8.1.2 Cooper and another v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA)

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1 8 EVIDENCE 8.1 Balance of probabilities Govan v Skidmore 1952 (1) SA 732 (N) Cooper and another v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA) 8.2 Evaluating evidence - relevance admissibility and weight Stellenbosch Farmers Winery Group Ltd and Another v Martell & Kie SA and Others 2003 (1) SA 11 (SCA) and The Director General: Department of Public Works: Limpopo v Sello Jermia Tselane (JR948/09, in Northam Platinum LTD v Fganyago NO & Others [2009] JOL (LC) and Gwala v Commissioner for Conciliation Mediation and Arbitration and Others (D296/11) [2013] ZALCD 11 (14 May 2013) Sasol Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC) BANDA v GPSSBC and another (JR3272/2009) ZALCJHB (26 February 2014) and Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others Moodley v Illovo Gledhow and others (2004) 25 ILJ 1462 (LC) Fourie s Poultry Farm (Pty) Limited t/a Chubby Chick v CCMA & Others [2001] 10 BLLR 1125 (LC) ABSA Brothers (Pty) Ltd v Moshoana NO and others [2005] 10 BLLR 939 (LAC) Assmang Ltd (Assmang Chrome Dwarsriver Mine v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC) 8.3 Failure to call a witness Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 196 (LC) De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) and Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC)

2 8.4 Types of evidence General HEARSAY EVIDENCE Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC) Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and Another (2000) 21 ILJ 1315 (LAC) Swiss South Africa (Pty) Ltd v Louw NO and others (2006) 27 ILJ 395 (LC) Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10)[2013] ZALAC 16 (19 July 2013) NUMSA obo ADAM v Volkswagen South Africa (Pty) Ltd [2002] 9 BALR 967 (CCMA) NUMSA obo Mnisi v First National Battery [2007] 10 BALR907 (NBCCI) NUM & others v CCMA & others [2010] 6 BLLR 681 (LC) CIRCUMSTANTIAL EVIDENCE Duncan Manufacturing v MEIBC and others [2010] ZALC 131 (7 September 2010) and Komape v Spoornet (Pty) Ltd and Others [2008] ZALC National Union of Mineworkers v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd [2015] 10 BLLR 1016 (LAC) EXPERT WITNESS IO Tech Manufacturing (Pty) Ltd and others v Gallager Group Ltd and another [2014] 2 ALL SA 134 (SCA) DOCUMENTARY EVIDENCE Botha v S [2010] 2 ALL 116 (SCA) Trend Finance (Pty) Ltd and another v Commissioner for SARS and another [2005] 4 All SA 657 (C) 8.5 Parole evidence rule Kingswood Golf Estate (Pty) Ltd v Witts-Hewinson and another [2014] 2 ALL SA 35 (SCA) Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC)

3 8.6 Piercing the corporate veil Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and others (2013) 34 ILJ 96 (LAC) and Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) Esterhuizen v Million-Air Services CC (in liquidation) & others (2007) 28 ILJ 1251 (LC) National Union of Metalworkers of South Africa v Lee Electronics (Pty) Ltd and others [2013] 2 BLLR 155 (LAC) Board of Executors Ltd v McCafferty [1997] 7 BLLR 835 (LAC)

4 8. EVIDENCE 8.1 Balance of probabilities In Govan v Skidmore 1952 (1) SA 732 (N) the Court held that it was trite law that in general, in finding facts and making inferences in a civil case, the court may go upon a mere preponderance of probability, even though in so doing it does not exclude every reasonable doubt, so that one may, by balancing probabilities select a conclusion which seems to be the more natural, or plausible conclusion from amongst several conceivable ones, even though that conclusion may not be the only reasonable one In Cooper and another v Merchant Trade Finance Ltd 2000 (3) SA 1009 (SCA), the approach to be adopted when an inference is sought to be drawn from other facts was summarised. The Court in drawing inferences from the proved facts, acts on a preponderance of probability. The inference of an intention to prefer is one which is, on a balance of probabilities, the most probable, although not necessarily the only inference to be drawn. If the facts permit of more than one inference, the Court must select the most plausible or probable inference. If this favours the party on whom the onus rests, he is entitled to relief. If, on the other hand, an inference in favour of both parties is equally possible, the party who bears the onus will not be entitled to relief. 8.2 Evaluating evidence - relevance admissibility and weight In Stellenbosch Farmers Winery Group Ltd and Another v Martell & Kie SA and Others 2003 (1) SA 11 (SCA) the Court held that where a commissioner is faced with two conflicting versions before him the Commissioner must make a finding on the credibility of witnesses and on the probabilities of the two versions, to determine where the truth lies. The question that should be answered is whether the probabilities favour the party that bears the onus of proof. The Court further held that the credibility of a witness is in an extricable manner bound to the consideration of the probabilities of the case, the arbitrator should therefore resort to credibility where the probabilities fail to point which version embraces the truth more. The SCA explained the technique generally used by Courts for resolving factual disputes as one involving the making of findings on:- (a) credibility of the various factual witnesses (will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as:- (i) (ii) (iii) the witness candor and demeanor in the witness-box his bias, latent and blatant internal contradiction in his evidence

