THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case No. JA02/25
JA09/25
In the matter between:
Goldplat Recovery (Pty) Ltd Appellant
And
AMCU obo Maluleke and 4 others Respondent
Heard: 17 March 2026
Delivered: 29 April 2026
Coram: Tokota AJA; Djaje AJA and Moshoana AJA
JUDGMENT
TOKOTA AJA
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction:
[1] This matter concerns two separate appeals which have been consolidated to
be heard together by this Court. The fons et origo of the two appeals emanates
from the disputes of the alleged automatically unfair dismissals of five
employees of the appellant. The first appeal relates to a judgment of the Labour
Court (per Nkutha-Nkontwana J, as she then was) which granted condonation
for the l ate filing of a statement of claim by the respondent. An application for
leave to appeal the judgment and order was refused but leave subsequently
granted by this court.
[2] The second appeal concerns an admission of hearsay evidence during the trial
where the appellant sought leave to adduce hearsay evidence in terms of
s.3(1)(c) of the Law of Evidence Amendment Act 45 of 1988 (Hearsay Act). At
the commencement of the proceedings in the Labour Court , Counsel for the
appellant indicated in chambers that the appellant would seek leave to lead
hearsay evidence in terms of s.3(1)(c) of the Hearsay Act. Indeed, in court
Counsel for the appellant made submissions from the bar seeking leave to lead
hearsay evidence. The respondent objected to such an application which
objection was sustained by the Labour Court (per Danie ls J). The trial
continued and at the conclusion thereof the Labour Court declared that the
dismissals were automatically unfair and order ed the appellant to reinstate the
dismissed employees . The appellant applied for leave to appeal against the
refusal of admission of hearsay evidence. The application was dismissed but
leave to appeal was subsequently granted by this court.
Factual Background:
[3] Although the issues on appeal are limited in nature, for a proper conspectus of
the matter, it is necessary to set out the factual background. Needless to say it
will be necessary only for purposes of the determination of the appeals.
[4] Before 2016 the appellant operated its business without its employees being
[4] Before 2016 the appellant operated its business without its employees being
represented by a trade union. It s employees were represented by worker’s
committees elected by the appellant’s employees to engage with management
3
on matters concerning workers’ interests. For some time, the workers’
committees were considered as ineffective by the employees as they were
perceived to be instruments of the management.
[5] By 2015 and 2016 a union called Association of Mineworkers and Construction
Union (AMCU) started recruiting members from amongst the appellant’s
employees. During 2016 AMCU had made significant inroads and it requested
organisational rights from the appellant. The request was refused and AMCU
referred a dispute relating to organisational rights to the Commission for
Conciliation, Mediation and Arbitration (CCMA) in terms of s. 21 of the Labour
Relations Act 66 of 1995 (the LRA)
1. The dispute was settled on the basis that
a collective agreement was concluded to the effect that the threshold for
granting such rights would be 30%.
[6] Pursuant to the agreement concluded at the CCMA, and, at the instance of the
appellant, an independent institution called TOKISO was appointed to conduct
a verification process of the union membership to determine the actual level of
membership of AMCU. On 25 August 2016 the verification process found that
AMCU had achieved 23,3% of the employees’ membership.
[7] After the verification process conducted by Tokiso, AMCU continued to recruit
more members. The recruitment did not go without events. The management
was apprehensive of the drive for unionisation of its employees. There were
certain employees who were satisfied with the work committees. Management
was approached by some employees, namely, Messrs Vasco Nkuna, Zamile
Manyike and Ms Zanele Nkoane and was advised that employees were being
intimidated and threatened to join AMCU. I will refer to the three employees
mentioned above as complainants. The names of Messrs Simbala, Maluleke,
Hlekiso, Gwantshu and Ms Majola were mentioned as being responsible for the
intimidation of employees. I will refer to these as five employees.
intimidation of employees. I will refer to these as five employees.
1.S.21(1)(2) and ( 4) provides: ‘Any registered trade union may notify an employer in writing that it
seeks to exercise one or more of the rights conferred by this Part in a workplace.
