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Labour Relations Act, 1995 (Act No. 66 of 1995)

Commission for Conciliation, Mediation and Arbitration

Guidelines on Misconduct Arbitration

B: How to Conduct Arbitration Proceedings

Hearing of evidence (stage 4)

 

(31) The purpose of stage 4 is to record the evidence led by the witnesses and to give each party the opportunity to question the witnesses and to challenge their testimony.

 

(32) At this stage the arbitrator should advise the parties how the evidence is to be presented and tested. When deciding on the form that proceedings are to take, the arbitrator should consider—
(32.1) the complexity of the factual and legal matters involved in the case;
(32.2) the attitude of the parties to the form of proceedings;
(32.3) whether the parties are represented;
(32.4) whether legal representation has been permitted; and
(32.5) the experience of the parties or their representatives in appearing at arbitrations.

 

(33) When an arbitrator adopts the role of finding the facts and determining the probabilities by questioning witnesses and requiring the parties to produce documentary and other forms of evidence, this approach is generally described as being investigative or "inquisitorial". When the parties are primarily responsible for calling witnesses and presenting their evidence and cross-examining the witnesses of the other parties this is generally described as being "adversarial". An inquisitorial approach will often be appropriate if one or both parties is unrepresented, or where a representative is not experienced. Arbitrators adopting an inquisitorial approach must be careful to ensure that the parties are aware of, and have the opportunity to exercise, their rights under section 138(2). An arbitrator may conduct an arbitration in a form that combines these two approaches provided this is done in a manner that is fair to both parties

 

(34) In general it is preferable for witnesses who are still to give evidence to be excluded from the hearing room, unless a party specifically wants such a witness to be present. Arbitrators should advise parties that usually little weight can be attached to corroborating evidence from a witness who was present during the evidence of another witness called by the same party. 10

 

(35) The arbitrator must ask the witness to identify themselves on record and then swear in or, if requested, affirm the witness and advise the witness of the process of questioning.

 

(36) The parties are entitled to question witnesses in a sequence determined by the arbitrator. The party who has called a witness should question the witness to obtain the evidence. (As indicated above, an arbitrator may decide to undertake the initial questioning of a witness.)

 

(37) A party who has called a witness may not cross-examine that witness, even if the arbitrator has asked the initial questions. 11 A party who has questioned a witness may ask additional questions in order to clarify evidence given subsequently.

 

(38) In any arbitration the arbitrator may, at the conclusion of questioning by the parties, question the witness to determine the probabilities of the different versions in the case and assess the reliability of the evidence.

 

(39) When an arbitrator questions witnesses, whether in an inquisitorial or adversarial process, the arbitrator should explain to the parties the reason for seeking this information and must allow the parties to address questions to the witnesses on any issues raised by the additional evidence.

 

(40) The arbitrator may suggest that the parties lead evidence on a particular issue relevant to the dismissal in order to gain a full understanding of the issues in dispute or call a witness for this purpose.

 

(41) The arbitrator may disallow questions or evidence not relevant to the issues in dispute between the parties.

 

(42) The arbitrator must—
(42.1) ensure that the testimony given by witnesses is recorded either electronically or digitally;
(42.2) take notes of the evidence given and keep these notes in a file.

 

 

10 In C/K Alliance (Pty) Ltd t/a Greenland v Mosala NO & others (LC), the Labour Court noted that a Commissioner has a duty to warn a party of the consequences of a witness sitting in the hearing during the testimony of other witnesses. While such a witness is not precluded from testifying, the testimony would carry little or no weight if it had been tailored to be consistent with the evidence of the other witnesses.
11 This prevents a party from putting leading questions (questions that suggest the answer that the party is seeking) to a witness called by that party. This is subject to the limited exception that a party may cross-examine a witness who it has called if the arbitrator rules that the witness is a hostile witness.