Understanding Rule 25 of the CCMA Rules and Representation

Rule 25 of the CCMA Rules restricts legal representation at arbitration: a party must ordinarily represent themselves, and may only be represented by a legal practitioner if the commissioner grants permission under one of the grounds set out in the rule. There are two routes to that permission — the “complexity of the dispute” test, which has been part of the rule since its inception, and the list of presumptive categories added after sustained constitutional challenge (unfair discrimination, sexual harassment, and certain automatically unfair dismissals). The commissioner exercises a discretion and must give reasons for the ruling; a refusal can be appealed to the Labour Court under section 145 of the Labour Relations Act 66 of 1995. Rule 25 was reshaped by the litigation in NUPSAW & another v Assign Service (Pty) Ltd, which led to the current presumptive-categories drafting and continues to inform how commissioners interpret the rule today.

What Rule 25 Actually Says

Rule 25 sits in the consolidated CCMA Rules published under the Labour Relations Act 66 of 1995, and applies at arbitration — not at conciliation. It governs who may speak for a party once a matter has moved past conciliation and into the formal hearing stage.

• Rule 25(1)(b) sets the default at arbitration: a party may appear in person, or be represented by a legal practitioner, or by an individual who would have been entitled to represent that party at conciliation (a trade union official, a director of an employer party).
• Rule 25(1)(c) narrows that default for dismissals based on an employee’s conduct or capacity: in those disputes, a party is not entitled to be represented by a legal practitioner unless the commissioner concludes, after weighing prescribed factors, that it would be unreasonable to expect the party to deal with the dispute without representation — or unless the commissioner and all the other parties consent.
• An application for permission is normally made at the pre-arbitration conference, or in writing to the commissioner in advance of the hearing where the rules allow it.
• The commissioner must consider the application, grant or refuse it, and support the ruling with reasons on request.
• Rule 25 also deals with representation by non-legal practitioners (a union official, a director, a family member) under separate sub-rules, outside the strict “legal practitioner” prohibition.

The practical takeaway: “going to the CCMA with a lawyer” is not automatic — it is a question the commissioner decides, usually before the merits are heard.

The Two Routes to Permission

Rule 25(1)(c) sets out two distinct paths on which a commissioner may permit legal representation in a conduct- or capacity-based dismissal dispute. They lead to the same outcome but require different motivations.

The complexity route — Rule 25(1)(c)(ii). The commissioner may permit representation if it would be unreasonable to expect a party to deal with the dispute without one, after weighing four factors: the nature of the questions of law raised, the complexity of the dispute, the public interest, and the comparative ability of the opposing parties or their representatives. This is the original drafting and remains the most commonly litigated route.

The presumptive categories route. Following sustained constitutional challenge — most notably in the NUPSAW line of cases — Rule 25 was amended to permit legal representation without needing to clear the complexity threshold in matters involving unfair discrimination on a prohibited ground, sexual harassment, and certain automatically unfair dismissals. In those matters, representation is permitted as the rule currently stands.

In practice, the categories route is simpler to clear, because the applicant does not have to argue the matter is unusually complex. Applicants on the complexity route should expect the commissioner to weigh the four-factor test carefully and to give reasons that can be tested on appeal if refused.

The Constitutional and Appellate Journey of Rule 25

Rule 25 has been under constitutional scrutiny for most of its existence. The argument runs in two threads: that the prohibition on legal representation unjustifiably limits the right of access to courts (section 34 of the Constitution) and the right to fair labour practices (section 23), and that self-representation in complex matters produces substantively unfair outcomes.

The leading case is NUPSAW & another v Assign Service (Pty) Ltd, which ran through the Labour Court and the Labour Appeal Court before being considered by the Constitutional Court. The amendments adding the presumptive categories were the direct legislative and rule-making response to those constitutional concerns. The Supreme Court of Appeal has also weighed in on related aspects of legal representation at the CCMA, particularly the appeal route for refusals.

For parties today, this litigation still matters. It shapes how commissioners interpret “complexity,” how they exercise their discretion, and how they frame their reasons. It also gives an unsuccessful applicant a clear line of argument on a section 145 appeal — a refusal that fails to engage with the four-factor test, or that excludes a presumptive-category matter, is vulnerable to being set aside.

How a Party Applies for Permission in Practice

1. Raise the question at the pre-arbitration conference. Rule 25 applications are usually dealt with at or before this stage, not on the morning of the hearing.
2. Prepare a short written motivation. Set out which Rule 25 ground applies — complexity under Rule 25(1)(c)(ii) or a presumptive category — and attach supporting documents (the CCMA referral, the statement of case, any anticipated expert evidence).
3. Serve and file the motivation. Serve it on the other party and present it to the commissioner at the pre-arbitration conference, or file it in writing in advance of the hearing where the rules allow.
4. Receive the ruling. The commissioner typically rules orally at the conference, with written reasons available on request.
5. If refused, consider a section 145 appeal. Refusals of representation under Rule 25 have been the subject of successful section 145 challenges to the Labour Court where the commissioner misapplied the rule.

What the Commissioner Weighs

Factor	What it means in practice
Nature of the questions of law raised	Statutory interpretation points, constitutional issues, and disputed contractual clauses tend to favour representation.
Complexity of the dispute	Legal and factual complexity — points for cross-examination, expert evidence, and intricate factual matrices point toward representation.
Public interest	Matters with broader public-interest implications (precedent value, group effect, regulatory stakes) tend to favour representation.
Comparative ability of the parties	Where one party has legal representation and the other does not, this is a factor — though not determinative on its own.
Whether the matter falls into a presumptive category	If yes, representation should be permitted as the rule currently stands.