5 (iv) (v) (vi) external contradictions with what was pleaded or put on his behalf the probability or improbability of particular aspects of his version the caliber and cogency of his performance compared to that of other witnesses testifying about the same incident or events; (b) their reliability that will turn on the factors (a)(ii), (iv) and (V) on:- (i) (ii) the opportunities he had to experience or observe the event in question; the quality, integrity and independence of his recall thereof. (c) the probabilities, in this regard, it is necessary to analysis and evaluate the probability or improbability of each party s version on each of the disputed issues. In a final step, the Court will then determine whether the party burdened with the onus of proof has succeeded in discharging it. The above test was referred to with approval in the matter of The Director General: Department of Public Works: Limpopo v Sello Jermia Tselane (JR948/09, in Northam Platinum LTD v Fganyago NO & Others [2009] JOL (LC) and in Gwala v Commissioner for Conciliation Mediation and Arbitration and Others (D296/11) [2013] ZALCD 11 (14 May 2013) In Sasol Mining (Pty) Ltd v Ngqeleni NO & Others (2011) 32 ILJ (LC) the Court held one of the commissioner s prime functions was to ascertain the truth as to the conflicting versions before him In BANDA v GPSSBC and Another (JR3272/2009) ZALCJHB (26 February 2014) the Court with approval referred to Standerton Mills (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others where the Court held that Credibility issues are indeed difficult to determine in motion proceedings In Moodley v Illovo Gledhow and Others (2004) 25 ILJ 1462 (LC) the Court held that the arbitrator who sat at the hearing, observed the witnesses, their demeanor and the manner in which they came across and is in the best situation to make credibility findings In Fourie s Poultry Farm (Pty) Limited t/a Chubby Chick v CCMA & Others [2001] 10 BLLR 1125 (LC) the Court noted that where the evidence against the employees was largely circumstantial, such evidence was to be assessed on a balance of probabilities. If an arbitrator introduced the stricter criminal law test of proof beyond reasonable doubt, this would amount to a gross irregularity. Also see OK Bazaars (a division of Shoprite Checkers) v Commission for Conciliation Mediation and Arbitration and others (2000) 21 ILJ 1188 (LC).

6 8.2.6 In ABSA Brothers (Pty) Ltd v Moshoana NO and others [2005] 10 BLLR 939 (LAC) the Court stated that it was an essential part of the administration of justice that a crossexaminer must put as much of his case to a witness as concerns that witness. He has not only a right to cross-examination but, indeed, also a responsibility to cross-examine a witness if it is intended to argue later that the evidenceof the witness should be rejected. A failure to cross-examine may, in general, imply an acceptance of the witness testimony In Assmang Ltd (Assmang Chrome Dwarsriver Mine v Commission for Conciliation, Mediation and Arbitration and others [2015] 6 BLLR 589 (LC) the Court held that assessing whether the onus has been discharged on a balance of probabilities requires a qualitative assessment of the truth or inherent probabilities of witnesses and, secondly, a determination of which version is the more probable. Onus cannot be invoked without considering the probabilities and the credibility of the respective parties witnesses. Failure to assess probabilities, therefore, constitutes a reviewable irregularity. 8.3 Failure to call a witness In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) it was held that an adverse inference will be drawn against a party for failing to testify only if the evidence of the other party calls for reply. It is a prerequisite to the application of the rule that an adverse inference should be drawn from a party s failure to call a witness/es that the evidence that party faces must have been of such a nature that, at the time the other party closed its case, there was sufficient evidence to enable the court to say, having regard to the absence of any explanation, that the other party s version was more probable than not In Tshishonga v Minister of Justice and Constitutional Development and Another (2007) 28 ILJ 196 (LC) it was held that the failure to call a witness is reasonable in certain circumstances, such as when the opposition fails to make out a prima facie case. However an adverse inference must be drawn if a party fails to testify or place evidence of a witness who is available and able to elucidate the fact as this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him or even damage his case In De Beer v Trudon (Pty) Ltd (1994) 15 ILJ 1057 (LAC) the Court with approval referred to the matter of Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ 1057 (LAC) where it was held that an evidential foundation had to be laid and that a party could not merely rely on arguments only, as arguments without a evidential basis would be no more than speculation.

