THE LAW OF EVIDENCE IN ARBITRATION PROCEEDINGS - ‘VALUATION’, ‘ANALYSIS’, ‘ASSESSMENT’, ‘PROBABILITIES’, ‘INFERENCES’, ‘CIRCUMSTANTIAL EVIDENCE’, ‘CUMULATIVE EFFECT’, THE RULES OF LOGIC…

“There is no art
To find the mind’s construction in the face
He was a good gentleman on whom I built An absolute trust”

- Macbeth l.iv.13.

On Circumstantial Evidence – Cumulative effect:

“[E]ven two articles of circumstantial evidence, though each taken by itself but as a feather, join together, you will find them pressing on a delinquent with the weight of a mill-stone ….”.

‘In S v Reddy & others 1996 2 SACR 1 (A) 8i Zulman AJA quoted, ‘Best on Evidence’ 10 ed. para 297.’

INTRODUCTORY COMMENTS
Over the years, arbitration has come to play an increasingly important role in the South African industrial relations sphere. There are a number of reasons for its rise to prominence as one of a number of dispute-resolution mechanisms, perhaps the most important of which has been the desire on the part of the parties to a dispute to seek a speedy and cost-efficient resolution of such disputes.

Unfortunately, as more and more disputes are submitted to arbitration, the parties to disputes will, it is so submitted, tend to rely to an ever greater extent on the assistance of legal practitioners to present their cases at arbitration hearings. Inevitably, this may defeat the very purpose for which arbitration is resorted to, namely to avoid lengthy and costly litigation which, ultimately, could alienate the parties from one another.

Having said that, labour law has become inherently complex and technical in substance and nature to such an extent that one could hardly criticize parties who seek assistance and advise of legal representatives.

With the amendments to South African Labour Legislation and the statutory entrenchment therein of arbitration as one of the means of achieving resolution of labour disputes, arbitration is undoubtedly set to play an even more crucial role in the labour relations sphere than ever before.

Moreover, the limited restrictions placed on legal representation in accordance with the provisions contained in the Labour Relations Act, 66 of 1995 (as amended) (the LRA), in certain instances; and no restriction on legal representation in terms of litigation based on the provisions of the Employment Equity Act, 55 of 1998 (as amended) (the EEA) discrimination disputes stand justiciable or arbitrable by the Commission for Conciliation, Mediation and Arbitration (the CCMA) in terms of the EEA, as well as the cost of legal representation, make it imperative for those employers who can afford it, to have personnel on their payroll who are not only highly knowledgeable about all facets of arbitration/dispute resolution, but also skilled in preparing and presenting cases at arbitration hearings.

At the outset it should be recorded that postings on the LinkedIn network should preferably be brief and not created; nor should it be perceived by the reader as if a comprehensive or an authoritative work of reference on the subject matter.

The objective is to edify, within the confines of the medium and to generate interest and possible debate on the subject matter.

However, sufficient detail and substance on the subject matter, namely the law of evidence and its applicability in arbitration proceedings will have to be ventilated in order to give meaning to the significance of the law of evidence, including the rules of evidence insofar as it should be applied by the presiding officers of disciplinary enquiries and arbitrators.

I was privileged in that I was trained and mentored as an arbitrator and mediator by the renowned arbitrators and mediators, John Brand and Felicity Steadman.
I also became a mentee of John Brand where after I became a panellist during 1994 of the now-defunct Independent Mediation Service of South Africa (IMSSA).

During the training process the importance of the rules and the law of evidence were topics extensively addressed due to their obvious importance insofar as any arbitrator or trier of fact should be well versed in the aforementioned law and rules; especially their application in the assessment and evaluation of evidence.

In a paper presented at an IMSSA Arbitration Seminar held during 1990, by Advocate P J Pretorius SC “Assessing Credibility in Labour Arbitration” based largely on information gathered during a visit of three IMSSA officials to the United States and on South African Law and practice, the learned counsel submitted ‘This topic is to my mind one of the most neglected in our jurisprudence.

