“Testimony demands to be interpreted because of the dialect of meaning and event that transverses it.” – Paul Ricouer
Our legal department recently dealt with an application brought by an employer to have one of their witnesses testify “In Camera” at Arbitration proceedings. The employer had alleged that the witness’s identity could not be disclosed due to his or her own safety and that the individual had allegedly been threatened. MISA opposed the application with good reason and this will be explained in more detail below.
MISA recently published an article establishing the fairness of a dismissal in instances whereby an employee refuses to testify on behalf of an employer at Arbitration; save for instances, whereby the employees testimony may lead to victimization or intimidation, thus the benefit to an in camera testimony.
What is meant by “In Camera” testimony?
In camera is a procedure developed by our law, in which a witness can testify by leading evidence at an undisclosed place or area without disclosing his or her identity, ultimately remaining anonymous. Witnesses that follow this route, would most likely have been victimized, threatened or harmed, in attempt to keep them from testifying at a hearing.
These so called “fearful witnesses” can make or break a case, in that their testimony of what they observed or witnessed can be crucial in proving an employer or employee’s case.
Where does the “In Camera” process find its Application in the Labour Relations Act and more specifically, in Arbitration proceedings at the DRC or CCMA?
Section 138 of the Labour Relations Act 66 of 1995 (LRA)
In terms of section 138(1) of the LRA “a commissioner may conduct an arbitration in a manner that the commissioner considers appropriate in order to determine a dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities”. [own emphasis]
The party, who intends calling a witness, may be required to bring a formal application in terms of the Dispute Resolution Centre (DRC) or the Centre for Conciliation Mediation and Arbitration (CCMA) rules, in which the Applicant will have to state the reasons as to why a certain witness must testify in the arbitration proceedings, without his or her identity being disclosed.
Clause 12.8 of the CCMA Practice and Procedures Manual
Clause 12.8 of the CCMA Practice and Procedure Manual, amplifies the provision of the LRA mentioned herein above.
Clause 12.8.1 provides “although arbitration is an open process, an arbitrator has the discretion, on application, to make an order that the process or part thereof must be conducted in camera. This normally happens when the safety of a witness is in danger, because of intimidation or where it would be prejudicial to the parties or one of them or not in the public interest that the information which will become available during the arbitration becomes known to outside persons (sensitive evidence).”
Clause 12.1.8 in referring to the matter of NUM & Others v Deelkraal Gold Mining Co Ltd (1994) 7 BLLR 97 (IC), in which the court had adopted a three tier/stage approach, which a commissioner must apply when an in camera application is brought:
The 1st stage is referred to as an “objective” test, whereby the party applying for the witness to testify in camera, will have to lead evidence, either by submitting prima facie evidence (face value evidence), such as video evidence, WhatsApp correspondence, email correspondence etc. in order to persuade the commissioner of the existence of an imminent threat or potential harm. The commissioner should then make a ruling as to whether the application for the anonymity of the witness be granted or not.
Once the Applicant has passed this stage, the commissioner will move to the 2nd stage.
The 2nd stage – is regarded as a “subjective” test, at this stage the party requesting to testify in camera and remain anonymous will usually testify at an undisclosed area or location, he or she will then lead evidence and submit reasons as to why they fear to testify. The parties will then have the right to cross examine the individual and test the credibility of their version, the opposing party will also be afforded the opportunity to submit rebutting evidence.
The commissioner will then be tasked to determine whether the individual seeking anonymity, be allowed to testify in camera and remain anonymous. The commissioner will also further consider any prejudice that the parties would suffer, if the ruling is made in their favour or not. If the commissioner rules in favour of the applying party, he will then move to the 3rd and final stage.
The 3rd stage – is regarded as the final stage, which follows once the commissioner has allowed the witness to testify in camera. During this stage, the witness may lead evidence regarding the merits of the case, whereby his or her evidence will be tested through chief, cross and re-examination (questioning).
As mentioned in the introduction of this article, MISA opposed an application brought forward by the employer for an in camera testimony to be given by their witness; in this instance the party applying for the witness to testify in camera, had dismally failed to prove the prima facie (the 1st stage) existence of victimization, intimidation, an alleged victimization, threat, or harm suffered by the witness seeking anonymity, and while we are of the view that the likelihood of the application failing, is quite high, we await the commissioners formal ruling in this regard.
The three tier/stage approach adopted by the courts has provided a robust method to ensure fairness regarding the admissibility of in camera testimonies. On the one side, it prevents the fabrication of witnesses and prohibits any party’s attempt to curtail the testing of evidence through cross examination and on the other side, it ensures the anonymity of a key witness that will assist the commissioner in making substantial finding at the end of the day.
Parties should have an open mind regarding the application of the in camera process, employees should not do away with crucial and valuable evidence on account of a witness’s fear of testifying.
If you find yourself in a disciplinary enquiry or arbitration and have a witness that fears to testify on your behalf, you should consider requesting that they testify in camera and keep their identity anonymous, the chairperson or commissioner would however have to apply the three tier/stage approach discussed herein above.
(Article by Michael Buitendag, edited by Nichole Turner)
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