The Supreme Court of Appeal has reversed the ruling of the High Court, which declared the CCMA’s rule limiting legal representation to be unconstitutional. The rule places stringent limits on parties’ rights to be legally represented where their dispute concerned dismissal for misconduct or incapacity – thereby dispensing with legal representation in about 80% of all CCMA cases. Legal representation is available as of right in all other CCMA arbitrations – even in matters with less far-reaching and devastating consequences than dismissals, such as disputes about paid suspensions.
The SCA disagreed that the distinction between dismissal and other cases was unjustified, and had some harsh words for the Law Society of the Northern Provinces, who had brought the matter to court. The court was not impressed that the Law Society appeared to be mostly concerned with the rule depriving its members of potentially lucrative work, rather than with how the rule served the needs of clients, or broader social interests.