(2) The notice referred to in subsection (1) must be accompanied by a certified copy of the trade
unions certificate of registration and must specify-
(4) If a collective agreement is not concluded, either the registered trade union or the employer may
refer the dispute in writing to the Commission.
4
[8] On 31 August 2016 the five employees were summoned to the boardroom by
Mr Nkuna and were informed that there were allegations against them that they
were intimidating fellow employees to join AMCU. They were handed letters of
dismissals with immediate effect . The letters were from Management . The
dismissals were not preceded by any disciplinary hearing.
[9] Subsequent to the dismissals of the five employees , on 7 September 2016,
AMCU, on behalf of the five employees , referred disputes of unfair dismissals
to the CCMA. At the CCMA Mr Soldatos , a Non- Executive Director of the
appellant represented the appellant and was the only witness who gave
evidence on behalf of the appellant. He was, however, not part of management
and was not involved in the dismissals of the five employees. He gave hearsay
evidence about the activities of the five employees regarding the intimidation
and threats as reported to him by the complainants. The Commissioner
admitted his hearsay evidence stating that CCMA is n ot a Court of law and
arbitration proceedings are to be conducted within the minimum of legal
formalities formal than judicial proceedings.
[10] Mr Soldatos mentioned the names of t he complainants and advanced reasons
as to why they were unwilling to testify. He testified that they feared for their
lives because of the threats received and Mr Nkuna’s car was burnt. At the tail
end of the proceedings it was argued on behalf of the appellant that the CCMA ,
in light of the evidence led by the respondent, lacked jurisdiction to entertain the
disputes and that the matter should have been referred to Labour Court for
adjudication. On 14 June 2017 t he Commissioner issued an award without
reference to the jurisdiction point and found that the dismissals were both
substantively and procedurally fair.
[11] On 29 August 2017 AMCU instituted review proceedings in the Labour Court
seeking an order to review and set aside the award on the basis that the
seeking an order to review and set aside the award on the basis that the
Commissioner lacked jurisdiction to adjudicate on the dispute by reason of the
fact that the dismissals were automatically unfair as envisaged in s.187(1) and
5
187(1) (d) of the LRA 2. The appellant opposed the review application. The
application was argued on 9 January 2020 and judgment was reserved.
[12] Regrettably, the delivery of the judgment was delayed for a little over a year
and only delivered on 8 February 2021. The Labour Court , per Molotsi AJ,
reviewed and set aside the award on the grounds thereof that the
Commissioner lacked jurisdiction to adjudicate on the matter.
[13] On 3 March 2021 AMCU filed a statement of claim in the Labour Court claiming
that the dismissals were automatically unfair. The referral to the Labour Court
was four years late inclusive of the period spent on CCMA proceedings and the
review in the Labour Court.
[14] Subsequent to the filing of the statement of claim AMCU applied for
condonation for the late filing thereof . The application was heard on 6 August
2021. The Labour Court , per Nkutha-Nkontwana J, as she then was, granted
condonation.
[15] The main matter was set down for trial and heard on 13 to 17 May 2024 before
Daniels J. On the first day of the hearing an application from the bar was made
by Counsel for the appellant for leave of the Court to allow hearsay evidence in
terms of s. 3(1)(c) of the Hearsay Act. The application was opposed by the
respondent. The Labour Court ruled that it was not reasonably necessary to
admit such evidence and furthermore it was not in the interests of justice to do
so.
[16] After the ruling that hearsay evidence would not be allowed the trial proceeded
to its logical conclusion. The Labour Court found that the dismissals were
automatically unfair in accordance with s.187(1) of the LRA and ordered
reinstatement of the five employees.
Discussion:
2 S.187(1) provides:’ 1) ‘A dismissal is automatically unfair if the employer, in dismissing the
employee, acts contrary to section 5’ Section 5 confers protections relating to the right to freedom of
association and on members of workplace forums.
6
Condonation appeal:
[17] I consider it expedient to begin with condonation appeal. If a commissioner has
certified that the dispute relating to automatically unfair dismissal remains
unresolved, such dispute may be referred to the Labour Court , within 90 days
after the certification , for adjudication. The Labour Court may condone non -
observance of the time period on good cause shown.
