The constitutional right to legal representation during disciplinary hearings and proceedings before the CCMA
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
- Authors: Buchner, Jacques Johan
- Date: 2003
- Subjects: Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11052 , http://hdl.handle.net/10948/294 , Right to counsel -- South Africa , Dispute resolution (Law) -- South Africa , Labor laws and legislation -- South Africa , South Africa. Commission for Conciliation, Mediation and Arbitration
- Description: The right to legal representation at labour proceedings of an administrative or quasi-judicial nature is not clear in our law, and has been the subject of contradictory debate in the South African courts since the1920’s. Despite the ambiguities and uncertainty in the South African common law, the statutory regulation of legal representation was not comprehensively captured in labour legislation resulting in even more debate, especially as to the right to be represented by a person of choice at these proceedings in terms of the relevant entrenched protections contained in the Bill of Rights. The Labour Relations Act 12 of 2002 (prior to amendment) is silent on the right to representation at in-house disciplinary proceedings. Section 135(4) of Act 12 of 2002 allows for a party at conciliation proceedings to appear in person or to be represented by a director or co employee or a member or office bearer or official of that party’s registered trade union. Section 138(4) of the same Act allows for legal representation at arbitration proceedings, but subject to section 140(1) which excludes legal representation involving dismissals for reasons related to conduct or capacity, unless all parties and the commissioner consent, or if the commissioner allows it per guided discretion to achieve or promote reasonableness and fairness. The abovementioned three sections were however repealed by the amendments of the Labour Relations Act 12 of 2002. Despite the repealing provision, Item 27 of Schedule 7 of the Amendment reads that the repealed provisions should remain in force pending promulgation of specific rules in terms of section 115(2A)(m) by the CCMA. These rules have not been promulgated to date. The common law’s view on legal representation as a compulsory consideration in terms of section 39 of the Constitution 108 of 1996 and further a guidance to the entitlement to legal representation where legislation is silent. The common law seems to be clear that there is no general right to legal representation at administrative and quasi judicial proceedings. If the contractual relationship is silent on representation it may be permitted if exceptional circumstances exist, vouching such inclusion. Such circumstances may include the complex nature of the issues in dispute and the seriousness of the imposable penalty ( for example dismissal or criminal sanction). Some authority ruled that the principles of natural justice supercede a contractual condition to the contrary which may exist between employer and employee. The courts did however emphasize the importance and weight of the contractual relationship between the parties in governing the extent of representation at these proceedings. Since 1994 the entrenched Bill of Rights added another dimension to the interpretation of rights as the supreme law of the country. On the topic of legal representation and within the ambit of the limitation clause, three constitutionally entrenched rights had to be considered. The first is the right to a fair trial, including the right to be represented by a practitioner of your choice. Authority reached consensus that this right, contained in section 35 of the Constitution Act 108 of 1996 is restricted to accused persons charged in a criminal trial. The second protection is the entitlement to administrative procedure which is justifiable and fair (This extent of this right is governed y the provisions of the Promotion of Access to Administrative Justice Act 3 of 2000) and thirdly the right to equality before the law and equal protection by the law. In conclusion, the Constitution Act 108 of 1996 upholds the law of general application, if free and justifiable. Within this context, the Labour Relations Act 66 of 1995 allows for specific representation at selected fora, and the common law governs legal representation post 1994 within the framework of the Constitution. The ultimate test in considering the entitlement to legal representation at administrative and quasi judicial proceedings will be in balancing the protection of the principle that these tribunals are masters of their own procedure, and that they may unilaterally dictate the inclusion or exclusion of representation at these proceedings and the extent of same, as well as the view of over judicialation of process by the technical and delaying tactics of legal practitioners, against the wide protections of natural justice and entrenched constitutional protections.
- Full Text:
- Date Issued: 2003
The law relating to lock-outs
- Madokwe, De Villiers Badanile
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
- Authors: Madokwe, De Villiers Badanile
- Date: 2003
- Subjects: Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:11046 , http://hdl.handle.net/10948/298 , Strikes and lockouts -- Law and legislation -- South Africa , Labor laws and legislation -- South Africa , Dispute resolution (Law) -- South Africa
- Description: The lock-out is accepted as a necessary element of collective bargaining. The law relating to lock-out is considered as a legitimate instrument of industrial action. There are a number of procedural requirements for a legal lock-out. The dispute should be referred to a bargaining council (or where there is no bargaining council with jurisdiction, to a statutory council) or, failing which, the Commission for Conciliation, Mediation and Arbitration. If the bargaining/statutory council or the commission fails to resolve the dispute, it is no longer required that a ballet should be brought out in favour of the contemplated lock-out before the lock-out could be legal: all that is required is that the period of notice of the intended lock-out is given. The lock-out may either be protected or unprotected. It is protected if it is not prohibited absolutely and the various procedural requirements have been complied with. The protected lock-out is immuned from civil liability. On the other hand a lockout will be unprotected if it does not comply with sections 64 and 65 of the Labour Relations Act, 1995. In the circumstances the Labour Court has exclusive jurisdiction to grant an interdict or order to restrain any person from participating in unprotected industrial action and to order the payment of just and equitable compensation for any loss attributable to the lock-out. Lock-outs are prohibited in specific instances and allowed with some qualifications in others. For example, employers engaged in the provision of essential or maintenance services are prohibited from locking their employees out in order compel them to comply with their demand. Such essential services are Parliamentary services, the South African Police Service and a service the interruption of which endangers the life, personal safety or health of the whole. A distinction is also drawn between offensive and defensive lock-outs. Defensive lock-outs involve the closure of an employer’s premises or the shutting down of its operations during industrial action initiated by workers. The offensive lock-outs, also known as “pre-emptive lock-outs”, amount to an employer initiated form of industrial iv action where the premises are locked and workers are excluded and prevented from working. The law relating to lock-out in South Africa is clearly put in its proper perspective by the interim Constitution of the Republic of South Africa 200 of 1993, final Constitution of the Republic of South Africa 108 of 1996, Labour Relations Act 66 of 1995 and in Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa.1 However the situation is unsatisfactory to employers. The interim Constitution guaranteed the “right to strike” and “recourse to the lock-out”. Under the final Constitution lock-outs enjoy no direct protection. The Constitutional Court’s certification judgement rejects the view that it is necessary in order to maintain equality to entrench the right to lock-out once the right to strike has been included. The Constitutional Court concluded that the right to strike and the right to lock-out are not always and necessarily equivalent. However the purpose of the lock-out is to settle collective dispute of the ways permitted by the Labour Relations Act, 1995. The purpose is not to terminate the relationship between the employer and the employee. The employer may not, for example, dismiss employees finally at the end of an unsuccessful lock-out in order to avoid the consequences of impending strike action by the employees.
- Full Text:
- Date Issued: 2003
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