Employers are often faced with scenarios where witnesses are too scared to give evidence during disciplinary or related proceedings due to fear of being identified and targeted after the proceedings conclude. This is especially true where there have been instances of serious misconduct, such as syndicate thefts and strike related violence.
This fear prevents witnesses from coming forward to testify openly about their observations and from identifying wrongdoers, which often results in crucial evidence not being led during the proceedings. For some time, the law has provided a procedure for dealing with these scenarios. However, this solution is often unknown or overlooked by employers.
The process is commonly referred to as "in camera" proceedings. Essentially, this process allows the identity of the witness to remain anonymous, while still enabling the witness to give admissible evidence which is capable of being cross-examined and challenged.
For the purposes of arbitration proceedings, the admissibility of such evidence is firstly borne out of s138(1) of the Labour Relations Act, No 66 of 1995 (LRA), which provides that "the commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities". (our emphasis).
This LRA provision is amplified by the Commission for Conciliation, Mediation and Arbitration (CCMA) Practice Manual on Arbitrations; in particular clause 12.8, which provides that arbitrations can be conducted in camera and in accordance with the "three tier approach". This three tier approach emanates from, among other sources, the decision of NUM & Others v Deelkraal Gold Mining Co Ltd (1994) 7 BLLR 97 (IC), where the following process was formulated:
- Stage One – Objective test: Evidence of an objective nature should be led by the employer in order to lay a basis and demonstrate a real or genuine fear, which precludes the witness from coming forward and telling their story openly. At this stage, evidence is often given as to any threat, assault or damage to person or property that may have been made against the witness.
- Stage Two – Subjective test: Once the first stage has been satisfied, the witness must be called to give evidence in camera (which can for instance be done at a undisclosed location and often through a voice changer device) in order to give subjective evidence of their fear and/or the potential intimidation. Very often the decision maker or commissioner will be invited to attend the secret location in order to observe the witness' demeanour while they give evidence. The evidence is streamed live to the main hearing where the parties are located and able to direct questions back to the witness via telephone, skype or other related facility; and
- Stage Three – Once the second stage has been satisfied, the witness is then required to give evidence "in camera" on the merits of the case and is cross examined, and thereafter re-examined so that their evidence is fully tested.
In the Deelkraal matter, the court went on to state that, "I am extremely sensitive to the potential harm and prejudice that could result from the deviation from standard norms and rules of justice. Public policy requires that recognized standards of justice be maintained and should not be departed from lightly. However, I am equally of the view that justice may determine that in certain, or more properly, special circumstances, deviation may be appropriate and legitimate if the harm or potential prejudice that might be suffered is not irreparable".
In the decision of NUMSA obo Goliath & Another v Shelco Shelving (2003) 5 BALR 587 (CCMA), the CCMA held that where there is a real apprehension that witnesses may be intimidated or fear for their own safety, then in camera evidence may be used provided that the right to cross examination is not curtailed. The only distinction in the Goliath case was that stages two and three were combined for practical purposes.
Since then, evidence in camera has been used in disciplinary proceedings, arbitrations, the Labour Court and the Labour Appeal Court. As such, it has become a valid method for dealing with difficult or high profile disciplinary proceedings and arbitrations.
In summary, employers should not simply right-off crucial evidence on account of a witness' fear of testifying. Employers should rather take proactive steps to request that evidence be led in camera where the circumstances justify its admission.
Where formal applications of this nature are required, employers should seek the assistance of an attorney in order to properly prepare the necessary application.