The issue of legal representation at disciplinary enquiries and at the CCMA is a vexed one. Notwithstanding amendments to the LRA1 and changes to the Rules for the Conduct of Proceedings before the CCMA,2 the law relating to legal representation3 in labour disputes remains unchanged: there is no absolute right to legal representation4 at any stage of the proceedings5 arising from incapacity and misconduct dismissals.6
The law can be summarised as follows:
1.
Legal representation at disciplinary enquiries is allowed at the discretion of the chairperson;7
2.
Legal representation is generally not allowed at Conciliation stage;8
3.
Legal representation is generally allowed at Arbitration stage (except at incapacity / misconduct dismissals).
In an article titled ‘The Right to Legal Representation under the LRA’9 I discussed the law (until end-2002) on legal representation in employment disputes and argues for a change to the rules which would allow for legal representation at all CCMA arbitrations.10 This article revisits the argument for change, traces developments subsequent to the publication of the prior article11 and documents and discusses the results of an empirical survey12 of the opinions of arbitrators, legal practitioners, employees, employers, trade unions and academics on the right to legal representation.
THE ARGUMENT FOR CHANGE
The argument for change is grounded in practical as well as public policy concerns. From a practical point of view, a change to the rules would bring consistency13 to the law which currently, arbitrarily,14 differentiates between misconduct and incapacity arbitrations and all other arbitrations.15
The argument against change is that lawyers make the process legalistic and expensive16 and that ‘a high degree of legal representation … would both undermine endeavours to resolve these disputes expeditiously and tilt the balance unfairly in the favour of employers’.17
Among those18 who support a change to allow for legal representation at all arbitrations is the Law Society of South Africa (LSSA).19 On the issue of legal representation, the LSSA committee on labour law recently became involved, as amicus curiae, in the matter of Norman Tsie Taxis20 in the Labour Court. The position of the LSSA’s labour law committee will be discussed more completely at the 17th Annual Labour Law Conference.21
RECENT DEVELOPMENTS
The LRA and the CCMA Rules
Prior to amendments in 2002, legal representation at the CCMA was regulated by ss 135(4),22 138(4)23 and 140(1)24 of the LRA. These sections were repealed by the 2002 Labour Relations Amendment Act.25 The LRA was amended by the Amendment Act to read that the CCMA ‘may make rules regulating the right of any person or category of persons to represent any party in any conciliation or arbitration proceedings;26… and all other matters incidental to performing the functions of the Commission.’27
One of the stated purposes of the 2002 amendments was to provide for the making of regulations by the Minister concerning representation at the commission.28 Until such time as the CCMA Rules were amended, legal representation was regulated by the transitional arrangements29 of the LRA which provided that:
‘27(1) Until such time as rules made by the Commission in terms of section 115(2A)(m) of the Act come into force –
(a)
sections 135(4), 138(4) and 140(1) of the Act remain in force as if they had not been repealed …’
The commission released new rules in July 2002. Rule 25 deals with objections to a representative appearing before the CCMA. A footnote to Rule 25(1) states that ‘representation of parties in the Commission is dealt with in sections 135(4), 136(4) and 140(1),’ however these sections had been repealed, with effect from 1 August 2002, by the LRA Amendment Act, hence creating a lacuna in the law with regard to the rules for legal representation at the CCMA.
Although it could be argued that in the absence of appropriate wording in the CCMA Rules, that the transitional arrangements should apply, or that the relevant footnote should be interpreted to give effect to the clear intention of the legislature,30 this lacuna was also interpreted as a right to legal representation in misconduct and incapacity proceedings.
The former position was supported by Commissioner Brand in Chemical Energy Paper Printing Wood & Allied Workers Union obo Nyanga and Mondipak31 who was of the view that:
‘… the footnote to rule 25 is not substantive law, but the footnote together with the wording of rule 25 certainly reflects the intention of the governing body of the commission, when drafting the “New Rules”, to retain the provisions of ss 135(4), 138(4) and 140(1) for the purposes of regulating representation before the CCMA.
