It is common cause that the employer, as a general rule, does not have a duty to discover certain documents or materials such as video footage and other recordings to the employees and/or their representatives. Discovery refers to the disclosure of certain evidential material that any of the parties to a dispute intends to use in support of their case at an enquiry.
Principles of Evidence Schwikkard & van der Merwe 2nd edit. (2002) stated that discovery is a procedure used in civil proceedings. However, where the discovery of such material or document(s) will enable the employee to defend themselves in terms of 1 of the rules of natural justice, being audi alteram partem(hear the other side), the employer may reasonably be expected to discover.
In the case of Vuyiani Kenneth Zono v Minister of Correctional Services & 2 Others [Case no: P 44/08 of the 9th of April 2009], the object of discovery was to ensure that both trial parties were made aware of all the documentary evidence available. By this means, the issues are narrowed and the debate of points which are incontrovertible is eliminated. Discovery is not intended to be used as a sniping weapon in preliminary skirmishes. The only documents which are required to be discovered are those relating to any matter in question in such action.
In the case of DOSAWU obo Molapo, Dinah vs Cashbuild (Pty)Ltd(ARB) the applicant (a cashier) was dismissed for not complying with a certain policy to ring items one-by-one. The respondent alleged that the cashiers knew that every item that has been bought from the company must be rung one-by-one, to make sure that they do not make mistakes. The applicant denied knowledge of the policy referred to. The arbitrator held that the respondent had a duty to discover the aforesaid company policy and procedure since it was an issue in dispute which they failed to do.
It follows, where the information desired for discovery is of confidential and privileged nature, the employer will not be keen to discover and such refusal will be justifiable.
ABOUT THE AUTHOR
Sekhobe Abe Mopedi is a SEESA Labour Senior Legal Advisor. He obtained his LLB degree in 2007 from the University of the Free State. He’s been employed by SEESA for the past 8 years.