Hillside Aluminium (Pty) Ltd v Mathuse (D178 /2014) [2016] ZALCD 10 (24 May 2016) per Prinsloo J.

The Labour Court reviewed and set aside an arbitral award because reference was made to the record of the internal disciplinary proceedings without the record having been agreed to as evidence.  It is important to agree before the arbitration how the record, if it exists, will be treated.

There are three possible scenarios:

  • Where there is no agreement on the authenticity or status of documents or where the authenticity is disputed.

“In such instances the party wishing to produce a document and wants to rely on the document as evidence, has to prove the authenticity of the document by leading evidence and if the authenticity is not proved or admitted, the document is inadmissible, may not be used in cross-examination and cannot be considered as evidence”.

  • Where parties agree that documents are what they purport to be.

“This means that the party wishing to rely on the document, does not have to prove the authenticity of the document but may lead evidence and rely on the document on the basis that it is what it purports to be.  In this instance documents must be introduced as evidence and cross-examination on such documents is permissible.  The presiding officer can accept the document as evidence insofar as it was properly introduced by witnesses.  Where a document is agreed to be what it purports to be, but no evidence is adduced on the document, the presiding officer cannot mero motu consider such document as evidence merely because it is included in a trial bundle”.

  • Where the parties agree that the documents in the bundle should be regarded as evidence.

“In this instance the presiding officer is entitled to accept the contents of the documentary evidence as if it were evidence adduced before him or her and even if no witness testifies about it, it can be considered as relevant and admissible evidence”.

Excerpts

“[61]    Where the document is a transcript or record of another proceeding, the same principles apply.  Where the parties agreed that the transcript is what it purports to be and a true reflection of what purports to be recorded, it means that the record is authentic and correctly reflects that the proceedings indeed took place.  In this scenario contradictions in testimony could be canvassed during cross-examination.  The presiding officer is entitled to consider the portions of the transcribed record that were introduced by witnesses, either in evidence in chief or cross-examination, as evidence.  The presiding officer cannot merely accept the entire record as evidence, but can accept as evidence those portions introduced by witnesses.

[62]      Where the parties agreed that the entire transcript should be regarded as evidence before the presiding officer, the entire record could be considered and accepted as if it was evidence that was adduced before the tribunal where it was introduced, without the need for evidence to be adduced on it.  In this scenario the evidence given at the disciplinary hearing is regarded as evidence at the arbitration.  This is an extraordinary scenario and requires an explicit and clear agreement between the parties.

[63]      In casu it is common cause that the parties agreed that the record of the disciplinary hearing was what it purports to be and that it was a fair reflection of what transpired.  As such the parties could use the record in cross-examination and as part of the evidence they wanted to introduce”.