3 I may mention that there
was an argument about the peremption of the appeal. I n light of the view I take
it will not be necessary to deal with the merits of that argument save to say that
I have reservations about the merits thereof.
[18] The referral of the dispute to the Labour Court was excessively delay ed. It is
clear from section 191(11) that the Labour Court has a discretion to condone
the late referral of the dispute on good cause shown. In exercising its
discretion, the Labour Court must have regard, inter alia, to the leading cases in
this regard. More than five decades ago the then Appellate Division in Melane v
Santam Insurance Co Ltd4 said:
'In deciding whether sufficient cause has been shown, the basic principle
is that the Court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of fairness to
both sides. Among the facts usually relevant are the degree of lateness,
the explanation thereof, the prospects of success and the importance of
the case. Ordinarily these facts are interrelated, they are not individually
decisive, save of course that if there are no prospects of success there
would be no point in granting condonation’.
[19] Cases which consider the delay in isolation and decide the case of the
application for condonation without regard to the prospects of success
5 must be
3 See. S. 191(5)(b) and 191(11) of the LRA.
4 1962 (4) SA 531 (A) 532C-E.
5 NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC).
7
regarded as having been overruled by the Constitutional Court. 6 The overriding
factor now is whether it is in the interests of justice to overlook the delay.
[20] In Turnbull-Jackson v Hibiscus Coast Municipality 7, The Constitutional Court
had this to say in this regard:
‘In this Court the test for determining whether condonation should be
granted or refused is the interests of justice. Factors that the Court weighs
in that enquiry include: the length of the delay; the explanation for, or
cause of, the delay; the prospects of success for the party seeking
condonation; the importance of the issues that the matter raises; the
prejudice to the other party or parties; and the effect of the delay on the
administration of justice. It should be noted that although the existence of
prospects of success in favour of the party seeking condonation is not
decisive, it is a weighty factor in favour of granting condonation. ’
[Footnotes omitted]
[21] As I understood the appellant’s argument in this case it is not contended that
the Learned Judge failed to exercise her discretion judiciously or that she
exercised it capriciously upon a wrong principle when she granted condonation.
The main contention is that after the judgment was granted and four years
down the line new evidence emerged which the Labour Court, had it been
aware thereof, would not have granted condonation. Consequently, as the
judgment stands the correctness thereof is not in issue. The question now is, if
the judgment is not assailed on what basis must this Court interfere.
[22] The order of the Labour Court was made on 8 September 2021. It is
contended by the appellant that it only became aware of crucial facts, which
had been concealed from the Court at the time the condonation was argued, in
May 2024. The condonation applicat ion was argued in August 2021. Counsel
submitted therefore that the facts grounding the appeal were accordingly not
submitted therefore that the facts grounding the appeal were accordingly not
6 See: Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others
v Road Traffic Management Corporation and Others 2018 (9) BCLR 1067 (CC); Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (6) BCLR 661 (CC) at paras 39 and
40. (Buffalo City)
7 2014(6) SA 592 (CC) para.23
8
known to the appellant at the time the matter was argued in August 2021 and
could not therefore be relied upon in opposing the condonation application.
[23] The facts which, it is alleged were concealed, are that the respondent referred
disputes of automatically unfair dis missals to the CCMA having characterised
such disputes as unfair dismissals. One of the witnesses of the respondent, Mr
Simbala, testified during the trial that the respondent’s representative, one Mr
Nkalitshana, advised them not to disclose that the dismissals were
automatically unfair dismissals because that would take a lengthy period before
the matter could be finalised.
[24] When the condonation application was made the five employees testified that
they were not aware at the time of referral to CCMA that the disputes related to
automatically unfair dismissals as they were lay persons. Mr Simbala
conceded, however, that they were advised by Mr Nkalitshana that if they were
to characterise the disputes as automatically unfair dismissals it would have to
be referred to the Labour Court for adjudication and that would be time
consuming.
[25] In my view the argument is unhelpful. It is clear from the record of the
arbitration and the arbitration award that the five employees never concealed
the true facts leading to their dismissals. They testified to the effect that they
were dismissed because of their involvement in the recruitment of AMCU
members hence it was alleged by the complainants that they were responsible
for the threats and intimidation s made. That is why Mr Soldatos for the
appellant argued vehemently at the CCMA that the CCMA had no jurisdiction. It
would seem to me that the mere characterisation of the disputes by their
representative cannot be attributed to them . They were honest in their
testimony and no fraud was committed.
