The chairperson of a disciplinary enquiry potentially has two tasks:
- Establish whether guilt has been proven; and, if so,
- Decide on the fairest sanction that ought to be imposed.
So how does the chairperson of the disciplinary enquiry make the first decision, assuming, of course, that the accused employee in the disciplinary enquiry has pleaded not guilty (if the accused in the disciplinary enquiry enters a plea of guilty, the decision to establish whether guilt has been proven is no longer required, as there is no dispute in this regard)?. It is critically important to know the degree of conviction which the chairperson must feel before finding in favour of one party or another, as it greatly aids in the preparation for the enquiry. This degree of conviction is known as the ‘standard of proof’.
South African law recognises three standards of proof (also referred to as standards of review). The first, which applies in criminal matters, is where the State is required to prove beyond reasonable doubt that someone is guilty of an offence. The second, which applies in civil matters, is where a party bearing the onus has to prove his or her case on a balance (or preponderance) of probabilities. The third standard of proof falls beyond the scope of this article and needn’t be discussed here. For context, the criminal standard of beyond reasonable doubt may, in mathematical terms, be equated with a 90% probability. In other words, the likelihood that an accused person has committed a crime must be 90% or higher for him or her to be found guilty of committing a crime. By contrast, the mathematical percentage probability for the preponderance standard is set at 50% plus X, where X is greater than zero.
In a disciplinary enquiry, the standard of proof required is that of civil matters, namely a balance of probabilities. In A Practical Guide to Disciplinary Hearings, Juta, Cape Town 2016, author Michael Oppermann writes that a ‘balance of probabilities’ means “that the version by the party who bears the onus of proof must be more probable than the opposing party’s version, i.e. it is more probable than not that what the one party cites is true or what the other party presents as evidence is false”.
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).
As you will see from the above, anyone preparing for a disciplinary enquiry, whether it is the complainant preparing to prove that the accused is guilty or the accused preparing to prove that he or she is innocent, should do so in such a way that convinces the disciplinary enquiry chairperson that his or her version of what has happened is the more probable, or likely, to have occurred. If you can do that, then you will be able to convince the chairperson of your version and will therefore successfully discharge your duty in the disciplinary enquiry.