The Commission for Conciliation, Mediation and Arbitration (CCMA) seeks to **resolve labour disputes** in a quick, inexpensive, and informal manner. Representation rules balance the employee’s right to representation with the CCMA’s mandate to avoid overly legalistic or costly proceedings.

**Rule 25** of the CCMA’s Rules (promulgated under Section 115 of the Labour Relations Act) details who can represent a party in **conciliation** and **arbitration**. Historically, **legal practitioners** were restricted from automatically representing employees in dismissal disputes based on misconduct or incapacity. However, constitutional challenges have shaped how these limitations are applied.

Generally, at the CCMA, **Parties** can be represented by:

• Themselves (in person)
• A director or employee of the employer (if the party is a company)
• A member or employee of a close corporation (if the party is a CC)
• Trade union members/officers (if the employee is a union member)
• Employer’s organisation members/officers (if the employer belongs to one)

Only under certain conditions can a **legal practitioner** (attorney or advocate) or **candidate attorney** appear. We expand on this in Section 4.

Note: Except for attorneys or advocates, **no representative may charge a fee** for representation at the CCMA (Rule 25(1)(f)). This ensures accessible dispute resolution free from exploitation.

Conciliation

Conciliation is an **informal, off-the-record** process aimed at settlement. **Legal practitioners** generally may not represent parties at conciliation (including the conciliation phase of a con-arb) unless all parties and the commissioner agree. The standard approach is that parties attend in person or with the union / employer organisation rep.

Arbitration

At **arbitration**, representation is more formal, but Rule 25 draws a distinction:

• **Automatic Right for Legal Representation** in certain matters (e.g., “in limine” hearings, non-dismissal disputes, or disputes about unfair labour practices not relating to conduct/incapacity, etc.).
• **Restricted** if the dispute relates to dismissal for **misconduct** or **incapacity**, or certain Basic Conditions of Employment Act (BCEA) enforcement issues, unless the commissioner exercises discretion or all parties consent and the commissioner approves. (See more in Section 4.)

**Rule 25** tries to ensure the CCMA remains a cost-effective forum that avoids excessive legalism. Hence, for **dismissals based on conduct or capacity** (misconduct or poor performance, typically the most common), **legal representation** is **not automatically allowed** in arbitration. Instead, it requires either:

1. **Consent of all parties** and the commissioner; or
2. The commissioner deciding it’s **unreasonable** to proceed without an attorney, after considering:
   • The nature of questions of law raised
   • The complexity of the dispute
   • The public interest
   • The comparative ability of the parties

In **other** CCMA arbitration disputes (e.g., unfair labour practices not involving conduct/incapacity, or contractual claims), **legal representation** is automatically permitted.

In an important case, the **Law Society** and others challenged the CCMA’s Rule 25(1)(c) on constitutional grounds, arguing it **unfairly** limited the right to legal representation in **misconduct/incapacity** dismissal arbitrations. The High Court found restricting legal representation to an “exception-based” approach was **unconstitutional** because it could unfairly prejudice an employee who risked losing a major asset (their job).

The court recognized:

• The CCMA’s desire to avoid delays and “over-legalization” of proceedings
• The seriousness of job loss for employees, which can be akin to losing a major livelihood asset

Ultimately, the rule’s validity was **suspended** for a period to allow the CCMA to revise it. Meanwhile, commissioners must carefully **exercise discretion** and not automatically refuse attorneys. They should consider complexity, fairness, and comparative abilities.

This effectively means that while the limitation was flagged as **possibly unconstitutional**, the standard rule 25 approach remains in place, but **commissioners** should be more open to allowing representation if circumstances warrant it.

Case note: Netherburn Engineering v Mudau NO & Others previously upheld the restrictions, focusing on speedy resolution. The more recent Constitutional Court stance recognized potential prejudice if employees truly need an attorney.

**Rule 25(1)(e)** states that in **section 189A(3)** facilitation processes (i.e. large-scale retrenchment facilitation), **legal practitioners are not allowed** to represent a party—no discretion is afforded to the commissioner. Instead, an employer’s representative is typically:

• A director or employee of the company
• An official/office bearer of a recognized employer’s organization

Similarly, employees are represented by:

• Themselves, or
• A member/official of their trade union

This “no lawyers” rule is absolute in **facilitation** (not the actual arbitration), reflecting the policy that retrenchment facilitation should be collaborative, not an adversarial, attorney-driven process.

When legal representation **isn’t automatically** permitted (e.g., a misconduct dismissal arbitration), a party can make a **Rule 25(6)** application for the **commissioner’s discretion**. The request must be made in line with **Rule 31** (application procedures), addressing:

• The **nature** and **complexity** of legal questions
• The **public interest** in the dispute
• The **comparative ability** of both sides to represent themselves
• Any reasons why a recognized union or company official **cannot** represent the party
• The representative’s skills or knowledge
• Potential prejudice to the other side if attorneys are permitted

The commissioner must weigh these factors carefully and decide if it’s **unreasonable** to expect the party to proceed without an attorney. This ensures fairness while preserving the CCMA’s goal of simple, speedy dispute resolution.

Essential Cases

• Netherburn Engineering v Mudau NO [2009]: Affirmed CCMA’s power to limit lawyers for misconduct/incapacity disputes.
• Law Society Challenge: Constitutional concerns about fully barring attorneys. CC found the limitation potentially unconstitutional but suspended the ruling to allow revision.

Practical Tips

• For Commissioners:
  • Always weigh complexity, legal questions, parties’ abilities, and fairness. The discretion must be used **judicially**.
  • In large-scale retrenchment **facilitation** (s189A(3)), there is **no** discretion: attorneys cannot appear.
• For Employers/Employees:
  • **Check** if your dispute automatically allows attorneys (non-conduct or capacity matters, e.g. a contractual dispute).
  • If you want an attorney but the dispute is for misconduct/incapacity, **bring an application** under Rule 25(6) early, explaining why self-representation or a union rep isn’t enough.
• For Legal Practitioners:
  • Be prepared to show how your involvement won’t overcomplicate or delay the hearing, but is crucial for fairness.
  • Observe the CCMA’s preference for minimal formality. Focus on direct, relevant submissions rather than technicalities.

Disclaimer: This guide is for **informational** purposes only. Always consult professional advice for unique or complex matters.