Where Rule 25 Stops: Related Representation Issues

Rule 25 governs arbitration only — conciliation has its own, more permissive provision, and a party is generally entitled to be represented at conciliation without needing permission. Con-arb proceedings sit somewhere between the two, and the rule’s treatment of them should be checked against the current consolidated text.

Bargaining council arbitrations are governed by the relevant council’s own rules, which often mirror Rule 25. A party arbitrating under a council’s rules should confirm what applies — the rulebook being applied dictates the representation question, not the LRA’s general framework.

The Labour Court is not bound by Rule 25. Parties before the Labour Court have an unqualified right to legal representation under that court’s rules — Rule 25’s restriction lives at the CCMA, not at the appeal court.

Practical Considerations for a Party Contemplating Representation

Cost. Engaging a legal practitioner for a CCMA arbitration adds a cost layer that Rule 25 exists specifically to manage. Clarify scope at the outset (consultation only, drafting, or full representation at the hearing) and confirm the Rule 25 position before quoting.

Timing. Rule 25 applications take time to prepare. Raise the question at the earliest pre-arbitration conference; a late application will usually be refused.

What to bring to the consultation. The CCMA referral, the pre-arbitration minute if issued, the underlying employment contract, the disciplinary record and dismissal letter (in unfair-dismissal matters), and a short summary of why the matter is complex or falls into a presumptive category.

Strategic decision. Rule 25 is not just a procedural hurdle. The decision to seek representation, and the timing of it, can affect settlement dynamics and the commissioner’s perception of the case.

Rule 25 in Gauteng: Applying It Across the CCMA’s Pretoria and Johannesburg Footprint

Rule 25 applies uniformly across all CCMA arbitrations in South Africa — there is no Gauteng-specific version of the rule. What changes by location is the office the matter is administered through. CCMA files involving parties in the northern Gauteng corridor (Pretoria, Centurion, Midrand, and the surrounding Tshwane area) are typically administered from the CCMA’s Pretoria office; matters for parties based in Johannesburg, Sandton, Roodepoort, Randburg, Bedfordview, Alberton, and the surrounding East and West Rand run through the Johannesburg office. CCMA arbitration awards remain subject to the same Labour Relations Act appeal framework — section 145 to the Labour Court, sitting in Johannesburg — regardless of which CCMA office administered the file, and any Rule 25 refusal can be taken on appeal to that court.

For parties in Gauteng who need an attorney to advise on a Rule 25 application or to represent them once permission has been granted, Burger Huyser Attorneys fields labour-law work through its general litigation and commercial practices across its Gauteng branches — head office in Linden, Randburg (011 888 0246), Centurion (012 644 4990), and Pretoria Menlyn (012 471 5700).

Frequently Asked Questions

Can I be represented by a lawyer at the CCMA?

Not by default — Rule 25 of the CCMA Rules restricts legal representation at arbitration unless the commissioner grants permission. Permission is now granted relatively routinely where the matter falls into one of the presumptive categories (such as unfair discrimination or sexual harassment) or where the complexity of the dispute makes self-representation unfair.

How do I apply for permission to be legally represented at the CCMA?

The application is normally made at the pre-arbitration conference, or in writing to the commissioner in advance of the hearing where the rules allow it. A short written motivation explaining which Rule 25 ground applies — complexity or a presumptive category — with supporting documents, should be served on the other party and placed before the commissioner.

What happens if the commissioner refuses permission?

The refusal can be appealed to the Labour Court under section 145 of the Labour Relations Act 66 of 1995. The Labour Court will set aside the refusal if the commissioner misapplied Rule 25 or failed to exercise the discretion properly; the appeal must be lodged within the timeframes set out in the LRA.

Did the Constitutional Court change Rule 25?

Rule 25 itself was amended to add presumptive categories of matters where legal representation is now permitted — this was the legislative and rule-making response to the constitutional challenge in NUPSAW & another v Assign Service (Pty) Ltd, which ran through the Labour Court, the Labour Appeal Court, and the Constitutional Court. The litigation continues to shape how the rule is interpreted.

Does Rule 25 apply to conciliation too?

No — Rule 25 primarily governs representation at arbitration. Conciliation has its own, more permissive provision, and a party is generally entitled to be represented at conciliation without needing permission.

Can I represent myself at the CCMA?

Yes — Rule 25 assumes that parties will ordinarily represent themselves, and many parties do. The CCMA’s process is designed to be accessible to non-lawyers, though representation can still be sought where the rule allows it.

If you are weighing whether to seek legal representation at a CCMA arbitration — or you have already been refused permission under Rule 25 and want to consider a section 145 appeal — Burger Huyser Attorneys’ Labour Law team can advise on the application, prepare the motivation, and (where permission is granted) represent you at the arbitration. The firm practises from offices in Linden, Randburg (011 888 0246), Centurion (012 644 4990), and Pretoria Menlyn (012 471 5700), and fields labour-law work across Gauteng through its general litigation practice. Book an initial consultation through the nearest branch; bring your CCMA referral, the pre-arbitration minute if issued, and any documents showing why the matter is complex or falls into a presumptive category.