HEARSAY evidence is evidence tendered by an individual who relays evidence that he/she did not personally witness with his/her own eyes or senses, but heard from someone else.
Hearsay evidence is considered to be unreliable, problematic because the source of the evidence is not available for cross-examination and often faulty as the witness may have mistakenly made an error in the interpretation of what was communicated by the source of the information. It is typically weak evidence, which needs to be handled with caution and includes statements of third parties and documents.
The Law of Evidence Amendment Act (45 of 1988) defines hearsay evidence as: “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 follows that hearsay evidence is generally inadmissible, but not always.
Schwikkard & Van de Merwe, in Principles of Evidence, highlight that the fears associated with admission of hearsay, include “distrust of oral evidence reflected in the requirement that evidence is also problematic because the court is unable to observe the demeanour of the person who made the original statement. Another reason given for the exclusion of hearsay evidence is that it is secondary evidence and consequently, not the best evidence.”
The recent Labour Appeal Court judgment in Exxaro Coal (Pty) Ltd v Gabriel Chipana & 2 others (Labour Appeal Court: JA161/17) provided a particularly competent commentary on the admissibility of hearsay evidence in the context of disciplinary and arbitration hearings. Section 3 of the Act says the judgment “essentially means that if there is no agreement to receive hearsay evidence, it is to be excluded unless the interests of justice requires its admission”.
Importantly, the judgment notes that: “Hearsay evidence that is not admitted in accordance with the provisions of this section is not evidence at all… This Court held ‘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. Courts may receive hearsay evidence if the interests of justice require it to be admitted’. This section still retains the ‘caution’ concerning the receiving of hearsay evidence, but changed the rules about when it is to be received and when not.”
So, what does it mean in disciplinary and arbitration hearings? For starters, it confirms that hearsay evidence is indeed admissible “if the interests of justice require it to be admitted”. Put differently, it is wholly incorrect to submit that hearsay evidence is always inadmissible. However, caution must always be applied.
The judgment also tells us that: “The provisions of section 138 of the Labour Relations Act that give a commissioner a discretion to conduct an arbitration in a manner that she or he considers appropriate to determine a dispute fairly and quickly, and to do so with a minimum of legal formalities does not imply that the commissioner may arbitrarily receive or exclude hearsay evidence or for that matter any other kind of evidence.”
The judgment went on to quote S v Ndhlovu and Other which “referred to safeguards to ensure respect for an accused’s fundamental right to a fair trial”. Cameron JA pointed out that safeguards, including the following, were important: “First, a presiding judicial officer is generally under a duty to prevent a witness heedlessly giving vent to hearsay evidence. “More specifically under the Act, it is the duty of a trial judge to keep inadmissible evidence out, (and) not to listen passively as the record is turned into a papery sump of ‘evidence.’
“Second, the Act cannot be applied against an unrepresented accused to whom the significance of its provisions have not been explained. Third, an accused cannot be ambushed by the late or unheralded admission of hearsay evidence. The trial court must be asked clearly and timeously to consider and rule on its admissibility. This cannot be done for the first time at the end of the trial nor in argument still less in the court’s judgment or on appeal. The prosecution must before closing its case clearly signal its intention to invoke the provisions of the Act, and the trial judge must before the State closes its case rule on admissibility so that the accused can appreciate the full evidentiary ambit he or she faces.”
In the final analysis, professional advice should be sought when evaluating whether hearsay evidence is or isn’t admissible in a given set of circumstances.