12 December 2010

What to do when faced with reluctant or disappearing witnesses

It often happens, especially in volatile work environments, that a witness is prepared to testify on oath or to provide a written statement, but is either (1) not prepared to give viva voce evidence or (2) is untraceable. In POPCRU obo G Maseko v Department of Correctional Services and Others, (recent unreported judgment, case number JR2134/2008), the court was faced with a similar issue.

Mr. Maseko was a warder at the Department of Correctional Services. During December 2008, Mr. Maseko allegedly accompanied two inmates to G-Section, the area of the prison where the hardened criminals are incarcerated. The inmates were given marijuana by Mr. Maseko to sell at G Section. However, the plan was thwarted by Mr. Mokoena, a trainee prison officer, who received a tip off that the two inmates who were allowed into G Unit were selling marijuana. When he found them, Mr. Mokoena confiscated the marijuana and threw it away.

The two prisoners reported back to Mr. Maseko, who, in his anger, struck one of the inmates. Mr. Mokoena allegedly demanded the money from both inmates. As a result of this conduct, the inmates laid a complaint against Mr. Maseko, which led to an investigation. Mr. Maseko was charged with "permitting an offender to take alcohol or a prohibited drug or to have these substances in his/her possession."

The inmates both signed affidavits fingering Mr. Maseko as the one who gave them the drugs. These were the only witnesses at the disciplinary enquiry. After the disciplinary enquiry, the inmates were released. When they were required at the arbitration, the inmates were untraceable. The addresses provided by the inmates were incorrect.

Despite the inmates' absence, the Commissioner admitted their affidavits into evidence, justifying this on the basis of the Law of Evidence Amendment Act 45 of 1998. The Commissioner found in favour of the employer.

Mr. Maseko applied to the Labour Court to review and set aside the arbitration award. The review was on various grounds, all of which attacked the decision to admit the affidavits into evidence despite the absence of the inmates who deposed to them.

The Court found that Mr. Maseko's representatives had not objected to the use of the affidavits in the arbitration award. Mr. Maseko's representatives were also given the chance to cross examine the employer's witnesses on the contents of the affidavits and the circumstances surrounding them. As such, it was disingenuous for them to attempt to raise it in the review.

The court also held that it would defeat the purpose of the CCMA to adhere strictly to the rules of evidence which are applied at court. Specifically with regard to hearsay at arbitrations, the Court observed from recent precedent, that hearsay evidence. However, this does not amount to an open invitation to ignore the principles.

The court held that it will not interfere with a decision of Commissioner on admissibility of evidence, which a court of appeal might find to be wrong unless the arbitrator committed a gross irregularity. Having said this, the court went through the considerations in subsections 3(1)(c) (i) to (vi) of the Law of Evidence Act and found that the Commissioner's decision on each of these factors was reasonable.

Practically, this case shows that it is important to deal with the issue of absent witnesses at the pre-arbitration meeting and record the agreement that results from the negotiations. If an agreement cannot be reached, this issue should be placed before the arbitrator to determine at the early stages of the arbitration. The argument should be based on the factors contained in the Law of Evidence Act.

Mabasa Sibanda, Associate, Employment Law

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