Practitioners of the law and arbitrators for that matter receive little or no training in the field. There is scant writing on the topic and probably less evidence of any empirical research having been done in South Africa. Yet how many disputes that are adjudicated require a decision as to which of two or more conflicting versions of the facts is true or probable?

Such a decision can and often does mean the difference between life and death for an accused in a criminal trial or between a job or unemployment for a grievant in an arbitration.’ [Emphasis added].
At an IMSSA education seminar held during March 1992, the celebrated counsel Advocate Gilbert Marcus SC presented a paper “Evaluating Evidence”, where learned counsel submitted, ‘The result of an arbitration hearing is self-evident of vital concern to the parties. After reading the last page of the award the loser will inevitably seek the justification for the decision.

The written motivation for the award is a characteristic of labour arbitration generally…No matter what the arbitrator might instinctively feel concerning the outcome of the arbitration, the need to justify the result requires an analysis and interpretation of the relevant evidence. This process of evaluation is undoubtedly the most difficult task of the arbitrator.”
Marcus SC made a critical observation, ‘Judges trying civil and criminal cases are skilled in the evaluation of evidence and have formulated rules to guide their discretion. In most cases, labour arbitrations are not conducted with the same formality and rigidity as ordinary civil and criminal cases. But informality does not eliminate the problems of evaluating evidence. Indeed, as will be demonstrated, in some cases the absence of formality makes the process more difficult. [Emphasis added].

The situation changed to an extent in that arbitrators have access to many publications authored by authorities on the subject matter; as well a wealth of case law where the Courts pronounced and gave guidance as to the evaluation and assessment of the evidence. This notwithstanding, errors are made from time to time by arbitrators [and judges].

In conclusion, the reason for drafting hereof is:

Firstly briefly highlight the intricacies and complexities of South African law pertaining to review of arbitration awards; and

Secondly, the difficulty if not incapability by some arbitrators to resolve factual disputes by applying the rules and the law of evidence in the assessment and analysis of evidence.

There seems to be an increase in the incidence of awards successfully reviewed and set aside by the Courts based on:

'Latent irregularities - Errors of fact', to wit:
i) absence of any or sufficient evidence to warrant the conclusion reached by the arbitrator;

ii) failure to have regard to relevant evidence;

iii) being influenced by irrelevant evidence;

iv) incorrect interpretation of evidence;

v) erroneous conclusions are drawn from the evidence.

[See Dr John Grogan 'Labour Litigation and Dispute Resolution' Juta (2010) at 292-293].

I am of the considered opinion that arbitrators, even seasoned ones should receive advanced training or at least regular briefing session on the subject matter of evidence as ventilated in this article.

At this juncture, readers will be well advised to secure a copy of the article by the Honourable Mr Justice HC Nicholas JA, 'The Credibility of Witnesses'SALJ 1985, page 39-40, also delivered at 'The Oliver Schreiner Memorial Lecture, at the University of the Witwatersrand, Johannesburg, on 29 August 1984.

Prior to continuing with the writing hereof, I could not resist the temptation to record a quote from the paper supra hereunder:
"For the assessment of the credibility of witnesses (whether it relates to their veracity or their reliability) there are no formulas, no rules of thumb such as that given by an American who asked how one could tell whether a certain personage was lying, said, 'You look to see if his lips are moving'. [Compare S v Webber 1971 (3) SA 754 (A) at 758H]. [Emphasis added].

THE LAW OF EVIDENCE IN ARBITRATION PROCEEDINGS

The onus and standard of proof.

The onus of proof explained:

The onus of proof (also termed the “burden of proof”) may be defined as the duty (burden) which a party to an arbitration hearing has of persuading the arbitrator that It is entitled to succeed at the close of the hearing.

At this point, it should be mentioned that the onus of proof is a concept which applies not only to arbitration hearings, but also to criminal and civil cases, disciplinary enquiries, et cetera.

