Article 40/2021

Labour Edge

To what extent is an arbitrator entitled to alter the duty to begin and the discharging of the onus?


  1. in arbitration proceedings before the CCMA, it is not uncommon for commissioners to be confronted with a less than ideal scenario where a representative of the employer also acts as its witness. Equally so, it is not uncommon for employees to represent themselves in those proceedings and to lead their own evidence. It was the labour court’s view, however, that, irrespective of the circumstances of the case, the question of the duty to begin and discharging the onus in dismissal disputes is a statutory requirement imposed by the provisions of s192 of the LRA. Those provisions cannot be circumvented for the sake of convenience or expedience;
  2. there is a dispute as to whether the commissioner had compelled Langa to testify first, or whether, as the commissioner had stated in the award, Langa had offered to begin. The record of proceedings, however, indicated that the parties had reached agreement on who should begin. The labour court believed that that dispute was inconsequential, as, in line with the provisions of s192 of the LRA, it was for the commissioner to simply remind the parties what their statutory obligations were in regard to the issue of onus, and to give direction in regards to the duty to begin irrespective of the constraints (if any) Langa was faced with; and
  3. to the extent that the commissioner first heard the evidence of Langa, when the duty to begin and to discharge the onus in regards to the dismissal was on Muguto, there could be no doubt that the commissioner had clearly misconceived the question of onus, and had committed a gross procedural irregularity, which, on its own, rendered the award reviewable. That irregularity had prevented Pikitup from having its case fairly heard, or prevented a fair trial of the issues.

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))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

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)?