In an alleged workplace bullying environment, there will most probably be two versions of what occurred – the version of the alleged offender and the version of the alleged victim.
The aforesaid factual conflict is also to be expected in other environments, including that of sexual harassment.
What is the test to be followed to resolve these disputes of fact?
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The test to be followed is that formulated by the supreme court of appeal in Stellenbosch Farmers’ Winery Group Ltd and Others v Martell & Cie 2003 (1) SA 11 (SCA) and applied subsequently in Assmang Ltd v CCMA and Others (2015) 26 SALLR 98 (CC); (2015) 36 ILJ 2203 (CC). The application of this test entails the consideration of the following factors, evident from the quote of the Stellenbosch Farmers’ Winery judgment:
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- ‘As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it… But when all factors are equipoised probabilities prevail’ (at 14I-15E, paragraph [5], per Nienaber JA).