7 8.4 Types of evidence HEARSAY EVIDENCE GENERAL In summary, section 3 of the Law of Evidence Amendment Act 45 of 1988 provides the following in relation to the admissibility of hearsay evidence: Subject to the provisions of any other law, hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless:- a. Each party against whom the evidence is to be adduced agrees to the admission of the evidence at such proceedings; or b. The person upon whose credibility the probative value of such evidence depends, himself testifies at the proceedings; or c. The Court, having regard to:- The nature of the proceedings; The nature of the evidence The purpose for which the evidence is tendered; The probative value of the evidence; The reason why the evidence is not given by the person upon whose credibility the probative the value of such evidence depends; Any prejudice to a party which the admission of such evidence might entail; Any other factor which should in the opinion of the court be taken into account and the court is of the opinion that such evidence should be admitted in the interest of justice In Matsekoleng v Shoprite Checkers [2013] 2 BLLR 130 (LAC) the Court held that the commissioner s decision not to accept into evidence an affidavit made by the alleged donor of milk to the applicant was a material mistake in law. The fact that the respondent could not cross-examine the deponent of the affidavit was not a legally sound ground to have refused admission of the affidavit. This aspect would only have been relevant on the question of the evidential weight the commissioner should have attached to the affidavit. The commissioner should have had regard to section 3 of the Law of Evidence Amendment Act 45 of Further to this the Court held it was improper for the commissioner to have allowed hearsay evidence of the misrepresentation made to the security without due consideration for the exceptions of section 3 and the circumstances in which hearsay evidence can be allowed.

8 8.4.3 In Southern Sun Hotels (Pty) Ltd v SA Commercial Catering & Allied Works Union and Another (2000) 21 ILJ 1315 (LAC) the Court held that the test with regard to the admissibility of hearsay evidence was whether it was in the interest of justice to admit such hearsay evidence In Swiss South Africa (Pty) Ltd v Louw NO and others (2006) 27 ILJ 395 (LC) the Court held that depending on the circumstances of each particular case hearsay evidence may accordingly be admitted to the proceedings before the CCMA. Commissioners were required to deal with their disputes with the least legal formalities and with some flexibility as provided for in section 138 of the Act The Sisonke Partnership t/a International Healthcare Distributors v National Bargaining Council for Chemical Industry & Others (JA51/10)[2013] ZALAC 16 (19 July 2013) the Court with approval referred to the matter of Southern Sun Hotels and that of Swiss South Africa and confirmed the principle that hearsay evidence is allowed if it is in the interest of justice and that it was not irregular for the arbitrator to have relied on the hearsay evidence as the evidence was confirmed by other evidence In NUMSA obo ADAM v Volkswagen South Africa (Pty) Ltd [2002] 9 BALR 967 (CCMA) the commissioner found a written statement by the alleged victim of sexual harassment to be admissible after a qualified psychologist, with a Masters degree in Psychology and 16 years experience in private practice gave expert evidence on the psychological impact of acts of sexual harassment and rape. The commissioner held that it would be more in the interest of justice to admit the hearsay evidence than it would have been to exclude it In NUMSA obo Mnisi v First National Battery [2007] 10 BALR907 (NBCCI) at the internal disciplinary hearing the presiding officer allowed the employer to submit a tape recording where an employee had confessed and implicated the applicants in the theft. The commissioner found that the presiding officer should not have, in the absence of some convincing explanation for why the informer could not be called, have admitted the tape recording. The dismissals were found to be unfair as the presiding officer had based her finding primarily on the tape recording and the employees were reinstated In NUM & others v CCMA & others [2010] 6 BLLR 681 (LC) the Court held that by admitting the hearsay evidence of one of the respondent s witnesses concerning what he had been told by another individual the commissioner had properly applied the provisions of the Evidence Amendment Act 45 of There was, accordingly, no basis on which the commissioner s assessment of the evidence could be faulted. CIRCUMSTANTIAL EVIDENCE In Duncan Manufacturing v MEIBC and others [2010] ZALC 131 (7 September 2010) referred with approval to the matter in Komape v Spoornet (Pty) Ltd and Others [2008] ZALC 72 where the Court held that in assessing circumstantial evidence the arbitrator should always consider the cumulative effect of all the items of the evidence before him or her. In assessing the inference to be drawn from the fact the commissioner should look at the totality of the evidence and weigh it on a balance of probabilities. The inference must be

