|November 11, 2011|
Previously published on November 9, 2011
Whether it is because of countless hours spent in front of legal textbooks or in front of the television, watching LA Law or Ally McBeal, most people seem to know that you are not supposed to lead hearsay evidence during court proceedings. In the South African employment context, the same holds true for internal disciplinary enquiries, arbitrations and labour court trials.
Hearsay evidence principles are fairly straightforward: you are not supposed to lead evidence that cannot be tested. Yet, we are often instructed to review arbitration awards where the principles of hearsay evidence have been misconstrued.
It has become clear that there are a lot of myths surrounding hearsay evidence. I intend to dispel some of these myths and will deal with the following aspects concerning hearsay evidence:
What exactly is hearsay evidence? This is not always as straightforward as one would believe;
Is hearsay evidence always inadmissible or can you rely on it (and if so in which circumstances)?
The court’s approach as to how arbitrators should deal with hearsay evidence;
The importance of selecting your witnesses and other practical pointers.
What exactly is hearsay evidence?
Hearsay evidence is defined as “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”.1
Put simply, if A testifies but you actually need to call B to prove that fact, B has personal knowledge of the fact and B’s credibility will be crucial to establish the fact, A’s evidence will constitute hearsay evidence.
Quite often, it is easy to identify whether certain evidence will constitute hearsay evidence. At times this is not the case as demonstrated by the following examples:
An investigator testifies about an investigation. Yet the investigator was not personally present during the actual stock take and did not personally generate the stock loss documents. If the investigator testifies about the investigation itself and the stock loss that was discovered, will this constitute hearsay evidence or not? According to the definition, it will.
A forensic auditor testifies on the findings of an audit. The auditor was however not part of the team that did the audit. Hearsay evidence or not? Once again, according to the definition, the auditor’s evidence will constitute hearsay evidence.
If a medical practitioner submits a report to an HR manager subsequent to an assault incident stating that the employee sustained certain injuries, will the HR manager’s testimony on the injuries according to the doctor’s report constitute hearsay evidence or not? The answer is yes.
When going through the evidence you intend to lead during disciplinary enquiries and arbitrations, you will have to carefully assess whether or not the witness you intend calling has personal knowledge of the fact. If the witness did not actually see a particular incident, hear a particular conversation, directly participate in an investigation or draft a particular document, chances are very good that the evidence will constitute hearsay evidence.
1.Section 3(4) of the Law of Evidence Amendment Act, 1988
Is hearsay evidence always inadmissible?
It is a myth that hearsay evidence is automatically excluded. Whilst hearsay evidence is not ideal, there is no absolute bar on the leading of hearsay evidence.
The Law of Evidence Amendment Act, 1988 (the “Evidence Act”) and in particular section 3, specifically deals with hearsay evidence. Section 3(1) states that hearsay evidence will not be admitted as evidence in criminal or civil proceedings unless:
Each party against whom the evidence will be led agrees to the admission thereof as evidence;
The person upon whose credibility the appropriative value of such evidence depends will personally testify during the proceedings (albeit at a later stage); or
The court is of the opinion that the hearsay evidence should be admitted in the interest of justice, having regard to the following factors:
3.1 The nature of the proceedings;
3.2 The nature of the evidence;
3.3 The purpose for which the evidence is tendered;
3.4 The probative value of the evidence;
3.5 The reason why the evidence is not given by the person who has actual knowledge of the facts in question;
3.6 Any prejudice to a party if the evidence is admitted; and
3.7 Any other factor which the court believes should be taken into account.
People who often prepare for disciplinary enquiries and arbitrations will know that there is no such thing as “the perfect case”. At times, you may find yourself in a situation where you are unable to lead direct evidence on all aspects of your case. Some of your witnesses may no longer be in your employ at the time when an arbitration takes place and although many former employees are still willing to assist their old employer, the reality is that not all employees leave on good terms. You may even have dismissed your star witness a few months prior to the arbitration hearing and the likelihood of your star witness turning into a hostile witness is very good.
People’s diaries are also full and whilst it is always better to try to secure a postponement if one of your key witnesses will be abroad or on leave at the time of the arbitration, this too is not always possible.
You may also be dealing with a matter where you relied on external expertise such as doctors, occupational therapists, private investigators and forensic auditors. These people may not be willing to take time off from their private practices to testify at your arbitration.
