After both the complainant and the accused have put forward their versions, led evidence and cross examined witnesses, the chairperson of the disciplinary enquiry will call for closing arguments (sometimes called closing statements). This step is very often misunderstood by the parties. It is very common when we chair disciplinary enquiries to see a confused look on the parties’ faces when we ask for closing arguments and very often get the response of “I have nothing further, Chairperson”, or they simply summarise the points that they have already made!
The purpose of presenting a closing argument or statement is so that you can explain to the chairperson why it is that he or she should be trusting your version instead of the other side’s. The best way to do this is to remind the chairperson of the charges and why it is that you’ve proven guilt on each one. This is done by summarising and analysing the evidence given during the course of the disciplinary enquiry. In his book, Labour Dispute Resolution (Juta, 2004), author Casper Lötter lists what should be pointed out:
- A witness’s inability to provide an answer to a question posed during cross examination;
- A witness’s inability to explain an inconsistency in the witness’s own evidence or with the evidence of another witness;
- A witness’s inability to explain contradictions in that witness’s own evidence or with another witness’s evidence;
- All facts favourable to your case and unfavourable to that of the other side;
- The reasons why your witnesses and version should be preferred;
- A failure by the other side to call a particular witness;
- A failure by the other side to prove all material issues crucial to his or her case.
If you carefully consider the above, you will obviously realise that you need to pay incredibly careful attention throughout the course of the disciplinary enquiry and make sufficient notes. It is extremely unlikely that you will be able to remember all of the pertinent points that could be included in your closing arguments without writing them down.
It is also advisable to, as far as possible, apply the law to the facts. This is best done by referring to authoritative textbooks and to past cases where particular legal points have been decided. If you are unsure of how to do this, it is advisable to contact your legal representatives and ask for them to assist. You may have taken this step in the preparatory phase of your case. For example, if an assault involving company employees has taken place off the company property, you may have already sought advice in terms of whether the company is permitted to take disciplinary action against those involved. Ask your advisors to provide the authority on which they relied when giving you their advice, so that you can include it in your arguments.
The final step is to point out any inconsistencies in the other side’s version. By doing this, you are contrasting and comparing the two versions, the purpose of which is to convince the chairperson that your version is the more probable, or likely, to have occurred. If the chairperson is convinced, then he or she will find in your favour.
The best way to deal with the formulation of closing arguments expeditiously is to draft a framework beforehand, dealing with all of the strong points that you anticipate you will make and then add to it, amend it, etc. If the matter is extremely complex, then the parties may request (or the chairperson may call for) the closing arguments to be given in writing after allowing some time after the concluding of the respective cases.