Article 29/2022

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?

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Hearsay evidence is not admitted unless s3(1)(a) or s3(1)(b) or s3(1)(c) of the Law of Evidence Amendment Act 45 of 1998 is applicable.

In terms of s3(1)(a) of the said Act, hearsay evidence will be admitted if each party, against whom such evidence is to be adduced, agrees to same. 

In terms of s3(1)(b) of the said Act, hearsay evidence will be admitted if the person, upon whose credibility the probative value of such evidence depends, him or herself testifies.

In terms of s3(1)(c) of the said Act, the court may also exercise its discretion and admit such evidence in the interests of justice, with reference to the following factors:

  • the nature of the proceedings
  • the nature of evidence
  • the purpose for which 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 the evidence depends
  • the prejudice to a party as a result of the admission of evidence
  • any other factor that is relevant in the opinion of the court
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What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

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The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

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What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?