Coetzee / Autohaus Centurion [2019] 7 BALR 707 (MIBCO)
Division: Motor Industry Bargaining Council
Date: 18/02/2019
Case No: MIPT27810
Before: JD Stapelberg, Commissioner
Referral in terms of section 191(5)(a)(i) of the LRA
Practice and procedure Representation Legal Practice Act 28 of 2014 depriving CCMA and bargaining council Commissioner of right to refuse legal representation in certain classes of dispute.
Editor’s Summary
At the commencement of the arbitration concerning the applicant’s dismissal for alleged misconduct, his attorney contended that the Legal Practice Act 28 of 2014 (“LPA”) had deprived the Commissioner of his discretion to refuse legal representation, whatever the rules of the bargaining council might say.
The Commissioner noted that the Legal Practice Act gives practising advocates and attorneys, including candidate attorneys, the right to appear in any court or tribunal. The LRA and other legislation applicable to CCMA proceedings have not been amended since the LPA came into operation in November 2018. In the face of this Act, rules of the CCMA and bargaining councils which confer discretion on Commissioners to refuse to allow legal representations in certain classes of case can no longer apply. The Commissioner held that he was obliged to permit both parties to appoint legal representatives, if they so wished.
The Commissioner ruled accordingly.
Award
Details of hearing and representation
- The matter was set down for an arbitration process, heard on 4 February 2019 at DRC’s Hatfield offices. The applicant was accompanied by J Geldenhuys (attorney), the respondent was represented by J Dickinson (AHI). No interpreter was required and the matter was heard in Afrikaans and English.
Summary of submissions
- Mr Geldenhuys for the applicant submitted that section 25 of the new Legal Practice Act 28 of 2014 gives an attorney the right of appearance at any court, tribunal or any board, subject to any other law. The only other law is the LRA and the fact of the matter is that the LRA does not deal with legal representation, and a Bargaining Council’s rules are not a law, hence he is not prevented from representing the applicant.
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- He then argued in the alternative, an application for legal representation as set out in the DRC Rules, referring to the fact that charges were duplicated and this is not an argument a layperson like the applicant can address on his own. The applicant was also found guilty on both the main charge and the alternative, of which he can also not argue the legal complexity on his own. Furthermore, there had been both contemporaneous and historical inconsistency in the application of the rule, which the applicant can also not deal with on his own.
- Mr Dickinson for the respondent submitted that the rules are simple and there are no technical or legal issues to deal with. In terms of the prevailing case law at present, it remains clear that the Commissioner has a discretion on whether to permit legal representation or not. The matter is being heard under the auspices of the DRC and, therefore, the DRC rules remain applicable in his view. He indicated he does not wish to attempt to interpret new legislation that may be in conflict with this.
Analysis of submissions
- The respondent’s representative is correct that the prevailing case law at present, even as far as the Supreme Court of Appeal in Commission for Conciliation, Mediation & Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal) (2013) 34 ILJ 2779 (SCA) [also reported at [2013] 11 BLLR 1057 (SCA) Ed] confirmed the validity and constitutionality of the CCMA’s Rule 25 (which also extends to Bargaining Council Rules, such as those of the DRC’s rule 26), confirming the discretion of the Commissioner in deciding whether to allow legal representation or not. However, this was before the Legal Practice Act of 2014 came into effect on 1 November 2018.
- Section 25 thereof pertains to the right of appearance of legal practitioners and candidate legal practitioners. Subsection 2 thereof reads that “a legal practitioner, whether practising as an advocate or an attorney, has the right to appear 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.” Subsection (5) grants similar rights to candidate attorneys.
- In his ruling reported in 2015 as Vuyo Homoyi v Harrogate Projects CC (2015) 36 ILJ 1957 (CCMA); [2015] 6 BALR 655 (CCMA), Commissioner GS Jansen Van Vuuren had the foresight to point out the following with regard to the Legal Practice Act (which was by then not yet promulgated) in paragraph 8. The Legal Practice
Act, 2014 may, interestingly, change the current position because section 25(2) of that Act provides that “a legal practitioner, whether practising as an advocate or an attorney, has the right to appear 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.” These provisions have not yet come into operation, but it will be interesting to monitor developments in this regard because an act of Parliament will obviously enjoy preference over the Commission’s Rules.
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- The LRA and other labour legislation applicable to CCMA and Bargaining Council Commissioners has not been amended in response to the Legal Practice Act becoming law; it therefore appears that no provision has been made in the applicable legislation for the status quo (pre 1 November 2018) to continue to ensure that Commissioners would retain a discretion in respect of whether to allow legal representation before the CCMA and Bargaining Councils. Rule 25 of the CCMA rules and rule 26 of the DRC Rules, which sought to restrict the right to legal representation in cases of dismissal for conduct or capacity are therefore subordinate to Acts of Parliament such as the Legal Practice Act and can no longer serve to restrict legal representatives, including candidate attorneys from appearing in any proceedings, regardless of the nature of the dispute. Based on these considerations and considering that I am required to apply the law and not make the law, there is no discretion to restrict the applicant’s right to legal representation, regardless of the nature of the dispute to be arbitrated and I, therefore, have to uphold Mr Geldenhuys‘ primary argument in that regard.
Ruling
- Having considered the submissions on the matter, I find that both parties have a right to legal representation without having to make an application, as this right is granted to the legal practitioners acting on their behalf, in terms of the Legal Practice Act of 2014, which takes precedence over the collective agreements and rules of the DRC.
- In spite of the case law that applied until 1 November 2018, there is no new legislation to restrict these rights and therefore there currently no longer exists a discretion for a Commissioner to consider whether to permit legal representation in certain types of arbitrations.
- Case management is to schedule the matter for arbitration.
The following cases were referred to in the above award:
Commission for Conciliation, Mediation & Arbitration and others v Law Society of the Northern Provinces (Incorporated as the Law Society of the Transvaal) [2013] 11 BLLR 1057 ((2013) 34 ILJ 2779) (SCA)
Vuyo Homoyi v Harrogate Projects CC [2015] 6 BALR 655 ((2015) 36 ILJ 1957) (CCMA)