Polygraph: The Law and The CCMA

There are often questions as to whether polygraph examinations can be used in labour related cases and as part of a bundle of evidence. The simple answer is yes, polygraph examinations are admissible as evidence in labour disputes, disciplinary hearings and arbitration at the Commission for Conciliation, Mediation and Arbitration (CCMA). The real question is how much weight the examination will provide to the evidence, and that is very much dependent on how the examinations, and the evidence, is implemented, and by who.

In South Africa there is currently no legislation regulating the use of the polygraph. Therefore, there is nothing prohibiting or preventing the submission of polygraph results to corroborate other evidence in our Courts of Law. It is also legal to request employees to voluntarily subject themselves to polygraph examinations. Proper polygraph procedures comply in every respect with the contents of the Constitution and the Labour Relations Act, and actively promote fair labour practices and respect for the human rights of the examinee, because it affords the innocent person an opportunity to be heard and to prove their innocence.

What your company should do to submit polygraph examinations as part of a bundle of evidence.

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Polygraph examinations and the law in South Africa.

The Development of Polygraph Examinations in the Commission for Conciliation, Mediation and Arbitration (CCMA)

In terms of South African Law, there is no legislation regarding the polygraph, either for or against the use thereof. Most of the respected legal experts are in agreement that when a person consents to a polygraph examination, it cannot be seen as done in contradiction of the constitution.

In recent years a number of interesting developments took place which brought the issue of Polygraph Evidence to the fore and in some instances into the spotlight.

According to the well-respected Edward Nathan and Friedland Inc Attorneys in Sandton, the case of Mncube & Cash Paymaster Services (Pty) Ltd KN1583, 6 May 1997 showed that the Commissioner accepted the polygraphist as an expert witness whose evidence needed to be tested for reliability.

According to the commissioner in Zoned & one other & Floccotan (Pty) Ltd KN2845, of 28 August 1997, the court went too far when rejecting lie detector evidence in the case of Mahlangu v Cim Deltak. The duty of the commissioner was seen to be to determine the admissibility and reliability of the evidence but the respondent did not prove the reliability thereof by calling upon the testimony of the expert. A similar finding was made in the instance of SACCAWU & Sterns Jewellery NP144, 30 April 1997.

In Hotellica Trade Union & San Angelo Spur WE3799, 24 November 1997, it was held that the lie detector test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct.

According to the South African Labour Guide:

Polygraphists have been accepted as expert witnesses whose evidence needs to be tested for reliability. The duty of the commissioner is to determine the admissibility and reliability of the evidence. Polygraph test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct. In other words, polygraph test results, on their own, are not a basis for a finding of guilt. It can be used only in support of other evidence.

Relevant Legislation

The Constitution of the Republic of South Africa, Chapter 2

The test requires a person to read the results it produces and make an inference from the data collected. It follows that the reliability of the polygraph is largely dependent on the expertise of the person conducting the test. Consequently, the value of the test will only be as good as the examiner. These sentiments were debated and concluded in Sterns Jewellers v SACCAWU (1997) 1 CCMA 7.3.12 Case No. NP144.

In Truworths Ltd v CCMA and Others (2008) JOL 22565 (LC) the applicant applied to review and set aside an arbitration award.  The test for review is whether the arbitrator’s decision is one which a reasonable decision-maker could not have made. The arbitrator had ignored the outcome of a polygraph test despite the fact that a trained polygraph examiner was called to testify at the arbitration proceedings. The court stated that “…it cannot be said that a decision was reasonable if the arbitrator disregarded material relevant facts or factors placed before her in coming to a decision.” and held that this was a reviewable irregularity.  This conclusion lead to the review application being granted and the arbitration award set aside. It was thus ruled that a commissioner may not disregard polygraph evidence but still has discretion as to how much weight to accord to the evidence.

