Legal representation at the commission for conciliation mediation and arbitration

Abstract

The right to legal representation at the Commission for Conciliation, Mediation and Arbitration was initially not recognized in South Africa as it was not recognized by the Roman Dutch Law in respect of administrative tribunals. This right was gradually introduced into administrative tribunals although exercisable only with the consent of all parties. The position was subsequently modified and the right can now only be exercised subject to the discretion of the arbitrator although that right is not automatically available to misconduct and incapacity hearings. The question became whether the limitation in the exercise of the right is justifiable more particularly since the dawn of the new constitution in South Africa. There are two cases which were decided by the Supreme Court of Appeal where it was stated that the limitation is not unconstitutional. Both cases were referred to the Constitutional Court which could not make an unequivocal pronouncement on this issue. With this background this mini-dissertation seeks to examine whether the Constitutional Court is likely to decide consistently with the Supreme Court of Appeal or would find in favour of the disputants claiming that the limitation is unconstitutional. The mini-dissertation will in addition present a comparative survey from different jurisdictions on the right to legal representation, challenges faced by the dispute resolution institutions and possible solutions.