Legal cover, Legal Aid and the CCMA: how they differ

Legal cover is an insurance contract that pays legal costs within its terms. Legal Aid South Africa is a state-funded service that helps people who cannot afford a lawyer and pass a means test. The CCMA is a statutory body that deals with work disputes, and its rules limit when a lawyer may appear. They do different jobs.

Olvian is a lead-referral service, not an insurer, broker or legal adviser. This guide does not say which route anyone should use.

What is the difference between legal cover, Legal Aid and the CCMA?

• Legal cover is a non-life insurance policy. You pay premiums and, if an event covered by the policy happens, the insurer pays legal expenses within the policy's limits and conditions. See our guide on what legal cover covers.
• Legal Aid South Africa gives free legal help to people who qualify under a means test. It is tax-funded. It describes its mandate as helping "the poor get tax-funded legal assistance".
• The CCMA (the Commission for Conciliation, Mediation and Arbitration) is where many employment disputes are referred under the Labour Relations Act. It is a forum, not a lawyer or an insurer.

Each can matter to the same person at different times. A dismissed worker may have a CCMA deadline running, a legal policy with its own conditions, and a possible claim on Legal Aid, all at once.

Who qualifies for Legal Aid South Africa?

Legal Aid SA says it helps people who cannot afford a lawyer, with a focus on vulnerable groups. On its website, it explains:

• Criminal matters. Anyone living in South Africa, citizen or not, can get help. Children qualify automatically without a means test.
• Civil matters. These are disputes where a court decides between you and another person or company. It gives divorce, evictions, employment claims, debt and consumer issues as examples. Non-citizens are not eligible for civil help. Where a child is involved in a civil case, the child's family must pass the means test.
• The means test. It looks at your income after tax, your household's income if you share living costs, and the value of your property and belongings. State grants must still go through the test, but grant amounts are not counted.

The income and asset limits change from time to time, so we do not quote them. Legal Aid SA publishes the current ones.

To apply, ask for legal assistance and complete the means test form, which an official can help with. Legal Aid SA lists 0800 110 110 (Monday to Friday, 7am to 7pm). If it agrees to act for you, you pay nothing. It tells people to report any lawyer who asks them for money to its Fraud and Ethics Hotline on 0800 153 728.

What is the deadline for a CCMA unfair dismissal case?

Short. Section 191(1) of the Labour Relations Act, 1995 says a dispute about the fairness of a dismissal must be referred in writing to a bargaining council with jurisdiction or, if there is none, to the CCMA. Section 191(1)(b)(i) says the referral must be made within 30 days of the date of dismissal or, if later, within 30 days of the employer making a final decision to dismiss or uphold the dismissal.

For an unfair labour practice dispute, section 191(1)(b)(ii) allows 90 days from the act or omission, or from the date the employee became aware of it, if later.

Section 191(2) allows a council or the CCMA to permit a late referral if the employee shows good cause. That is not something to rely on. If you have been dismissed, count the days from your dismissal letter.

Can a lawyer appear at the CCMA?

Only within limits set by the CCMA's rules. Rule 25, in the Rules for the Conduct of Proceedings before the CCMA published in Government Gazette 43038 on 21 February 2020, says:

• At conciliation, a party may appear in person or be represented only by the people listed. For an employee, that includes a member, office-bearer or official of their registered trade union. Legal practitioners are not on the list.
• At arbitration, a party may appear in person or be represented by a legal practitioner, a candidate attorney, or a person entitled to represent at conciliation.
• Dismissals for conduct or capacity. If the dispute is about the fairness of a dismissal and a party has alleged that the reason relates to the employee's conduct or capacity, a party may not be represented by a legal practitioner or candidate attorney unless the commissioner and all other parties consent, or the commissioner concludes that it is unreasonable to expect a party to deal with the dispute without one. The rule lists four factors: the nature of the questions of law, the complexity of the dispute, the public interest and the comparative ability of the opposing parties to deal with it.

The CCMA's rules are amended from time to time, so check the current rules before relying on this.

What does that mean for legal cover?

A policy that pays a lawyer is only useful where a lawyer may act. If a policy covers work disputes, ask:

1. Does it pay for help at conciliation, and from whom, given the rule above?
2. Does it pay for a lawyer at arbitration, including where the CCMA restricts legal representation?
3. Does it pay for a labour consultant or a union representative, if those are allowed?
4. Will the insurer approve the matter before the 30-day deadline runs out?

Olvian cannot say what any policy will do. The licensed provider who calls can answer from the wording, and you can ask them to confirm it in writing so you have it on file.

Do I have to choose between them?

Nothing in the laws cited here says so, but each has its own conditions. Legal Aid SA applies a means test. A policy has its own terms about approval, choice of lawyer and matters that began before cover. The CCMA has deadlines that run whether or not any other help has been arranged.

If you are in any of these processes now, the safest question is the practical one: what is my next deadline, and who can confirm it? Legal Aid SA's line and a registered legal practitioner can both answer that. Olvian cannot.

What should I ask the provider who calls me?

Olvian does not advise on whether anyone needs legal cover. These are factual questions:

1. Does the policy cover employment disputes, and which stages?
2. When does cover begin, and how do you treat a dispute that is already under way?
3. Does it need approval before I act, and how long does approval take?
4. Does the policy pay for representation at forums that restrict lawyers?
5. How do I complain if you decline a claim?

Sources

• Labour Relations Act 66 of 1995, section 191. https://www.gov.za/sites/default/files/gcis_document/201409/act66-1995labourrelations.pdf
• Rules for the Conduct of Proceedings before the CCMA, Government Gazette 43038, 21 February 2020: Rule 25. https://www.gov.za/sites/default/files/gcis_document/202002/43038gon194.pdf
• Legal Aid South Africa, how it works. https://legal-aid.co.za/how-it-works/
• Insurance Act 18 of 2017, Schedule 2, Table 2, class 9 (legal expense). https://www.gov.za/sites/default/files/gcis_document/201801/41388gon32insuranceact2017.pdf