The current position with regard to hearsay evidence is that such evidence may generally be admissible, but the weight afforded to that evidence should be considered in the light of the nature of the evidence. In other words, due to the evidence being hearsay, the weight given to such evidence will be affected. Ultimately, its reliability will, to a large extent, determine the weight that will be given to the evidence. However, under what circumstances will the transcribed record of an internal disciplinary hearing constitute hearsay of a special type, thus affording greater intrinsic weight than simple hearsay?
In Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others 2019 (30 SALLR 172 (LC), the labour court, per Deane AJ, answered the above question as follows:
- the current position with regard to hearsay evidence is that hearsay evidence may generally be admissible, but the weight afforded to that evidence should be considered in light of the nature of the evidence. In other words, due to the evidence being hearsay, the weight given to such evidence will be affected. Ultimately, its reliability will, to a large extent, determine the weight that will be given to the evidence;
- in Minister of Police v M 2017 (38) ILJ 402 (LC), the court was tasked with considering, in the absence of the complainant, the weight that should be attached to the transcribed record of an internal disciplinary hearing. According to s3(4) of the Law of Evidence Amendment Act 45 of 1988, hearsay is defined as ‘evidence, whether oral or in writing, the probative value of which depends on the credibility of any person other than the person giving such evidence’. Ordinarily, in the absence of the presence of witnesses, a recordal of oral testimony would not hold much weight or value;
- the labour court (M case) pointed out that, while it may be an error or irregularity to attach too much weight to hearsay evidence, not giving hearsay evidence sufficient weight may also constitute a material error or irregularity. According to the labour court, the M case represented an example of a case in which the hearsay evidence was not afforded sufficient weight, in that the commissioner did not seem to realise that the transcripts were no ordinary hearsay, but were ‘hearsay of a special type’. This distinctiveness could be attributed to the fact that the transcripts comprised a bilateral and comprehensive record of earlier proceedings in which the child victim’s evidence was corroborated by at least two other witnesses, with the evidence withstanding rigorous cross-examination and in which the employee’s own defence was ‘ventilated and exposed as being implausible’. The court went on to say that transcripts, such as the ones in the present case, had to be afforded greater intrinsic weight than simple hearsay (such as a witness statement handed up during the course of a hearing), because they constitute a comprehensive and reliable record of a prior quasi-judicial encounter between the parties;
- the labour court (M case) concluded that ‘in appropriate factual circumstances’ hearsay, such as a transcript of a properly run internal hearing, might carry enough weight to require of the accused employee to rebut the allegations contained in the hearsay. According to the labour court, a reasonable decision-maker would have appreciated that the transcripts had not contained mere allegations, but rather tested allegations and a contested denial. As such, the transcripts constituted prima facie evidence of the employees’ wrongdoing; and
- a number of guidelines for what would constitute appropriate factual circumstances to depart from the norm, as in this case, were set out by the court. In terms of these guidelines, the hearsay should:
- be contained in a record which is reliable accurate and complete;
- be tendered on the same factual dispute;
- be bilateral in nature; be in respect of the allegations;
- demonstrate internal consistency and some corroboration at the time the hearsay record was created;
- show that the various allegations were adequately tested in cross-examination; and
- have been generated in procedurally proper and fair circumstances.
