One of the most challenging responsibilities of a disciplinary chairperson is determining which version of events to accept when witnesses provide conflicting accounts. This situation arises regularly in workplace misconduct hearings, particularly where there is no CCTV footage, documentary proof, admission or independent eyewitness. Instead, the outcome often depends on how effectively the chairperson evaluates the evidence before them. It is sometimes assumed that the chairperson’s role is simply to decide which witness appears to be telling the truth. In reality, South African labour law requires a far more objective approach. A disciplinary hearing is not about deciding which witness appears the most convincing or confident. Rather, it requires the chairperson to evaluate all the relevant evidence and determine which version is more probable when the totality of the evidence is considered.
Unlike criminal proceedings, where guilt must be proved beyond a reasonable doubt, disciplinary hearings apply the civil standard of proof. The employer is required to prove misconduct on a balance of probabilities, meaning the chairperson must decide whether it is more likely than not that the misconduct occurred. This approach is well established in South African labour law and is consistent with the Constitutional Court’s decision in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC), which emphasised that findings of misconduct must be based on a proper and objective assessment of the evidence.
Factors for Chairpersons to Consider When Faced With Conflicting Versions of Events
South African courts have consistently held that three interrelated factors must be considered together: credibility, reliability and probabilities. This approach was established by the Supreme Court of Appeal in Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA). The Court made it clear that factual disputes cannot be resolved by focusing on only one of these considerations. Instead, each factor must be weighed together before a conclusion is reached. None of these considerations are decisive in isolation. A witness may appear credible but be mistaken, reliable on certain aspects but not others, or ultimately be contradicted by the objective probabilities. It is only after evaluating all three considerations together that the chairperson can properly determine which version is more probable.
Credibility is often the starting point, but it should never be the sole consideration. A witness who appears confident may nevertheless be dishonest, while an anxious witness may simply be uncomfortable giving evidence in a formal hearing. Confidence is not, in itself, an indicator of truthfulness. Instead, chairpersons should consider whether the witness answered questions directly, remained consistent throughout the hearing, contradicted previous statements, exaggerated material facts or had any reason to fabricate evidence. Credibility is established through consistency, logic and the overall quality of the witness’s evidence, rather than personality or demeanour alone.
Reliability is a separate enquiry. A witness may honestly believe their version is correct but still be mistaken. Chairpersons should therefore consider whether the witness had a proper opportunity to observe the incident, how much time has passed since the event, whether their recollection remained consistent and whether their evidence is supported by objective material. In many cases, reliability depends less on honesty than on the witness’s opportunity to accurately observe and recall what occurred. Objective evidence will often provide the strongest support for one version of events. Human memory is inherently imperfect, and witnesses frequently recall the same incident differently. By contrast, contemporaneous records often provide more reliable assistance when determining what actually occurred. Depending on the nature of the allegation, such evidence may include CCTV footage, emails, WhatsApp messages, stock reports, financial records, biometric access records, GPS data, incident reports or delivery documentation. Consider a stock loss investigation. One employee insists the stock was delivered, while another maintains that it never arrived. Rather than deciding which employee appears more believable, the chairperson should first examine the delivery notes, stock reports, inventory records, CCTV footage and any electronic communications relating to the delivery. Those records may ultimately provide more reliable evidence than either witness’s recollection.
Once credibility and reliability have been assessed, the chairperson must stand back and consider the probabilities. The question is not whether one version is merely possible, but whether it is more probable than the other when all the evidence is considered collectively. The Labour Appeal Court reaffirmed this principle in Sasol Mining (Pty) Ltd v Ngqeleni NO and Others (2011) 32 ILJ 723 (LAC), holding that where mutually destructive versions exist, the decision-maker must determine which version is more probable after evaluating credibility, reliability and probabilities together. Simply stating that two conflicting versions exist is insufficient. The chairperson should explain why one version has been accepted and the other rejected. Cross-examination plays a crucial role in this process. Its purpose is not to intimidate witnesses but to test the reliability and credibility of their evidence. Proper cross-examination may expose inconsistencies, improbabilities and contradictions that are not apparent during evidence-in-chief. Where material aspects of a witness’s evidence are not challenged during cross-examination, this may strengthen the weight to be attached to that evidence, particularly where it is supported by objective documentation. Nevertheless, the chairperson must still evaluate that evidence against the probabilities and the evidence in its entirety before reaching a conclusion.
A properly reasoned finding should clearly demonstrate the chairperson’s reasoning process. It should identify the evidence that has been accepted, explain why certain witnesses were found to be more credible or reliable, consider any objective evidence supporting or contradicting the competing versions, and explain why the accepted version is more probable on the evidence presented. In ABSA Investment Management Services (Pty) Ltd v Crowhurst [2006] 2 BLLR 107 (LAC), the Labour Appeal Court confirmed that credibility findings cannot be divorced from the probabilities and the evidence viewed as a whole. Similarly, in Khumalo v South African Local Government Bargaining Council and Others (2017) ZALCCT 8, the Labour Court confirmed that review courts will generally be reluctant to interfere with factual findings that are properly reasoned and supported by the evidence.
Conclusion
Ultimately, the role of a disciplinary chairperson is not to determine who speaks most confidently or who presents the better performance in the hearing room. The responsibility is to objectively assess all the relevant evidence, apply the correct legal principles and provide clear reasons for the decision reached. A chairperson who follows this structured approach promotes both procedural and substantive fairness and helps reduce the likelihood of the outcome being successfully challenged before the CCMA or the Labour Court.
