From time to time, disciplinary cases evolve in which there is only one employer witness, whose evidence is, invariably, contested by the employee. It’s the “one person’s word against another case”. In more legal parlance, the chairperson, or Commissioner, is faced with two so-called mutually destructive versions. The question is, can one be preferred over another, and if so, in what circumstances?
One guiding principle is that the demeanour of witnesses should closely monitored when determining witness credibility.
As one would expect, there are legal principles which address this conundrum. The arbitration hearing in Bheki Innocent Ngobese v Water Weights Natal CC (Case number MEKN7225) presented the Commissioner with one such conundrum. In analyzing the evidence, the Commissioner lent on various prior judgments which give guidance on how to treat cases with mutually destructive evidence.
To begin with, the Commissioner referred to the case of S v Kelly 1980 (3) SA, in which the court said “there can be little profit in comparing the demeanor only of one witness with that of another when seeking the truth. In any event, demeanour is, at best, a tricky horse to ride”. Demeanour, as a factor determining witness credibility, should not approached with caution, and not be exaggerated as a key factor in determining witness credibility. This was alluded to in S v Mgengwana 1964 (2) SA in which the court noted the challenge faced with assessing the demanour of a witness who wear masks.
The Labour Court, in Masilela v Leonard Dingler (Pty) Ltd [2004] 25 ILJ stated that when faced with two mutually destructive versions, or one person’s word against another case, “This court is faced with two mutually destructive versions, only one of which is correct. I deciding which version to accept and which one to reject, I am obliged to consider inter alia, the issue on a balance of probabilities. The onus is on the respondent (the employer) to prove that its version is the truth. The onus is discharged if the respondent can show by credible evidence that its version is te more probable version”.
A further tool utilised to determine witness credibility, is how the witnesses perform under cross-examination.
The critical factors to be considered when seeking to make a credibility judgment when confronted with to irreconcilable versions, were outlined in the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell Et Cie and Others [2003 (1) SA 11 (SCA)] – “To come to a conclusion on the disputed issues a court makes findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probabilities and improbabilities of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when the court’s credibility findings compel it in one direction and evaluation of the general probabilities in another. The more convincing the former, the less convincing will be latter. But when all factors are equipoised probabilities prevail.’
This emphasises the point that it is not the quantity of the evidence presented by the employer and the employee, but rather the probabilities which flow from all the evidence, which in certain circumstances, may be one, single witness. Relying on a sole witness will always, none the less, place a greater burden on an employer.