Hearsay evidence is evidence tendered by an individual who relays evidence which he/she did not personally witness with his or her own eyes or senses, but heard from someone else. Hearsay evidence is, ordinarily, considered to be unreliable and problematic as the source of the evidence is not available for cross-examination.
Further concerns regarding hearsay evidence are that it is often faulty as the witness may have mistakenly made an error in the interpretation of that communicated to him/her by the source of the information.
It is therefore evidence which under normal circumstances, is to be handled with caution. That’s not to say however that hearsay evidence should be discarded at all times.
Section 3 of the Law of Evidence Act (Act 45 of 1988) prescribes the manner in which hearsay evidence should be dealt with, and provides the exceptions to the normal rule that hearsay evidence is ordinarily inadmissible.
The Labour Appeal Court in Naraindath v CCMA & others (2000) reiterated that CCMA arbitrators should not be required “to resolve unfair dismissal disputes … in slavish imitation of the procedures which are adopted in a court of law and subject to the technical rules of evidence which apply in those courts”.
In the Labour Court case of POPCRU obo Maseko v Dept. Of Correctional Services (JR2134/08, handed down on 30 August 2010) the admissibility of hearsay evidence in arbitration hearings was comprehensively addressed.
Amongst other things, the Judge held that case law objecting to a slavish imitation of court of law hearsay admissibility principles, “does not amount to an open invitation to ignore those principles”. The Judge continues that “Rather, it suggests that deviations from those principles must be justified by the particular circumstances of the arbitration in question”.
When all is said and done, the admissibility of hearsay evidence at arbitration hearings will be assessed on whether, or not, the arbitrator applied the provisions of section 3 of the Law of Evidence Act, in the knowledge that “arbitration proceedings are not the same as civil or criminal proceedings”.
In POPCRU obo Maseko v Dept. Of Correctional Services, it was submitted that the arbitrator had erred in admitting hearsay evidence on grounds that reliance had been placed on witness statements when the deponent of the statements were not available to be cross examined. What’s more, it was common cause that the statements in question were the only direct evidence of the misconduct which had led to the applicant’s dismissal.
The Court held that “the cumulative consideration of the factors set out in section 3 of the Law of Evidence Act by the arbitrator which resulted in her admitting the (hearsay) evidence was not unreasonable”. This was due to a number of factors including the fact that the witnesses had been released from custody and provide false addresses, the applicant’s “the bald denial of all the relevant facts”, the reliability of the evidence, the nature of the surrounding evidence and the fact that the statements were cross-examined at the original disciplinary hearing.
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