It very often happens that employees and employers seek legal advice and guidance when preparing for arbitration and when advised that based on the facts of the case that they have excellent prospects of success, they then feel confident that the matter can be handled by themselves.
The problem with this is that there are certain rules as to how evidence must be dealt with (even though Commissioners are specifically enjoined and empowered by s138 of the Labour Relations Act to avoid legal formalities ! ).
For those that are not familiar with the process that is followed in regard to a witness giving evidence, the sequence of events is as follows: the witness starts by being asked questions so that they provide their version of events (called evidence in chief); the witness’ evidence in chief is then challenged by the opposing side (called cross-examination), and the witness then has the opportunity to clarify any contentious issues that have arisen during cross-examination (called re-examination).
It is the cross-examination component where a case that should be won can so easily be lost by making a simple mistake.
Litigants often think that once they have torn shreds off the witness and shown them to be an unreliable or dishonest witness, and having completely and successfully vaporised the witness, that their case is won, and there is thus nothing further required of them in terms of cross-examination. However, this is not correct.
So, the question then is what is the mistake that can prove to be fatal to a case despite a seemingly outstanding cross-examination?
While cross-examination is a right, it also imposes obligations, and the answer to the question is to ensure that whatever version of events one intends to present, that this version must also be put to the witness so that they have a chance to dispute that version.
For example, if Mr A will give evidence that he was bullied or forced by Mr B to tell a lie to the employer to protect Mr B, and which Mr A did not want to do, then it is essential that Mr B is told that the evidence that will be presented by Mr A be that he was bullied or forced by Mr B to tell a lie to the employer to protect Mr B, ie. Mr B must have the chance to respond/challenge the correctness of what Mr A will say.
It is an essential part of the administration of justice that a cross-examiner must put as much of his case to a witness as concerns that witness.
The failure to do this is material and the courts have found it to be a gross irregularity for a commissioner to accept evidence where a version was not placed before witnesses.
An example of this is where a commissioner was found to have committed a gross irregularity when she accepted a version that the disciplinary hearing was procedurally unfair when this version was not put to any of the witnesses in cross-examination.
The witnesses should have had an opportunity to challenge the evidence.
Put differently, the witness’ attention must be drawn to a particular point which is suggested as not being the truth, and then be given the chance to provide an explanation as to why he is in fact telling the truth.
If you do not do this, then the evidence may be accepted as being true.
Whilst it is easy to keep this rule in mind, what is not quite as easy is to identify exactly what the essential parts are of a case in order to win the case, and to then make sure that all those essential parts are put to the witness in cross-examination.
With the correct guidance, in preparing for a case or having good legal representation can be the difference between winning or losing what should be a winning case.
Article written by Craig Berkowitz
Specialist Labour lawyer and Acting Judge in the Labour Court of South Africa