SHOULD HEARSAY EVIDENCE BE ALLOWED WHERE WITNESSES HAVE BEEN INTIMIDATED?

[Ivan Israelstam]

In the case of AMCU obo Maluleke and 4 others vs Gold Plat Recovery (Pty) Ltd (Lex Media July 2024, Labour Court case number JS202/21) the Court refused hearsay evidence offered by the employer’s only witness. The witness stated that the 5 employees had been dismissed for intimidating colleagues into joining the union but that the alleged victims who had informed him of the intimidation were too scared to testify in court due to threats of their homes being burnt. The Court disallowed the hearsay evidence, found the dismissals to have been automatically unfair and ordered the reinstatement of the 5 employees. In what circumstances should the Court have allowed the hearsay evidence?

[Ingrid Lewin]

It is a basic rule of evidence that direct evidence carries much greater weight than hearsay evidence. Direct evidence is the statement of a person who perceived the incident which they are describing with his/her own senses. In other words, it is the difference between a witness who observes something directly and the witness who hears about it after the fact.

Hearsay evidence must be treated with extreme caution as it is unreliable. It relies upon the credibility of a person who is not present and therefore cannot be cross-examined.

The Law of Evidence Amendment Act 45 of 1988 radically altered the traditional approach to hearsay. In terms of this statute hearsay evidence is permissible if:

• The party against whom the evidence is to be adduced agrees to the admission of hearsay as evidence;
• Where the originator, who is alleged by the witness to have made the statement, will himself testify, and
• Where the court is of the opinion that such evidence should be admitted in the interest of justice.

In the arbitration of SACCAWU v OK Bazaars (1992) 13 ILJ 436 (ARB) (the arbitrator was Judge Edwin Cameron), hearsay evidence was allowed based on 3 considerations.

• Arbitration proceedings by their very nature are less formal than traditional judiciary procedures. Technicalities and formalistic objections should not be encouraged;
• ‘It is clearly desirable in the interests of fairness between management and its employees that all the material management has for feeling aggrieved at the conduct of an employee should be aired and that the arbitrator should have the benefit of the accused employee’s response to the material in question. Refusing to admit hearsay evidence will obstruct this process. What is more, in everyday life one often considers or reacts to hearsay statements. The employment context is no different. Excluding hearsay evidence altogether would therefore impede a fair and proper exploration of potential sources of industrial conflict’
• In cases of assault and intimidation in the workplace, victims are often too scared to give evidence. Fairness requires that the evidence should in these circumstances at least be heard and taken into consideration at an arbitration.

Despite all of the above, the party introducing hearsay evidence at a disciplinary hearing would still have to convince the chairperson of the reasons why the hearsay evidence is good or has any value, i.e. why it should be given any weight by the chairperson when making his/her decision on guilt.

I would just add that my approach, when chairing an arbitration, is to admit the hearsay evidence and weigh it against all the other evidence that has been led. In the scenario presented, I do not think the evidence would carry much weight since it is the evidence of a single witness which, in any event, needs to be treated with caution.

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