WHAT IS HEARSAY EVIDENCE??

“My universe is my eyes and my ears. Anything else is hearsay.” – Douglas Adams

Introduction

Often MISA members, when telling their side of the story, refer to certain events that they were told of, or perhaps didn’t actually experience themselves.

For example, let’s say that Mr Z testifies on record, saying “Mr X told me (Mr Z) that he (Mr X) saw Mr Y carrying a box of books to his car, he (Mr Y) then climbed into his car and drove away;” and then upon further testimony, Mr Z confirms that he was neither present, nor did he see Mr Y doing anything of the sort, because he was in the bathroom at the time; and further, that Mr X had only come to Mr Z after the incident to tell him what he had seen.

This kind of evidence is referred to as hearsay evidence, and without the original person (Mr X), who actually saw and heard the events in question; any testimony made by Mr Z, in this example, would be construed as inadmissible evidence or evidence which holds very little evidentiary weight, in a disciplinary inquiry or Arbitration, unless corroborated by Mr X. 

Hearsay evidence is defined in Section 3(4) of the Law of Evidence Amendment Act, No. 45 of 1988 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.”

The Labour Appeal Court on Hearsay Evidence

As mentioned above, generally, hearsay evidence is inadmissible at disciplinary hearings and arbitrations conducted under the umbrellas of the CCMA and Bargaining Councils, because the witnesses who made these statements are not present under oath and their versions cannot be tested through cross-examination.

However, should the presiding officer (chairperson) at the disciplinary hearing or an arbitrator (commissioner) in the Arbitration proceedings wish to admit Hearsay Evidence nonetheless, they are guided by the exceptions to this rule, as governed by Section 3 of the Law of Evidence Amendment Act 45 of 1988:

“(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless:

1. each party against whom the evidence is to be adduced agrees to the admission of the evidence at such proceedings; or
2. the person upon whose credibility the probative value of such evidence depends, himself testifies at the proceedings; or
3. the Court, having regard to–
   • the nature of the proceedings         
   • the nature of the evidence
   • the purpose for which the evidence is tendered
   • the probative value of the evidence the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends
   • any prejudice to a party which the admission of such evidence might entail
   • 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 interest of justice.”

With the above in mind, we rely on the following recent judgments, in order to establish what the view of the courts are, regarding the admissibility of hearsay evidence:

In a Labour Appeal Court judgement of Exxaro Coal (Pty) v Chipana and Others (LAC) (unreported case no JA161/17, 27-0-6-2019) the employer relied on a forensic investigators hearsay evidence in both the disciplinary hearing as well as the arbitration. This evidence was ruled to be inadmissible as no direct or corroborative evidence was submitted to prove the employee’s guilt in the charges levelled against him. The employer was of the view that the Labour Court has erred in its decision not to allow the evidence as it was not viewed in its totality.

The Commissioner had based his decision to exclude the hearsay evidence in this matter solely on the ground that the employee had not agreed to it. However, if Section 3 of the Law of Evidence Amendment Act 45 of 1988 as described above, stipulates that where there is no agreement on the admission of hearsay evidence, it may still be admitted in instances “where it is in the interests of justice to do so”.

The interests of justice being of the operative emphasis here.

It is once again reemphasised in the Chipana matter (above) that the Arbitrator, of the proceedings must make a ruling on the admissibility of hearsay evidence, as soon as possible. 

The Court held that in this case, that the Commissioner’s ruling on the admissibility of the hearsay evidence, came too late and the appeal was upheld. The matter was then, referred back to the CCMA to be heard by another Commissioner.

In another matter NUMSA obo ADAM v Volkswagen South Africa (Pty) Ltd [2002] 9 BALR 967 (CCMA) there were written statements made by a victim of sexual harassment, and such were allowed as hearsay evidence, without the author thereof, in light of the fact that a qualified psychologist testified to the psychological impact of acts of sexual harassment and rape has on the victim to substantiate the claims. In this matter the hearsay evidence was more in the interest of justice to admit than it would have been to exclude it.

But how much weight does Hearsay Evidence carry?

The admittance of hearsay evidence in disciplinary hearings and arbitrations, must be done when the interests of justice tilts the scales in favour of the admittance thereof; however, it is also important for the chairperson in question, to rule on the weight to be afforded to such evidence in the proceedings.

If you are to submit any hearsay evidence during a disciplinary hearing or Arbitration proceedings, it is important to ensure that the hearsay evidence is:

• confined in a record which is reliable, accurate and complete;
• presented on the same factual dispute and has to be two-sided in its nature. In other words, it should be a reflection of all the evidence given directly by all participating parties;
• in respect of any allegations, it has to reflect consistency and has to have some corroborating facts on the time the hearsay evidence was recorded;
• it has to show that the various allegations contained in the hearsay evidence can be adequately tested in cross-examination; and
• that it was submitted without influence or intimidation.

Factors such as the reliability, corroborating statements and the testimony of other witnesses, are also essential in deciding the admissibility of the evidence or the value of the evidentiary weight to be placed on the hearsay evidence.

Conclusion

While the above is by no means an in-depth explanation of the admissibility of hearsay evidence it is clear that any chairperson, arbitrator or commissioner should be guided by Section 3 of the Law of Evidence Amendment Act 45 of 1988 on the implementation and evaluation of hearsay evidence before determining the admission or rejection of such evidence.

MISA – Just a phone call or an e-mail away!

(Article by Anneke Venter, edited by Nichole Turner)

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References:

Hearsay Evidence – News, speeches and presentations | CCMA

Exxaro Coal (Pty) Ltd v Chipana and Others (derebus.org.za)

Microsoft Word – 2 (airccse.com)

314.pdf (saflii.org)

842.pdf (saflii.org)

Clear-cut evidence in a not-so-clear-cut situation: when usually inadmissible hearsay evidence should be weighted as prima facie admissible evidence | Labour Guide

Will Hearsay Evidence be admitted during my Proceedings? – Consolidated Employers Organisation (ceosa.org.za)

What is hearsay evidence? – Khadder Law