BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: firstname.lastname@example.org. 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 case of S vs 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.
- 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.