Decisions about legal representation are procedural matters that fall squarely within the discretion of the CCMA arbitrator.
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An advocate accused of misconduct at the Commission for Conciliation, Mediation and Arbitration (CCMA) has lost a Labour Court bid to secure legal representation after arguing that anxiety and depression left him unable to represent himself effectively.
Mandla Maluleka, a former National Health Laboratory Service employee who was admitted as an advocate in 2005, sought to overturn a ruling refusing him legal representation in an ongoing dismissal arbitration.
The application was based on a psychologist's report which stated that Maluleka was experiencing “significant psychological distress characterised by symptoms of anxiety and depression” that could impair both his emotional state and cognitive functioning.
According to the report, the condition could compromise his ability to represent himself effectively during the proceedings and affect his ability to provide clear and coherent testimony.
Maluleka is challenging his dismissal by the National Health Laboratory Service. The employer alleges he disclosed a confidential Special Investigating Unit report to a person implicated in the report despite being instructed not to share its contents without prior approval.
The merits of that allegation are still being considered in the ongoing CCMA arbitration, and the matter has already experienced several delays.
Arbitration proceedings initially scheduled for November 2025 did not proceed after Maluleka failed to attend because of ill health. During that sitting, his legal representatives made an application seeking permission for legal representation, which was subsequently refused.
The arbitration was later rescheduled for January 2026 but was again postponed because of ill health before eventually returning before the arbitrator in March, when Maluleka launched a second application for legal representation, this time relying on medical grounds.
In refusing the initial application, the commissioner found the dispute was not legally or factually complex and largely revolved around whether the alleged misconduct had occurred.
The commissioner also noted that Maluleka was himself legally trained. “If anything the applicant's legal training and experience placed him in a position adequately to present his case without the need for legal representation,” the judgment records.
When considering the second application, the arbitrator accepted that medical or psychological factors could be relevant when deciding whether legal representation should be allowed. However, he found the psychologist's report did not establish that Maluleka was incapable of participating in the proceedings.
The arbitrator also drew a distinction between a medical certificate showing a person is unable to attend proceedings and a report recommending legal representation as a form of support.
Even if the report were accepted at face value, the arbitrator found it merely suggested that Maluleka's effectiveness might be compromised rather than demonstrating that he was unable to represent himself.
The arbitrator also found there was another option available.
If Maluleka's condition genuinely impaired his ability to proceed, a postponement remained available and would be a more appropriate remedy than granting legal representation, particularly given the CCMA's preference for informality and limited legal intervention.
Maluleka subsequently approached the Labour Court on an urgent basis seeking to review and set aside the ruling before the arbitration had been completed.
Judge Robert Lagrange declined to intervene. The court noted that Labour Court reviews of rulings made during ongoing arbitration proceedings are generally prohibited unless exceptional circumstances exist.
Lagrange further emphasised that decisions about legal representation are procedural matters that fall squarely within the discretion of the arbitrator. “A ruling by an arbitrator on whether to allow legal representation, while important, concerns a procedural question which lies entirely within the arbitrator's discretion,” the judgment states.
The judge found no basis to conclude that the arbitrator had acted improperly or that the matter was sufficiently exceptional to justify court intervention before the arbitration was completed.
The application was dismissed, allowing the CCMA proceedings to continue.
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