The admissibility of documentary hearsay evidence in arbitrations in terms of the Labour Relations Act 66 of 1996 [Discussion of POPCRU obo Maseko v Department of Correctional Services 2011 2 BLLR 450 (LC)]

This note considers the proper approach to determining the admissibility and reliability of documentary hearsay evidence in arbitration proceedings in terms of the Labour Relations Act 66 of 1995. The author notes that such proceedings are not equivalent to cases decided in the civil and criminal courts. However, she shows that the provisions of the Law of Evidence Amendment Act 45 of 1988 as regards the admissibility of hearsay evidence remain relevant. The author considers the various factors specified in section 3(1)(c) of the Law of Evidence Amendment Act in the context of the case under discussion. The author also considers the common law requirements for the admissibility of documentary evidence. The author distinguishes between the issues of determining the admissibility of evidence and of assessing the weight of the evidence, but shows that in the context of hearsay evidence the two concepts are conflated. This is because a high index of reliability suggests that the hearsay evidence should be admitted and given its due probative value in the context of all the evidence before the arbitrator. The author concludes, however, that an overly technical or legalistic approach is neither necessary nor desirable in the labour dispute resolution context. In her view, the crucial question is simply whether the arbitrator considered the interests of both parties, in the broad context of the factors enumerated in section 3 of the Law of Evidence Amendment Act, and made a rational decision to admit or exclude the hearsay evidence on a conspectus of the entire body of relevant evidence before her.