Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO and Others

Ms Jane Moabelo (third respondent) was dismissed by Netherburn Engineering CC (applicant) for misconduct on 26 October 1998. She referred an unfair dismissal dispute to the CCMA. At the arbitration hearing on 17 May 2000, the applicant was represented by an attorney while Ms Moabelo was represented by a trade union official. Mr Sibiya objected to the attorney's representation in terms of section 140(1) of the Labour Relations Act 66 of 1995. The commissioner (Mr Mudau, first respondent) refused to permit legal representation and denied the applicant's request for a postponement to allow its managing director to prepare without the attorney. The applicant withdrew from the arbitration. On 13 June 2000, the commissioner found the dismissal unfair and ordered reinstatement and compensation. The applicant sought review in the Labour Court, which set aside the award on the basis that the applicant should have been given time to prepare after being denied legal representation. The applicant appealed to the Labour Appeal Court on constitutional grounds, arguing it had a constitutional right to legal representation. The Labour Appeal Court dismissed the appeal on 5 December 2008. Section 140(1) was repealed by the Labour Relations Amendment Act 12 of 2002 and effectively replaced by CCMA Rule 25(1) on 25 July 2002.

• Whether the applicant had a constitutional right to legal representation before the CCMA under section 140(1) of the Labour Relations Act
• Whether it is in the interests of justice for the Constitutional Court to determine the constitutionality of section 140(1) after its repeal
• Whether the commissioner properly exercised discretion in refusing legal representation
• Whether there was still a live dispute between the parties after more than 10 years

The application for leave to appeal was dismissed. No order as to costs was made as the application attracted no opposition.

The Constitutional Court will not determine the constitutionality of repealed legislation where: (1) the repealed provision has been replaced by a provision that is not in identical terms, such that a determination regarding the repealed provision would not be determinative of challenges to the replacement provision; (2) sufficient time has elapsed since repeal that it is extremely unlikely that determining the constitutionality of the repealed provision would have any practical effect on pending proceedings; and (3) there is probably no live dispute between the parties that would be affected by such a determination. The interests of justice test for granting leave to appeal requires consideration of whether there is a live dispute with practical consequences.

The Court expressed significant concern about the ten-year delay in resolving an unfair dismissal dispute, noting that proceedings concerning a dismissal in October 1998 had not reached final resolution by 2009. The Court noted it could not determine from the record where blame for the delay lay and that the blame did not appear to lie singly with any one party. The Court noted that its previous jurisprudence establishes that where a legislative provision has been challenged but since repealed, it may be in the interests of justice to determine the constitutional challenge if it would have any practical effect. The Court observed that the question of the constitutionality and meaning of CCMA Rule 25(1) 'stands over for another day', indicating the issue remains open for determination in an appropriate case. The Court also noted the unusual procedural history, including that the Labour Appeal Court appointed an amicus curiae without consulting the parties when there was no opposition, and that the Labour Appeal Court judgment by Zondo JP overlooked the fact that the Labour Court had set aside the arbitration award on grounds other than those addressed in the appeal.

This case establishes important principles regarding when the Constitutional Court will exercise its discretion to hear cases involving repealed legislation. It demonstrates the Court's concern with mootness and the requirement for live disputes, particularly in labour matters. The case also highlights systemic concerns about delays in labour dispute resolution, with the Court expressing alarm that an unfair dismissal matter remained unresolved after ten years. Significantly, the Court left open the constitutional question of the right to legal representation before the CCMA for determination in a future case involving the current Rule 25(1), rather than the repealed section 140(1). The case illustrates the Court's reluctance to determine academic constitutional questions that will have no practical effect on the parties or on pending litigation generally.