In disciplinary hearings, employers often need to submit documents or statements to prove misconduct on the employee’s side. This article will deal with the legitimacy of such documents or statements and how to correctly admit such evidence.
South African Law of Evidence provides various types of evidence, and in this article, we will focus mainly on real evidence vs documentary evidence. The difference between documentary and real evidence depends on the purpose for which the evidence is being used. If the document itself is being used as evidence, then it must be regarded as real evidence. However, if the content of the document is being submitted as evidence, it will be regarded as documentary evidence.
For example, a delivery slip can be both real and documentary evidence. If the existence of the delivery slip itself is in question, the delivery slip can be admitted as real evidence. However, if the contents of the delivery slip form part of the evidence, then it is documentary in nature.
Section 3(4) of 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”. Admitting documentary evidence requires originality and authenticity to be proven. The author of the book or document will usually be called to testify to confirm its originality and authenticity.
In the unanimous judgment of Rautini v Passenger Rail Agency of South Africa, the SCA addressed the issue of reliance on the contents of documents without the original author testifying regarding the authenticity thereof.
It has become common practice to include a statement along the lines of “all discovered documents are what they purport to be” in the pre-trial minutes. The court confirmed this statement is not unlawful and serves a legitimate purpose, to allow for the admission of documents as real evidence. Still, it confirmed that if a party wishes to rely on the contents of a document, i.e. documentary evidence, the author of the document will need to be called to testify, or else the evidence will be regarded as hearsay evidence and will generally not be admissible.
This is a timely reminder to employers to ensure that when preparing for a disciplinary hearing, they must ensure that the authors of any documentary evidence should be readily available to testify during the hearing should the employer wish to rely on the contents of any document or statement.
Contact your SEESA Labour Legal Advisor to assist your business with any disciplinary hearing queries you might have. Alternatively, SMS the word “SEESA” to 45776 for an expert legal advisor to contact you.
About the author
Ivan Husselman is currently employed as a Labour & B-BBEE Legal Advisor at SEESA’s Klerksdorp branch. He obtained his BCom in Law degree from the North-West University in Potchefstroom.
Resources
- Rautini v Passenger Rail Agency of South Africa (Case no. 853/2020) [2021] ZASCA 158 (8 November 2021)
- https://www.cliffedekkerhofmeyr.com/en/news/publications/2021/Employment/employment-alert-15-november-Let-the-author-speak-A-reminder-on-admission-of-documentary-evidence-.html