In terms of the Electronic Records Evidence Act of 2009 as read with the Electronic Communications Act of 2013, video recordings are considered to be evidence and can be used in both disciplinary hearings and court proceedings. They are useful to an employer at a disciplinary hearing because they are more concise, reliable and not subject to human elements of fading memory or inconsistencies as is the case with witness testimony.
The admissibility of a video recording is subject to four principal requirements:
(a) First, the quality of the video recording must be clear such that there is no dispute as to the subject matter. If there is a dispute as to the subject matter, then the person who made the recording must testify on the circumstances of the recording and the
chairman would have to determine whether or not they are satisfied with the evidence of the recorder.
(b) Second, the recording must be presented by the person who made the recording or is responsible for the recording system (such as a CCTV recording).
(c) Third, the video must not have been altered or tampered with in any way.
(d) Fourth, the video should not have been obtained illegally, such as in respect of a breach of privacy (a recording of somebody in their home or in some other location where their privacy is violated constitutes a breach of privacy). A recording in the place of work does not constitute a breach of privacy. Or the recording must not have been made in the course of something such as entrapment.
There have been instances wherein employees faced with video evidence at a disciplinary hearing have raised an objection to the admissibility of the video evidence on the basis that it was made without their consent. They have argued that since they were unaware that they were being recorded, that evidence should not be allowed. This argument has been
dismissed on several occasions because, there is no rule that precludes the recording of an employee in the place of work. Two decisions in the neighbouring jurisdiction of the Republic of South Africa are instructive on this aspect. In the case of SATAWU obo Assagai vs Autopax (2001) 22 ILJ 2773, the employee was taped 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.
The court had to consider the fundamental rights contained in the South African Constitution, similar to the rights contained in our Chapter 111 of our Constitution on Protection and Promotion of Fundamental Rights and Freedoms. The court concluded that the video evidence was admissible for the following reasons:
- The employee’s conduct was recorded in the course and scope of his employment and therefore could not be considered confidential.
- The rule against admissibility of unconstitutionally obtained evidence in criminal law does not apply in civil proceedings or disciplinary hearings.
- That there is a need to balance an employee’s rights to balance and the employer’s right to manage their business.
Corresponding, in the case of SERTAWU obo Phiri and Another v De Beers Consolidated Mines Ltd (Venetia Mine) & Another (2001) 2 BLLR 185, it was held as follows:
“In anyway, I have a discretion whether or not to admit such evidence. What is called “fruit of the poisonous tree” doctrine in terms whereof all evidence obtained in violation of a constitutional right is always inadmissible in any forum (exclusionary approach) is not part of our law. In our law the trier of fact has a discretion and shall admit evidence which is relevant
to the issue as long as its probative value outweighs the prejudice caused to the accused in having that evidence admitted (Mhlongo v AECI [1999] 20 ILJ 1129 (CCMA) at 1137 (C). I have already pointed out that without the video evidence it would not have been possible to show that the employee was conniving with Van Heerden to defraud the employer. Accordingly I find that the probative value of the video evidence outweighs the prejudice suffered by the employee. I rule that the video evidence is admissible”. There is nothing precluding the admissibility of video evidence within the prescripts of domestic legislation, specifically in disciplinary hearings. In certain cases however the circumstances of obtaining such evidence may become pertinent in the consideration of reliance and evidentiary value to be placed by the party seeking to place reliance on same.
For further information and updates please contact Jasmine Dlamini (jasmine@robinsonbertram.law.sz) from Robinson Bertram, the LEX Africa member for Eswatini.
