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Article 11/2023

Under what circumstances will a transcript of an internal disciplinary enquiry be admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1998, thereby constituting prima facie proof of misconduct?

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In Minister of Police v M and Others (2016) 27 SALLR 53 (LC), the labour court held that the
transcript of an internal disciplinary enquiry may be admitted as hearsay evidence in terms of s3(1)(c)
of the Law of Evidence Amendment Act 45 of 1998 at the CCMA or relevant bargaining council, thus
constituting prima facie proof of misconduct if the following conditions are met:

  • the record must be reliably accurate and complete (transcribed by a professional transcription
    service and a transcriber certificate must be attached)
  • the record must be tendered on the same factual basis as subsequently before the CCMA or the
    bargaining council
  • the record must be bilateral in nature (it must contain all the evidence tendered by all the parties)
  • in respect of allegations, the record must demonstrate internal consistency and corroboration
  • all allegations must have been adequately tested under cross-examination
  • the proceedings must be procedurally fair and correct (entailing, inter alia, that the presiding
    officer must have been fair and asked questions in clarification)

Under the above circumstances, such transcript of an internal disciplinary enquiry will constitute
hearsay of a special type, thus affording greater weight than simple hearsay.

It is not a requirement that the aforesaid evidence at the disciplinary enquiry must be given under
oath, but the witnesses must be made aware that they are required to give evidence that is true and
correct.

If indeed such a record is tendered as evidence at the CCMA or relevant bargaining council, the
evidentiary burden shifts to the employee and failure by the employee to give evidence in rebuttal
could expose an employee to a finding of guilty.

Subsequently, in Department of Home Affairs v General Public Service Sector Bargaining Council and
Others (2019) 30 SALLR 172 (LC), the labour court had the opportunity to apply the aforesaid
principles and indicated, in that case, the transcript of the internal disciplinary enquiry did not
constitute such hearsay of a special type because the following elements were absent:

  • the record was not reliably accurate and complete
  • the record was not bilateral in nature and
  • the allegations were not adequately tested under cross-examination
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?