- The Labour Court has upheld a CCMA ruling refusing legal representation in a misconduct dismissal dispute.
- Frank Maluleka relied on medical evidence of anxiety and depression in support of a second application for legal representation.
- Judge R Lagrange found that the case did not justify court intervention before the arbitration had been completed.
For employees facing dismissal disputes for misconduct, obtaining legal representation at the CCMA remains subject to strict limitations.
The Labour Court has reaffirmed those restrictions after dismissing an urgent application brought by Frank Maluleka, who sought to overturn a ruling refusing him permission to be represented by a lawyer in an ongoing arbitration.
Maluleka is challenging his dismissal by the National Health Laboratory Services at the CCMA. The dispute concerns allegations that he disclosed a confidential Special Investigating Unit report to a person implicated in it, despite allegedly being instructed not to do so.
The matter reached the Labour Court after Maluleka unsuccessfully applied for legal representation on two occasions before the CCMA.
First application for legal representation
The first application was considered in December 2025. In terms of the CCMA Rules, legal representation is generally not permitted in misconduct dismissal arbitrations unless specific circumstances justify an exception.
Commissioner Allan Kayne found that the dispute was not legally or factually complex. The commissioner concluded that the matter would largely turn on whether the alleged misconduct occurred and whether Maluleka had breached an instruction.
The commissioner also took into account that Maluleka had been admitted as an advocate in 2005 and possessed legal training of his own. Although the employer’s representative was also legally qualified, the commissioner found that there was no imbalance significant enough to justify legal representation.
Commissioner Kayne concluded that legal representation was not necessary for the fair determination of the dispute and refused the application.
Medical grounds were advanced in the second application
When the arbitration resumed in March 2026, Maluleka brought a second application for legal representation.
This time, he relied on a report prepared by clinical psychologist Dr Boitumelo Shayi. The report recorded that Maluleka was experiencing symptoms of anxiety and depression that could affect his emotional state and cognitive functioning. The psychologist recommended that he be supported by a representative during the proceedings.
The National Health Laboratory Services opposed the application. Among other things, it argued that the application had been filed late and that the medical report did not establish that Maluleka was incapable of representing himself.
Although the commissioner accepted that medical or psychological factors could potentially be relevant when considering legal representation, he found shortcomings in the evidence presented.
The commissioner distinguished between evidence showing a person is incapable of attending proceedings and a recommendation that legal representation would be beneficial. He found that the report did not establish incapacity and merely suggested that representation would provide support.
The commissioner also noted that Maluleka was present at the proceedings, was able to participate and already had access to legal advice outside the arbitration.
In refusing the application, the commissioner concluded that Maluleka had failed to demonstrate that it would be unreasonable for him to proceed without legal representation.
Court declines to intervene before arbitration is completed
Maluleka approached the Labour Court on an urgent basis, seeking to have the ruling reviewed before the arbitration had been finalised.
Judge R Lagrange noted that Section 145(1B) of the Labour Relations Act restricts the Labour Court’s ability to review rulings made during ongoing arbitration proceedings. Such intervention is permitted only where it is just and equitable to do so.
Referring to Labour Appeal Court authority, Judge Lagrange noted that intervention before the completion of arbitration should be reserved for truly exceptional cases.
The court found that a ruling on legal representation is a procedural decision that falls within an arbitrator’s discretion. Judge Lagrange held that the commissioner had considered the relevant factors, including the medical evidence, the nature of the dispute and Maluleka’s legal qualifications.
The court also found nothing irrational in the commissioner’s view that, if Maluleka’s condition genuinely prevented him from participating in the proceedings, a postponement would be a more appropriate remedy than legal representation.
Judge Lagrange was not persuaded that the matter was exceptional or that the commissioner ought to have exercised his discretion differently.
In dismissing the application, the judge said, “I am not persuaded that Maluleka has demonstrated his case is truly exceptional, let alone that the arbitrator ought to have exercised his discretion differently.”
The urgent application was dismissed, leaving the ruling refusing legal representation in place while the misconduct dismissal arbitration continues before the CCMA.
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