In a disciplinary enquiry, for instance, the onus of proof rests on the employer to prove on a balance of probabilities (a concept that will be explained later in this section) that Employee A is, say, guilty of contravening the employer’s disciplinary code by assaulting Employee B. In order to discharge the onus (relieve itself of) which rests on the employer at such hearing, the employer will have to prove all the relevant issues pertaining to the assault.

Let us assume, for example, that the employer is unable to prove on a balance of probabilities that it was Employee A who assaulted Employee B (the alleged assault occurred, say, during a mass meeting during which widespread fighting ensued).

In such a case, the employer will have failed to discharge the onus which rests on it, and will consequently be unable to obtain to obtain a finding of guilt against Employee A.
In short, therefore, if the person presiding at a hearing (eg an arbitrator, chairperson of a disciplinary enquiry, etc.) is unable to decide the issue in question on termination of the hearing, the party bearing the onus will obviously fail to obtain an award/finding in its favour.

One final point which must be considered as regards the onus of proof is the question of who bears the onus?
Section 192 of the LRA stipulates as is quoted below:
‘192 Onus in dismissal disputes

(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.

(2) If the existence of the dismissal is established, the employer must prove that the dismissal is fair.’

The standard of proof explained:
Simply stated, the standard of proof is that degree of conviction which the presiding officer must have in order to find in favour of the party bearing the onus; in other words, how convinced Is such officer that the employer in, say, arbitration proceedings has satisfied him/her that It has discharged the onus and has proved that one of its employees is, in fact, guilty of, say, theft?

It should, however, be borne in mind that the standard of proof required differs according to the type of proceedings. In a criminal case, for example, the prosecution must discharge the onus which It bears by proving to the judicial officer concerned that the accused has, beyond a reasonable doubt, committed the crime of which he/she is charged.

In contrast, in civil cases, arbitration proceedings and disciplinary enquiries, for example, the party bearing the onus is required to prove its case on a balance (or preponderance) of probabilities. In simple terms, this means that, say, an arbitrator must determine whether the evidence adduced by the party who bears the onus (ie the employer) is more probable than that of the employee.

Another way of viewing the “balance of probabilities” concept is to consider the evidence the evidence adduced by both parties as being place on a scale similar to a chemical balance.

In the one pan is placed the evidence adduced by the employer, and. In the other, the evidence adduced by the employee. Should the pan containing the employer’s evidence be heavier than that containing the evidence of the employee, the balance is said to favour the employer; hence the arbitrator will be obliged to find for the employer.

If, however, the pan containing the employee’s evidence is heavier, the arbitrator will find In favour of the employee. Obviously, where the scale is in equilibrium, the balance of probabilities favours neither party.
But because the employer bears the onus, and the balance cannot be said to favour such employer, the employer will not have discharged the onus placed on it. In consequence, the arbitrator will again find for the employee.

THE DUTY TO BEGIN
In every type of judicial or quasi-judicial proceeding, be it a criminal trial, a civil matter, an arbitration hearing, a disciplinary hearing, et cetera, there Is a duty upon one of the parties to commence the proceedings by leading evidence to discharge the onus which rests on such party. In a disciplinary hearing, for instance, such duty to begin rests on the employer.
Simply stated, the duty to begin is a rule which, down the years, has been laid down so that the presiding judicial officer (for instance, the arbitrator in arbitration proceedings) is able to hear the evidence led by the parties in a logical order. The duty to begin therefore merely establishes in what order the evidence must be led by the parties.

Not only does the duty to begin to allow the arbitrator to hear evidence in a logical order, but it also eliminates the need for the party upon whom the onus of proof does not rest from having to adduce evidence in instances in which the party upon whom the onus rest, has failed to discharge such onus.

Earlier In this section, it was stated that it can be accepted with a reasonable to the degree of certainty that the onus of proof into an arbitrator rests upon the employer. And since such onus rests on the employer, arbitrators will inevitably expect the employer to begin the proceedings, that is, the duty to begin will rest on the employer.

