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PROCEDURAL FAIRNESS - WITNESS STATEMENTS

Whilst there may not be any specific legislation concerning the submission or taking of statements, there is a right way and a wrong way to do it and the courts have given us some guidelines as to what a statement should entail in order for it to be of any probative value.


The Industrial Court formulated a test that should be applied when deciding whether or not written statements should be admitted into evidence:


“That the rule of thumb by which an adjudicator decides whether to admit or exclude an oral or written statement tended as evidence should be whether the statement is relevant, reliable and logically probative and of such a nature that responsible people would rely upon it in serious affairs.”


If the statement does not comply with the requirement, then it should not be accepted.


A written statement, whether it is an affidavit (sworn statement in front of a Commissioner of Oaths) or a plain statement, can make or break a case and especially when the deponent is under cross-examination. If a statement of an affidavit is badly taken down, badly worded, or vague, the other side will tear that evidence to pieces. You should also consider whether you want to use the statements during the hearing or whether it is only for preparation or investigation purposes. There is no rule stipulating that the statement or affidavits must be submitted, it depends on the Initiator. It must be remembered that obtaining statements is one method used to obtain all the relevant facts concerning a reported offense, and these facts are used by the investigator or Initiator to decide whether or not a disciplinary hearing should proceed.


The statements introduced into evidence must be supplied to be accused employee before the time to give them an opportunity to prepare and the deponent appears as a witness to confirm what they had said in the statement and can also be subjected to cross-examination.


It is therefore vital that the statement be accurate, that the deponent is fully familiar with the contents, have read and confirmed the contents before the hearing, and that the deponent be 100% sure of and fully familiar with the evidence that they give. Investigators should carefully consider whether they want to submit the statements to the other side or even during the hearing. Because the deponent will testify, it is strictly speaking not necessary to supply the statements. It forms part of the preparation material of the Initiator.


If it is submitted, the written statement and the oral evidence of the deponent must be able to withstand the sometimes-rigorous test of cross-examination.


A statement is a written account of the experiences or an account of what the deponent witnessed or experienced. Its value lies in the fact that it is given shortly after the incident and when the facts are still clear in the witnesses’ minds. By the time the hearing starts, facts might have faded, and the statements then play a valuable role.


How to take down statements?

The statement can be written down either by the investigator or by the deponent.


It is usually better for the investigator to write down what the deponent is relating to because it will enable the investigator to ask clarifying questions where any clarification is required. The statement should however be taken down as accurately as possible, and the investigator should heed against writing their interpretation instead of what the witness is saying, therefore, in asking such questions, the investigator must be careful to be aware at all times that they are only to record of the facts as related by the deponent, and they must not put ideas into the deponent’s head or put words into their mouth.


Immediately after the statement is written down, the deponent must have the opportunity to read the statement and make amendments if necessary.


Statements should be taken down in the language of choice of the deponent. If necessary, it can be translated later. Initiators should heed against practices such as taking down a statement in English whilst the deponent is giving their version in Afrikaans, Xhosa, or any other language. A written statement ensures a relatively permanent record of the facts of a particular occurrence or event.


The written statement is available long after it was dictated or taken down, and even if the Disciplinary Hearing only takes place months after the event, witnesses can again read the statements they made to refresh their memory of the evidence to be led.


The deponent had the right to peruse their statement prior to the Disciplinary Hearing, or even during the proceedings by agreement with opposing parties. In fact, it is a practice that the Initiator should adopt to ensure that the witnesses read the statements before they testify.


In short, the statement is a source that can be utilised at the proceedings, from which information can be obtained regarding a certain event or occurrence.


The following points should be borne in mind and applied to obtain a proper statement:


(a) Time and accuracy

Statements should be taken as soon as possible after the incident, preferably the same or at least the next day.


A statement that does not reflect the true facts of the situation has no value at all. Statements must therefore always be checked against other evidence if possible, because it must be remembered that the accused may lie, witnesses may sometime lie or have an incorrect recollection of events in order to protect themselves or to protect the accused, but facts never lie.


After the statement has been taken down, the investigator should check it for accuracy or credibility by comparing what the deponent has stated in terms of other evidence obtained.


Evidence must never be put in a statement and if the deponent is in a highly excited or emotional frame of mind, rather postpone the taking down of the statement.


