The North Gauteng High Court recently heard the matter of Law Society of the Northern Provinces v Minister of Labour and Others (61197/2011).

In this matter the court considered the constitutionality of the restriction on legal representation in terms of Rule 25(2)(c) of the Rules of the CCMA.

Rule 25(2)(c) provides as follows:

“If the dispute being arbitrated is about the fairness of a dismissal and a party has alleged that the reason for the dismissal relates to the employee’s conduct or capacity, the parties, despite subrule (1)(b) are not entitled to be represented by a legal practitioner in the proceedings unless –

  • the commissioner and all other parties consent;
  • the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering –
  • the nature of the questions of law raised by the dispute;
  • the complexity of the dispute;
  • the public interest; and
  • the comparative ability of the opposing parties or their representatives to deal with the dispute.”


The court held that the rule restricts the right to representation by excluding legal practitioners from appearance as of right unless the commissioner is persuaded that such appearance is warranted or all parties consent to same.

The court found that the subrule was inconsistent with section 33 of the Constitution to the extent that it significantly abridged the discretion of the commissioner in a CCMA arbitration to afford legal representation in a serious, but not necessarily complex, case of dismissal for misconduct or incapacity. This limitation was held to be arbitrary and was not reasonable or justifiable.

A declaration of constitutional invalidity was thus issued. This declaration was however suspended for 36 months for the consideration and promulgation of a new subrule.