21 Oct
2019

What Employers Need to Know About Hearsay Evidence


hearsay

An employer is unfortunately often faced with a situation where they cannot rely on a witness who is unavailable due to intimidation

The witness might also be a third party who does not work for the employer and is unwilling to participate in the disciplinary process. The employer may be in possession of an affidavit signed by such witnesses; however, a witness’s evidence led by a manager or under affidavit may be categorised as hearsay evidence and deemed inadmissible.

Case law example

On 27 June 2019, the Labour Appeal Court (LAC) in the matter of Exxaro Coal (Pty) Ltd v Chipana and Others (JA161/17) [2019] ZALAC 52, had to rule on these very issues pertaining to the admissibility of hearsay evidence in labour disputes.

  • Section 3 of the Law of Evidence Amendment Act (The Act) 45 of 1988 states:
    1. Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil (labour) proceedings, unless–
      1. each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
      2. the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
      3. the court, having regard to–
        1. the nature of the proceedings;
        2. the nature of the evidence;
        3. the purpose for which the evidence is tendered;
        4. the probative value of the evidence;
        5. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
        6. any prejudice to a party which the admission of such evidence might entail; and
        7. any other factor which should in the opinion of the court be taken into account is of the opinion that such evidence should be admitted in the interests of justice.
    1. For the purposes of this section–
      “hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.

In conclusion

The LAC in the Exxaro matter held that section 3(1) of the Act had ushered in a new approach to the admissibility of hearsay evidence in a refreshing and practical era. The Courts have broken away from the assertion-orientated and rigid rule-and-exception approach of the past. Courts may now receive hearsay evidence if the interests of justice require it to be admitted.

The LAC in the Exxaro matter further held that hearsay evidence is a common form of evidence encountered in disciplinary proceedings. In many cases, it might be the only evidence available to supplement other direct evidence in making out a case of misconduct or to sustain a defence to a charge of misconduct. It is therefore not unreasonable to expect commissioners to be familiar with it and to be in a position to identify it readily.

The LAC in the Exxaro matter relied on the cases of S v Ndhlovu (2002) (6) SA 305 (SCA) and S v Molimi 2008 (3) SA 608 (CC) to formulate a non-exhaustive list of safeguards to ensure that both parties to a labour dispute are afforded a fair arbitration in the face of the possible admission of hearsay evidence:

  • Section 3 of the Act is not a licence for the wholesale admission of hearsay evidence in the proceedings;
  • In applying section 3 of the Act, a commissioner must ensure that fairness is not compromised;
  • A commissioner is to be alert to the introduction of hearsay evidence and ought not to remain passive in that regard;
  • A party must as early as possible in the proceedings make known its intention to rely on hearsay evidence;
  • The commissioner must explain to the parties the significance of the provisions of section 3 of the Act
  • The commissioner must timeously rule on the admission of the hearsay evidence. The ruling must not be made for the first time at the end of the arbitration, or in the closing argument or in the award.

Our professional labour team at SERR Synergy will assist employers to present the best possible evidence at all levels of the disciplinary process. In the absence of such direct forms of evidence, we assist employers to appreciate the rules and risks pertaining to the admissibility of hearsay evidence. We also guide employers in an attempt to satisfy the various tests and standards provided for in the Act and the various court decisions pertaining to the admissibility of hearsay evidence.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.

 

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