Hearsay evidence is, in the main, inadmissible, and is best described as evidence tendered by an individual who relays evidence which s/he did not personally witness with his/her own eyes or senses, but heard from someone else.
It is with good reason that hearsay evidence is treated in this way, as hearsay evidence cannot be tested by way of cross examination, and is furthermore typically unreliable as the witness tendering the hearsay evidence may have mistakenly made an error in the interpretation of that communicated to him or her by the source of the evidence.
Hence the need to handle hearsay evidence with extreme caution.
However, that’s not to say that there are not exceptions to this rule; on the contrary, there are.
Section 3 of the Evidence Amendment Act provides that hearsay evidence may in fact be admissible if it is in the interest of justice to do so and certain conditions are met. The Labour Court addressed this tricky area of law in the matter of Goitsimang David Mosima v SAPS & 3 others (Case Number J1031/09).
The applicant, at a prior CCMA arbitration hearing, had been found guilty of soliciting and receiving a R700.00 bribe from two members of the public who happened also to be illegal immigrants, with the outcome being that his dismissal was upheld by the arbitrator. He now sought to have this decision reviewed on grounds that the arbitrator had erred in accepting the hearsay evidence, primarily on the basis that the two members of the public did not testify at the arbitration hearing.
The Commissioner relied heavily on the provisions of the Evidence Amendment Act relating to the exceptions to the hearsay rule, and especially noted that the applicant’s review application required the court to consider the reasonableness of the arbitrator’s decision, and not the correctness of that decision, as would be the case in appeal proceedings.
It was held that “in the first instance the criticism that the arbitrator erred in basing his decision on hearsay evidence bears no merit”.
The provisions of Section 3 of the Evidence Amendment Act were deemed to have justified as the two members of the public whose evidence was admitted in their absence, was justified as they could not be found to testify at the arbitration hearing because they probably had been deported back to their countries of origin.
The applicant’s own version had also in fact corroborated the heresy evidence in that he had acknowledged receiving R700.00, in an envelope, from the two members of the public in question.
The admission of hearsay evidence should none the less be handled with caution, given that in doing so, unreliable evidence could be admitted that does not withstand scrutiny at the CCMA, Bargaining Councils or the Labour Courts.
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