CWU & others v Ebony SA (2000) 21 ILJ 2640 (LC)

Principle:

1. In admitting hearsay evidence in the form of an affidavit, what is relevant is the contents of the affidavit, whether it is properly attested to and whether it contains relevant and admissible evidence.

2. A backlog of cases at the CCMA cannot constitute a ground for urgency.

Facts:

In opposing an urgent order, the company relied on two arguments. First, a matter is not urgent simply because of the backlog of cases at the CCMA. Second, the applicants supported their application with hearsay evidence because one person signed the founding affidavit and another the replying affidavit. The court found that our law allows hearsay evidence to be admitted in certain circumstances. It is irrelevant as to who signs the two affidavits; rather what is relevant is the contents of the affidavit, whether it is properly attested to and whether it contains relevant and admissible evidence. The court in this case was prepared to admit the replying affidavit but admit little weight to it because the signer of the affidavit did not have personal knowledge of its contents.

Extract from the award:

[At para 12]   The rules regarding how to approach hearsay evidence in our law are fairly settled. In general hearsay evidence is not permissible in affidavits. Herbert & Van Winsen The Civil Practice of the Supreme Court of SA (4 ed) at 369, in dealing with the issue of hearsay evidence in affidavits state: 'A deponent should, if he includes in his or her affidavit evidence of which he does not have first-hand knowledge, annex to his or her affidavit a confirmatory or verifying affidavit by a person who does have the direct knowledge of the facts.'

[13]   However, where special circumstances and urgency so require, our courts have accepted affidavits containing hearsay evidence...

[15]   In the absence of urgency it is only with very cogent reasons that hearsay evidence would be justified in an affidavit...

[16]   In certain circumstances the courts are permitted by the Law of Evidence Amendment Act 45 of 1998 to admit hearsay evidence.

[42]   I am firmly of the view that the backlog of cases at the CCMA cannot constitute a ground for urgency. If this was to be the case, then the flood gates for urgent application to this court would be opened. In any event, I do not believe that the delay of having to wait for the CCMA conciliation process would result in irreparable harm to the applicants because if the matter is finally decided and it is found that there was no substantive and/or procedural fairness, the applicants will be compensated in terms of s 194 of the Act.