Principle:

Section 3 of the Law of Evidence Amendment Act 45 of l988 is primarily an exclusionary rule, reinforcing the general reluctance of courts to admit hearsay evidence at all. However the Act gives a discretion to allow hearsay and requires that in exercising this discretion all six specified factors must be considered as well as any other factor which should in the opinion of the court be taken into account ; the factors listed in s 3(1)(c) cannot be viewed in isolation and will be weighed collectively in determining whether or not it is in the interests of justice to admit the evidence.

Facts:

The employees were charged with theft of the employer’s property. At the internal disciplinary hearing they were found guilty, mainly on the basis of the evidence of two security guards who had observed the employees on the night of the theft and discovered the property was missing. The security guards had given statements and this formed part of the evidence at the disciplinary hearing. Neither of the security guards were available at this arbitration as the one had died a week before and the other could not be traced. The employer sought to introduce their statements and the record of the disciplinary hearing as evidence in terms of the Law of Evidence Amendment Act 45 of l988. The employees opposed this. The Commissioner held that the statements and the Minutes of the disciplinary hearing were admissible as evidence in the arbitration.

Extract from the ruling:

At 1031 B: There is a straight-forwardness about the subject matter, although there is contradictory evidence. There was contemporaneity and spontaneity of the hearsay statements in that the statements were made within days of the theft and the disciplinary hearing was held within 6 weeks of the incident. The statements were used at the disciplinary hearing and used as the basis for examination-in-chief and cross-examination by the Applicants. In these circumstances I am satisfied that there is nothing about the nature of the evidence which prevents its admissibility; the weight to be given to it is a separate issue altogether.