WHAT MUST BE PROVED?
During proceedings such as an arbitration hearing, there are two classes of facts which must be considered, namely –

i) the facts in issue (ie the facts which have to be proved), and

ii) the facts relevant to the facts in issue.
These two categories will now be considered with the aid of an example:

Assume that Employee A has been charged and found guilty at a disciplinary hearing of breaching a provision in the Company’s disciplinary code which states that no employee may behave improperly on Company premises (the improper behaviour consisting In this instance of Employee A, while on Company premises, being rude and abusive to an important client of the Company).
After appealing unsuccessfully against the finding of guilt and the sanction Imposed, Employee A takes up the matter with his Union. Thereafter, the matter Is referred for arbitration In terms of the relevant provisions in the LRA.

At the arbitration hearing, the Company will have to prove the following facts in issue (assuming, of course, that all such facts are in dispute):

Substantive fairness:
i)That a rule exists within the Company prohibiting improper behaviour (and, specifically, rudeness and abuse towards clients).
ii)That the rule laid down by the Company is a legitimate one.
iii)That Employee A was aware of the rule.
iv)That Employee A transgressed the rule (by being rude and abusive to a client of the Company while such employee was on Company premises).
v)That the penalty imposed for the misconduct concerned was appropriate In the circumstances.

Procedural fairness:
That the Company adopted a fair procedure as regards the disciplinary hearing.
The arbitrator’s approach to the procedural fairness of a dismissal will be determined by the existence of a workplace procedure and the legal status of that procedure.

Schedule 8 to the LRA, Item 4 of the Code of Good Practice: Dismissal (the Code) contemplates an investigation into the misconduct that includes an inquiry, which need not be formal. The Code does not contemplate a criminal justice model incorporating formal charge sheets, formal procedures for the leading and cross-examination of witnesses, formal rules of evidence, legal representation and independent decision-making.

The Code contemplates a flexible, less onerous approach. The fairness of an inquiry conducted by an employer without workplace procedures must be tested against the five requirements for procedural fairness contained in Item 4.

i) The employer must notify the employee of the allegations of misconduct using a form and a language that the employee can reasonably understand.

ii) The employee should be allowed a reasonable time to prepare a response to the allegations.

iii)The employee should be allowed a reasonable time to prepare a response to the allegations.

iv) The employee should be allowed the assistance of a trade union representative or fellow employee in
preparing a response and in stating a case in any enquiry.

v) The employee should be given the opportunity to state a case in response to the allegations.

vi) The employer should communicate the decision taken, preferably in writing. furnish the employee with the reasons, and. if dismissed, remind the employee of the right to refer a dispute to the CCMA. a council with jurisdiction, or in terms of any dispute resolution procedure in a collective agreement.

If there is a workplace disciplinary procedure its legal status will affect the arbitrator’s approach when assessing the procedural fairness of a dismissal.

There are three categories:

i) those that are contained in a collective agreement;

ii) those that are contractually binding, and

iii) those that are unilaterally established by the employer.

A departure from the agreed procedure should constitute procedural unfairness. But not every instance of procedural unfairness in these circumstances ought to give rise to an order of compensation.

For the sake of brevity further observations as to procedural fairness have been deemed unnecessary.

TYPES OF EVIDENCE

INTRODUCTION:
Prior to discussing the various types of evidence which may be received during an arbitration hearing (or any judicial or quasi-judicial proceedings), it is necessary to define and explain certain terms relating to the law of evidence. Naturally, the most important concept which requires definition and explanation is the term ‘‘evidence” itself.

Evidence: Means the facts, testimony and documents which may be legally received so as to prove or disprove a fact under inquiry.

Direct evidence: Is what a witness testifies that he/she has perceived with his/her own senses (Note: But not what he/she has heard from other persons concerning the matter in dispute), or what he/she produces in the way of real evidence (see below) (eg an object) and about which he/she has personal knowledge. An example of direct evidence is the case where a witness testifies to the fact that he “saw Employee A, assault Employee B by striking him with his fist”.

