COSATU welcomes Supreme Court ruling on lawyers at CCMA
The Congress of South African Trade Unions welcomes the judgement of the Supreme Court of Appeal (SCA) in the case of CCMA v Law Society of the Northern Provinces.
The SCA upheld an appeal by the CCMA against a judgement of the North Gauteng High Court, which had ruled as unconstitutional the CCMA's exclusion of lawyers from its proceedings, under its Sub-Rule 25(1) (c). This judgement would have forced the CCMA to allow lawyers to appear in misconduct and incapacity dispute hearings, from which they are currently excluded.
The judgement is in line with COSATU's decision, as expressed by its Central Executive Committee in November 2011, "to oppose an application by the Law Society to challenge the constitutionality of the exclusion of lawyers from appearing in the CCMA in misconduct and incapacity disputes.
"The implications of this," said the CEC, "would be huge. The LRA and its amendments were designed to give easy access to shop stewards to represent members in the CCMA. Allowing the employers to bring lawyers will simply complicate matters and eventually will be a huge financial burden on workers and their unions, who will not be able to afford the legal fees. The end result will be that the justice is denied to thousands of workers who currently can walk with to the CCMA to demand recourse."
The SCA summed up its view as follows: "The sole concern of the Law Society in bringing this litigation is that the sub-rule denies work to its members. Nothing in the Constitution, nor any decided cases, suggests that lawyers have a right to receive business. Where they receive business through the operation of the courts or other tribunals that is because their clients have a right to employ their services and not because they have a right to provide them."
It ruled that the High Court judge "disregarded the considered judgment of the experts who first drafted the LRA; the social partners at NEDLAC who endorsed their views on the proper approach to legal representation before the CCMA and the extensive experience of the CCMA and the labour courts that an automatic right to legal representation in these cases was inconsistent with the aim of expeditious and inexpensive resolution of these disputes. He did so without any evidence to support his own views."
COSATU agrees, and strongly urges the lawyers to accept this ruling and not appeal to the Constitutional Court, so that the CCMA can continue with its important work.
Statement issued by Patrick Craven, COSATU national spokesperson, September 26 2013
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