In terms of section 3 (4) of the Law of Evidence Amendment Act 45 of 1998, hearsay evidence is defined as evidence, whether oral or in writing which probative value depends on the credibility of another person other than the person giving such evidence. Hearsay evidence is generally not admissible in legal proceedings as the original source thereof will not be present at the proceedings to be cross-examined by the opposing party.
Whether or not hearsay evidence may be admitted into evidence is subject to the discretion of the presiding officer, and this discretion should be exercised with due consideration to the exceptions as provided in section 3 (1) of the Law of Evidence Amendment Act. In terms of this section, hearsay evidence may only be admitted into evidence if;
a. the opposing party consents to the admission thereof; or
b. the original source testifies at such proceedings; or
c. the court, having regards to the following factors;
i. the nature of the proceedings;
ii. the nature of the evidence;
iii. the purpose for which the evidence is tendered;
iv. the probative value of the evidence;
v. the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
vi. any prejudice to the party which the admission of such evidence might entail; and
vii. any other factor which should, in the opinion of the court, be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.
The discretion to admit hearsay evidence should be exercised with due consideration as a rejection of such evidence may constitute a material error in law. In the case of Matsokoleng v Shoprite Checkers (2013) 2 BLLR 130 (LAC), the court held that the Commissioner’s refusal to admit an affidavit into evidence constituted a material mistake in law. The court further held that the fact that the Respondent could not cross-examine the deponent of the affidavit was not a sound justification to refuse admission. The court held that this aspect was only relevant in deciding the evidential weight the Commissioner should attach to the affidavit.
The court in the case of Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and Another (2000) 21 ILJ 1315 (LAC) held that the test with regards to the admissibility of hearsay evidence is whether it is in the interest of justice of to admit such evidence.
The above also applies to the CCMA proceedings as held in the case of Swiss South Africa (Pty) Ltd v Louw NO and others (2006) 27 ILJ 395 (LC). In this case, the court held that depending on the circumstances of each case, hearsay evidence may accordingly be admitted to the proceedings before the CCMA and that Commissioners were required to deal with disputes with the least legal formalities and with some flexibility as provided for in section 138 of the Labour Relations Act.
Once hearsay evidence is admitted, the question that remains is how much weight is attached to it. The court, in the case of Minister of Police v M and Others (JR56/14) , found that the Commissioner’s failure to give hearsay evidence sufficient weight may constitute a material error or irregularity. This court, when assessing what weight to attach to the disciplinary hearing transcript, held that the transcript was “no ordinary hearsay, but hearsay of a special type” and that the transcript should “be afforded greater intrinsic weight than simple hearsay as they constitute a comprehensive and reliable record of a quasi-judicial encounter between the parties”.
The court further set out the guidelines to follow, deciding whether hearsay evidence is prima facie proof of an allegation. And held that the hearsay evidence should;
a. be contained in a record which is reliably accurate and complete;
b. be tendered on the same factual dispute and be bilateral in nature (i.e. it should constitute a record of all evidence directly tendered by all contending parties);
c. in respect of allegations, demonstrate internal consistency and some corroboration at the time the hearsay record was created;
d. show that the various allegations were adequately tested in cross-examination; and
e. have been generated in procedurally proper and fair circumstances.
It is clear from the above study that hearsay evidence will not automatically be admitted or excluded and that admission or exclusion of same depends on the circumstances of each case. It is also clear that courts will not automatically attach weight to hearsay evidence after its admittance. It is, therefore, in the best interest of a party to proceedings to call the person that made a statement to testify thereon. This will ensure that that great weight is attached to such evidence, and this may assist the party in discharging its onus of proof.
Article by: Sizamkele Jilaji
Dispute Resolution Official – Cape Town