Before we can determine if hearsay evidence can be used during proceedings, is it important to know what the meaning of hearsay evidence is: “Hearsay evidence” means evidence, whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence.
It is also important to know what the law says about hearsay evidence. In brief, Section 3 of the Law of Evidence Amendment Act provides as follows:
‘3 Hearsay evidence –
(1) Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
(a) each party against whom the evidence is to be adduced agrees to the admission thereof as evidence at such proceedings;
(b) the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or(c) the court, having regard to several other factors.
(2) The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.
(3) Hearsay evidence may be provisionally admitted in terms of subsection (1)(b) if the court is informed that the person upon whose credibility the probative value of such evidence depends, will himself testify in such proceedings:
Provided that if such person does not later testify in such proceedings, the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph (a) of subsection (1) or is admitted by the court in terms of paragraph (c) of that subsection.
What our courts say with regards to the admissibility of hearsay evidence in recent cases:
The recent Labour Appeal Court judgement of Exxaro Coal (Pty) v Chipana and Others (LAC) (unreported case no JA161/17, 27-0-6-2019) will give us more light on the subject.
At the disciplinary hearing, the employer relied on the hearsay evidence of forensic investigators, which was also presented to the Commissioner when the matter was referred for arbitration. The Arbitrator ruled the hearsay evidence inadmissible and having found “not a shred” of direct or corroborative evidence to prove the employee’s guilt, reinstated him. The Labour Court dismissed a review application. The appellant contended that the Labour Court had erred by failing to have proper regard to the Law of Evidence Amendment Act 45 of 1998 (“LEAA”) and the totality of the evidence.
The Court held that the court a quo had erred in several aspects. If Commissioners purport to apply the law, it is incumbent on them to try to ascertain what the law is. The Commissioner had based his decision to exclude the hearsay evidence solely on the ground that the employee had not consented to it. This was certainly not “the law of the land”, as he had stated. Section 3 of the LEAA provides that where there is no agreement on the admission of hearsay evidence, it may still be admitted where it is in the interests of justice to do so. This provision had entirely changed the approach to hearsay evidence. Arbitrators should explain the contents of section 3 to lay parties and should rule on the admissibility of hearsay evidence as soon as possible.
The Court held that in this case, the Commissioner’s ruling on the admissibility of the hearsay evidence case came too late. The employer’s representative had alerted the parties to the fact that hearsay evidence would be led and had done so without objection from the Commissioner or the employee, who was legally represented. The employee had attempted to answer the allegations in the complainant’s affidavits when he testified, and the employer’s representative had cited authorities on hearsay evidence in her closing arguments. The Commissioner had made no ruling on the hearsay evidence until writing his award. This was not consistent with his duty to determine the dispute fairly and quickly. The employee had been drawn into the debate on the hearsay evidence, risking a finding that he had tacitly consented to its admission, and the employer had proceeded not knowing whether the hearsay evidence would be admitted. While both parties could be criticised for not requesting a ruling, their failure to do so was tempered by the fact that these were not court proceedings and the parties were not necessarily legally trained. A reasonable Commissioner would not only have ensured that he knew the law on that issue, but also that he dealt with it promptly. This unreasonableness could not be cured on review, as the Labour Court had attempted to do. While the judgment might be requiring an element of formality in arbitration proceedings, this was preferable to allowing unfairness. The Labour Court had, accordingly, erred by finding that there was no basis for interfering with the award.
The appeal was upheld, and the matter was remitted to the CCMA to be heard by another Commissioner.
The same principle was applied in:
1. Louw v Commission for Conciliation, Mediation and Arbitration and others – (2019) 28 LC 1.11.39 also reported at  9 BLLR 921 (LC) where the court found that the Commissioner dealing with the hearsay evidence rule, did not deal with it appropriately and to reflect her awareness of the onus of proof in her evaluation of the evidence before her, the Commissioner committed a gross irregularity rendering the Award susceptible to review
2. Taku v Sekhanisa and Others (JR1242/2016) also reported at  ZALCJHB 13; also reported at  6 BLLR 588 (LC).
It is clear from the jurisprudence that the implementation and evaluation of hearsay evidence is a complex one and Commissioners should not routinely admit or reject the evidence without cautiously applying the provisions of Section 3 in determining the admission or rejection of such evidence. Section 3 of the LEAA provides that where there is no agreement on the admission of hearsay evidence, it may still be admitted where it is in the interests of justice to do so. It is further important for parties to address the Commissioner on the fact that Hearsay evidence will be led and request a ruling on the admissibility thereof as soon as possible and not only in his award. As far as possible, parties should ensure that witnesses are present during the proceedings as there is no guarantee that your hearsay evidence will be admitted.
Article by: Tammy Koekemoer
Dispute Resolution Official – Klerksdorp