… If the rules are ultra vires for whatever reason … there is even more reason to say that the status quo remains, because then the “New Rules” have no legal effect and, consequently, it cannot be argued that the suspensive conditions contained in iterm 27(1) of schedule 7 have been fulfilled.’32
Commissioner Brand therefore ruled that the representation of parties at arbitration proceedings before the CCMA must be determined in terms of rule 25 of the CCMA Rules read with ss 138(4) and 140(1) of the LRA, as if they have been retained.33
On the other hand, Commissioner Niehaus in CEPPWAWU obo Prince v Shatterprufe34 reasoned that the CCMA Rules did not exclude legal representation on the basis that the CCMA had failed to adequately deal with the issue of legal representation in the new Rules. The commissioner was of the view that ‘[t]here can be no question that in the absence of any other statutory provision regulating the issue of representation, the consequence of the repeal of the aforesaid sections of the Act is that parties are entitled to be legally represented in CCMA proceedings…’35 The employer was therefore entitled to be legally represented. ‘The commissioner expressed the view that the new Rules for the Conduct of Proceedings before the CCMA may be null and void, since they were brought into effect before the 2002 Amendment Act itself became operative.36
In any event, the CCMA appears to have closed this gap when it re-issued the CCMA Rules in October 2003. The Rules now specifically contain, in the text of Rule 25, rules identical to the previously repealed ss 135(4), 138(4) and 140(1).
Are the CCMA rules relating to legal representation constitutional?
The constitutionality of the rules relating to legal representation at the CCMA is comprehensively dealt with by Landman J, in the Labour Court, in Netherburn Engineering CC t/a Netherburn Ceramics v Robert Mudau & Others.37
Following the dismissal of an employee, who challenged the dismissal at the CCMA, the managing member of Netherburn Engineering CC had appeared at the CCMA arbitration, accompanied by his attorney. The labour attorney duly applied for permission to represent his client on the grounds that the matter was complex, the member had little experience in labour matters and that the employee was represented by an experienced union official.38 The commissioner refused the attorney’s request and ultimately found in favour of the employee.
Netherburn Engineering CC took the matter on review, where he challenged the commissioner’s decision to exclude the lawyer; his refusal to postpone the matter; and the award itself.39
Specifically, the decision to exclude the employer’s legal representative was challenged on the following grounds:
i)
The right to equality
Section 9(1) of the Constitution40 provides that everyone is equal before the law and has the right to equal protection and benefit of the law; and section 9(3) goes on to prohibit unfair discrimination:
‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.’
In Netherburn the court considered whether there was an actionable differentiation of treatment;41 ie whether the parties where treated differently, in a manner that could be considered unlawful. Although it acknowledged that the law relating to legal representation at misconduct and incapacity dismissal disputes was inconsistent with legal representation at arbitration proceedings generally, it was of the view there is no differentiation as regards the qualified right of legal representation between the employer and its former employee. As both employer and employee are on the same footing, the court reasoned, there is no inequality.
i)
The right to fair labour practices
Section 23(1) of the Constitution42 provides that everyone has the right to fair labour practices. ‘Fair labour practices’ is not defined in the constitution but, as Landman J points out, it embraces the right to job security which should not be terminated unlawfully or unfairly.43 Although not deciding the matter Landman J assumes that an employer’s rights vis-à-vis his or her employees are embraced in s 23(1)44 but finds that the court not need decide the appropriate institutions or procedures to enforce them.
ii)
The right to fair and lawful administrative action
Section 33(1) of the Constitution provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Administrative action attracts the principles of natural justice.45 In addition, the Promotion of Administrative Justice Act46 (PAJA) has been enacted to give effect to the right to fair and lawful administrative action. Administrative action is required to be procedurally fair and in this regard PAJA provides that legal representation should be allowed in serious and complex cases.47
While the CCMA does perform functions of an administrative nature,48 opinion on whether CCMA arbitration amounts to administrative action is divided. In Carephone (Pty) Ltd v Marcus NO & others49 it was held that the making of an arbitration award by the CCMA commissioner does constitute an administrative action; and an obiter remark50 in Shoprite Checkers (Pty) Ltd v Ramdaw NO & others51 is similarly to the effect that the PAJA definition of ‘administration action’52 may be wide enough to include an arbitration award by a CCMA commissioner.
On the other hand the Labour Court in Shoprite Checkers (Pty) Ltd v Ramdaw NO & others53 was of the view that arbitration is not administrative action.54 This is the view preferred by Landman J in the Netherburn matter.55
The classification of CCMA arbitration as administrative action would require, inter alia, that it adhere to PAJA, which provides that legal representation should be allowed in serious and complex cases. However, the importance of the classification of CCMA arbitration as administrative action, or not, losses some of its significance given the argument that the CCMA Rules56 are in any event compliant with PAJA in that the rules allow for legal representation in complex matters.57
iii)
The right to a fair public hearing
Section 34 of the Constitution58 provides that 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.
