo JP and the other
by HM Musi JA. Both
dismissed the arguments raised by the
applicant that it had a constitutional right to legal
representation. Unfortunately,
however, the judgment by Zondo JP
(in which Jappie JA concurred) overlooked the fact that the Labour
Court had set aside the
arbitration award on the grounds that the
applicant should have been given an opportunity to prepare once the
commissioner
had refused it the right to legal representation.
The
applicant now approaches this Court for relief. There is no doubt
that the question whether
section 140(1)
of the
Labour Relations
Act is
constitutional does raise a constitutional question. The
next issue that arises is whether it is in the interests of justice

for this Court to entertain the application at this stage.
We
are not persuaded that it is. In the first place,
section 140(1)
was repealed nearly seven years ago and apparently replaced by
rule
25(1)
which, though enigmatically alluding in a footnote to the
repealed section, is not in identical terms. This Court has held

that where a legislative provision has been challenged, but since
repealed, it may be in the interests of justice to determine
the
constitutional challenge if it would have any practical effect.
9
Given the time that has elapsed since
section 140(1)
was repealed,
we think it extremely unlikely that determining its
constitutionality at this stage will have any effect on pending

proceedings. And since
rule 25(1)
is not in identical terms to
section 140(1)
, any determination we make relating to the
constitutionality of
section 140(1)
will not be determinative of a
challenge to
rule 25(1).
Secondly,
more than ten years have elapsed since Ms Moabelo was dismissed.
Neither Ms Moabelo nor her union was represented
in the Labour
Appeal Court; and neither has sought to be represented here. At
this stage, it is probable that there is no
live dispute between
the applicant and Ms Moabelo. Should there be, Ms Moabelo would be
entitled to approach the CCMA in terms
of this judgment and the
judgment of the Labour Court for a fresh arbitration hearing. If
the dispute is, however, indeed
moribund, no direct purpose at all
will be served by this Court determining the constitutionality of
section 140(1).
We
conclude by noting once again that it is a matter of concern that
proceedings concerning an unfair dismissal in October 1998
should
not have reached their final resolution some ten years later. It
is not clear to us from the record before us where
the blame for
the delay lies (and so far as we can discern it does not lie
singly), and so we can take the matter no further
now.
We
find then that it is not in the interests of justice for the
constitutional point relating to legal representation before
the
CCMA to be determined in this case and we expressly refrain from
comment on that issue. In short, the application is dismissed

because there is, in all probability, no live dispute which would
be affected by a determination of the constitutionality of
section
140(1)
of the
Labour Relations Act. The
question of the
constitutionality and meaning of CCMA
rule 25
thus stands over for
another day. As this application has attracted no opposition, no
order of costs is necessary.
The
application for leave to appeal is dismissed.
Langa
CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J,
O’Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and
Yacoob
J.
For
the applicant: Bowman Gilfillan Inc.
1
Published in GN R961 GG 23611 of 25 July 2002. It should be noted
that when
section 55
of the
Labour Relations Amendment Act of 2002
inserted item 27 into schedule 7 of the
Labour Relations Act, item
27 provided that “until such time as” rules were made for the
CCMA,
section 140(1)
shall remain in force. The CCMA Rules were
adopted on 25 July 2002. The question was raised in the Labour
Court whether the
rules were competently adopted – see
Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau & Others
(2003) 24 ILJ 1712 (LC) at 1722. This is not a matter with which we
now need to be concerned.
2
All three of these sections were repealed by the
Labour Relations Amendment Act 12 of 2002
which came into force on 1
August 2002.
3
Netherburn Engineering
above n 1.
4
Id at 1726-7.
5
Id at 1728. Section 34 of the Constitution provides:
“
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.”
6
Netherburn Engineering
above n 1 at 1729.
7
Id at
[2003] USCA5 89
;
1720.
8
Id.
9
President, Ordinary Court Martial, and Others v Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (4)
SA 682
(CC);
1999 (11) BCLR 1219
(CC) at para 16.