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

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC)?

An employer set out its employees’ rights in disciplinary hearings in the applicable disciplinary code and incorporated same into their employment contracts.

What are the options available to an employee when an employer allegedly owes such employee monies in terms of a contract of employment?