The employer in Netherburn argued that implicit in the right to a fair public hearing is the right to legal representation.
Landman J was prepared to concede that the CCMA is an appropriate neutral tribunal as contemplated by s 34 but replied in the negative to the question ‘[d]oes it flow from this that a party in similar circumstances to Netherburn has a right to legal representation?’59
Netherburn’s submission that ‘a fair public hearing’ entails that legal representation is a constitutional right of litigants participating in civil litigation was not accepted by the court. Landman J emphasised the distinction between courts and tribunals and, in so far as tribunals are concerned, was of the view that:
‘Legal representation may be appropriate in some situations and in a specific tribunal and not in other cases or on [sic] other tribunals. One cannot read a right of legal representation vis-à-vis a tribunal as being implicit in s 34.’60
iv)
The right to a fair trial
Section 35 of the Constitution61 provides that every accused person has a right to a fair trial which includes the right to choose, and be represented by a legal practitioner.
The s 35 right to a fair trial which includes the right to legal representation is applicable to persons accused of offences in a court of law and has no application in other tribunals. The CCMA, a tribunal for deciding labour disputes, is an organ of state and not a court of law62 63 and therefore the notion that s 35 is not applicable to disciplinary enquiries64 or at CCMA arbitrations is gaining in acceptance.65
Disciplinary Enquiries and Legal Representation
‘The overwhelming weight of authority in the Labour Court has been against granting legal representation at disciplinary enquiries.’66 However, regardless of whether the employer is a public entity or a private entity, both case law and the LRA appear to require, irrespective of the agreement between the parties, that an employer at least apply its mind to an application from an employee to allow legal representation.
This was the position in Cuppan v Cape Display Supply Chain Services.67 The applicant in Cuppan applied to the High Court for an order granting leave to be represented by a legal practitioner at a disciplinary inquiry on the grounds that he was entitled to legal representation in terms of s 2568 of the (Interim) Constitution.69 In addition, the employers’ disciplinary code provided that inquiries had to be conducted in accordance with natural justice. Page J disposed of the argument for a constitutional right to legal representation at disciplinary enquiries and held that s 25(3) is clearly concerned only with persons who are accused of offences in a court of law and has no application to domestic disciplinary tribunals.70
Page J, with regard to the disciplinary code provision that inquiries had be conducted in accordance with the principles of natural justice, refers to substantial authority to the effect that there is no general right to legal representation flowing from the requirements of natural justice71 although in complex cases natural justice may require legal representation.72 The judge is of the view that ‘where a hearing takes place before a tribunal other than a court of law, there is no general right to legal representation.’73 The time may well come however when public policy demands the recognition of such a right.74
In Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others75 the Supreme Court of Appeal was of the view that a student disciplinary enquiry at the Peninsula Technikon amounts to administrative action.76 This, it was held, does not necessarily infer the right to legal representation; but that the disciplinary committee must at least apply its mind and exercise its discretion to the application for a legal representative.
Hamata, a student at the Peninsula Technikon argued for a right to legal representation at a disciplinary enquiry. He was refused legal representation on the basis that the representation rule in the code for disciplinary proceedings reads that ‘[t]he student may conduct his/her own defence or may be assisted by any student or a member of staff of the technikon.’77 Hamata appealed against the refusal to allow legal representation to the Cape High Court who upheld the refusal but granted the applicant a right of appeal to the Supreme Court of Appeal.
The judges of the Supreme Court of Appeal concurred that there was no constitutional right to legal representation in administrative proceedings, but that the Constitution was flexible enough to permit legal representation where it was required to attain procedural fairness; and that the disciplinary committee had failed to exercise its discretion in this regard. The appeal was upheld and the decisions of the disciplinary committee and the court a quo were set aside.
Legal representation at disciplinary enquiries came before the labour court in the more recent case of Majola v MEC, Department of Public Works, Northern Province and Others.78 The employer sought to rely on the contract between the parties in order to exclude legal representation. In this instance the contract took the form of a collective agreement, an instrument afforded primacy in the LRA. The court however was of the view that, notwithstanding the primacy of collective agreements,79 ‘if a collective agreement prohibits or restricts the granting of legal representation, an adjudicator may allow such representation provided just cause exists not to apply the terms of the collective agreement’.80 The adjudicator must be slow to disregard the terms of the collective agreement, but is required to balance the tension between the constitutional right of access to a court or tribunal, the primacy of collective agreements and the freedom to contract.81 In Majola’s case the Labour Court found that the chairperson had exercised his discretion adequately and therefore the application was dismissed.
