CIRCUMSTANTIAL evidence is used to prove guilt when there were no witnesses. No one observed the misconduct, yet there are facts regarding the circumstances in which the misconduct occurred, which point to a most probable guilty person. If you like, circumstantial evidence is indirect evidence that can be distinguished from direct, witness evidence. In Principles of Evidence (Schwikkard and van der Merwe: 2005), circumstantial evidence is said to furnish “indirect proof”, with the court (which in disciplinary hearings would include chairpersons), being “required to draw inferences” which “must comply with certain rules of logic”.

Schwikkard and Van der Merwe also tell us that: “In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts”. Circumstantial evidence can, and often is, used fairly in disciplinary hearings to prove guilt on a balance of probabilities, as is required. It follows that circumstantial evidence is also entirely admissible in arbitration hearings. This is typically, among other things, premised on section 138(1) of the Labour Relations Act, which states that: “The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”.

That’s not to say that circumstantial evidence is unquestionably admissible. South African case law provides ample evidence of the manner in which circumstantial evidence will be admitted and considered to be compelling in proving an employee’s guilt on grounds of misconduct.

Quite how circumstantial evidence is to be assessed in cases was summarised in S v Reddy and Others 1996 (2) SACR which held that: “In assessing circumstantial evidence, one needs to be careful not to approach such evidence upon a piecemeal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. “The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such ‘that they exclude every reasonable inference from them save the one sought to be drawn’.” The approach to be adopted when an inference is sought to be drawn from other facts was summarised in Cooper and Another NNO v Merchant Trade Finance Ltd (2000 (3) SA 1009 (SCA)).

Zulman JA observed that: “It is not incumbent upon the party who bears the onus of proving an absence of an intention to prefer to eliminate by evidence all possible reasons for the making of the disposition other than an intention to prefer. This is so because the court, in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. In a criminal case, one of the ‘two cardinal rules of logic’ referred to by Watermeyer JA in R v Blom is that the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.

This rule is not applicable in a civil case. If the facts permit of more than one inference, the court must select the most ‘plausible’ or probable inference. If this favours the litigant on whom the onus rests, he is entitled to judgment. If, on the other hand, an inference in favour of both parties is equally possible, the litigant will not have discharged the onus of proof.”

Distell Ltd vs CCMA (2014) 35 ILJ 2176 (LC) reminds us that: “The danger with circumstantial evidence on the other hand is that in addition to the possibility that a witness may be lying or mistaken, the evidence may be capable of more than one logical explanation, thus circumstantial evidence may, at first blush, appear to be much more compelling than it really is, largely because the trier of fact does not have sufficient knowledge or understanding of the particular field to be able to question the evidence and its potency or because the trier of fact does not understand how to make sense of it”.

Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit
Call 0861 115 375 or email [email protected]

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