In order to be accurate, the statement should contain answers to the questions:

  • Who?

  • What?

  • Where?

  • When?

  • How?

(b) Contamination and completeness

Although statements should be as complete as possible, deponents should be alone when you take down statements. Do not do it in the presence of other witnesses as they may influence and contaminate each other. Also warn the witnesses not to discuss the case, if at all possible.


Always remember that a certain piece of evidence may result in the accused being convicted or acquitted. All facts relating to the case should be noted and the deponent must not leave out any facts which may be relevant, whether they are in favour of or prejudicial to anyone involved in the case.


(c) Be concise

The person taking down the statement must be careful to ensure that the deponent does not end up dictating an incomprehensible, lengthy, and incoherent document. Be patient, listen carefully to what the deponent says, eliminate irrelevant information or opinions and write down only the relevant facts. The statement must be concise and must be confined to the facts.


(d) Objectivity

Remember that it is your job to find the facts, not to get the accused employee found guilty at no cost! Never influence the deponent while they are relating their story. Any interpretation of the facts or circumstances must be entirely the deponent’s interpretation. Leading or suggestive questions or even your facial expressions that show surprise, disbelief, etc. may influence the deponent into changing their story and this is unacceptable.


If you are taking a statement from an Initiator, always try to put an Initiator at ease and it is advisable, in the case where a female has been involved in an embarrassing situation, rather than have another female take down the statement. If a male is taking down the statement from a female, there should always be another female present as an observer.


(e) Comprehensibility

The deponent should relate the facts in a logical order so that anyone reading the statement will have no difficulty understanding it. Verbosity, ambiguity, and flowery language must be avoided.


(f) Honesty

The old proverb “honesty is the best policy” has never lost its value and truth. The person taking down the statement must always ensure that the facts are correctly recorded, irrespective of who and what is involved, and the person taking down the statement must never try to change the wording used by the deponent in order to try and gloss over, or minimise, or even emphasize the importance of the spoken word.


(g) Statements made voluntarily

No person can be forced to make a statement. However, in the case of the Initiator or victim, they are usually cooperative and very keen to make a statement in order to obtain retribution against the perpetrator.


Initiators and witnesses should be treated with the utmost courtesy because without their help, you will have a hard time proving your case.


(h) Language

A statement taken down in writing should be in the language in which it was made. This may necessitate obtaining the services of a person who can speak, read, and write the language of the deponent fluently, and this person will take down the statement.


The statement will then be read over to the person who has made it, or preferably the deponent should be permitted to read through their own statement if possible.


Ideally, a statement should not contain any corrections, alterations, additions, or deletions. It is best, if mistakes are made, to write the entire statement over with no alterations, corrections, additions, or deletions.


(i) Sworn statements or statements taken under oath

In a very serious matter, such as sexual harassment involving a director or CEO of the organisation, it would be best to have the Initiator make a sworn statement. For this purpose, you may wish to take the Initiator to the company lawyer or to the police station or Post Office where the statement can be made in the presence of a Commissioner of Oaths.


The most important factor in a sworn statement is that the current of the statement must be the “truth, the whole truth, and nothing but the truth”.


It is virtually important that the deponent be fully aware of this, because making a sworn statement is the same as giving evidence under the oath in Court, and any lies or untruths told in the sworn statement amounts to perjury which is a serious criminal offense.


The deponent therefore must be under no illusions and be in no doubt about the requirement, to tell the truth in a sworn statement. The person writing down the statement must ensure that the exact words as uttered by the deponent are recorded. This person must also ensure that sentences are constructed correctly to avoid ambiguity and that the tense, verbs, and spelling is correct.


Near synonyms of the actual words spoken by the deponent and taken up in the statement may change the factual essence of the account related by the deponent.


For this reason, it becomes of even greater vital importance that the deponent themselves must read the statement prior to signing it.


In gathering evidence, remember:

  • Establish the facts (not opinions or hearsay).

  • Take statements from witnesses and collect physical evidence.

  • Questions, check and compare witnesses’ evidence and weed out the improbabilities and contradictions.

  • Question the accused and obtain their version of the incident.

  • Take down a statement from the accused.

  • Examine all the evidence – decide on the probability and the elements of the transgression.

  • Keep a record of everything and decide if you have enough to make a case or lay a charge.


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