EVALUATING EVIDENCE

ON A BALANCE OF
PROBABILITIES

Judith Griessel

Judith Griessel

Labour Law Specialist, Legal Consultant and Accredited Mediator

Published Aug 18, 2015
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Employers, chairpersons or arbitrators are often confronted

with situations where the evidence around alleged misconduct
of an employee comes down to the word of one person against
that of another; or where there are several possible
explanations or versions around alleged misconduct. How
should such a matter be decided in terms of the rules of
evidence?
It is trite that the employer bears the onus to prove its allegations
against an employee on a balance of probabilities. This standard
must be distinguished from the standard applied in criminal cases,
namely proof beyond a reasonable doubt. An employer is not
required to prove the commission of misconduct by an employee
beyond a reasonable doubt — i.e. that if any reasonable doubt or
possibility of another explanation exists as to the employee’s guilt,
he cannot be found guilty. Confusion as to the standard of proof
often leads to a defendant thinking it sufficient to ‘poke holes’ in
the version of the employer’s witnesses to create doubt or offer
other possibilities, but then fails to present an alternative probable
version of his own. In weighing up the probabilities, the chairperson
is not required to exclude every possible doubt in order to conclude
the employee’s guilt.

It is also important to note that all of the evidence together must be

evaluated to determine the matter - the credibility of individual
witnesses and the probability or improbability of what they say
should not be regarded as separate enquiries to be considered
piecemeal. They are part of a single investigation into the
acceptability or otherwise of the employer’s or the defence’s
version. The version presented by the employer to substantiate the
allegations of misconduct, must be found on the whole to be more
probable or likely than that of the employee. In Minister of Safety
and Security v Jordaan t/a Andre Jordaan Transport (2000) 21
ILJ 2585 (SCA), it was held that the inference drawn from the
evidence just has to be ‘the most natural or acceptable inference’,
and not the only inference. In Bates and Lloyd Aviation (Pty) Ltd
and Another v Aviation Insurance Co (1985) 3 SA 916 (A) it was
held as follows: ‘The process of reasoning by inference frequently
includes consideration of various hypotheses which are open on the
evidence and in civil cases the selection from them, by balancing
probabilities, of that hypothesis which seems to be the most natural
and plausible (in the sense of acceptable, credible or suitable).’
According to the Labour Court in Potgietersrus Platinum Ltd. v
CCMA (J1459/98 of 30 July 1999), it is merely required of the
employer to show that circumstantial evidence that an employee is
guilty of the misconduct, is more plausible than the possibility that
he/she did not commit the misconduct. Should the employer be
able to demonstrate a sufficient evidentiary basis to implicate the
employee on a balance of probabilities, a mere and persistent
denial by an employee without offering an actual version in answer
to the evidence of the employer, is not a sufficient defence. As
pointed out by the court, consistent denial does not constitute an
alternative persuasive version and undue weight should not be
attached to this as opposed to detailed, consistent, corroborated,
and essentially unchallenged evidence presented by the employer.
Should the employer demonstrate a sufficient evidentiary basis to
prima facie implicate the employee on a balance of probabilities,
the onus to prove whatever defence / explanation he offers, lies
with the employee.

A finding on a balance of probabilities is also not merely a

mechanical balancing of evidence – or for that matter, the number
of witnesses on each side. In Selamolele v
Makhado 1988 (2) SA 372 (V) at 374J–375B the approach to the
question whether the onus has been discharged was dealt with as
follows: “Ultimately the question is whether the onus on the party,
who asserts a state of facts, has been discharged on a balance of
probabilities and this depends not on a mechanical quantitative
balancing out of the pans of the scale of probabilities but, firstly, on a
qualitative assessment of the truth and/or inherent probabilities of
the evidence of the witnesses and, secondly, an ascertainment of
which of two versions is the more probable.”

