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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
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