It is often very difficult for employers to provide, at the CCMA and bargaining councils, sufficient proof that the employee is guilty of the misconduct for which he was fired.

This difficulty is worsened by the fact that it is the employer who has the full onus of proving that a dismissal was fair.

For this reason, when employers are able to catch employees breaking rules on camera, they feel greatly relieved.

They believe that, for example, catching an employee stealing on video is guaranteed to win them the case at the CCMA or bargaining council.

This is not so for many reasons.

Videotaped evidence has been accepted as valid by CCMA arbitrators and other tribunals but, just as often it has been rejected. This is because certain circumstances can render video evidence unreliable or unacceptable.

In the 20-year-old case of S v Baleka (January 2005, Contemporary Labour Law Vol.14 No.6, 57) the judge outlined the value of videotaped evidence as follows:

• It does not suffer from fading memory as may the testimony of human witnesses.
• It provides a more accurate and clear picture than a human being.
• The camera retains not only the words but also the non-verbal communications of those on camera.

In Afrox Ltd v Laka and Others (1999, 20 ILJ 1732 the Labour Court found that the arbitrator's decision to disallow video footage was grossly irregular as the evidence that the employer wanted to use was relevant to the case at hand.

However, in the case of Moloko v Commissioner Diale and Others (2004 25 ILJ 1067) the arbitrator accepted into evidence video footage of an alleged assault by the employee.

The Labour Court, however, on review, decided that the video evidence was inadmissible because it was of very bad quality and could not be relied upon.

In Satawu obo Assagai v Autopax (2002, 2 BALR 17) the employee was trapped 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 a confidential one and therefore did not fall under the prohibition of the Interception and Monitoring Prohibition Act of 1992 (IMP Act) which, in any case, did not apply strongly in civil cases.

However, this Act was replaced by a new one called the RIC Act in 2005. As this new act places much stiffer restrictions on employers, it remains to be seen whether arbitrators will ignore it as readily as the old IMP Act.

In Numsa obo Mbeki and others v Shatterprufe (Pty) Ltd (2009 1 BALR 9) the employees were dismissed for stealing copper cable.

A videotape showed the accused employees leaving the premises at 8.07am. A witness, Mr Mali, testified via video tape evidence that the accused employees had left the premises with the cable later than this.

The arbitrator declined to allow the video evidence because Mr Mali was not present at the arbitration hearing and this rendered his evidence hearsay. Also, his evidence contradicted the evidence on the videotape of the departure of the accused employee.

It is clear that, if the circumstances are right, the CCMA and other tribunals may well accept the admissibility of videotaped evidence at disciplinary and arbitration hearings.

Some of the circumstances that may persuade arbitrators to accept video evidence include:

• The videotape must be clear. This means that visuals and audio must be sharp.
• The video must be authenticated. In addition to the tape being clear, it must be shown not to have been tampered with in any way.

It must also be proved that the visuals and audio accurately reflected the incident in question and not some other incident.

• The evidence provided by the videotape must not be hearsay and must not be contradicted by other evidence.
• The video should not be part of an illegal entrapment exercise.

Many employers, by the nature of their enterprises, are extremely vulnerable to losses because of employee misconduct.

Such employers include, among others, security firms, casinos, retailers, financial institutions, jewellers, exclusive clothing suppliers and goods transporters.

While videotaped evidence can be extremely useful to such employers as means of catching perpetrators, this advantage will only apply where the employer knows how to ensure that all the requirements for validating the video evidence are adhered to.

This requires a full understanding of the laws of evidence and of privacy as well as substantial expertise in applying the law. Such understanding and expertise should be provided by labour law experts.

• Ivan Israelstam is chief executive of Labour Law Management Consulting. He can be contacted at 011 888 7944 or labourlaw@absamail.co.za.
• Our appreciation to Ivan and The Star newspaper for permission to publish this article

The South African Labour Guide is a private company and has no association with the Commission for Conciliation, Mediation and Arbitration (CCMA), you may find the CCMA on www.ccma.org.za