What is a Single Witness?

In order to prove its case in a court trial, arbitration case or a disciplinary enquiry, a party relies on various forms of evidence. Evidence may take the form of real evidence [such as a weapon used in an assault], documentary evidence [i.e. documents such as a computer print out] and oral evidence [i.e. witnesses that testify in person].

Normally, witnesses are allowed to testify as to what they experienced, saw or know. For instance, if a witness witnessed an assault, he would be able to testify as to what he personally saw.  At the end of the case, his evidence will be analysed by the chairperson [a judge or magistrate in court; an arbitrator at arbitration, or a chairperson at a disciplinary enquiry].

The chairperson will decide whether the witness’s evidence was satisfactory and whether he was a credible witness. There are many reasons for rejecting a witness’s  evidence: he may have openly lied- therefore his evidence is not credible; he may have had a poor memory of the events- therefore he is not reliable; or his evidence may not appear to be very convincing even though he has not lied. Sometimes there is only one witness testifying for an employer. In such a case it comes down to the evidence of that witness versus the evidence of the employee.

One of the rules of evidence traditionally provided that the evidence of a single witness should be treated with caution- hence the cautionary rule for single witnesses. This rule has been amended somewhat and although applied less strictly, is still used in criminal cases [see below].

Generally, the rules of evidence are the same in any hearing, i.e. in criminal cases, civil cases; disciplinary enquiries and arbitrations. However, there are exceptions. For example, the onus of proof in criminal cases is beyond reasonable doubtIn civil cases and labour matters, the onus of proof is on a balance of probabilities.

Case Law

In S v Carolus 2008 (2) SACR 207 (SCA), the Supreme Court of Appeal summarized the current interpretation of the cautionary rule relating to evaluating the evidence of a single witness in criminal matters as follows:

The current interpretation differs significantly from the previous more stringent standard of requiring a single witness’s evidence to be ‘clear and satisfactory in every respect’ before it could be relied on for a conviction:

‘There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence.’ 

In the unreported case of Minister of Correctional Services v AM Baloyi and others [JR46/09], the Labour Court held that the cautionary rule was not applicable in civil or arbitration proceedings. In this case, a witness testified that he saw the employee, removing a plastic bag from the boot of his parked car at a prison, where he was employed as a warder. The employee denied that he had removed a bag, which turned out to contain dagga, from the car. The arbitrator, in finding that the employee’s evidence was more probable than the employer’s witness, referred to the cautionary rule against single witnesses, and set aside the finding and referred it back for arbitration before a new arbitrator.

Contrary to the Correctional Services case [above], the Labour Court, per Judge Lagrange, in Northam Platinum Mines v Shai NO & Others (2012) 33 ILJ 942 (LC), did not reject the applicability of the cautionary rule in respect of arbitrations. Rather, the court found, that current interpretation differs significantly from the previous more stringent standard of requiring a single witness’s evidence to be ‘clear and satisfactory in every respect’ before it could be relied on for a conviction. In referring to the Carolus case above, the Labour Court applied the cautionary rule in this matter and found that the commissioner had treated the evidence of the two employer witnesses, compared with that of the employee, in “nominal and monolithic terms”. In other words he did not properly assess the reliability of their evidence to come to a credibility finding. The court found that the commissioner ought to have weighed the probabilities of the respective versions and, if necessary, made credibility findings to arrive at an outcome.

Conclusion

Although the Labour Court has had differing approaches regarding the applicability of the cautionary rule relating to single witnesses in disciplinary hearings and arbitrations, it is clear that an employer may still rely on a single witness in order to prove the commission of misconduct on the part of an employee. What is necessary in order for an employer’s dismissal to succeed at the CCMA, i.e. to prove that it the dismissal was substantively fair, is that the employer should ensure that the employee is well prepared to give evidence, so that, at the end of the disciplinary enquiry, his evidence is found to be reliable, satisfactory and therefore credible and that the employer’s version is therefore more probable than the version of the employee. This standard of proof would also be applicable at the CCMA.

Rudi Kuhn – Labour Law Attorney, Pretoria

June 2012