As stated above, regardless of whether the employer is a public entity or a private entity, or of the agreement between the parties, it is more than prudent that an employer at least apply its mind to an application to allow legal representation at a disciplinary enquiry.
A SURVEY ON LEGAL REPRESENTATION AT DISCIPLINARY ENQUIRIES AND AT PROCEEDINGS BEFORE THE CCMA / BARGAINING COUNCILS
A survey on legal representation at disciplinary enquiries and at proceedings before the CCMA was distributed to CCMA commissioners, trade unions, employees, employers, legal practitioners and academics.
Participants in the survey were given the option to remain anonymous and were asked to select an appropriate description82 from the categories of: employee; employer; arbitrator / commissioner; legal representative; union representative; labour consultant or other. The participants were asked to consider the three questions set out below and to indicate their opinion on the status quo relating to legal representation at disciplinary enquiries and at CCMA proceedings.
QUESTION 1
Legal representation at disciplinary enquiries is allowed at the discretion of the chairperson.
On review: ‘The overwhelming weight of authority in the LC has been against granting legal representation at disciplinary enquiries’ Majola v MEC, Department of Public Works, Northern Province and Others
INDICATE YOUR OPINION WITH AN ‘X’ NEXT TO YOUR CHOICE
q I agree, legal representation should be at the discretion of the chairperson
q I disagree, legal representation should never be allowed at a disciplinary enquiry
q I disagree, legal representation should always be allowed at a disciplinary enquiry
q Other, please explain in the space provide below
Please explain your choice (optional):
QUESTION 2
Legal representation is generally not allowed at Conciliation stage.
INDICATE YOUR OPINION WITH AN ‘X’ NEXT TO YOUR CHOICE
q I agree, legal representation should not be allowed at Conciliation
q I disagree, legal representation should be allowed at Conciliation
q Other, please explain in the space provide below
Please explain your choice (optional):
QUESTION 3
Legal representation is generally allowed at Arbitration stage (except at incapacity / misconduct dismissals).
INDICATE YOUR OPINION WITH AN ‘X’ NEXT TO YOUR CHOICE
q I agree, legal representation should be allowed at Arbitration (except incapacity / misconduct dismissals)
q I disagree, legal representation should be allowed at ALL Arbitrations
q I disagree, legal representation should not be allowed at ANY Arbitration
q Other, please explain in the space provide below
Please explain your choice (optional):
Results of the survey
The results of the survey are currently being collated and will be presented at the Annual Labour Law Conference.83
CONCLUSION
The importance of dismissal law is recognised:
‘Dismissals relating to conduct hold serious social, financial and personal implications for employees and for employers. The concept of preserving job security is one of the paramount aims of the LRA. So protection against the invalid and unfair termination of an employment relationship has a special significance. Employers too have a real and legitimate interest in maintaining a workforce that is not prone to misconduct … The importance and prominence of dismissal and its consequences suggest that legal assistance at the stage of the determination of whether the dismissal is valid and fair is desirable.’84
It is also recognised that dismissal law is too important to leave to the parties to regulate.85 However, an aspect of dismissal law, the right to legal representation, particularly at CCMA arbitrations in respect of misconduct and incapacity dismissals, remains to be satisfactorily resolved. Notwithstanding policy issues86 against the imposition of such a right, there is growing support, in the interest of fairness and equity, for the law to expand the right to legal representation at the CCMA to disputes arising from misconduct and incapacity dismissals.
‘No doubt the debate will continue to rage …’.87
Footnotes
*
BA LLB LLM (UCT); Lecturer, Department of Commercial Law, University of Cape Town.
1
Act 12 of 2002.
2
Recent amendments to the ‘Rules for the Conduct of Proceedings before the CCMA’ (the ‘CCMA Rules’) introduced in terms of s 115 of the LRA include: GN961 Gazette 23611 of 25 July 2002; which Rules were amended and re-issued on 10 October 2003) (GN R1448 Gazette 25515 of 10 October 2003) (as corrected by GN R1512 Gazette 25607 of 17 October 2003).
3
D Collier ‘The right to legal representation under the LRA’ (2003) 24 ILJ 753.
4
N Smythe ‘Legal representation at the CCMA – Latest developments’ (2003) 24 ILJ 1875.
5
That is, at disciplinary enquiries and at CCMA proceedings. Legal representation is of course permitted in labour court and labour appeal court proceedings that involve misconduct and incapacity dismissal disputes, such as the application for review of an arbitration award. In most instances misconduct and incapacity dismissal disputes are finalised at the CCMA.