[26] In this regard I can do no better than quote verbatim what Ngcobo J, as he then
was, said in CUSA v Tao Ying Metal Industries and Others
was, said in CUSA v Tao Ying Metal Industries and Others
8 ‘A commissioner
8 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC) ; [2009] 1 BLLR 1 (CC) ; (2008) 29 ILJ2461(CC) para 66
9
must, as the LRA requires, “deal with the substantial merits of the dispute”. This
can only be done by ascertaining the real dispute between the parties. 9 In
deciding what the real dispute between the parties is, a commissioner is not
necessarily bound by what the legal representatives say the dispute is. The
labels that parties attach to a dispute cannot change its underlying nature. A
commissioner is required to take all the facts into consideration including the
description of the nature of the dispute, the outcome requested by the union
and the evidence presented during the arbitration. What must be borne in mind
is that there is no provision for pleadings in the arbitration process which helps
to define disputes in civil litigation. Indeed, the material that a commissioner
will have prior to a hearing will consist of standard forms which record the
nature of the dispute and the desired outcome. The informal nature of the
arbitration process permits a commissioner to determine what the real dispute
between the parties is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence is in.’
[27] Consequently, the advice that was given to the employees was not only
technical in nature, the arbitrator still had a duty to identify what the real dispute
was between the parties . Furthermore, courts are reluctant to punish litigants
for the faults of thei r legal representatives subject to certain limitations
10. What
is more, notwithstanding the characterisation of the disputes, the arbitrator was
alerted to the true nature thereof based on the facts before him which he chose
to ignore.
[28] In the circumstances and in light of the fact that the judgment , as it stands , is
unassailable in that there is no attack on the exercise of its discretion, I do not
see the reason why this Court should interfere therewith. Furthermore, a Court
of appeal will not lightly interfere with the discretion of the lower Court where it
of appeal will not lightly interfere with the discretion of the lower Court where it
has been exercised judiciously having taken into account all the relevant facts.
The Labour Court considered the merits of the case carefully and all the
relevant factors for the exercise of its discretion. It found that the respondent
9 National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd & Another [2002]
ZACC 30; 2003 (3) SA 513 (CC); 2003 (2) BCLR 182 (CC); (2003) 24 ILJ 305 (CC) at para 52.
10 Turnbull-Jackson note 7 para.26
10
was strong on the merits and the interests of justice dictated that condonation
be granted. It even remarked, correctly so in my view , that the delay was not
only attributable to the respondent but the appellant was also responsible for
that. The appellant was aware, and in fact argued the point of jurisdiction at the
CCMA but still went ahead and opposed the review application. Accordingly,
the appeal cannot succeed.
Hearsay Appeal:
[29] The second appeal turns on whether the Labour Court was correct in
disallowing leading of hearsay evidence in terms s.3(1) (c) of the Hearsay Act.
Counsel for the appellant submitted that the Labour Court erred by not hearing
the evidence of Mr Soldatos (the only witness for the appellant) in order to allow
him to lay the basis for receiving such hearsay evidence. The Labour Court
based its decision on the air, prematurely before hearing Mr Soldatos, so the
argument ran. Counsel submitted that the failure to hear the evidence of Mr
Soldatos first before deciding on the admissibi lity of the hearsay evidence
constituted a fundamental procedural error which was fatal to the ruling. In this
regard it was submitted that the Labour Court did not exercise its discretion
properly.
[30] In its ruling the Labour Court found that when Mr Soldatos interviewed the
complainants he took notes but made no voice recordings of the interviews and
took no sworn statements. It had some reservations of the accuracy of the
notes in view thereof that there was no interpreter and it is unclear whether the
complainants were conversant with English. It expressed the view that it would
be undesirable to force the respondent to accept the accuracy thereof. The
Court held that the hearsay evidence carried low index of reliability.