9 drawn through a careful survey of the connection between the facts and their relationship to the offence alleged to have been committed by the employee. In Komape the Court also cautioned that a distinction must be maintained between permissible inferences and a mere conjecture or speculation In National Union of Mineworkers v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd [2015] 10 BLLR 1016 (LAC) the Court stated that the test for evaluating circumstantial evidence is to establish the most probable inference to be drawn from the proven facts. It is therefore necessary to examine the facts to establish that they are true and proven. EXPERT WITNESS In IO Tech Manufacturing (Pty) Ltd and others v Gallager Group Ltd and another [2014] 2 ALL SA 134 (SCA) the Court confirmed the principle that the opinion of an expert is admissible because it is based on special prior knowledge and skill in a particular subject. DOCUMENTARY EVIDENCE In Botha v S [2010] 2 ALL 116 (SCA) the Court held that in the absence of a challenge by the other party as to the authenticity of the documentary evidence, copies could be accepted on the principle of best evidence In Trend Finance (Pty) Ltd and another v Commissioner for SARS and another [2005] 4 All SA 657 (C) it was held by the Court that a party seeking to rely on section 15(4) of the Electronic Communication and Transaction Act 25 of 2005 must show that the document sought to be admitted is a printout of information existing in electronic form. 8.5 Parole evidence rule The parole evidence rule: Where an agreement has been reduced to writing, the document is to be regarded as the exclusive memorial of the transaction. Therefore, where the wording of the agreement is clear and unambiguous, the parties may not rely on external evidence to demonstrate their intention at the time it was concluded In Kingswood Golf Estate (Pty) Ltd v Witts-Hewinson and another [2014] 2 ALL SA 35 (SCA) the Court held, with reference to the Parole Evidence Rule, that once a contract has been reduced to writing no evidence may be given of its terms except the document itself, nor may the context of such document be contradicted, altered, added or varied by oral evidence.

10 8.5.2 In Denel (Pty) Ltd v Gerber [2005] 9 BLLR 849 (LAC) it was held that the Courts in labour disputes, are not precluded by the parole evidence rule form looking beyond the terms of the contract to determine the true relationship between the parties. 8.6 Piercing the coprorate veil In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and others (2013) 34 ILJ 96 (LAC) the circumstances under which the corporate veil may be lifted, were summarized by reference to the cases referred to in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) where it was held: Over the years it has come to be accepted that fraud, dishonesty and improper conduct could provide grounds for piercing the corporate veil it is undoubtedly a salutary principle that our Courts shall not lightly disregard a company s separate legal personality but should strive to give effect to and uphold it. To do otherwise would negate and undermine the policy and legal consequences that attached to it In Bargaining Council for the Furniture Manufacturing Industry, KwaZulu Natal v UKD Marketing CC and Others (2013) 34 ILJ 96 (LAC) the court again citing Cape Pacific confirmed the principle that fraud, dishonesty or other improper conduct constituted grounds for piercing the corporate veil. However the court also noted that these are not the only grounds that may led to a piercing of the corporate veil because even companies that were not originally incorporated with the intention to deceive, may nevertheless in their operation present a facade that requires a piercing of the corporate veil In Esterhuizen v Million-Air Services CC (in liquidation) & others (2007) 28 ILJ 1251 (LC) the court held that a registered company is a legal persona distinct from its members who compose it. However in certain justifiable circumstances the court could disregard a company s separate personality in order to fix liability elsewhere for what is an act of the company. In so doing the court may shift its focus to the person who controls the company as if there is no separation between the company and that person In National Union of Metalworkers of South Africa v Lee Electronics (Pty) Ltd and others [2013] 2 BLLR 155 (LAC) the Court noted that the appeal raised the question when the corporate veils of corporate entities may be pierced. In terms of the Companies Act 71 of 2008, if a court finds that the incorporation of a company constitutes an unconscionable abuse of its juristic personality, it may declare the company not to be a juristic person in respect of any right, obligation or liability and make any order deemed necessary. The law on the piercing of the corporate veil is not settled: corporate personality may not be pierced when merely considered convenient. There must at least be some abuse of the distinction between the corporate entity and those who control it which results in an unfair advantage to the latter In Board of Executors Ltd v McCafferty [1997] 7 BLLR 835 (LAC) the Court stated that Piercing the corporate veil is understood to mean Disregarding the dichotomy between a company and natural person behind it (or in control of its activities) and attributing liability to

11 that person where he has misused or abused the principle of corporate personality (per Smalberger JA in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 at 802F).