If you are faced with the situation where you will need to rely on hearsay evidence, you need to consider section 3(1)(c) of the Evidence Act very carefully. You have to persuade the arbitrator that the hearsay evidence should be admitted based on the factors listed above. Similarly, if your opponent wants to introduce hearsay evidence, you are entitled to object against the introduction of this evidence but will have to do so by relying on the same factors.
How have the courts dealt with hearsay evidence in the CCMA?
The Evidence Act applies to criminal and civil proceedings. It has been determined that proceedings in the former Industrial Court and the Labour Court fall within the ambit of the Evidence Act. The Labour Appeal Court has also recently stated that the test set out in section 3 of the Evidence Act should also be applied in statutory arbitration proceedings dealt with by the Commission for Conciliation, Mediation and Arbitration (the “CCMA”) and bargaining councils. 2
The difficulty however is that CCMA proceedings cannot be compared to court proceedings. Arbitration proceedings are characterised by the fact that disputes should be resolved quickly and through relatively simple and non-technical procedures. There are a number of judgements in which judges expressed the view that the CCMA should not resolve unfair dismissal disputes by slavishly following the technical rules of evidence and procedures one would find in ordinary courts.3
There is a school of thought that believes that there is a tension between the requirement that arbitrators must apply section 3 of the Evidence Act on the one hand whilst refraining from strict adherence to formal rules of evidence on the other hand. In the matter of Edcon Limited v Pillemer 4, the arbitrator was faced with such a tension. In short, Ms Reddy was dismissed for dishonesty when she failed to report an accident involving her company vehicle which her son was driving at the time. During the arbitration proceedings, Reddy relied on two written statements of management employees in which the managers vouched for Reddy’s good character. One of the managers in fact asked the company to keep Reddy on her team notwithstanding the incident. The managerial employees however did not testify during the arbitration proceedings. The arbitrator relied on these written statements in favour of Reddy. On review, Edcon submitted that the arbitrator committed a reviewable irregularity in admitting the statements which were clearly hearsay evidence. The Labour Appeal Court agreed that the evidence was hearsay evidence but found that it was admissible in light of the factors listed in section 3(1)(c) of the Evidence Act. The court in particular had regard to the following factors:
The nature of the proceedings ie an informal arbitration hearing;
The nature of the evidence, in this case the managers’ beliefs and opinions;
The fact that the employer was able to call these witnesses to testify if it disputed the contents of the statements;
The fact that the arbitration would have been prolonged beyond the date the arbitrator had set for finalising the case.
It was clear that the Labour Appeal Court took into account pragmatic considerations and kept in mind that arbitrations are supposed to be an expeditious hearing between employer and employee.
Does this mean that arbitrators are now allowed to ignore the law of evidence completely? In Popcru obo G Maseko v The Department of Correctional Services 5, the Department of Correctional Services dismissed one of its warders for providing an inmate with drugs and allowing the inmate to sell the drugs inside the prison. Two of the inmates provided the Department with written statements and also testified during the disciplinary enquiry. At the time of the arbitration, both inmates were no longer in custody. When the Department tried to locate them in order for them to testify during the arbitration proceedings, they discovered that the addresses the former inmates had provided were false. The evidence of the two inmates was crucial to the Department’s case. Without it, it would not have been able to show that the warder was guilty of the misconduct he was charged with. During the arbitration proceedings, the initiator of the disciplinary enquiry introduced the statements of the two former inmates and gave evidence as to what they testified about during the disciplinary enquiry.
The arbitrator did not reject this evidence and in fact greatly relied on it in finding that the warder’s dismissal was fair. The arbitrator had regard to section 3(1)(c) of the Evidence Act and analysed the factors as follows:
The proceedings was an arbitration hearing in terms of the Labour Relations Act, during which commissioners are not strictly bound by the rules of evidence and have a discretion to admit hearsay evidence “when required”;
The evidence was of crucial importance. It formed the very basis upon which proceedings were initiated in the first place. It was mainly on the strength of these statements that the warder was found guilty at the disciplinary enquiry;
The purpose of the evidence was to confirm the misconduct of the warder and to justify his dismissal;
The employer would have been deprived of “damning” evidence which linked the warder directly to the supply and sale of dagga;
The hearsay evidence corroborated the testimony of one of the other witnesses;
The reason why it was not possible to hear the oral evidence of the former inmates was not due to any fault on the side of the employer;
The two inmates testified at the disciplinary enquiry and were cross examined by the warder’s representative at that point in time;
During the arbitration proceedings, the contents of the statements were put to the warder during his cross examination. He therefore had an opportunity to respond to these allegations.
