There is a persistent myth in South African labour practice that the CCMA is an informal forum where the rules of evidence do not really apply. Section 138 of the LRA gives commissioners a broad discretion, the thinking goes, so hearsay affidavits, statements from absent witnesses, reports from practitioners who will not testify can more or less just be handed up and dealt with later.
This is wrong. And the consequences of getting it wrong range from wrongful convictions to entire arbitrations being sent back to start. Three cases spanning 20 years of South African labour law explain what should actually happen.
The Legal Framework in One Paragraph
Section 3 of the Law of Evidence Amendment Act 45 of 1988 applies to CCMA proceedings. An affidavit is hearsay, it is a written statement by someone who is not present, whose credibility you cannot test. The default is exclusion. But the Act creates a structured mechanism: hearsay may be admitted if the interests of justice require it, weighed against factors including the nature and probative value of the evidence, why the maker cannot testify and the prejudice to the opposing party. The discretion in section 138 of the LRA does not override this.
When Hearsay Must Come In: The Intimidated Witness
In Southern Sun Hotels v SACCAWU (2000) 21 ILJ 1315 (LAC), a hotel waiter was dismissed for threatening his supervisor. The supervisor had testified at the disciplinary enquiry and the waiter chose not to cross-examine him. By the time the matter reached the Industrial Court, the supervisor was too frightened to testify, saying the waiter had threatened him again. The employer produced an affidavit from the supervisor and the evidence of a manager about what the supervisor had told him at the time.
The Industrial Court refused to admit the hearsay on the basis that the evidence went to too fundamental an issue. The Labour Appeal Court reversed that decision. Working through the section 3 factors, the court found that the interests of justice clearly required admission. The evidence was credible and corroborated, the employer had genuinely tried to secure the witness and the employee had already had an opportunity to challenge the supervisor at the enquiry but chose not to.
Automatic exclusion of hearsay from intimidated witnesses would allow misconduct to go unpunished by those willing to threaten anyone who might testify against them. The courts will not permit that outcome.
When Hearsay Must Not Be Excluded: The Dairy Affidavit
Matsekoleng v Shoprite Checkers (2013) 2 BLLR 130 (LAC) involved a R9.49 bottle of donated milk and a receiving clerk with 21 years of service. At arbitration, the employee produced an affidavit from the dairy supplier confirming the milk was donated specifically to the staff tea club, not as stock intended for sale. The employer objected as it could not cross-examine the deponent. The commissioner upheld the objection and excluded the affidavit.
The Labour Appeal Court found this was a gross irregularity and a material mistake of law. The inability to cross-examine the author of an affidavit is not a reason to refuse admission, it is a factor that affects the weight given to the evidence once admitted. The commissioner had also made a second error, he refused the affidavit on the basis that it would not prove the milk was not supposed to be GRV’d. That is prejudging probative value before admission. Probative value is assessed after the evidence is in, not as a precondition to letting it in.
The employee was wrongly convicted of misappropriation. The dismissal was found substantively unfair.
The Passive Commissioner: Why Timing Is Everything
Exxaro v Chipana (2019) 40 ILJ 2485 (LAC) is the most practically significant of the three cases. Exxaro dismissed an HR employee for allegedly soliciting bribes. The complainants did not testify, allegedly because of intimidation. The employer relied on investigators with no first-hand knowledge and the complainants’ affidavits. The hearsay issue was raised in opening argument. Both parties knew it was in dispute. The commissioner said nothing, allowed the evidence in without ruling on it and then in his award declared the hearsay inadmissible and found the dismissal substantively unfair.
The Labour Appeal Court was emphatic. A ruling on admissibility must be made during the hearing, not in the award. By the time the commissioner ruled, neither party could do anything about it. The employer could not call further witnesses. The employee could not properly address evidence that had now been excluded. The late ruling was itself a gross irregularity. The entire arbitration had to be redone.
The court set out what commissioners must do when hearsay arises: require parties to declare their intention to rely on hearsay at the outset; explain how section 3 will be applied and rule on admissibility while the hearing is still live.
What This Means in Practice
If you are relying on an affidavit
Identify it before the hearing begins. Prepare to address the section 3 factors, i.e. why the maker cannot testify, what corroborating evidence exists and why admission serves the interests of justice. Ask the commissioner to rule before you close your case.
If you are opposing an affidavit
Object promptly when the evidence is being led, not at the end. Your objection is not simply “I cannot cross-examine the author.” Engage with the section 3 factors and explain why admission does not serve the interests of justice on these specific facts.
If you manage CCMA arbitrations
The difference between admissibility and weight is not a technicality it is the difference between a sound process and a reviewable irregularity. Brief your representatives accordingly. The cases in this article all involved errors that could have been avoided with better preparation and a clearer understanding of what section 3 actually requires.
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