In both a disciplinary hearing and arbitration, both parties (the employer and the employee) will be afforded the opportunity to state their respective cases to the presiding officer. They will then be afforded the opportunity to cross-examine the other parties witnesses.
It has always been trite in law that a party, during cross-examination, needs to challenge any evidence lead that it does not agree with and put the version to the witness that will be lead. This principle is probably best described in Small v Smith 1954 (3) SA 434 (SWA) at 438:
Claassen J said: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.
Once a witnesses’ evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume, in the absence of a notice to the contrary, that the witness’s testimony is accepted as correct. More particular is this the case of the witness is corroborated by several others unless the testimony is so manifestly absurd, fantastic or of so romantic a character that no reasonable person can attach any credence to it whatsoever.”
Is it imperative during cross-examination of a disciplinary hearing and arbitration for a party to put their version to the other parties’ witnesses and vice versa. The witnesses will then be afforded the opportunity to respond to these versions. If any version is left unchallenged, the above-mentioned case law describes the importance very well – “that the witness’s testimony is accepted as correct.”
Therefore, if a party doesn’t agree with the other party’s version, it is of the utmost importance that that version is challenged. If not, the chairperson, or alternatively, the arbitrator, will then accept that the witness’s testimony is accepted by the other party and therefore correct.
Article by: Tammy Koekemoer
Dispute Resolution Official – Bloemfontein