CCMA: A Prominent Case Study of Submitting Polygraph Examinations

One of the most prominent case studies of submitting polygraph examinations as part of a bundle of evidence is that of "Harmse vs Rainbow Farms" (Harmse vs Rainbow Farms, case no. WE 1728 of 9 July 1997 - CCMA). The case is one of the most well known case studies when it comes to the application of the law in regards to the use of polygraph examinations as part of a bundle of evidence due to the scrutiny that was given to the evidence and the role that the polygraph examination had in the overall result of the award given. The case study also provided substantial information regarding the circumstances regarding the use of polygraph examinations.

Do you need to submit polygraph examinations as part of a bundle of evidence?

It is essential for polygraph examinations to be conducted and submitted properly from the start in order for the examinations to be effectively use as part of a bundle of evidence. If you would like more information in what how to properly submit polygraph evidence as part of a bundle of evidence, please visits: Submitting Polygraph Examinations As Evidence.

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In this matter the employee was one of 15 who had access or potential access to the missing equipment. When offered an exculpatory polygraph examination, Mr Harmse at first declined then changed his mind and did complete the test which he was the only person to fail. When offered another examination which could have led to his total pardon, he declined the opportunity and was then dismissed for reasons of breach of trust. The employer then dismissed him on the basis of not theft, but breach of trust relationship. This position and decision of the employer were upheld by the CCMA. Furthermore it was noted:

  • the employer has the right to dismiss an employee whom it can no longer trust provided there are reasonable grounds for such loss of trust based on the actions of the employee.
  • the employer had reason to request polygraph examination as a result of suffering a substantial financial loss.
  • an employer has a right in circumstances of such loss to exert some pressure on employees to cooperate in the investigation of the misconduct or crime.
  • granting of the option of a re-examination may be seen as a show of good faith by the employer.
  • the polygraph examination phase was seen as an integral and crucial part of the investigation.
  • the advance notification in writing of the examinees of the intention of the employer to institute polygraph examination as part of the investigation was seen to be fair.
  • the procedure was not viewed as an unfair labour practice nor as an infringement of the fundamental rights of the examinee.
  • the procedure underscored the fact that the examination was considered as voluntary.

Can a Person Be Compelled to Undergo a Polygraph Test?

It is against the Constitution of South Africa to compel a person to undergo a polygraph examination, unless she or he consents to it. The consent must be in writing. The individual should be informed that:

  • the examinations are voluntary;
  • only questions discussed prior to the examination will be used during the examination itself;
  • he/she has a right to have an interpreter, if necessary;
  • should he/she prefer, another person may be present during the examination, provided that person does not interfere in any way with the proceedings;
  • no abuse in whatever way will be allowed;
  • no discrimination will be allowed;
  • no threats will be allowed.

In Summary

Taking all the information available regarding the historical use of polygraph examinations in South African law as part of a bundle of evidence, the answer is very simple. Polygraph examinations can be used as part of a bundle evidence and the evidence can not be ignored if correctly submitted. How effective the examination will be as part of a bundle of evidence is largely dependent on whether the examination was correctly implemented, as well as the qualifications and experience of the examiner who conducted the examination.

Johannesburg, Pretoria, Cape Town, Bloemfontein and Across Africa

The main offices of the Polygraph Institute of South Africa is conveniently located in Centurion from which we provide our services throughout Gauteng: Pretoria, Midrand, Brits, Johannesburg, Randburg, Sandton, Roodepoort, Heidelberg, Krugersdorp and the entire surrounding area. We also have professional affiliates assisting us across South Africa, conveniently located in Cape Town, Durban, Bloemfontein and many other regions. Our examiners are also capable of travelling to wherever they may be needed in South Africa, and have been active in Kimberley, Polokwane, Nelspruit and many other towns and cities. Essentially, our examiners can be requested to go to any location in South Africa.

Our examiners are also active and experienced in many other African countries. With successful operations in Zambia, Zimbabwe, Angola, Kenya, Swaziland, Uganda, Ghana and more. Wherever you may need our services, we are simply a phone call or email away.

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