At both a disciplinary hearing and arbitration, both parties (the employer and the employee) will have the opportunity to state their respective cases to the presiding officer.
They will then be given the opportunity to cross-examine the other party’s witnesses.
During cross-examination, it has always been trite in law that a party must challenge any evidence lead that it does not agree with and state the version presented to the witness.
This principle is probably best described in Small v Smith 1954 (3) SA 434 (SWA) at 438:
Claassen J said: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defense as concerns that witness and if need be to inform him if he has not been notified thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction in defending his own character. It is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.
Once a witnesses’ evidence on a point in dispute has been deliberately left unchallenged in cross-examination and particularly by a legal practitioner, the party calling that witness is normally entitled to assume, in the absence of a notice to the contrary, that the witness’s testimony is accepted as correct. More particular is this the case of the witness is corroborated by several others unless the testimony is so manifestly absurd, fantastic or of so romantic a character that no reasonable person can attach any credence to it whatsoever.”
The opposing parties’ witnesses must be given the opportunity to respond to the witnesses’ versions during cross-examination in a disciplinary hearing and arbitration.
If any version is left unchallenged, the above-mentioned case law describes the significant very well –
“that the witness’s testimony is accepted as correct.”
Therefore, if a party disagrees with the other party’s version, that version needs to be challenged.
The chairperson, or alternatively the arbitrator, will then accept the witness’ testimony as correct if the other party does not accept it.
