By Morne Terblanche
Bloemfontein Branch Manager
The question is often asked what the employer should do in a case where the accused employee request outside representation in a disciplinary hearing. Most employers are not qualified to compete with the expertise of an attorney in such cases .
The principle authority in this regard is Hamata & another v Chairperson, Peninsula Technikon Internal Disciplinary Committee (2002) 23 ILJ 1531 (SCA) where it was held that:
"Entitlement as of right to legal representation in arenas other than courts of law has long been a bone of contention. However, as the court a quo correctly observed, in Dabner v South African Railways & Harbours 1920 AD 583 at 598 more than 80 years ago, this court categorically denied the existence of any such absolute right. South African courts have consistently accepted the correctness of that view."
More recently, the judgment of MEC: Department of Finance, Economic Affairs & Tourism, Northern Province v Mahumani (2004) 25 ILJ 2311 (SCA) held that:
"In terms of our common law a person does not have an absolute right to be legally represented before tribunals other than courts of law (Dabner v SA Railways & Harbours 1920 AD 583 at 598; and Hamata at para 5). However, it does require disciplinary proceedings to be fair and if 'in order to achieve such fairness in a particular case legal representation may be necessary, a disciplinary body must be taken to have been intended to have the power to allow it in the exercise of its discretion unless, of course, it has plainly and unambiguously been deprived of any such discretion' (per Marais JA in Hamata at para 23)."
Based upon the above principles, there is no right to external representation in disciplinary hearings per se. However, the provisions of the disciplinary code is determinative as to whether or not a discretion ought to be exercised on the issue of representation. In the event that outside representation is sought a chairperson must consider the following factors:
- the nature of the questions of law raised
- the complexity of the matter
- the comparative ability of the opposing parties or their representatives to deal with the matter
- the public interest
Your Labournet consultant can assist you by ensuring that this matter is dealt with correctly by:
- Drafting a disciplinary code that makes specific provision that only representation by a fellow employee is permitted and no external representation is allowed.
- By drafting the charge sheet that reflects this provision in the code.
- Chairing your disciplinary inquiries.
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