Indirect evidence: This is more commonly referred to as circumstantial evidence and is best illustrated by way of an example. Let us assume that, as regards the assault by Employee A on Employee B, a witness Is called who testifies as follows: “As I was approaching Employee B’s office, Employee a emerged. He was holding his face with both hands and I could see that his nose was bleeding. I looked into Employee B’s office, and it was empty, except for Employee A who was gathering up some papers from Employee B’s desk.”

The evidence is indirect or circumstantial because the witness has not testified that he saw Employee A assault Employee B. All that the witness has testified to is facts which have a bearing on the principal fact to be proved, namely the assault.

Hearsay evidence: Is evidence of the statements made by another person which a witness says he/she has heard.
Prima facie evidence: Means prima facie (“on the face of it”) proof of an issue in respect of which a particular party bears the onus of proving such Issue. If the other party does not deny such evidence or fails to rebut it, the prima facie proof becomes what is termed conclusive proof.

Having defined and explained certain basic terms and concepts, let us examine some of the more important types of some of the more Important types of evidence which may or may not be admitted during a hearing (as to why such forms of evidence are, or are not, admitted will become clearer in the subsection dealing with the admissibility of evidence).

HEARSAY EVIDENCE
As pointed out under 4.4.1 above, hearsay evidence comprises evidence which is given by a person who recounts that which he/she did not personally observe or perceive with his/her own senses, but heard from another person. The following is an example of what constitutes hearsay evidence: “I was supervisor on duty on 5 January 2017. Employee A came up to me and told me that Tom Jones had just assaulted John Smith.”

In this example, the supervisor is, in fact, giving hearsay evidence since he is relying on what someone else saw and then recounted to him (the supervisor).

DOCUMENTARY EVIDENCE
The testimony of witnesses (oral or viva voce evidence) is not the only type of evidence which may be tendered at an arbitration hearing. Documents, for example, constitute another important category of evidence which may be adduced at such a hearing.
However, before documents may be introduced as evidence, they must satisfy certain criteria. These criteria will be discussed further in the section on the admissibility of evidence.

REAL EVIDENCE
Real evidence comprises evidence of objects, that is, evidence which can be examined by the arbitrator. Common examples of real evidence include maps, photographs, models, diagrams, video recordings, handwriting specimens. observations made by the arbitrator at an inspection in loco, breathalysers. weapons, et cetera.
The purpose of real evidence is to enable the arbitrator to employ his/her senses (eg to touch, look at, listen to and smell) so that he/she can draw his/her own inferences without having to resort to expert testimony or assistance in this regard, or without having to have the qualifications of an expert.

As will be seen in the next section, for real evidence to be of any real value to the party producing it, such evidence must be accompanied by the relevant testimony of witnesses.

OPINION EVIDENCE
Where a witness testifies to certain facts and thereafter draws conclusions or inferences from such facts, he or she is said to be giving opinion evidence. As to whether or not opinion evidence will be admitted by, say, an arbitrator, will depend on a number of factors, as will be seen below.

CIRCUMSTANTIAL EVIDENCE
This form of evidence has already been dealt with under 4.4.1 above, where certain basic concepts and terms of importance in the law of evidence were explained.

ADMISSIBILITY OF EVIDENCE
The basic criterion for determining the admissibility of evidence is that of relevance. And, in the law of evidence, “relevance” means “sufficiently relevant”. Not only must the evidence adduced be sufficiently (or legally) relevant, but it must not be excluded by any other rules of evidence.

In 4.3 above it was stated that, in a dismissal case, for instance, there are certain facts in issue which must be proved by the employer in order to justify such dismissal. Thus, any evidence which is led which tends to prove (or disprove, in the case of the opposing party) the facts in issue will generally speak, be relevant.

