In almost all labour disputes, whether it be an internal hearing or an arbitration process at the CCMA, parties will need to call witnesses in the presentation of their respective cases. It may, however, happen that witnesses are reluctant to testify as a result of fear of or intimidation from the other party.

The law provides a procedure where witnesses can testify from a different location, either in person via an online platform or anonymously through a 3rd person. “In camera” proceedings may be relied on for two purposes – leading crucial evidence in support of a party’s case and protecting the identity of a witness. All evidence led during this process will be admissible and may be subjected to cross-examination.

Section 138(1) of the Labour Relations Act stipulates that a commissioner may conduct an arbitration hearing in a manner appropriate in order to ensure the efficient and swift resolution or determination of disputes. The commissioner may also dispense with legal formalities.

Clause 12.8 of the Commission for Conciliation, Mediation and Arbitration (CCMA) Manual on arbitrations provides that a commissioner may approach an application for a witness’s testimony to be heard in camera by way of a “three-tier approach”. This approach was developed in Num and others v Deelkraal Gold Mining Ltd (1994) BLLR 97 (IC).

In the first stage, an objective test needs to be conducted – evidence of an objective nature should be led by the employer, who must be able to demonstrate that there is a genuine fear which precludes the witness from testifying. Evidence should be led to show that a threat has been made or damage or harm has been done to the person or property in question.

The second stage is where a subjective test will be conducted. The witness will be called to testify at, for instance, an undisclosed location, and often by making use of a voice modification device so that he or she would not be identified. The commissioner will often observe the witness’ demeanour whilst they give evidence. Virtual platforms such as Skype or Zoom may be utilised for this purpose.

The final stage is where the witness will give testimony, and there must be an opportunity for the other party to cross-examine the witness.

The above case law also established that commissioners should approach this method of presenting evidence with caution as prejudice may be caused where one deviates from the norms and rules of justice. The commissioner may, however, in certain circumstances deviate from public policy to ensure that no harm is suffered in the process.

Article by: Janeske Greeff
Dispute Resolution Official – Cape Town