Evidence: Ponnan JA in Pather v Financial Services Board (866/2016) [2017] ZASCA 125 (28 September 2017) has drawn attention to the various tests used when deciding factual issues.  Senior managers would be wise to adopt the ‘clear and convincing’ standard given that arbiters and judges have a wide discretion when considering the requirements of fairness.  Remember that senior managers have to prove the fairness!  The arbiter’s decision only has to be reasonable.  Better to err on the side of applying a higher standard unless the reason for dismissal is based on ‘operational requirements’.

Excerpt from the SCA judgment

“[29] To be sure, a generous degree of flexibility is built into the probability standard. The civil standard of proof does not necessarily mean a bare balance of probability. The inherent probability or improbability of an event is a matter to be taken into account when the evidence is assessed. When assessing the probabilities a court will have in mind that the more serious the allegation, the more cogent will be the evidence required.

As long ago as 1939, Watermeyer JA in Gates v Gates, put the position thus:

‘Now in a civil case the party, on whom the burden of proof (in the sense of what Wigmore calls the risk of non-persuasion) lies, is required to satisfy the court that the balance of probabilities is in his favour, but the law does not attempt to lay down a standard by which to measure the degree of certainty of conviction which must exist in the court’s mind in order to be satisfied.

In criminal cases, doubtless, satisfaction beyond reasonable doubt is required, but attempts to define with precision what is meant by that usually lead to confusion. Nor does the law, save in exceptional cases such as perjury, require a minimum volume of testimony. All that it requires is testimony such as carries conviction to the reasonable mind.

It is true that in certain cases more especially in those in which charges of criminal or immoral conduct are made, it has repeatedly been said that such charges must be proved by the “clearest” evidence or “clear and satisfactory” evidence or “clear and convincing” evidence, or some similar phrase. There is not, however, in truth any variation in the standard of proof required in such cases. The requirement is still proof sufficient to carry conviction to a reasonable mind, but the reasonable mind is not so easily convinced in such cases because in a civilised community there are moral and legal sanctions against immoral and criminal conduct and consequently probabilities against such conduct are stronger than they are against conduct which is not immoral or criminal’.”

See also: Clear evidence: Needs to be compelling in proceedings