But before a fact which is relevant to a fact in issue will be regarded as proven, it must be:

i) proved by means of the testimony of a witness, or by means of a document; or

ii) it must be admitted by the opposing party.
Although relevance is regarded as the basic criterion for the admissibility of evidence, it should be noted that the arbitrator in an arbitration hearing may be given a wide discretion by the LRA given a wide discretion by the lawgiver to admit evidence that may be inadmissible in a criminal or civil court.
Such discretion is granted to the arbitrator by the LRA, and is to be found in section 138(1) of the LRA ‘The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities’.

Notwithstanding the fact that the arbitrator may have been given judicial and statutory discretion, he or she is still required to ensure that the rules of fairness and natural justice prevail.

Whether or not evidence will be deemed to be admissible
in an arbitration hearing will, it is submitted, therefore depend on the extent of the discretion which has been granted to the arbitrator, on the rules of fairness and natural justice, and on its relevancy.
On the basis of the foregoing three criteria, let us now consider the admissibility or otherwise of the various types of evidence discussed briefly under 4.4 above.

Hearsay evidence:
Prior to the enactment of the Law of Evidence Amendment Act, No 45 of 1988, hearsay evidence was, subject to certain clearly defined exceptions, inadmissible in both criminal and civil courts.

The principal reason for excluding such evidence was that it could not be properly tested under cross-examination. With the promulgation of the Law of Evidence Amendment Act, the position has now changed and such evidence may be led in the following circumstances:

That the party against whom the hearsay evidence is to be lead agrees to the admission of such evidence.
If the person who made the statement which is recounted by the witness will be called to testify himself or herself.
If the court is of the opinion that the interests of justice dictate that the hearsay evidence should be led. The following factors are considered by the court in exercising such a discretion:
- The type of proceedings. (In an arbitration hearing where, for instance, the terms of reference do not specify instance, the terms of reference do not specifically indicate whether or not hearsay evidence is admissible, this will in all probability be an important factor which the arbitrator will consider in finally determining whether such evidence should be admitted, I, especially in view of the fact that arbitration hearings tend to be less formal and technical in nature.)

- The nature of the hearsay evidence.

- The purpose for which the hearsay evidence is for the purpose for which the hearsay evidence is tendered.

- The reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends.

- Any possible prejudice which might be caused to the party against whom the hearsay evidence is led.

- Any other factors which the court is of the opinion should be taken into account.
Bearing in mind the above relaxations to the hearsay rule, the fact that most terms of reference will in all probability allow the arbitrator to admit hearsay evidence, and the fact that the criterion of fairness to the parties must prevail, it seems safe to assume that arbitrators will in most cases admit hearsay evidence during arbitration hearings.
However, it is important to note that, even though hearsay evidence may be admitted, the party adducing such evidence will still have to convince the arbitrator that the evidence in question has some degree of probative value and is relevant to the facts in issue.

The question of the weight which must be attached to the hearsay evidence will be discussed below when dealing with the question of the evaluation of evidence by the arbitrator.

Documentary evidence:
In order for documents to be admissible at an arbitration hearing, two important requirements must be satisfied:

First, the party intending to introduce the document as evidence must produce a witness who is able to testify that the document is in fact what it appears to be, for example, a directive from management informing employees that rudeness and abuse towards clients of the employer will be viewed that rudeness and abuse towards clients of the employer will be viewed in a serious light and will result in summary dismissal, even for a first offence.

All that such witness is doing is merely informing the
arbitrator that the document in question is a genuine directive from management. He or she is not, however, testifying to the accuracy or truthfulness of the document.

Secondly, the party introducing the document must adduce evidence as to the veracity of the contents of the document.

Should the parties, however, agree that that the document is what it purports to be, and that there is no doubt concerning the veracity of the document, it will obviously be unnecessary for the party seeking to introduce the document to lead evidence on the abovementioned two issues.

Wherever possible, the parties should, prior to the arbitration hearing attempt to reach an agreement concerning these two issues, since this will lead to considerable time-saving insofar as costs are concerned.

