A guide to in-camera proceedings.
Intimidation and threats are common in the industrial sphere in South Africa. These actions often come about after serious misconduct is alleged to have been committed – dishonesty, unprotected strikes etc. Employees not only have to work in close conjunction with one another but often live close to each other and use the same transport home. Therefore, it is understandable when an employee is too frightened to testify in a hearing. An Employer cannot compel a witness to testify. However, this does not mean that an employer cannot take action. There is a process that is often overlooked; an application may be made to the chairperson for a witness to testify in camera; the chairperson will then make an order on whether the evidence in camera may be admitted or not.
In-camera occurs when evidence is heard in private and not in the presence of all the parties to the hearing which ensures that the witness’s identity remains anonymous while still allowing the accused Employee to cross-examine the evidence led. The evidence is normally streamed from an undisclosed location and a voice changer device is used to hide the identity of the witness.
Every accused person has the constitutional right to bring his/her own evidence and to challenge any evidence brought against him/her. This means that the Employee accused has the right to cross-examine the evidence led against him/her. To not allow cross-examination of an opposing witness would compromise his/her right to defend himself/herself.
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 Labour Relations Act, Section 138(1) No 66 of 1995 sets out the following, “The commissioner may conduct the arbitration in a manner that the commissioner considers appropriate in order to determine the dispute fairly and quickly…”
Furthermore, the CCMA Practice Manual on Arbitrations (Clause 12.8) also makes provision for in-camera proceedings, “…An arbitrator has the discretion, on the application, to make an order that the processor part thereof must be conducted in camera.” It goes on further to state that the “three-tier approach” must be adopted.
This approach was formulated in NUM & Others v Deelkraal Gold Mining Co Ltd (1994) 7 BLLR 97 (IC) which provides us with guidelines on how to apply for these proceedings:
- The Employer must set out objective evidence which provides a foundation as to why there is a legitimate fear in the mind of the witness that coming forward to testify openly in the hearing will jeopardize his/her safety. This evidence will most likely be hearsay in nature, such as a written statement made by the witness with his/her name blacked out.
- Thereafter the witness is called forward; he/she will then testify as to his/her subjective fear. This evidence is streamed to the hearing whereby the accused Employee may question the witness’s testimony. If the application is granted the third phase will follow.
- The witness is required to give evidence in camera relating to the misconduct for which the Employee is charged. This evidence can now be cross-examined and re-examined.
There will be some form of prejudice in allowing in-camera proceedings as the Employee cannot test the credibility of the witness without knowing the identity or determine whether there are any personal grudges carried between the parties. The prejudice of not allowing the evidence, however, will mean that either the witness is placed in a dangerous position or that he/she will refuse to testify at all. The two sides of the coin must be weighed up by the chairperson when considering the application to admit the evidence.
It must be stressed that in-camera proceedings are an exception to the norm and should only be used in exceptional circumstances or difficult matters that are of a serious nature.
ABOUT THE AUTHOR
Victoria Thompson completed her LLB degree with the University of South Africa while working for SEESA as a legal assistant. Upon obtaining her degree she was promoted to Legal Advisor in the Labour Department. She has also completed a Practical Legal Training course and has successfully completed all the Attorneys’ Admission Examinations.