6
Unfair dismissal disputes constitute 82% of the disputes referred to the CCMA. (Percentage for the period 1 April – 31 December 2003).
7
Majola v MEC, Department of Public Works, Northern Province and Others (2004) 25 ILJ 131 (LC).
8
Rule 25(1)(a) of the new CCMA Rules provides that a party may be represented at conciliation only by a director or employee or a member, office bearer or official of a trade union or employers’ organisation. A legal representative who is also one of the above-mentioned persons may therefore represent a party at conciliation.
9
(2003) 24 ILJ 753.
10
Legal representation is still excluded at incapacity and misconduct dismissal arbitrations.
11
(2003) 24 ILJ 753.
12
A Survey on Legal Representation at Disciplinary Enquiries and at proceedings before the CCMA / Bargaining Councils.
13
It is also argued that candidate attorneys who have right of appearance should be allowed to appear before the CCMA – currently ‘a legal practitioner’ means any person admitted to practise as an advocate or an attorney in the Republic (s 213 LRA) and accordingly a candidate attorney is not entitled to represent a party in the CCMA.
14
There is no rational reason why the LRA should provide a right to legal representation in arbitrations about dismissals as a result of operational requirements but disallow it where the dismissal concerns the conduct or capacity of the employee. ‘There is in particular no rationality in permitting a right of legal representation in disputes about discipline falling short of dismissal (where job security is not in jeopardy) and [not] in conduct and capacity dismissals. In these [conduct and capacity dismissal] cases the stakes are so much higher …’ Landman J in Netherburn Engineering CC t/a Netherburn Ceramics v Robert Mudau & Others (2003) 23 ILJ 1712 at 1725.
15
Rule 25 of the CCMA Rules.
16
Explanatory Memorandum of the draft 1995 LRA Bill at 142. Quoted in Brassey Employment and Labour Law (2000) Vol III at A7:59 and in P Buirski ‘The Draft Labour Relations Bill 1995 – The Case for Legal Representation at its Proposed Fora for Dispute Resolution’ (1995) 16 ILJ 529.
17
P Benjamin ‘ Legal Representation in Labour Courts’ (1994) 15 ILJ 250 at 260.
18
See the results of the Survey on Legal Representation at Disciplinary Enquiries and at proceedings before the CCMA / Bargaining Councils set out in the text below.
19
See Collier (2003) 24 ILJ 753 at 763 – 764.
20
Norman Tsie Taxis v Pooe, M N.O. (LC) March 2004.
21
LexisNexis Butterworths Annual Labour Law Conference, 30 June – 2 July 2004 (Sandton Convention Centre). The author awaits further details from the LSSA.
22
‘135 Resolution of disputes through conciliation … (4) In the conciliation proceedings a party to the dispute may appear in person or be represented only by – (a) a director or employee of that party; or (b) any member, office-bearer or official of that party’s registered trade union or registered employers’ organisation.’
23
‘138 General provisions for arbitration proceedings … (4) In any arbitration proceedings, a party to the dispute may appear in person or be represented only by – (a) a legal practitioner; (b) a director or employee of the party; or (c) any member, office-bearer or official of that party’s registered trade union or registered employer’s organisation.’
24
‘140 Special provisions for arbitration about dismissals for reasons related to conduct or capacity … (1) If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal related 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 the comparative ability of the opposing parties or their representatives to deal with the arbitration of the dispute.’
25
Sections 26, 27 and 28 Act 12 of 2002.
26
Section 115(2A)(k).
27
Section 115(2A)(m).
28
Preamble, Act 12 of 2002.
29
Schedule 7, item 27.
30
Chemical Energy Paper Printing Wood & Allied Workers Union obo Nyanga and Mondipak (2003) 24 ILJ 1743 (CCMA); S Albertyn ‘The new CCMA Rules’ (2002) 23 ILJ 1715.
31
Chemical Energy Paper Printing Wood & Allied Workers Union obo Nyanga and Mondipak (2003) 24 ILJ 1743 (CCMA).
32
Supra at 1747.
33
Supra at 1748.
34
CEPPWAWU obo Prince v Shatterprufe (2003) 24 ILJ 1161 (CCMA).
35
Supra at 1162 – 1163.
36
Supra at 1163 – 1164.
37
(2003) 23 ILJ 1712 (LC).
