4th November 2022

The term admissibility means refers to ‘the quality of being acceptable or valid, especially as evidence in a court of law.’

Though the Code of Good Practice outlines that a disciplinary hearing should be conducted with less legal formality than in a court of law, the evidence submitted during the hearing should, at the very least, comply with rules of admissibility.

Some of the forms of evidence which are acceptable during a hearing are:

Documentary Evidence

Documentary evidence consists of statements made in writing. The definition is: ‘A document is any writing or printing capable of being made evidence’.  

However, documentary evidence does not have to be in written form. It can also be a map, painting, or drawing.  Documents should, as a rule, be originals and should also be authenticated, i.e., shown to be true and not forged or altered. The general rule for proving a document to be authentic is for whoever is introducing it to prove that it is genuine.

When admitting documents such as policies and contracts, the parole evidence rule is applicable which states that:

• A written document signed by the parties once identified is sufficient proof of its contents. 
• Any party disputing the document has the onus of proof in this regard.

Other forms of written evidence may include minutes of meetings, statements, and affidavits.

Witness testimony (Viva Voce Evidence)

This is the most common type of evidence during a disciplinary enquiry. A witness can only testify about what they have personal knowledge of or what the witness has personally seen or experienced. Testimony by a witness of what he hears from someone else or what someone else has seen would be hearsay and is generally inadmissible (there are exceptions to the hearsay rule).

Where one has two witnesses whose versions of events are contradictory, it cannot be said that a finding cannot be made. One needs to look at which witness is the more credible.

The Court in Stellenbosch Farmers' Winery Group Ltd v Martell & Kie 2003 (1) SA 11 (SCA) has aptly described the issue, where it held as follows:

“As to (a), the court's finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That, in turn, will depend on a variety of subsidiary factors, not necessarily in order of importance, such as:

• The witness's candour and demeanour in the witness-box,
• His bias, latent and blatant,
• Internal contradictions in his evidence,
• External contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra curial statements or actions,
• The probability or improbability of particular aspects of his version,
• The calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.

As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a) (ii), (iv), and (v) above, on:

• The opportunities he had to experience or observe the event in question; and
• The quality, integrity, and independence of his recall thereof.

As to (c), this necessitates analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues.

In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it... But when all factors are equipoised, probabilities prevail.”

The above are simply some of the main types of evidence which may be admissible during disciplinary hearings. Other types of evidence which may be considered are recordings, polygraph tests (as secondary forms of evidence) or evidence obtained by way of entrapment (there are specific rules surrounding the admissibility of these forms of evidence).

Though it is important to be mindful of admissible forms of evidence, it should also be remembered that certain types of evidence may be inadmissible such as:

The verdict in other proceedings: The Chairperson cannot rely on the verdict or finding of another forum such as a criminal court for example in making a finding of guilt. The Chairperson needs to make their own finding based on the evidence presented.

Evidence of similar fact: This is generally inadmissible. For instance, it is not permissible to lead evidence to show that because the accused stole on an occasion in the past, that he has committed the theft for which he is presently being charged.

Opinion evidence: Generally, a witness may not offer an opinion. It is for the hearing to draw the necessary inferences from the evidence which is led. However, an expert is permitted to give his opinion on an issue under consideration.

Privileged evidence: Privileged Evidence may not be admitted as evidence. For example, the relationship between the shop steward and the accused employee is similar to that of a lawyer and client and thus the chairperson should not allow the representative to be questioned about statements made to him by the employee in confidence.

It is important to bear in mind that evidence submitted can be cross-examined and questioned and in so doing its truthfulness tested. Rules relating to admissibility are important to consider and should be understood and remembered by parties and the Chairperson of hearings alike.

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