Introduction:
Video evidence is useful to an employer relying on the evidence in support of a dismissal of an employee for misconduct and, in turn, lessening the burden of proof.    The CCMA, Bargaining Councils and Courts have accepted the admissibility of video evidence in that it is more concise, reliable and not subject to the human elements of fading memory or inconsistencies as is the case with witness testimony.  It is generally accepted that video evidence is accepted in an arbitration, however, there are certain requirements which the employer should consider before admitting video evidence which will be discussed further.

Admissibility of video evidence:
In terms of Section 138(1) of the Labour Relations Act, a 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. A commissioner in arbitration proceedings is therefore not bound by the strict rules of evidence.  This provision would require the commissioner to consider the value of the evidence sought to be admitted and determine whether the evidence is relevant to the dispute.

It is accepted that if the circumstances are right, the CCMA and other tribunals may well accept the admissibility of video evidence at disciplinary and arbitration hearings. The party relying on the admissibility must ensure the following requirements are met:

  1. The quality of the video recording must be clear so that there is no dispute as to the contents of the recording.
  2. The video must be authenticated by a person charged with handling the evidence.  This may require expert evidence.
  3. The video should not be altered or tampered with in any way.
  4. The video should not be obtained illegally or used for an ulterior purpose, such as entrapment.

In the case of S v Ramgobin 1986 (4) SA 117 (N), it was held that if the video footage is disputed, it would have to be authenticated by a person who can testify that the video is an accurate representation of the objects and persons which they purport to represent and that the video footage was not altered or interfered with in any way in order to be admissible.

The witness testifying to the authenticity of the video evidence must be able to show:

  1. If the video is in the original state or enhanced in any way, and what enhancements were done.
  2. The trail of custody of the evidence will also need to be established to show who has been in possession of the evidence

In Moloko v Commissioner Diale & others (2004) 2 ILJ 1067 (LC), the Labour Court held that an employer relying on video evidence should establish:

  1. The quality of the recording device.
  2. That there were no alterations to the recordings.
  3. On the evidence, there is no reasonable possibility for interference or alterations.
  4. The recording relates to the charge which the employer relies upon.

Quality of the video evidence:
In S v Baleka (1) 1986 (4) SA 192 (T), the High Court set out the requirements for the quality of the video recording:

  1. The mere fact there are interruptions in the video and/or sound does not call for the exclusion of the video as evidence.
  2. The fact that some parts may be out of focus, or the audio may be inaudible does not call for the exclusion of the video.
  3. Each case must determine whether the video evidence should be admitted in pursuit of the truth.
  4. There is no hard and fast rule as to the admissibility of video evidence but should be dealt with on a case-to-case basis.

In Afrox Ltd v Laka and Others (1999) 20 ILJ 1732 (LC), the Labour Court found that the Arbitrators decision to disallow video evidence was grossly irregular as the evidence was relevant to the case.

Confidentiality and Constitutional protections:
In SATAWU obo Assagai vs Autopax (2001) 22 ILJ 2773 (BCA), the employee was taped on video carrying out a dishonest transaction. The employee argued that the videotape evidence should be disallowed because he was unaware that he was being taped. However, the arbitrator found that the taped interaction was not confidential.

The Court had to consider rights under chapter 2 of the Constitution as well as the Interpretation and Monitoring Prohibition Act, in so determining that the video evidence was admissible insofar as:

  1. The employer’s conduct was recorded in the course and scope of his employment and therefore could not be considered confidential.
  2. The rule against the admissibility of unconstitutionally obtained evidence in criminal law does not apply in civil proceedings as the burden of proof is much greater.
  3. In determining the admissibility, there must be a balancing of interests, namely the employees’ rights to privacy and the employers’ rights to protect their property and economic interest.

Article by: Wesley Lazarus
Dispute Resolution Official – George