adminLabour Matters Davies Ndumiso Sibanda
LABOUR Court places restrictions on who can represent a party in a case before the Labour Court, unions, employers and individual employees who are barred from being represented by labour consultants and other independent labour law experts.In the light of the new Constitution it remains unclear as to whether these limitations on representation are constitutional taking into consideration the fact that section 86 of the Constitution at 3(e) reads “No law may limit the following rights enshrined in this chapter and no person may violate them . . . (e) the right to a fair trial”
I am of the view that the right to representation by a representative of choice in a labour matter goes to the root of a fair trial (hearing). Debate has started among trade unionists and labour consultants on whether they can now represent parties before the Labour Court.
It is difficult to give a clear answer as the Labour Act is yet to be aligned to the Constitution; however, there are sections of the Constitution that point towards a change in right to representation.
Reading section 85(b) of the Constitution which reads, “A person acting on behalf of another who cannot act for themselves.” This constitutional provision could easily mean that a worker who can prove that he cannot represent himself because he lacks knowledge of labour law can approach a labour law expert and seek representation.
The question though is whether Labour Court judges would accept that or the matter would have to be dealt with first as a constitutional matter to get clarity before representation can be allowed.
Further, section 85(d) provides for a person with particular expertise, with the leave of the court, a right to appear as a friend of the court. “Friend of the court”, is not defined, although in strict legal terms a friend of the court (amicus curiae) has a specific meaning. In our case, it is difficult to tell the spirit of the Constitution meaning that there is a chance that specialists in Labour Law may appear before the Labour Court and Supreme Court representing parties.
There is doubt though whether the Supreme Court rules would allow that. Some have argued that since labour hearings have to be informal, the courts might relax rules and allow representation by non-lawyers. This debate will only be settled either when the labour court and Supreme Court rules are aligned to the new Constitution or where issues of representation are brought before the Constitutional Court.
I am of the view that if well argued prospects of success in having trade unionist and labour consultants represent parties before the Labour Court and Supreme Court is possible.
However, there will be a need to prove that the individual is an expert in the area. I am of the view that experience might not be adequate; it might have to be backed by qualifications.
In conclusion, we all do not know what the new Constitution means in terms of representation by labour consultants, an answer can only come out of dialogue with the labour court or pushing through test cases.
derick.khumalo