Article 31/2022

What are the three scenarios identified in Hillside Aluminium v Mathuse (2016) 27 SALLR 29 (LC) covering the utilisation of a record/transcript of an internal disciplinary enquiry to be utilised at the CCMA or bargaining council and recently followed by the constitutional court in AMCU v Ngululu Bulk Carriers (in liquidation) (2020) 31 SALLR 111 (CC); (2020) 41 ILJ 1837 (CC)?


Scenario 1

This scenario entails no agreement on the authenticity of the documents or, alternatively, such authenticity is disputed.  If a party wants to rely on a document, it bears the onus to prove the authenticity by leaving evidence.  If authenticity is not proven or admitted:

  • the document is inadmissible
  • cannot be used in cross-examination
  • cannot be considered as evidence

Scenario 2

This scenario covers an agreement that the documents are what they purport to be.  If a party wants to rely on the document, it does not have to prove the authenticity and evidence can be led relying on the documents on the basis of what it purports to be.

However, the following principles are applicable:

  • the documents must be introduced as evidence and cross-examination on such documents is permissible
  • the presiding officer can accept the document as evidence insofar as it was properly introduced by a witness
  • if a document is not introduced as evidence, the presiding officer cannot mero motu consider such document as evidence merely because it was included in the trial bundle (see, further, Interstate Bus Lines v Daniel Phakwe (2017) 38 ILJ 915 (LC))

Scenario 3

This scenario covers an agreement that the documents and the bundle should be regarded as evidence.  Therefore, the presiding officer is entitled to accept the contents of the document as if evidence was adduced.  Even if no witness testifies about the authenticity of the document and its content, it can be considered as relevant and admissible evidence (see further, Interstate Bus Lines (supra)).

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.