38
Grogan ‘Not unconstitutional’ Labour Law Sibergramme 9/2003 at 4.
39
Grogan supra.
40
Act 108 of 1996.
41
The first enquiry in determining a complaint about inequality or discrimination is whether there has been a differentiation; and thereafter whether the differentiation is lawful. (Harksen v Lane & others 1998 (1) SA 300 [CC]). Netherburn supra at 1729.
42
Act 108 of 1996.
43
Netherburn supra at 1726.
44
This is still an unsettled area of law, see also NEHAWU v UCT & others (2003) 24 ILJ 95 (CC).
45
The principles of natural justice are the fundamental principles of procedural fairness and justice which require that a party who will be affected by an administrative decision receives a fair and unbiased hearing before the administrative tribunal reaches its decision. See Administrator, Transvaal and Others v Traub and Others 1989 (4) SA 731 A.
46
Act 3 of 2000.
47
Section 33(3).
48
Landman J in Netherburn supra at 1726.
49
(1998) 19 ILJ 1425 (LAC).
50
By Zondo JP in Shoprite Checkers (Pty) Ltd v Ramdaw NO & others (2001) 22 ILJ 1603 (LAC).
51
(2001) 22 ILJ 1603 (LAC).
52
Section 1 of PAJA provides that administrative action means any decision taken, or any failure to take a decision, by- (a) an organ of state, when- (i) exercising a power in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect.’ Section 1 goes on to exclude a number of actions but does not expressly exclude CCMA arbitration.
53
(2000) 21 ILJ 1232 (LC)
54
Wallis AJ supra at par 90.
55
Netherburn supra at 1727.
56
The repealed s 140[1] of the 1995 LRA, now contained in Rule 25.
57
N Smythe ‘Legal Representation at the CCMA – Latest Developments’ (2003) 24 ILJ 1875.
58
Act 108 of 1996.
59
Netherburn supra at 1727.
60
Landman J at 1728.
61
Act 108 of 1996.
62
1995 LRA; Netherburn supra at 1723.
63
Buirski advises that ‘[t]he prejudice that flows from a dismissal, which has often been described as the economic equivalent of the death penalty, is such that a criminal trial and a hearing designated to pronounce finally upon the fairness of a dismissal are not dissimilar proceedings’. P Buirski (1995) ILJ 529 at 542.
64
Cuppan v Cape Display Supply Chain Services (1995) 16 ILJ 846 (D).
65
Notwithstanding a formidable constitutional challenge raised by the employer in the Netherburn matter, it does not appear, from the written judgment, that the employer endeavoured to rely upon the provisions of s35.
66
Majola v MEC, Department of Public Works, Northern Province and Others (2004) 25 ILJ 131 (LC)
67
(1995) 16 ILJ 846 (D).
68
Section 25(3)(e) of the interim Constitution Act 200 of 2003 provides that every accused person shall have the right to a fair trial, which shall include the right to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights. This right is now reflected in s 35(2) of Act 108 of 1996.
69
Act 200 of 1993.
70
Cuppan v Cape Display Supply Chain Services supra at 850.
71
Cuppan v Cape Display Supply Chain Services supra at 853.
72
Baxter Administrative Law at 251 and 555 – 6.
73
Cuppan v Cape Display Supply Chain Services supra at 851.
74
Van Zyl J in Lace v Diack & others (1992) 13 ILJ 860 (W).
75
Hamata and Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee and Others 2002 (5) SA 449 (SCA).
76
The Peninsula Technikon serves a public function.
77
Hamata supra at 1533.
78
Majola v MEC, Department of Public Works, Northern Province and Others (2004) 25 ILJ 131 (LC).
79
Section 1 1995 LRA.
80
Pillay J in Majola supra at 133 C.
81
Pillay J in Majola supra at 133 C - D.
82
With hindsight, parties should have been invited to select more than one category.
83
LexisNexis Butterworths Annual Labour Law Conference, 30 June – 2 July 2004 (Sandton Convention Centre).
84
Landman J in Netherburn Engineering CC t/a Netherburn Ceramics v Robert Mudau & Others (2003) 23 ILJ 1712 at 1726.
85
Hence the provisions of the 1995 LRA and the right to fair labour practices contained in the Constitution Act 108 of 1996.
86
Policy issues include escalated costs and inconvenience to employers which, it is argued, may act as a deterrent to employment and job creation. N Smythe (2003) 24 ILJ 1875 at 1878.
87
N Smythe (2003) 24 ILJ 1875 at 1878.
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