On review, the Labour Court was satisfied with the manner in which the arbitrator considered the factors set out in section 3 of the Evidence Act and with the fact that the arbitrator admitted the statements into evidence.
The Labour Court confirmed that the approach which the Labour Appeal Court followed in the Edcon matter did not amount to an open invitation for arbitrators to ignore the rules of evidence. The court indicated that whilst arbitrators are allowed to deviate from these principles, the deviation must be justified by the particular circumstances of the matter in question.
2 Edcon Limited v Pillemer NO & others (2008) 29 ILJ 614 (LAC)
3 Naraindath D v Commission for Conciliation, Mediation and Arbitration & others (2000) 21 ILJ 1151 (LC); Le Monde Luggage CC t/a Packwells Petje v Dunn NO & others (2007) 28 ILJ 2238 (LAC)
4 (2008) 29 ILJ 614 (LAC)
5 Popcru obo G Maseko v The Department of Correctional Services  2 BLLR 188 (LC)
It is clear from the above that in assessing evidence, arbitrators must take the following approach:
They may not reject hearsay evidence off hand;
They must determine whether the hearsay evidence ought to be admitted by assessing the factors set out in section 3(1)(c) of the Evidence Act;
In doing so, arbitrators must be mindful of the fact that the CCMA is not a court of law and that they may be a bit more lenient in applying law of evidence;
Arbitrators may not simply ignore the rules of evidence completely because the CCMA is not a court of law. When they deviate significantly, they need to justify the deviation.
In order to assist the arbitrator in evaluating the evidence and in order to ensure that you win your case, it is necessary to bear the following practical pointers in mind:
Spend some time in carefully going through the evidence and to assess who you need as witnesses. It is obviously best to rely on direct evidence and if outside parties are willing to testify, take them up on this offer. Also consider issuing subpoenas to ensure the presence of witnesses where this is at all possible;
Do not underestimate the value of a proper disciplinary enquiry. If some of your evidence is missing or a witness cannot testify at the arbitration hearing, a proper record of the disciplinary enquiry may prove invaluable.
Similarly, do not underestimate the value of a pre-arbitration conference and a properly drafted pre-arbitration minute. Parties can agree to certain evidence being admitted and the more issues the parties agree on, the less complicated the arbitration becomes.
If you have to rely on hearsay evidence, alert the arbitrator to this at the commencement of the arbitration proceedings. In doing so, you have to explain why it is not possible to have secured the direct evidence. If you have subpoenaed a witness and he did not attend, provide the arbitrator with a copy of the subpoena or with copies of the letters in which you made attempts to secure the presence of that witness;
Indicate up front that the commissioner cannot reject the hearsay evidence off hand and that the commissioner must first listen to all the evidence and must then assess the probative value of the hearsay evidence and whether it should be admitted or not;
Ensure as far as possible that there is other evidence supporting the hearsay evidence. If there is corroborating evidence and if the hearsay evidence is supported by the probabilities of the matter, chances are good that the arbitrator will allow this evidence. Furthermore, if you are going to rely on the probabilities, argue this at the end of the matter;
If you are going to rely on statements, lead evidence on the authenticity of the statements. If someone else was present in the room when the statement was given, that person can testify to the fact that the statement was made in the person’s own handwriting and without duress;
The arbitrator will be concerned about the fact that the employee party cannot cross examine the absent witness or the statement. Try to mitigate the prejudice by putting the allegations contained in the statement or the hearsay evidence to the employee during his cross examination to at least allow him an opportunity to respond thereto;
Carefully go through the various factors set out in section 3(1)(c) of the Evidence Act. In arguing the matter or in persuading the arbitrator that your hearsay evidence ought to be allowed, make representations about each of these factors.
Hearsay evidence is not always gossip. It may be crucial evidence relating to your matter and whether it will be admitted or not may be the difference between dismissing the employee’s case or spending the next two years reviewing the arbitration award - or even worse, reinstating the employee.
Employers will accordingly be well advised to go the extra mile in preparing for the disciplinary enquiry and arbitration. It is true what they say: A little more effort can go a long mile.