Apart from the fact that the above two requirements must be satisfied before a document will be considered admissible, the party seeking to introduce the document must ensure that it is the original document.

This is commonly referred to as the best evidence rule. In arbitration cases, however, the arbitrator may admit copies if a proper search has been made for the original and it cannot be found, or if the original has been destroyed, or if the original document is in the possession of the other party and such party has failed to produce the document in question, (it should be noted that, in terms of the LRA, a party who Is in possession of an original document can be compelled by the arbitrator, on application by the other party, to produce such document. In addition, the of documents.) of documents.)

While on the topic of documentary evidence, reference should be made to the situation in which a witness wishes to refer to a document in order to refresh his or her memory. As to whether this may be done will depend on:

- Whether the witness prepared the document himself/herself, or whether it was prepared under his/her instructions.

- Whether the document was prepared by the witness immediately or soon after the event to which it relates and at a time when he/she could clearly remember the event.

When documents are to be produced at an arbitration hearing, it is sound practice to prepare what is sometimes referred to as a “bundle” of original documents.

Three copies should be made of this bundle, with one being used by witnesses, one being made witnesses, one being made available to the opposing party and one is kept for the use of the representative.

The bundle of original documents should be handed to the arbitrator at the commencement of the arbitration proceedings. For ease of reference, the bundle of documents should be indexed, the pages should be numbered and each document should be inserted according to the date thereof.

As regards this bundle of documents, and as stated earlier, considerable time and money will be saved if, prior to the arbitration hearing, the parties are able to agree that the documents are what they appear to be and that there is no dispute as to their veracity.
Real evidence:

As noted above, there are various forms of real evidence. What should be remembered, however, is that there is no complete list of the things or objects which constitute real evidence that of real evidence discussed below are but a few examples of the things or objects which may be, or are often, tendered as real evidence in arbitration hearings.

For real evidence to be admissible, it must be relevant and accompanied by the evidence of a witness who is able to testify concerning the thing evidence of a witness who is able to testify concerning the evidence of a witness who is able to testify concerning the thing or object which has been produced.

For instance, it is of no value whatsoever to produce a photograph of the damage caused to property by an employee, or employees, unless a witness is called who testifies that he/she took the photograph, when the photograph was taken, where the photograph was taken, that the photograph accurately depicts the damage caused, et cetera.

Video recordings are sometimes also tendered as real evidence in arbitration hearings. Here again, it is necessary to lead supplementary evidence relating to such recordings. Not only must the video be relevant, but the party wishing to produce it at the arbitration hearing must give the opposing party and the arbitrator notice of its intention to do so, and must make the necessary arrangements for the video recording to be viewed during the hearing.

Normally. the video recording is viewed by the parties prior to the arb the video recording is viewed by the parties prior to the arbitration hearing so as to afford them an opportunity to make notes to be used during the actual hearing.

In certain organisations, it has become customary to employ breathalysers to test employees who are believed to be under the influence of alcohol. However, the results of a breathalyser test are of little or any evidentiary value unless supplemented by the testimony of an expert witness who is able to explain the operation of such equipment accurately determining that alcohol was, in fact, consumed.

Moreover, the testimony of a further expert witness is necessary to prove that the employee was in fact under the influence of alcohol.

During arbitration hearings, inspections in loco are sometimes held. Essentially, an inspection in loco entails a visit by the arbitrator and both parties to the place where an incident relevant to the proceedings took place. Such a visit enables the arbitrator to use his/her own senses to perceive the evidence, thus enabling him/her to draw inferences based on his/her own experience.

A party who wishes an inspection in loco to be held must give timeous notice thereof to the arbitrator and the opposing party. As to whether or not an inspection in loco is held, and when, is left to the discretion of the arbitrator.

However, the inspection must not be held at such a late stage that the parties are unable to produce evidence or arguments to explain or contradict the Inferences drawn by the arbitrator. During the inspection by the arbitrator (which must be made in the presence of both the parties), the arbitrator makes a record of his/her observations and discloses them to both parties.

