Article 30/2022

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

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In Minister of Police v M (supra), the labour court identified the following criteria to be complied with for a transcript of an internal enquiry being admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act 45 of 1998, constituting hearsay of a special type, constituting prima facie proof of misconduct and affording greater weight than simple hearsay:

  • the record is to 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 dispute
  • the record must be bilateral in nature (containing all the evidence tendered by all the parties)
  • in respect of allegations, it must demonstrate internal consistency and corroboration
  • the record must reflect that the allegations were adequately tested under cross-examination
  • the proceedings must be procedurally correct and fair (including the requirement that the presiding officer was fair and asked questions in clarification)
  • it is not a requirement that the evidence is to be given under oath, but witnesses must be made aware that they are required to give evidence that is true and correct

When the aforesaid criteria have been met, the evidentiary burden shifts to the employee and the failure of such employee to give evidence in rebuttal could expose should employee to a finding of guilty.

When applying the aforesaid criteria, the labour court, in Department of Home Affairs (supra), made the finding that the transcript of the internal enquiry did not constitute hearsay of a special type in that the following criteria, identified above, were not complied with:

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

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).