[31] In terms of section 3 of the Hearsay Act, hearsay evidence may be admissible
under three conditions: first ly, through consent of parties to the lawsuit;
under three conditions: first ly, through consent of parties to the lawsuit;
secondly, where the witness on whose credibility the truth and the extent of
reliability of the evidence depend would come and testify before court and
undergo the court’s scrutiny, and, thirdly, where the court is of the opinion that
11
the interest of justice demands the admissibility of hearsay evidence. The
application of these provisions is not cumulative, implying that each of them is
independently applied. This results in the possibility of uneven processes by
courts in testing the admissibility of hearsay evidence.
[32] It can hardly be gainsaid that the admission of hearsay evidence causes
prejudice to the person against whom it is admitted because he is deprived of
the opportunity to cross -examine the deponent. But that is not the only
consideration – the Court must still consider reasons for non-availability of the
witness to give evidence and whether he is still alive or deceased. The
overriding consideration is the interests of justice. Ultimately, th e question is
whether there are adequate pointers of truthfulness, reliability, and probative
value for the statement to be admitted as evidence.
11
[33] There is a plethora of leading cases on the subject in criminal matters and of
course there are some Labour Court matters. The criminal matters include
Savoi and Others v National Director of Public Prosecutions and Another12; S v
Ndhlovu and Others13 and Kapa v S14 and many others.
[34] In the context of Labour law the principles relating to admission of hearsay
evidence in terms of the Hearsay Act are the same as those applied in civil
matters. However, the arbitrators seem to see things differently. They seem to
think that the principles at arbitration stage are not stringent. This perception is
based on the premise that at the CCMA t he Commissioners may conduct the
arbitration proceedings in a manner that they consider 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.
15
[35] In my view s.138 of the LRA does not give the arbitrator a licence to admit
hearsay evidence willy -nilly and arbitrarily without regard to the interests of
hearsay evidence willy -nilly and arbitrarily without regard to the interests of
justice. The main purpose is to resolve the dispute quickl y, fairly to all the
11 Kapa v S 2023 (4) BCLR 370 (CC); 2023 (1) SACR 583 (CC) para.104
12 2014 (5) SA 317 (CC)
13 2002 (6) SA 305 (SCA)
14 2023 (4) BCLR 370 (CC).
15 See s.138(1)
12
parties taking into account the interests of justice. Minimum application of
formalities does not mean that legal principles must be ignored. This Court in
Exxaro Coal (Pty) Ltd v Chipana and Others 16 per Coppin JA said: ‘Those
safeguards and precautions, duly adapted, also apply to the application of
section 3 of the LEAA in civil proceedings. Because of the similarities between
civil proceedings and arbitration proceedings, the, overwhelmingly, adversarial
nature of arbitration proceedings under the LRA, and the overarching
requirement that such proceedings be fair, those safeguards and precautions,
duly adapted, apply equally to arbitration proceedings to ensure fairness and
serve as an invaluable guide for commissioners and arbitrators when
confronted with hearsay evidence, and, particularly, when applying section 3 of
the LEAA. Adapted they would include the following: (1) Section 3(1)(c) of the
LEAA is not a licence for the wholesale admission of hearsay evidence in the
proceedings; (2) in applying the section the commissioner must be careful to
ensure that fairness is not compromised; (3) a commissioner is to be alert to
the introduction of hearsay evidence and ought not to remain passive in that
regard; (4) a party must as early as possible in the proceedings make known
its intention to rely on hearsay evidence so that the other party is able to
reasonably appreciate the evidentiary ambit, or challenge, that he/she or it is
facing. To ensure compliance, a commissioner should at the outset require
parties to indicate such an intention; (5) the commissioner must explain to the
parties the significance of the provisions of section 3 of the LEAA, or of the
alternative, fair standard and procedure adopted by the commissioner to
consider the admission of the evidence
17; (6) the commissioner must timeously
rule on the admission of the hearsay evidence and the ruling on admissibility
should not be made for the first time at the end of the arbitration, or in the
should not be made for the first time at the end of the arbitration, or in the
closing argument, or in the award. The point at which a ruling on the
admissibility of evidence is made is crucial to ensure fairness in a criminal
16 [2019] 10 BLLR 991 (LAC); (2019) 40 ILJ 2485 (LAC) para.24
17 Compare: Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn and Others [2007] 10
BLLR 909 (LAC) paras 17 -20; Foschini Group v Maidi and Others [2010] 7 BLLR 689 (LAC) para 38.
