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The impact of a witness in a disciplinary enquiry: Case Studies

The impact of a witness in a disciplinary enquiry: Case Studies

In order to prove a case in a disciplinary enquiry, a party relies on various forms of evidence. This can be real evidence, documentary evidence and oral evidence.

Normally, witnesses are allowed to testify as to what they experienced, saw or know. At the end of the case, their evidence will be analysed by the chairperson. Witnesses are key to hearings as it is difficult and often impossible to win a case without witnesses. The chairperson will decide whether the witness’s evidence was satisfactory and whether they were a credible witness.

In Marapula & others v Consteen (Pty) Ltd (1999) 20 ILJ 1837 (LAC), the court stated the approach to be adopted in dealing with the evaluation of evidence and held that:

The credibility of witnesses and probability or improbability of what they say should not be regarded as separate enquiries to be considered a piecemeal. They are part of the single investigation into the acceptability or otherwise of the employer’s version, an investigation where questions of demeanor and impression are measured against the content of the witnesses evidence, where the importance of any discrepancies or contradictions are assessed and where a particular story is tested against facts which cannot be disputed and against the inherent probabilities that at the end of the day one can say with conviction that one version is more probable and should be accepted.

What if the employer only has one witness to confirm their version of events?

One of the rules of evidence traditionally provided that the evidence of a single witness should be treated with caution, hence the cautionary rule for single witnesses. This rule has been amended somewhat and applied less strictly.

In S v Carolus 2008 (2) SACR 207 (SCA), the Supreme Court of Appeal summarized the current interpretation of the cautionary rule relating to evaluating the evidence of a single witness in criminal matters as follows:

The current interpretation differs significantly from the previous more stringent standard of requiring a single witness’s evidence to be ‘clear and satisfactory in every respect’ before it could be relied on for a conviction:“ There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence.”

In the unreported case of Minister of Correctional Services v AM Baloyi and others [JR46/09], the Labour Court held that the cautionary rule was not applicable in civil or arbitration proceedings. In this case, a witness testified that he saw the employee, removing a plastic bag from the boot of his parked car at a prison, where he was employed as a warder. The employee denied that he had removed a bag, which turned out to contain dagga, from the car. The arbitrator, in finding that the employee’s evidence was more probable than the employer’s witness, referred to the cautionary rule against single witnesses. The finding was set aside and referred back for arbitration before a new arbitrator.

Contrary to the Correctional Services case mentioned above, the Labour Court, per Judge Lagrange, in Northam Platinum Mines v Shai NO & Others (2012) 33 ILJ 942 (LC), did not reject the applicability of the cautionary rule in respect of arbitrations. Rather, the court found, that current interpretation differs significantly from the previous more stringent standard of requiring a single witness’s evidence to be “clear and satisfactory in every respect” before it could be relied on for a conviction. In referring to the Carolus case above, the Labour Court applied the cautionary rule in this matter and found that the commissioner had treated the evidence of the two employer witnesses, compared with that of the employee, in “nominal and monolithic terms”. In other words he did not properly assess the reliability of their evidence to come to a credibility finding. The court found that the commissioner ought to have weighed the probabilities of the respective versions and, if necessary, made credibility findings to arrive at an outcome.

It is therefore very important that you prepare your single witness before the enquiry and ensure that he/she understands the importance of his/her evidence and that the success of your case depends on his/her testimony.

The following can be used as a guideline on how to prepare a witness before a disciplinary hearing

  1. Prepare the witness to ensure that they will truthfully give the evidence relevant to the case.
  2. Preparation should include the witness understanding of the allegations against the accused employee that their evidence is relevant, what issues are involved, the questions that the witnesses would need to answer at the hearing and the process that would be followed in leading the evidence.
  3. His / her testimony should advance or support the allegation against the accused employee.
  4. Questions to your witness must be specific and phrased in such a manner that the witness presents factual, relevant and admissible evidence.
  5. You should also anticipate possible questions from the other party and prepare the witnesses accordingly.

 The following are useful guidelines for a single witness

  1. Listen carefully to the question being asked. Think and compose your answer before speaking.
  2. Pause and think about the answer before you respond.
  3. Do not answer a question if you did not hear the complete question or if you do not understand the question. Ask the opposing representative to restate the question as many times as needed.
  4. Never speculate or guess the answer to a question. If you do not know the answer to a question, you should simply state “I do not know.” If you do not remember a fact, you should simply state, “I do not recall” or “I do not remember”.
  5. Answer only the question asked; do not go into any explanation.
  6. Be serious and respectful. Do not get distracted and remain calm.
  7. If you make a mistake in your testimony, correct this as soon as you discover/realise the error.

ABOUT THE AUTHOR

Hendrik van Niekerk obtained his LLB degree from the University of Pretoria in 2008 and was admitted as an attorney in 2010. He joined SEESA Labour on 1 April 2010 as a legal advisor and was promoted to a senior legal advisor in 2012.

2 Comments

  1. Ncamsile 2 years ago

    is an employer allowed to use one of the accused employees as its witness against other employees who have committed the same offence?

    • Author
      Tersia Landsberg 2 years ago

      Hi Ncamsile

      Unfortunately, we’re unable to give a clear answer to this without context and understanding of the case – kindly email tersia@seesa.co.za with your enquiry and we will contact you directly.

      Regards
      Tersia Landsberg
      SEESA Public Relations Officer

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