Skip to main content

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))?

_____________________________________

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
November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?