However, the Labour and Labour Appeal Court have sometimes invoked section 3 of the LEEA to
determine whether hearsay evidence was correctly admitted or excluded by a commissioner or
arbitrator. See eg.: Swiss South Africa Pty) Ltd v Louw NO and Others [2006] 4 BLLR 373 (LC) and
Edcon Ltd v Pillemer NO and Others [2008] 5 BLLR 391 (LAC) para 15.
13
trial18. The same ought to be true for an arbitration conducted in an adversarial
fashion because fairness to both parties is paramount.’
[36] I respectfully agree with the learned Judge ’s remarks above. They are in line
with what was said in Cusa 19. The principles set out in the Hearsay Act are not
mere formalities as envisaged in s.138 of the LRA . These are procedural legal
principles. The evidential evaluation as applied in Courts should be applied in
CCMA as well.
[37] Coming to the appeal at hand one must first analyse the requirements of s.3(1)
(c). It provides as follows:
“(1) Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless—
. . .
(c) the court, having regard to—
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends;
(vi) any prejudice to a party which the admission of such
evidence might entail; and
(vii) any other factor which should in the opinion of the court be
taken into account,
is of the opinion that such evidence should be admitted in the
interests of justice.” In what follows is an analysis of these
requirements.
A: The nature of the proceedings:
18 See: S v Ndhlovu and Others (above) para 18 and S v Molimi 2008 (3) SA 608 (CC) paras 38-42.
19 Note 8
14
[38] The nature of the proceedings in this matter, militates against admission of the
hearsay evidence for the following reasons:
(a) the witnesses whose hearsay evidence is sought to be led in their
absence were available but unwilling to come and testify;
(b) these witnesses are known to the five employees who are alleged to
be the perpetrators of the alleged intimidation and threats;
(c) due to the understanding that the proceedings are to be conducted
with less formalities the CCMA allowed such evidence to be led in
their absence;
(d) the evidence is denied by the respondents and the need to test its
veracity under cross-examination is desirable;
(e) There are instances, such as where the witness is deceased, where
challenging evidence through cross-examination is impossible this is
not the case here.
B: The nature of the evidence:
[39] In this regard as alluded to above, Counsel for the appellant on the first day of
the hearing addressed the Labour court from the bar seeking leave to lead
hearsay evidence through Mr Soldatos. It was alleged that Mr Soldatos , the
non-Executive Director o f the company , interviewed the complainants who
alleged that they were intimidated. The identity of the intimidators was not
revealed. In his address to Court Counsel submitted that “Mr Soldatos who is
the company’s own witness in this particular point of time, his involvement in
the matter was that at the time the events proceeded he was employed as a
non-executive director of the company. And his evidence will be to the extent
that [he interviewed] certain [employees] of the company who had raised
concerns regarding intimidation.”
[40] Although this does not appear in the address of Counsel for the appellant ,
Counsel for the respondent pointed out that Mr Soldatos took manuscript
15
[contemporaneous] notes. From those notes no names appear, no dates no
time, it is just recorded that “these guys threatened to burn down the house,
they said if we do not join AMCU you are rat.” It follows then that the nature of
the hearsay evidence is neither sworn statements nor audio recordings but
simply anonymous notes recorded by Mr Soldatos. An invitation by the Court to
lead the evidence in camera was not heeded. From these notes it appears that
the evidence was likely to play a decisive role of the appellant’s case.
[41] Section 3(4) of the Hearsay Act defines hearsay 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”. There was neither reliable
oral in the form of audio recordings n or evidence in writing in the form of
affidavits to be presented by Mr Soldatos.
C: The purpose for which the evidence was to be tendered
[42] The appellant had only one witness to call, Mr Soldatos. The purpose of the
hearsay evidence was to prove that the five employees were intimidating and
threatening other employees to join AMCU hence they were dismissed. The
purpose was therefore to bolster the case of the appellant.
