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HEARSAY BUT HEARD

In POPCRU obo G Maseko v Department of Correctional Services and Others, Mr Maseko was charged with smuggling dagga to two prisoners for them to sell. A trainee officer received a tip off, and confiscated the drugs from the inmates and discarded them. The two prisoners thereafter reported back to Maseko, who, in anger assaulted one of the inmates. The incident was later investigated and Maseko was charged. The inmates were later released after signing affidavits confirming Maseko as the culprit. The addresses given by the two witnesses turned out to be false, and the they were untraceable. On review of the matter, Maseko argued that the arbitrator should not have a relied on the affidavits, as his representatives could not cross examine the hearsay evidence.

According to the Law of Evidence Amendment Act hearsay evidence may be admissible if in the interests of justice. Accordingly, the following factors need to be considered:
1 - the nature of the proceedings;
2 - the nature of the evidence;
3 - the purpose for which the evidence is tendered;
4 - the probative value of the evidence ;
5 - the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends;
6 - any prejudice to a party which the admission of such evidence might entail; and
7 - any other factor which should in the opinion of the court be taken into account.

Having gone through the above considerations, the court found that the Commissioner’s decision on each of the factors was reasonable. The was evidence was taken as admissible

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