Legal representation is only allowed if the parties and the commissioner consent thereto or the commissioner, after considering, inter alia, the complexity of the matter and comparative financial ability of the parties, concludes that it is unreasonable to proceed without legal representation. The rationale behind this limitation is that one of the most important objectives of the LRA is speedy resolution of labour disputes. Those advocating limitation hold a view that lawyers are notorious for complicating simple matters and that they are rarely available for postponed cases because of their busy practices (although this writer does not share these sentiments!). These factors delay resolution of dismissal matters, which constitute the majority of cases at CCMA, and increase costs.
Late last year, the Law Society of the Northern Provinces, on behalf of its members, successfully brought an application before the North Gauteng High Court to have the CCMA rule limiting legal representation declared unconstitutional. In granting the application, the High Court suspended the unconstitutionality of the rule and gave the CCMA six months to amend it. Whilst lawyers were rearranging their practices (and projected fees!) to accommodate the imminent influx of CCMA work, the CCMA put a spanner in the works by successfully appealing to the Supreme Court of Appeal.
In a unanimous judgment delivered on 20 September 2013, the SCA concluded that the High Court was wrong in declaring the CCMA rule limiting legal representation as unconstitutional. Among other things, the SCA found that the High Court disregarded ample evidence placed before it justifying the limitation of legal representation in dismissal cases. Bruising lawyers' egos a bit, the SCA considered the application by the Law Society as more of an attempt to increase the scope of work for lawyers than to advance the interests of the users of CCMA services. The SCA commented that lawyers have a right to enter and practise their profession but they do not have a right to receive CCMA work. It appears that the main flaw in the Law Society's application was that it was not supported by the main users of CCMA services i.e. trade unions and employers' organisations.
I suspect that in the near future the Constitutional Court will have a final say in this matter as I expect the Northern Provinces Law Society to soldier on in the interests of its members.