In the recent case of Assmang Ltd (Assmang Chrome Dwarsriver

Mine) v Commission for Conciliation, Mediation and Arbitration
and others [2015] 6 BLLR 589 (LC) the Labour Court has considered
what it means to discharge an onus on a balance of probabilities. It
stated that it is not enough for the chairperson to simply find that
the evidence seems to be evenly balanced (or that neither side’s
evidence had been discredited) and that therefore the employer
had not discharged its onus - especially if the evidence on both
sides are diametrically opposed and mutually destructive. The
conflicting versions must be weighed up against the inherent or
general probabilities of the matter and a finding must be made.
Both versions cannot be allowed to stand and a finding made on
onus alone. The court stated that the enquiry is two-fold: there has
to be balancing of the probabilities; and there has to be a finding
on credibility of the witnesses.

In this regard the court referred to the matter of Stellenbosch

Farmers’ Winery Group Ltd and another v Martell et Cie and
others 2003 (1) SA 11 (SCA) where the Supreme Court of Appeals
has laid out the accepted test applicable to both a trial court and an
arbitrator when faced with a factual dispute, in particular when
faced with two irreconcilable versions. According to this judgment
(at para 5) the court had to come to a conclusion on the disputed
issues by making findings on (1) the credibility of the various factual
witnesses; (2) their reliability; and (3) the probabilities:

1. The court’s finding on the credibility of a particular witness

will depend on its impression about the veracity of the
witness. This finding will, in turn, depend on a variety of
subsidiary factors, such as -

 the witness’ candour and demeanour in the witness-box;

 his or her bias, latent and blatant;

 internal contradictions in his or her evidence;

  external contradictions with what was pleaded or put on
his or her behalf, or with established fact or with his or her
own extra-curial statements or actions;

 the probability or improbability of particular aspects of his

or her version; and

 the calibre and cogency of his or her performance

compared to that of other witnesses testifying about the
same incident or events.

[In ABSA Investment Management Services (Pty) Ltd v

Crowhurst [2006] 2 BLLR 107 (LAC) the Labour Appeal Court held
that although our courts have on many occasions cautioned against
attaching undue weight to witnesses' demeanour, an assessment of
credibility goes much further. It involves an assessment of how
witnesses fared especially under cross-examination and in light of
the probabilities pertaining to the particular dispute.]

2. A witness’ reliability will depend, apart from some of the factors

above, on

 the opportunities he or she had to experience or observe

the event in question; and

 the quality, integrity and independence of his or her recall

thereof.

3. Finally, an analysis and evaluation of the probabilities and

improbabilities of each party’s version on each of the disputed
issues are necessary components in coming to a conclusion.

In this regard, another important evidentiary rule pointed out by the

Labour Appeal Court in ABSA Brokers (Pty) Ltd v CCMA &
others (JA45/03 of 26 May 2005) was that “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 (see Van Tonder v
Killian NO en Ander (1992) 1 SA 67 (T) at 721). 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 evidence of
the witness should be rejected. The witness’ attention must first be
drawn to a particular point on the basis of which it is intended to
suggest that he is not speaking the truth and thereafter be afforded
an opportunity of providing an explanation (see Zwart and Mansell v
Snobberie (Cape) (Pty) Ltd 1984 (1) PH F19 (A)). A failure to cross-
examine may, in general, imply an acceptance of the witness’
testimony...”

In the light of its assessment of all of the above factors the

presiding officer will then, as a final step, determine whether the
party burdened with the onus of proof has succeeded in
discharging it. As said the court in the Stellenbosch Winery case -
the hard case would occur when the credibility findings compel it in
one direction and its evaluation of the general probabilities in
another. The more convincing the former, the less convincing will be
the latter. But when all factors are equipoised, probabilities prevail.

Judith Griessel

August 2015

This article is subject to copyright. All rights are reserved.

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379 Comments
Thembinkosi Nhlapo

Labour Relations Officer

2y

Wonderful piece Judith Griessel Remarkable Writing Skills and insightful information. Keep it up.

👏🏾

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Tholthemba Shoba

Entrepreneur - Zwelabasha Electronics & Media Services

4y

excellently explained....thanks, very helpful

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Johann Scheepers
Labour Litigation Consultant & Conflict Resolution Specialist & Facilitator.
7y

Concisely explained and very informative. Good article Judith. Regards, JS

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George Vorster