In terms of Section 138(1) of the Labour Relations Act, a Commissioner may conduct an Arbitration in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly, with the minimum of legal formalities.
In the guidelines on misconduct Arbitrations published by the CCMA, it is stipulated that an Arbitration typically involves several stages. Only the first few stages of the Arbitration will be discussed, seeing that the discussion of this article is only for the authenticity of documentary evidence.
Before proceeding to Arbitration, any preliminary issues that may exist must be dealt with. This may include applications for condonation or legal representation as well as objections to the jurisdiction of the CCMA or Bargaining Council as well as the authenticity of documentary evidence. The Commissioner will generally ask parties whether there are any preliminary issues to be raised, whereafter parties should be given an opportunity to address the preliminary issue. A ruling must be issued before the dispute can proceed to Arbitration.
The second stage is where the parties narrow down the issues. The purpose of this stage is to reach an agreement on the legal and factual issues involved which will arise out of the dispute. The Commissioner must determine whether the substantive or procedural fairness is challenged. The applicant party should then challenge any documents and the authenticity of documentary evidence. At the conclusion of this stage, the parties should record the issues that are common cause, the issues that are in dispute, and the issues that the Commissioner is required to decide to adjudicate the dispute.
If the authenticity of the documentary evidence, such as the minutes of the disciplinary hearing and/or any other documentary evidence, is challenged, the writer/author of that document should come and testify to that effect. If the authenticity of the documentary evidence is challenged and the writer doesn’t testify to that effect, the documentary evidence will come down to hearsay evidence and will likely not be considered by the Commissioner.
The other question at hand is: What if the party fails to raise a preliminary issue and/or fails to mention the challenge of the authenticity of the documentary evidence during the process of narrowing down the issues and only mentions it at a later stage?
In Botha v S  2 ALL 116 (SCA), the Court held that in the absence of a challenge by the other party as to the authenticity of the documentary evidence, copies could be accepted on the principle of best evidence.
In Prestige Cleaning Services (Pty) Ltd v Commissioner JD Sello NO and others 2016 ZALC JHB 166, it was held that it is not necessary for a party to continue leading evidence on a point or documentation that is not contested, the fact that such evidence is not corroborated by further evidence does not warrant its exclusion. Proper weight should be attached to uncontested evidence.
If the other party only raises a point for the authenticity of the documentary evidence at a later stage, as mentioned above, the Commissioner should be informed about this immediately. It is clear, with reference to the above-mentioned case law, that in the absence of a challenge, the documents could be accepted. It will be highly recommended that a ruling should immediately be made to this effect by the Commissioner. If the ruling is that the authenticity of the documentary evidence will be added to the issues in dispute, the other party should then be offered the opportunity to call back his/her witnesses to enable them to testify to this effect. If the ruling by the Commissioner is that the authenticity of the documentary evidence was not challenged, you know that this will not be considered by the Commissioner.
Article by: Tammy Koekemoer
Dispute Resolution Official – Bloemfontein