1 July 2009

Witnesses sitting in during the proceedings

As a general rule, witnesses are not permitted to sit in proceedings whilst they are not giving evidence. The rationale for the rule is that there is a risk that the witness would tailor his evidence to either exonerate himself or to lend support to the party he is giving evidence for. This affects the reliability of the evidence and the credibility of the witness. 

In the arbitration that led to the review application in C/K Alliance (Pty) Ltd t/a Greenland v Mosala NO & others, the employer wanted someone to give evidence and act as representative. The employee objected to this and the employer's witness/representative enquired whether she should leave the proceedings. The commissioner held that she was not required to leave and that either she or the other representative could lead the evidence of the employer's witnesses.

Despite the above decision, the commissioner subsequently ruled that the witness/representative was not permitted to give evidence on behalf of the employer. The commissioner's ruling was based on the fact that she sat in on the proceedings and had made the opening statement on behalf of the employer.

On review, the Labour Court (the Court) confirmed the general rule that witnesses should not be permitted to sit in during the proceedings, but stated that this would not necessarily disqualify that witness from giving evidence.

The Court confirmed that the rule is generally not as firmly enforced in arbitration proceedings. The appropriate approach is that commissioners are duty bound to warn potential witnesses of the possible consequences of their presence during the testimony of other witnesses.

The commissioner should allow the witness to testify and then evaluate at the end of the proceedings when assessing his testimony as to whether his version may have been influenced by the version of the other witnesses who testified while present in the hearing. This can be tested during cross-examination.

The danger of excluding a witness simply because he sat in during the testimony of others, is that such an approach may prejudice a party's right to a fair hearing. It may be that the witness would have testified on an entirely different issue or in fact not support the previous testimony.

On conclusion of the arbitration, the commissioner must decide on the probative value of the evidence, which will depend on the extent to which the witness may have sought to tailor-make his evidence with those who testified before him. It is not difficult to imagine the problems stemming from the additional processes of analysis and weighing up of evidence on arbitrators and commissioners.

The Greenland decision confirms the earlier decision of Natal Shoe Components CC v Ndawonde. The Court, per Revelas J, found it was a reviewable defect where the commissioner failed to warn witnesses of the possible effect of the consequences of their presence arbitration proceedings whilst another witness testified and subsequently rejecting the witness's evidence on the basis of her presence.

Melanie Hart

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