One final comment which should be made as regards real evidence is that such evidence need not be supplemented by the testimony of witnesses if admitted to by the party against whom it is introduced.

Opinion evidence:
If a witness, during the course of his/her evidence, testifies to what he/she he has observed and thereupon draws certain inferences or conclusions based on the facts testified to him/her, such inferences or conclusions are deemed to be opinion evidence, which is inadmissible.

There are, however, certain exceptions to this rule, which will be discussed below. The main reason for excluding opinion evidence is that it is not relevant. What is relevant is what the witness in fact observed. Moreover, the task of drawing inferences and conclusion is that of the arbitrator and not the witness.
A good example of opinion evidence which is inadmissible is the following:

A witness states that Employee A was operating a machine at the time that damage was caused to the machine.
The witness further states that he saw Employee A insert a foreign object into the machine, whereafter the machine seized. Up to this point, the evidence of the witness is entirely admissible.

However, the witness goes further and states that he believes that Employee A was negligent. This last statement (if not given by an expert) constitutes opinion evidence and is totally inadmissible.

In certain instances, the opinions of nonexperts may, in view of the less formal nature of arbitration proceedings, be admitted by an arbitrator – eg opinions as identity, age, the speed of a vehicle, the value of something, et cetera

In cases where, say, the arbitrator is not sufficiently skilled in a particular sphere or does not have the required knowledge to draw conclusion inferences, reliance may be placed on the opinions of expert witnesses. Such witnesses must, however, possess the necessary qualifications to express an opinion in the sphere concerned.

An expert witness could, for example, be a case of dismissal on the grounds of ill health to testify that the dismissed employee was incapable of performing any heavy manual labour, or any other type of manual labour for that matter.

Circumstantial evidence:
The concept of circumstantial evidence has already been explained above. As regards the weight attached to such evidence, it should be pointed out that it is a common misconception that circumstantial evidence is of little or no evidentiary value. In fact, in numerous cases, the bulk of the evidence will in all probability comprise circumstantial evidence.

For circumstantial evidence to be admissible, it must be relevant to the facts in issue. If it is not, it will be deemed to be inadmissible. Furthermore, arbitrators will approach circumstantial evidence along the same lines as those adopted by the civil courts, that is –
- the inference to be drawn from the circumstantial evidence must be consistent with all the facts that have been proved, and

- the inference to be drawn must be the most plausible inference.

CONCLUSION: EVALUATION OF EVIDENCE BY THE ARBITRATOR
As referred to above and for the sake of brevity, the evaluation of evidence, especially where there is a factual dispute was pronounced on, in the often cited judgment by Van Niekerk, J wherein the honourable Judge provided guidance as to the assessment of the credibility of witnesses.

The Court stated that credibility is bound up with an evaluation of the probabilities the testimony of witnesses. [Emphasis added].

See Sasol Mining (Pty) Ltd v Commissioner Nggeleni and others [2011] 4 BLLR 404 (LC) where Van Niekerk J stated at para [9]:

"One of the Commissioner's prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the Commissioner appears to have appreciated.

What he manifestly lacked was any sense of how to accomplish this task, or which tools were at his disposal to do so.

The Commissioner was obliged at least to make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanour. He ought also to have considered the prospects of any partiality, prejudice or self-interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the probability or improbability of each party's version.

The Commissioner manifestly failed to resolve the factual dispute before him on this basis. Instead, he summarily rejected the evidence of each of the applicant's witnesses on grounds that defy comprehension."

‘Enough then…curtains’ 

Johann Scheepers
October 15, 2017.

Copyright:
Copyright reserved by the writer hereof. No part of this article/guide may be reproduced, without prior written permission of the author.
The content of this article is intended to be general in substance and nature; to provide commentary on contemporary issues and where appropriate constitutes a general guide to the subject matter. Specialist advice should be sought about the reader’s specific circumstances.
The commentary expressed herein is that of the writer and not that of any professional organisation or entity with which the writer may be associated with.

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