HOW THE COURTS AND THE CCMA DEAL WITH POLYGRAPH TESTING CCMA Commissioner, Gill Loveday’s article deals with an overview as to the approach of the Court’s and Commissioners when dealing with polygraph tests as evidence. Initially, decisions in the Industrial Court cautioned against the reliance upon polygraph tests as evidence. In Mahlangu v CIM Deltak (1986): 7 ILJ 346 (IC), it was held that a voice analysis test administered by an unregistered psychologist was unscientific, invalid, unethical and unlawful. The approach to polygraph evidence by commissioners is varied as some find the results unreliable and therefore inadmissible as evidence, others disregard the evidence if the polygraph examiner fails to submit his qualifications. There are still conflicting awards concerning the admissibility of expert opinion evidence of the polygraph examiners pertaining to whether in the absence of other evidence, the results are conclusive on their own. Some commissioners find that if there is no corroborating evidence supporting the results, the evidence is inadmissible on its own, others however have accepted the results without any other supporting evidence, and there are those are satisfied in allowing such evidence if there is other supporting evidence. It is clear though that everyone accepts that great caution should be exercised when dealing with the admissibility of such evidence. In Sobiso & others v Ceramic Tile Market (2000): 22 ILJ 811 (CCMA) the discharging of the onus placed on the employer in terms of section 192 of the LRA is not discharged by sole reliance on the test results of a polygraph. Therefore polygraph test results are insufficient, in and of themselves to establish guilt and it can therefore be said that results of such tests cannot be the sole and only indicator of guilt, other corroborating evidence must be present before reliance can be place on such evidence for a guilty finding.
Posted on: Wed, 31 Dec 2014 12:03:34 +0000
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