D: The probative value of the evidence
[43] I can do no better than to refer to the Supreme Court of Appeal in Ndhlovu
20
where probative value was defined in the following terms:
“Probative value’ means value for purposes of proof. This means not
only, ‘what will the hearsay evidence prove if admitted?’, but ‘will it do so
reliably?’
There are many factors relevant to the reliability question, namely: (a)
any interest in the outcome of the proceedings by the witness; (b) the
degree to which it is corroborated or contradicted by other evidence; (c)
20 Note 11 para.
16
the contemporaneity and spontaneity of the hearsay statement; and (d)
the degree of hearsay.21
In Savoi, the Constitutional Court explained that courts’ aversion to hearsay
evidence stems from its general unreliability as it is not subject to the reliability
checks applicable to other evidence – such as cross- examination – and as its
nature makes it difficult for a party to effectively counter inferences drawn from
it.22 Factors mentioned in Ndlovu’s case were present in this matter. Evidence of
Mr Soldatos was contradicted, he had an interest in the outcome of the matter,
he was a witness, Non-Executive Director and an attorney of the appellant at the
same. There were no sworn statements taken from the complainants.
E: The reason why the evidence was not given by the person upon whose
credibility the probative value of such evidence depends;
[44] The reason why the evidence could not be given by the persons upon whose
credibility the probative value of such evidence depended was the alleged fear
for reprisals. The complainants were available and known by everybody but
they were unwilling to give evidence in any forum alleging fear that their
properties could be burnt.
F: Prejudice to the respondent.
[45] In light of the denial of the alleged threats and intimidation and absence of
corroborative evidence, the respondent stood to be prejudiced by admission of
such evidence. The Court in Ndhlovu emphasised that—
21 Schwikkard and van der Merwe Principles of Evidence 4 ed (Juta & Co Ltd, Cape Town 2016) at
298.
22 Savoi v National Director of Public Prosecutions [2014] ZACC 5 ; 2014 (5) SA 317 (CC); 2014 (5)
BCLR 606 (CC) at para 38, .
17
‘prejudice is always present when hearsay is admitted. It must be
weighed against the reliability of the hearsay in deciding whether, despite
the inevitable prejudice, the interests of justice require its admission.’23
The prejudice which would be occasioned to the respondent by the admission
of the hearsay evidence is significant – it played a decisive role in the
appellant’s case.
G: Any other factor.
[46] The fact that the contemporaneous notes were written in English and no sworn
statements confirmed by the complainants raises eyebrows in light of the fact
that Mr Soldatos had an interest in the outcome of the case.
H: The interests of justice:
[47] A court must be of the opinion that it is in the interests of justice for the hearsay
evidence to be admitted. The provisions of section 3(1)(c) each require
consideration in order to limit prejudice to the party against whom such
evidence is admitted, and all the factors must be considered cumulatively.
The submission that the Labour Court erred by not hearing the evidence of Mr
Soldatos (the only witness for the appellant) in order to allow him to lay the
basis for receiving such hearsay evidence cannot be sustained. The appellant
cannot approbate and reprobate. It was content with making submissions from
the bar instead of calling the evidence of Mr Soldatos in this regard. The
suggestion by the Labour Court to lead evidence in camera was not even
considered. It does not lie in its mouth to now argue that the Labour Court erred
in not hearing the evidence of Mr Soldatos before making its ruling. The
appellant made its bed with its eyes open, it is not unfair that it must lie on it.
Conclusion:
[48] Regard being had to the above there is no merit in the appeal and it must fail.
23 Id para.49
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Costs:
[49] The general rule is that in labour matters costs do not follow the results but law
and fairness play an important consideration. There is no reason to deviate
from the general rule.
Order:
[50] In the result, the following order will issue.
1. The appeal is dismissed in both matters.
2. There is no order as to costs.
___________________
B R Tokota
Acting Judge of the Labour Appeal Court
Djaje AJA and Moshoana AJA concur
Appearances:
For the Appellant: Adv A Snider SC; Adv D Whittington
Instructed by: SCI Attorneys
For the respondent: Adv A Cook
Instructed by: LDA Attorneys
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