The admission of hearsay evidence, evidence obtained from entrapment and the interception and and monitoring of communications in arbitration proceedings conducted in terms of the Labour Relations Act, 1995.

Abstract

The law of evidence takes quite a rigid stance in criminal courts in order to afford an accused person a fair trial, as envisaged by the Constitution. It thus follows that the standard of proof in criminal courts is beyond a reasonable doubt. In civil courts the standard is not as high, and is thus based on a balance of probabilities. Nonetheless, civil court proceedings have to afford fairness to all parties in a particular matter. Part of achieving fairness requires adherence to the rules of evidence. In any case, evidence plays a crucial role in determining a case. It is thus of paramount importance to follow the rules of evidence when deciding whether to admit or reject evidence, its evaluation and the weight to attach to it. The Commission for Conciliation Mediation and Arbitration (CCMA) is a statutory body established to process labour disputes with minimum of legal formalities, and in the shortest time possible due the amount of disputes that it deals with, in light of its easily accessible services. The CCMA is not a civil court. Thus CCMA proceedings are not civil proceedings. The environment of CCMA proceedings should not duplicate court proceedings because of the informal nature of the CCMA. However, this informality should not cause commissioners or arbitrators to not deal with the merits of any matter in which they are presiding over. A number of arbitration awards have been successfully reviewed due to errors committed by arbitrators, with regard to evidentiary errors. This paper will look into the admissibility of some of the most testing kinds of evidence to deal with, namely: hearsay evidence, evidence obtained from entrapment and evidence obtained from the interception and monitoring of employees telecommunications. This paper will also assert to clarify when such evidence should be admitted and when it should be rejected, in light of the CCMA not conducting civil proceedings yet still having a standard of proof based on a balance of probabilities.