Case summary written by Frank Sebatana and checked by Dingumuzi Ndhlovu.
24 February 2021
Background
The Applicant, Mr Coetzee, was an employee of Autohaus Centurion, which was the Respondent in this matter. The Applicant was dismissed by the Respondent as he was charged and found guilty of a charge in the Main and an alternative charge in terms of his disciplinary hearing charge sheet.
On 4 February 2019, in the Dispute Resolution Centre an oral submission for permission to appear on behalf of parties in the arbitration proceedings was made before Stapelberg, Arbitrator. The Applicant was represented by J Geldenhuys, an attorney and the Respondent was represented by J Dickinson.
Therein, the Applicant’s legal representative argued that an Attorney has the right of appearance in any court, tribunal or board, subject to any other law, in terms of Section 25 of the Legal Practice Act 28 of 2018, hereinafter referred to as (“LPA”). It was further submitted that the only other law that may preclude such right of appearance is the Labour Relations Act 66 of 1995, hereinafter referred to as (“LRA”). However, the Applicant’s legal representative argued that the LRA did not deal with the issue of a legal representative’s right to an appearance on behalf of parties in the Conciliation Mediation and Arbitration, hereinafter referred to as (“CCMA”) and/or the Motor Industry Bargaining Counsel Dispute Resolution Centre, hereinafter referred to as (”MIBCO DRC”).
Furthermore, the Applicant’s legal representative submitted that in terms of the Dispute Resolution Centres Rules, hereinafter referred to as (“DRC”), specifically Rule 26 which provided for representation of parties before the Dispute Resolution Centre, the matter was legally complex in that the matter required Mr Coetzee to address both historical and contemporaneous inconsistency, which required legal expertise that he does not have. In addition, the Applicant’s legal representative argued that the nature of the dispute involved duplicated charges, a charge in the main and one in the alternative, both of which Mr Coetzee was found guilty on the supplicated charges and dismissed which accordingly required a legal expert to distinguish and argue the matter as a layperson, such as Mr Coetzee, cannot address the dispute on his own.
In objection to the Applicant’s aforementioned averments, for legal representation, the Respondent’s representative argued that neither Section 25 of the LPC, nor Rule 26 of the DRC entitled Mr Coetzee’s legal representative a right of appearance in the arbitration, outside of a formal application for same as per Rule 26 of the DRC. The Respondent’s representative further argued that the matter did not contain any technical or legal issues, and furthermore, he argued that the rules are simple and remain clear that the commissioner continues to have a discretion whether to permit legal representation or not, in accordance with the prevailing case law.[1]
Issues
The primary issue herein was whether or not in terms of Section 25 of the LPA, legal representatives including Attorneys; Advocates and Candidate Attorneys, are automatically entitled to appear on behalf of parties in all disputes in the CCMA and/or MIBCO DRC.
Judgement
According to the prevailing case law, prior to the promulgation of the LPA, in terms of the CCMA’s rule 25, equivalent to DRC rule 26, commissioners have discretion in deciding whether or not to allow legal representation, this was declared valid and constitutional in the Supreme Court of Appeal case: Commission for Conciliation, Mediation & Arbitration & others v Law B Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal) 2014 (2) SA 321 (SCA).[2]
More specifically, section 25 deals with, the Right of appearance of legal practitioners and candidate legal practitioners on behalf of any person in any court in the Republic or before any board, tribunal or similar institution, subject to subsections (3) and (4) or any other law.
The LRA, and other labour legislation applicable to CCMA and bargaining council commissioners have not been amended so as to limit the application of Section 25 of the LPA. Consequently, it is clear that commissioners are no longer entitled to their previously legislated and enforceable discretion as per the CCMA rule 25, equivalent to DRC rule 26, which sought to regulate and restrict the right of appearance on behalf of other parties held by legal representation in cases of dismissal for misconduct or incapacity. Thus, the discretionary power of commissioners has become overruled and subsidiary to Acts of parliament such as the LPA, and commissioners can no longer restrict legal representatives, excluding candidate attorneys from appearing in any proceedings, regardless of the nature of the dispute.
Value
It was held that according to section 25 of the LPA, legal practitioners and candidate attorneys enjoy an automatic right of appearance in the Dispute Resolution Centre and the CCMA processes and their right of appearance, is and will be enforceable without limitations.
Commentary
The aforementioned judgment does not take into consideration the following Sections 115(2A)(k) and 210, of the LRA, which in summary provides the following:
The commissioner may make rules regulating, the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings furthermore, when in conflict with other laws If any conflict, relating to the matters dealt with in the LRA arises between the LRA and the provisions of any other law save the Constitution or any Act expressly amending the LRA, the provisions of the LRA will prevail. In light of the above, it can be said that the section of the LPA does not and cannot regulate or override the proceedings including the commissioner’s discretion to grant parties a right to legal representation.
[1] 2014 (2) SA 321 (SCA).
[2] See n 1 above.
