Article 57/2021

Labour Edge

An expert giving evidence before a court is not a hired gun.  What are some of the principles governing an expert witness, as recently identified by the labour court in Anglo Gold Ashanti Ltd and Others v Association of Mineworkers and Construction Union and Others (2019) 30 SALLR 216 (LC)?

Anglo Gold identified the following principles governing an expert witness:

  1. expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation;
  2. an expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise … an expert witness should never assume the role of an advocate;
  3. an expert witness should state the facts or assumptions upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion;
  4. an expert witness should make it clear when a particular question or issue falls outside his expertise;
  5. if an expert opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one. In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report; and
  6. lastly, an expert comes to court to give the court the benefit of his or her expertise. Agreed, an expert is called by a particular party, presumably because the conclusion of the expert, using his or her expertise, is in favour of the line of argument of the particular party. But that does not absolve the expert from providing the court with as objective and unbiased an opinion, based on his or her expertise, as is possible. An expert is not a hired gun who dispenses his or her expertise for the purposes of a particular case. An expert does not assume the role of an advocate, nor give evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?