INITIALLY it seems strange perhaps: a child rape case combined with a dismissal dispute at the Labour Court. Yet it has resulted in a landmark decision that could benefit many vulnerable witnesses in future.
The case concerns a young woman, raped by her police officer father, RM, over several years starting when she was 14. After his arrest in 2009 he faced both a criminal trial and a disciplinary hearing in which it was alleged he had prejudiced SAPS discipline and contravened its code of conduct.
Having heard all the evidence the presiding officer at the disciplinary hearing found RM guilty and he was dismissed. When RM had no success via an internal appeal, he referred an unfair dismissal dispute to the Safety and Security Sectoral Bargaining Council for arbitration.
Start from scratch
The matter had to start from scratch before the arbitrator, and this is where the difficulties began, understandable though they were: RM’s daughter refused to testify again. Accordingly, SAPS could not call the original key witness. In the interests of justice, said SAPS, the transcripts should be admitted as hearsay. But though the commissioner agreed to admit the transcripts, she found the resulting weight of evidence against RM “minimal” without the actual testimony of the daughter. She ruled RM’s dismissal substantively unfair and ordered his reinstatement.
It was this decision that the minister of police challenged in the labour court before Judge Belinda Whitcher.
The judge first examined in detail the evidence given at the first hearing. RM’s daughter, K, told the internal disciplinary hearing how her father used his police belt to beat her and her brother S, and that she was very afraid of him. In 2004, when she was 14, he came into her room and raped her. Over the next four years he continued to sexually abuse her. As he was a member of the police VIP protection unit he worked unusual hours so father and daughter were often at home alone together. Later in 2004 she became pregnant and informed her father who insisted she have an abortion. Her new step-mother went with her to the government hospital for the operation. Then she discovered her father was HIV positive and when she was tested she found she was also HIV positive. This was at a time when she had had sex with no other person than her father.
Matters came to a head when, aged 18, she started dating a boy at school and told him what was happening to her. On his advice she reported the continuing abuse to social workers. Her father was arrested but denied the whole story claiming it was lies and that the daughter was put up to it by his former in-laws.
The next part of the story, about the quality of the evidence emerging from the hearing, is crucial for what comes later: Judge Whitcher said the transcripts revealed the presiding officer, a senior superintendent, had run the hearing in a “tight, fair and professional manner”. All parties were treated fairly with adequate time to prepare and present their case. Relevant and probing questions were asked of witnesses. Even RM had no quibbles about the procedural fairness of his dismissal. A professional transcription service was used to transcribe the record. The daughter’s evidence was well corroborated, she withstood detailed cross-examination and her evidence emerged as far more plausible than that of her father.
When the matter came to the labour court the minister claimed the commissioner failed properly to apply her mind to the evidence before her. The commissioner required corroborating evidence for the hearsay transcripts, by way of witnesses or additional documents against RM, and because these were not available she concluded that the weight of the evidence in the transcripts was minimal. The commissioner came to the “unreasonable conclusion” that SAPS failed to prove its case on a balance of probabilities, said the minister.
So what would the labour court make of the situation? The judge said she had some sympathy for the approach of the commissioner. “She trod a well-established labour law path” in admitting the transcribed records but giving little weight to them in the absence of other hard evidence that would go to make up the rest of the ‘factual jigsaw”.
But, said the judge, just as it would be an error to give hearsay evidence too much weight, so the opposite would also be true and not giving hearsay evidence proper weight in appropriate cases might also have a distorting effect. When this happened the award would be reviewable by the court.
In this matter the commissioner “did not seem to realise that the transcripts before her were no ordinary hearsay”. They were hearsay “of a special type”. Together they made a “bi-lateral and comprehensive record” of the earlier hearing in which the daughter’s evidence was corroborated by at least two other witnesses, with their evidence surviving rigorous cross-examination, and with RM’s own version being fully ventilated and “exposed as implausible”.
A reading of the transcripts would convey “to a reasonable commissioner” that the daughter’s evidence was credible and persuasive. The judge explained in detail the quality of evidence demonstrated in the record and concluded that transcripts such as those in this case must be given greater weight than “simply hearsay”: they “constitute a comprehensive and reliable record of a prior quasi-judicial encounter between the parties”.
The judge concluded that “in appropriate factual circumstances” evidence such as a transcript of a properly run internal hearing would carry enough weight to require the accused employee to rebut the allegations in the hearsay. In this case, for example, a reasonable decision-maker “would have appreciated that the transcript did not contain mere allegations but rather tested allegations and a tested denial”.
Judge Whitcher gave a number of guidelines for what would constitute “appropriate factual circumstances” to depart from the norm as in this case, and those involved in such cases will surely find them invaluable.
She also commented on the daughter’s unavailability as a witness at the SSSBC hearing. While her father claimed it showed she had fabricated the allegations, the judge pointed out that the daughter did not simply refuse to testify: she gave “two cogent reasons”, namely that she was no longer prepared to subject herself to the recurring trauma of giving evidence, and that she was undergoing therapy which would be compromised if she opened old wounds again.
In conclusion the judge said the situation SAPS found itself in in this case may not be unique. The labour relations system was designed to give dismissed employees a fresh opportunity to fight their case at another forum, but sometimes that meant “vulnerable classes of victims, such as children” would have to testify “at least twice” before “an offending employee can finally be removed from service”.
The consequences when those in the position of the daughter in this case felt they could not re-open old wounds “is that employees who committed very serious misconduct escape accountability and are reinstated to the very positions of trust they earlier abused.”
She said one way of minimising the secondary trauma of vulnerable witnesses was for all parties involved in an internal hearing to ensure that a “good record of a procedurally fair enquiry” was created.
For the judge the matter ended with her order setting aside the arbitration award and ordering the matter to be heard again, before a new commissioner.
But for others involved in cases where vulnerable witnesses who give excellent evidence found to be corroborated and plausible, might be reluctant to give evidence a second or even a third time, this decision will have a lasting impact. Imagine for example, a schoolchild or teacher giving evidence of sexual harassment against a school principal, or a worker giving evidence of violent strike action by colleagues, both matters in which the witness will feel, and in fact will be, extremely vulnerable.
Crucially, this new judgment will also alert parties to ensure that the record in such a matter is accurate and complete and that the inquiry is conducted with fairness to all involved. And where that happens it may even encourage witnesses to give evidence at least in the first hearing: where their evidence was found, as was the daughter’s in this case, to be plausible, corroborated and unshaken, witnesses could feel confident that the outcome might not be prejudiced if they were then to decide not to testify in any other forum.
This column first appeared in Legalbriefs 31 August 2016