Evidence is needed to prove facts in a court of law or a company disciplinary hearing. The main forms of evidence are direct evidence, real evidence, circumstantial evidence and hearsay evidence.
The focus of this article will be on hearsay evidence, which is the most controversial form of evidence.
Hearsay evidence is second-hand information, when a witness testifies not about something he or she witnessed or experienced (direct evidence), but about what someone else said. As a general rule, hearsay evidence is not admissible in courts of law.
The rationale for excluding hearsay evidence is a realisation of the potential unreliability and unfairness emanating from such evidence.
There are many dangers inherent in the use of hearsay. Hearsay evidence is unreliable because it cannot be tested by cross-examination.
The accused cannot confront his or her accuser, meaning that the audi alteram partem (“hear the other side”) rule, which is the cornerstone of natural justice, will have been violated.
The maker of a statement might have been deliberately lying or may have been mistaken owing to deficiencies in his or her power of memory. The purpose of cross-examination would be to expose those deficiencies, but if the maker of the statement cannot be available in person to corroborate it, this safeguard is lost.
More importantly, according to renowned legal writers Hoffmann and Zeffertt in The South African Law of Evidence, hearsay evidence is unreliable because the person who would have made the statement was not under oath.
The person who made the statement did not promise to tell the truth.
In spite of its potential problems, hearsay evidence is permissible under certain circumstances. Hearsay is necessary due to the fact that it is sometimes difficult to obtain direct evidence about a certain fact.
If hearsay did not exist, it would therefore be difficult to prove facts and there would be serious miscarriage of justice. Hearsay evidence can therefore not be discarded completely because there is always some “grain of truth” present in it.
From a labour perspective, in SA Catering and Allied Workers’ Union v OK Bazaars Ltd (1992), Arbitrator Cameron decided that hearsay evidence could be a means by which proper exploration of potential sources of industrial conflict could be achieved.
While the rules concerning hearsay are very strict in the ordinary courts of law, the same strictness does not apply to the Labour Court, arbitration proceedings or company disciplinary hearings.
Section 90A (1) of the Labour Act [Chapter 28:01] provides that “The Labour Court shall not be bound by the strict rules of evidence, and the court may ascertain any relevant fact by any means which the presiding officer thinks fit and which is not unfair or unjust to either party”.
Part III of Statutory Instrument 59 of 2006 (the Labour Court Rules), Rule 12 (2) on informality of proceedings, says “The court shall, so far as appear to be appropriate, avoid formality in its proceedings and may, where circumstances warrant it, depart from any enactment or rule of law relating to the admissibility of evidence in proceedings before courts of law generally”.
Rule 26 of the same instrument empowers a Labour Court President to depart from the Rules in the interests of justice, fairness, expediency and equity.
What these provisions of our law are simply saying is that a less technical and formalistic approach should be adopted in adjudicating labour disputes. The rigid legal formalities characteristic of conventional courts must not apply.
However, this must not be interpreted to mean that arbitrators and judges must not be strict with the law or that they can apply a lower standard of law even where it is not warranted. Far from it! Such an approach would open the floodgates for the admission of hearsay and will make a mockery of our legal system.
The Labour Court in Zimbabwe has dealt with cases involving hearsay evidence. For example, in the 2008 case of Ephraim Mtake v Zimbabwe Revenue Authority presided over by President L Hove, hearsay evidence was admitted in the proceedings.
In her judgement, she referred to the case of Chataira v Zesa (2000) which also dealt with hearsay evidence.
The Labour Court of South Africa has also dealt with the admissibility of hearsay evidence in its various judgments. Two helpful cases we will look at in this article are the Naraindath v CCMA and Others (2000) and Swiss South Africa (Pty) Ltd v Louw NO and Others (2006) cases.
In the Naraindath case, a CCMA arbitrator admitted hearsay evidence. Aggrieved, the employee appealed to the Labour Court. The Labour Court judge, Wallis AJ, ruled that the arbitrator had not committed any irregularity and referred to sections 138 (1) and (2) of the Labour Relations Act number 66 of 1995 which provide, among other things, that arbitrations should be conducted with the “minimum of legal formalities” and subject to the discretion of the arbitrator.
The judge was of the view that the purpose of the arbitration would be diminished if arbitrators were to conduct arbitrations by merely replicating the procedures adopted in courts of law and applying the same rules of evidence applicable in those courts.
In Swiss South Africa (Pvt) Ltd v Louw NO and Others, the employee worked as a check-in agent. Her job involved checking in passengers boarding an aeroplane and ensuring that their luggage did not exceed the fixed weight limit.
She was dismissed on allegations of having asked for a tip from a male passenger of Singapore Airline for purportedly waiving his “official payment” for the excess luggage.
The passenger allegedly complied in order to avoid any problems, but later lodged a complaint with a Mr Richard Lee of Singapore Airline. This e-mail was ultimately forwarded to Swiss South Africa.
The e-mail was presented as being evidence of the employee’s guilt, resulting in her dismissal. She referred her dismissal to the CCMA which found her dismissal to be unfair and ordered Swiss South Africa to retrospectively reinstate her.
On appeal, the Labour Court ruled that the e-mail did not have good evidential value and was pure hearsay and that the employee stood to lose her job on the basis of an untested e-mail.
The passenger who had lodged the complaint had not been available for cross-examination at the disciplinary hearing.
Isaac Mazanhi is a labour analyst.
He writes in his personal capacity. He can be contacted on e-mail: firstname.lastname@example.org