South African Council for Educators Act, 2000
R 385
Labour Relations Act, 1995 (Act No. 66 of 1995)Commission for Conciliation, Mediation and ArbitrationRules for the Conduct of Proceedings before the CCMA, 2023Part Five: Rules that apply to Conciliations, Arbitrations, Con-Arbs and other processes25. Representation before the Commission |
| (1) |
| (a) | In conciliation proceedings a party to the dispute may appear in person or be represented only by— |
| (i) | if the party is an employer, a director or employee of that party and, in addition, if it is a close corporation, a member or employee of that close corporation; |
| (ii) | any member of that party's registered trade union or registered employers' organisation or an office bearer or official as defined in the Act or an office bearer or official as defined in the Act of a registered federation of trade unions or registered federation of employers' organisations ; |
| (iii) | if the party is a registered trade union, any member of that trade union or any office bearer or official as defined in the Act and authorised to represent that party or an office bearer or official as defined in the Act of a registered federation of trade unions and authorised to represent that party; or |
| (iv) | if the party is a registered employers' organisation, any director or employee of an employer that is a member of that employers' organisation or an official or office bearer as defined in the Act and authourised to represent that party or an office bearer or official as defined in the Act of a registered federation of employers' organisations and authorised to represent that party. |
| (v) | if a party is the Department of Employment and Labour, any employee or official of the Department of Employment and Labour. |
| (b) | Subject to sub-rule 1(c), in any arbitration proceedings a party to the dispute may appear in person or be represented only by— |
| (i) | a legal practitioner; |
| (ii) | a candidate attorney; or |
| (iii) | an individual entitled to represent the party at conciliation proceedings in terms of sub-rule (1)(a). |
| (c) | If the dispute being arbitrated is referred in terms of section 69(5), 73 or 73A of the BCEA or 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, a party is not entitled to be represented by a legal practitioner or a candidate attorney in the proceedings unless: |
| (i) | the commissioner and all the other parties consent; |
| (ii) | the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without legal representation, after considering |
| (a) | the nature of the questions of law raised by the dispute; |
| (b) | the complexity of the dispute; |
| (c) | the public interest; and |
| (d) | the comparative ability of the opposing parties or their representatives to deal with the dispute. |
| (d) | In any facilitation of large scale retrenchments as contemplated in section 189A(3) of the Act, a party may appear in person or be represented by: |
| (i) | a director or employee of the party, and, if a close corporation, a member or employee of that close corporation; |
| (ii) | any member, office-bearer or official of that party's registered trade union; or |
| (iii) | any member, office-bearer or official of that party's registered union or registered employers' organisation. |
| (e) | No representation by a legal practitioner or candidate attorney shall be allowed in facilitations of large scale retrenchments as contemplated in section 189A(3) of the Act. |
| (f) | No person representing a party in proceedings before the Commission in a capacity contemplated in sub-rule (1)(a) or (b), other than a legal practitioner or candidate attorney contemplated in sub-rule (1)(b)(i) and (ii), may charge a fee or receive a financial benefit in consideration for agreeing to represent that party. |
| (2) | If the party to the dispute objects to the representation of another party to the dispute or the commissioner suspects that the representative of a party does not qualify in terms of this Rule, the commissioner must determine the issue. |
| (3) | The commissioner may call upon the representative to establish why the representative should be permitted to appear in terms of this Rule. |
| (4) | A representative must tender any documents requested by the commissioner for the purposes of sub-rule (3), including constitutions, payslips, contracts of employment, documents and forms or recognition agreements and proof of membership of a trade union or employers' organisation. |
| (5) | Despite the provisions of sub-rule (1), a commissioner may exclude any person who is representing a party in any proceedings on the basis that they are a member of the same employers' organisation as an employer party, or a member of an employers' organisation that is a party to proceedings, if the commissioner, after enquiring into the matter and considering relevant representations, believes that— |
| (a) | the representative joined the employers' organisation for the purpose of representing parties in the Commission; or |
| (b) | the representative's participation in the dispute resolution process— |
| (i) | would be contrary to the purpose of the Rule which is to promote inexpensive and expeditious dispute resolution in a manner that is equitable to all parties; |
| (ii) | is not in keeping with the objectives of the Labour Relations Act 66 of 1995; or |
| (iii) | may have the consequence of unfairly disadvantaging another party to the dispute. |
| (6) | Despite the provisions of this Rule, but subject to the provisions of sub-rule (1)(f), the commissioner may, on application brought in accordance with Rule 31, allow a person not contemplated by sub-rule (1) to represent a party at arbitration proceedings before the Commission, after considering— |
| (a) | whether it is unreasonable to expect the applicant party to deal with the dispute without representation, after considering the factors set out in sub-rule 1(c)(ii)(a) to (d); |
| (b) | the reason why a person contemplated in Rule 25 cannot represent the applicant party, which includes affordability, if applicable; |
| (c) | the ability of the proposed representative to meaningfully represent the applicant; |
| (d) | whether the proposed representative is subject to the oversight and discipline of a professional or statutory body; |
| (e) | whether the proposed representative will contribute to the fairness of the proceedings and the expeditious resolution of the dispute; |
| (f) | prejudice to the other party; and |
| (g) | any other relevant factors. |
