Title page for ETD etd-09112012-131843


Document Type Master's Dissertation
Author Curlewis, Llewelyn Gray
Email llewelyn@curlewis.co.za
URN etd-09112012-131843
Document Title Die reg op regsverteenwoordiging tydens verrigtinge voor die Kommissie vir Versoening Bemiddeling en Arbitrasie (Afrikaans)
Degree LLM
Department Mercantile Law
Supervisor
Advisor Name Title
Prof B P S van Eck Supervisor
Keywords
  • handelsreg
  • labour law
Date 2012-04-11
Availability unrestricted
Abstract
The South African labour law stands central in the economic sphere of the country. The relationship between an employer and an employee is therefore paramount. When an employee is dismissed, such person is subjected to the strictest possible sanction in the workplace environment and ultimately it also deprives a household of a major (sometimes exclusive) source of income. Unemployment holds economic and social consequences for both the person as well as the economy as a whole. The fairness of any possible dismissal is for this reason an important point of departure. The Constitution of the Republic of South Africa, Act 108 of 1996 emphasise the importance hereof, inter alia, by the enschrined right to fair labour practices, a right not only reflected in the Labour Relations Act of 1995, but also acknowledged in case law. The focus areas discussed in this dissertation are the importance of and the manner in which legal representation (being a fundamental principle underlying the right to fair labour practices and the notion of “fairness”) is applied in the current labour dispute resolution forums of South Africa. The dissertation engages in the debate regarding the question whether legal representation should always be allowed and should be recognized as an undisputed right and in all fora or not. Various interests are considered against the historical background and development of this issue in our law, legislation and the interpretation thereof by stakeholders. The specific focus of this study within the South African context includes the following:

  • The concept “legal practitioner” in the general legal profession.
  • The right to legal representation at the Commission for Conciliation Mediation and Arbitration (hereinafter the “CCMA”).
  • The historical development of the CCMA and the existence of specialist tribunals.
  • The possible constitutional attack on the regulatory framework of legal representation before the CCMA.
  • The benefits and the criticism attached to the current legal position regarding legal representation in the CCMA.

This study recommends that our law should be revised regarding the issue of the regulation of legal representation before the CCMA and to unify and / or simplify the law in this regard in order to create legal clarity and certainty once and for all. This should be done without parting with the principles already referred to.

The recommendation is that legal representation should be allowed in all labour fora and under all circumstances, obviously with the only limitation that it may be excluded in exceptional circumstances similar to the rules regulating for example criminal procedure. It is also suggested that constitutional intervention is necessary to adhere to the requirements of modern labour law.

The right to be represented have always been part of our law in general. The process, procedure, rights and regulations setting the parameters of the game should therefore be clear, unambiguous, direct in application and uniform in labour law as well. This will ensure settlement of labour law disputes in accordance with constitutional principles as could be expected in an open and democratic society.

Copyright © 2011, University of Pretoria. All rights reserved. The copyright in this work vests in the University of Pretoria. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of the University of Pretoria.

Please cite as follows:

Curlewis, LG 2011, Die reg op regsverteenwoordiging tydens verrigtinge voor die Kommissie vir Versoening Bemiddeling en Arbitrasie(Afrikaans) , LLM dissertation, University of Pretoria, Pretoria, viewed yymmdd < http://upetd.up.ac.za/thesis/available/etd-09112012-131843 / >

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