Could having heard something “through the grapevine” be admissible evidence in a disciplinary matter?
The best evidence is undoubtedly evidence which originated first-hand from the source and thus having been heard from the proverbial “horse’s mouth”.
In the imperfect world we live in, decision makers and adjudicators however simply do not have the luxury of dealing with such first-hand evidence in each and every case before them.
Often the truth may be hidden away or obscured behind evidence sources which are “A-typical” in nature and one of such forms of evidence is hearsay evidence.
Hearsay evidence defined
Section 3 of the Law of Evidence Amendment Act No 45 of 1988 (LEAA) defines hearsay evidence as follows:
“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”.
Common law position on hearsay evidence
Traditionally, hearsay evidence was regarded as generally inadmissible and could only be admitted if it adhered to a rigid and closed list of prerequisites underpinned by the assertion-orientated rule-and-exception approach.
This approach “stifled” the proper administration of justice during the adjudication process and potentially caused perpetrators of injustice and misconduct to get away in circumstances where justice could be served better with a more open-minded approach to evidence and hearsay evidence in particular.
The advent of the LEAA and its impact on hearsay evidence
With the promulgation of the LEAA in 1988 the common law position on hearsay evidence was greatly improved upon and as judge Musi put it in the case heard by the Labour Appeal Court (LAC): Public Servant’s Association of South Africa v Minister: Department of Home Affairs and Others (and I quote):
“Section 3(1) of the Act has ushered our approach to the admissibility of hearsay evidence into a refreshing and practical era. We have broken away from the assertion–orientated and rigid rule–and–exception approach of the past”.
When can hearsay evidence be admitted in consequence of normal evidentiary rules?
The LEAA did not dispose with the general rule that hearsay evidence needs to be treated with caution, while it reiterated the fundamental prerequisites which apply when being confronted with evidence presented as hearsay evidence, namely:
That hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
- There is mutual agreement between the parties to allow the hearsay evidence (refer Section 3(1)(a) of the LEAA)
- The person upon whose credibility the probative value of such evidence depends, testifies at the proceedings and can thus be cross examined (refer Section 3(1)(b) of the LEAA).
So far, the common law position has not yet been improved upon by Sections 3(1)(a) & (b). The remainder of the provisions of Section 3(1) of the LEAA however ushered in a more flexible and enabling approach to hearsay evidence, by making the determinant factor for the admission of hearsay evidence the interest of justice.
In which circumstances can hearsay evidence be admitted in the interest of justice?
When considering allowing hearsay evidence in the interest of justice, the court can explore the prospect of the interest of justice being served by the admission of hearsay evidence, having regard to the following:
- the nature of the proceedings.
- the nature of the evidence.
- the purpose for which the evidence is tendered.
- the probative value of the evidence (probative value referring to the extent to which the evidence reasonably could assist the assessment of the probability of the fact at issue).
- the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends (the “source”).
- any prejudice to a party which the admission of such evidence might entail; and
- any other factor which should, in the opinion of the court, be taken into account.
(Refer Section 3(1)(c) of the LEAA)
Where the evidence presented is however inadmissible on any other ground, besides it being hearsay evidence, the considerations contained in Section 3(1)(c) above will not render it admissible (refer Section 3(2) of the LEAA).
Provisional admission of hearsay evidence
Since one of the primary criteria for the admission of hearsay evidence is based on the source of the evidence testifying at the proceedings, adjudicators and decision makers may provisionally admit hearsay evidence on the declared intention that the source of the evidence will later testify in the proceedings.
Should this intention however not materialise, the hearsay evidence will be left out and receive no consideration, unless otherwise given credibility as set out above (refer Section 3(3) of the LEAA)
What is to be learned from relevant case law regarding hearsay evidence?
In my research in preparation for this blog, two pertinent LAC-cases stood out where the concept of hearsay evidence received focused attention, namely:
- Exxaro Coal (Pty) Ltd v Chipana & others (2019)
In essence, the handling of the hearsay evidence component of the matter by the Commissioner at arbitration was criticised in basically two aspects, namely (1) not dealing timeously with the admission or exclusion of the hearsay evidence and (2) not interpreting and applying the current law on hearsay evidence correctly (still focusing predominantly on the erstwhile common law position on hearsay evidence).
The LAC cross referenced the Supreme Court of Appeal case: S v Ndhlovu and Others, where judge Cameron highlighted 3 “safeguards” to ensure due respect to an accused’s fundamental rights to a fair trial, with focus on hearsay evidence:
- A presiding officer is under a duty to prevent a witness heedlessly giving vent to hearsay evidence and not to remain passive in this regard.
- The provisions of the LEAA cannot be applied to an unrepresented accused to whom the significance of these provisions is not at least explained beforehand.
- The accused cannot be ambushed by the late and unheralded admission of hearsay evidence. The question of the admissibility of hearsay evidence cannot be done for the first time at the conclusion of the case.
As our current law on hearsay evidence requires the application of the relevant provisions of the LEAA for admission purposes, these “safeguards” find application in the following ways:
- Section 3(1)(c) is not a licence for the wholesale admission of hearsay evidence – it must be resorted to with circumspect.
- In the application of these provisions due care must be taken not to compromise fairness in the process.
- Presiding officers must be alert to the introduction of hearsay evidence and not remain passive about it.
- Presiding officers should, from the onset of proceedings, require parties to indicate their intention to rely on hearsay evidence.
- Presiding officers must explain to the parties the significance of the provisions of Section 3 of the LEAA.
- Presiding officers should rule timeously on the admissibility of hearsay evidence and should not make such ruling only at the end of the proceedings.
- Southern Sun Hotels (Pty) Ltd v South African Commercial Catering & Allied Workers Union and another (2000)
This matter before the LAC stemmed from the case having formerly been heard and decided by the Industrial Court (IC). It needs to be mentioned that the IC was not a court of law, but a tribunal which proceedings were neither criminal nor civil in nature. Its proceedings could however be equated to a formal enquiry.
Substantially, much turned on the admissibility of the hearsay evidence and the IC’s decision in this regard was crucial for evidentiary and decision-making purposes.
In this case the IC concluded that the hearsay evidence (despite any consideration in terms of Section 3 of the LEAA) should not be admitted, leading to the dismissal being declared an unfair labour practice. The IC reasoned that the matter related to a too fundamental issue to admit hearsay evidence for consideration purposes (the issue being an alleged threat of violence).
The LAC carefully considered each of the factors contained in Section 3(1)(c) of the LEAA with due cognisance to the facts and circumstances of the case.
I do not intend to get into the detail of the LAC’s consideration of these factors, as it pertains to the interests of justice. What however tilted the scale in favour of admitting the hearsay evidence was mainly the good probative value of the evidence concerned in view of the sincere, simple, and straight-forward manner in which it was presented, coupled with the fact that the testimony of the manager who found the allegedly threatened employee in a shaken up and visibly nervous emotional state on the day in question was never challenged.
Hearsay evidence may be the only evidence available to either prove or disprove wrongdoing in a particular case. There may also be plausible reasons why the source of the evidence cannot testify (e.g., illness, death, etc.)
It will be in the interest of justice that the truth be exposed to the extent that it is possible and the development in our law regarding the admissibility of hearsay evidence enabled decision makers to delve beyond the apparent inadmissibility of evidence not being presented by the source.
There is also an obligation on presiding officers to apply their minds to the relevant provisions of the LEAA before simply discarding hearsay evidence, as due consideration of these provisions just may be determinant whether the ultimate decision reached was fair and legally justifiable.
J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP