In a perfect world, the law would always resonate with the person who abides by it, who is right and just, and who speaks the truth. However, the harsh reality of any legal dispute, whether in criminal or labour law, is that It’s not always about the principle of who is wrong and who is right but that it sometimes only comes down to what you can prove through the evidence on the date. In some cases, witness testimony might be the only evidence an employer may have at their disposal.
Witness testimony forms the backbone of most evidence presented in any CCMA or Bargaining Council dispute. It is often used to introduce, explain, and elaborate on other forms of evidence, such as documentary evidence. And in some instances, it might be used as the only source of evidence during an Arbitration. Without witness testimony, it would be difficult for any party to state their case or give their version of the events that led to the dispute.
To understand the importance of credibility when it comes to witness testimony as evidence, we must first look at what it means to be a credible witness. Credibility is the quality of being trusted and believed in. It is associated with being honest, authentic and believable, and often Commissioners will deem a witness to be credible when their version is reasonable and believable on a balance of probabilities, given the evidence and testimony presented. The importance of this is that in some cases, the only evidence presented by both the employer and employee is witness testimony.
With two (2) often opposing or conflicting versions of events, how does a Commissioner decide whom to believe if it’s the “employer’s word against the employees”? To water it down, that’s where credibility as a factor comes in, as the Commissioner ultimately must decide whose version makes more sense and is more believable on a balance of probabilities.
There are specific considerations regarding witness testimony that a Commissioner must consider where there is a factual dispute between the parties, namely:
- The credibility of various factual witnesses, which includes:
The veracity of the witness; The candour and demeanour of the witness; Any latent or blatant bias that the witness presents; Any internal or external contradictions in the evidence presented by the witness; The probability and improbability of aspects of the version given by the witness; And the calibre and cogency of the performance of the witness compared to other witnesses.
- Witness reliability, which includes:
The opportunities for the witness to experience or observe the event in question; And the quality, integrity, and independence of the witness’ recall.
- The probabilities, which include:
The analysis and evaluation of each party’s version of each of the issues in dispute.
The Court’s assessment and determination on credibility can be seen in the Labour Appeal Court (LAC) Judgment of Amathole District Municipality v Amathole District Municipality v Commission for Conciliation, Mediation and Arbitration and Others (PA9/2018)  ZALAC 119 (10 November 2022), where the Judgment deals with the credibility of the alleged sexual harassment victim. Mr Fredericks, an employee of the municipality, was accused of sexually harassing Ms Pongoma. She alleged that he would touch her private parts and demanded that she perform oral sex on him. Strangely, she only reported the issue when her boyfriend found out about their “sexual interactions”. Her boyfriend demanded that she report the matter to her employer. The CCMA found that sexual harassment had occurred and awarded the employee a large sum of compensation. The LAC, however, overturned the award as it ultimately found that she had not been a credible witness and that Mr Fredericks’ sexual advances had not been unwelcome/unwanted. It attached weight to a message she sent to Mr Fredericks stating: “U knw what Im hungry for u nw serious sweety, what’s ur plans for today”. She had also used affectionate expressions like “ok, my love”, “honey”, and “sweetie” in messages to him. This evidence directly impacted her credibility as the main witness, victim, and complainant and cast doubt on whether she was being truthful or trying to conceal an affair.
Employers should consider these practical factors when giving testimony or preparing to testify. Remember that how a witness presents their evidence is just as important as what they present or attest to. And that the testimony should be consistent with the other evidence presented.
Article By: Carl Ranger
Senior Dispute Resolution Official – CEO Training Department