The uncertainty that has existed for some time as to whether CCMA Rule 25(1)(c) is unconstitutional has been put to rest by the Supreme Court of Appeal (SCA).   The matter must now be regarded as settled, unless the lawyers decide to appeal to the Constitutional Court.  Late last year the High Court decided that the rule was unconstitutional but suspended the order for 36 months. On Friday the SCA upheld the appeal of the CCMA.

View the High Court judgment of justice Tuchten in Law Society of the Northern Provinces v Minister of Labour.

Justice of appeal Malan, writing for a unanimous bench of the Supreme Court of Appeal, overturned that decision on 20 September 2013 in CCMA v Law Society of the Northern Provinces.  

Extracts from the SCA judgement (reformatted and without footnotes)

Basis of the application

[2]        The application of the Law Society of the Northern Provinces was based on the grounds that the subrule

  • unfairly discriminated against legal practitioners in violation of s 9(3) of the Constitution and the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (the Equality Act);
  • that it infringed s 22 of the Constitution which guarantees every person the right to choose his or her trade, occupation and profession freely; and
  • that the exclusion of legal representation infringed s 34 of the Constitution which ensures that every person has the right to have any dispute that can be resolved by the application of law resolved in a fair public hearing before a court or another independent and impartial tribunal or forum.

It was further contended that legal representation was denied in CCMA arbitrations on the basis that they were of an administrative nature.

[3]        A right to legal representation exists for the benefit and protection of litigants.   In this case the Law Society does not purport to be pursuing the interests of those who use the services of the CCMA.

Indeed, there is not the slightest suggestion in its papers that the restriction on the right to legal representation causes hardship to or has operated to the prejudice of those affected by it.

Nor is there any suggestion that the major parties concerned with labour disputes – employers’ organisations and trade unions – support the application of the Law Society.

The sole concern of the Law Society in bringing this litigation is that the subrule denies work to its members.

Nothing in the Constitution nor any decided cases suggests that lawyers have a right to receive business.

Where they receive business through the operation of the courts or other tribunals that is because their clients have a right to employ their services and not because they have a right to provide them.

. . . .

Right to legal representation in the CCMA?

[18]      The CCMA is not a court.

Arbitration proceedings in the CCMA constitute administrative action and a commissioner conducting a CCMA arbitration is performing an administrative function.

Administrative tribunals, generally, are required to take decisions that are consistent with PAJA.

However, the Constitutional Court held that PAJA does not apply to the review of CCMA arbitrations and said that s 145 of the LRA was ‘suffused’ with the constitutional standard of reasonableness: namely whether the decision is such that it could not be reached by a reasonable decision maker.

The provisions of the LRA must be interpreted in compliance with the Constitution (s 3 of the LRA).

Section 33(1) of the Constitution states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair.

But the contention that this requires there to be a right to legal representation in every case of a hearing before an administrative tribunal such as the CCMA, is contrary to long-standing and binding authority.

. . . .

Freedom of trade

[25]      The Law Society also relied on s 22 of the Constitution to challenge the validity of the subrule.

The section ensures that

‘[e]very citizen has the right to choose their trade, occupation or profession freely.   The practice of a trade, ocupation or professsion may be regulated by law’.

The Law Society’s founding papers barely deal with the effect of the subrule on its members’ choice of a trade, occupation or profession.

The deponent stated that the effect of the rule was to exclude practising attorneys and advocates from proceedings for which he or she was particularly skilled.

Section 22 embraces both the right to choose a profession and the right to practise the chosen profession.

Limitations on the right to freely choose a profession, it was said, are not to be lightly tolerated:

‘But we live in a modern and industrial world of human interdependence and mutual responsibility.   Indeed we are caught in an inescapable network of mutuality.   Provided it is in the public interest and not arbitrary or capricious, regulation of vocational activity for the protection both of the persons involved in it and of the community at large affected by it is to be both expected and welcomed.’

The rule does not purport to regulate entry into the profession, nor does it affect the continuing choice of practitioners to remain in the profession.

It only impacts on a litigant’s right to be represented in a particular forum.   For the reasons considered above the subrule meets the rationality standard.