Strike actions in South Africa are often violent and people who witness the strike or who are willing work during the strike are often confronted with intimidation or threats of violence. These threats of violence usually leave people scared and as a result of such fear, they generally refuse to speak out about what they have witnessed.
The law however, does provide for solutions to this situation which do not disclose identities and enable witnesses to testify truthfully without any danger. The decisions in Transport & General Workers Union & Another v Durban Transport Management Board (1991) 12 ILJ 1113 (IC) and National Union of Mineworkers & Others v Deelkraal Gold Mining Co Ltd (2) (1994) 15 ILJ 1327 (IC) provide this solution.
In the Durban Transport case it was held that the approach set out in the Criminal Procedure Act that allows witnesses to testify in camera to ensure their safety, can be adapted to cases in the Labour Courts and should actually be more freely applied. The case also set out a two-stage enquiry to establish whether or not a witness’ testimony can be heard in camera or not.
The court listed a set of requirements in order to allow a person to testify in camera. A few of these requirements include that there are special circumstances that require a departure from the general court rules, that there is a likelihood that harm may result to a person if he testifies in open court and that the departure from the general rule can only go as far as it is necessary in the case.
A party who wants to use a witness’ testimony in open court must prove that there is reason to believe that evidence is available which, if heard in private, might satisfy the court that special circumstances exist for a departure from the general rule.
In the Gold Mining case, the court confirmed the principles established in the Durban Transport case and further found that the court’s discretion to depart from the general rule can only be used in very limited circumstances and only when a special circumstances exist.
The court further found that “rumours or ghosts of persons who have been brutally murdered do not go far enough to satisfy the requirement that there is a likelihood that harm may result to a person if he should testify in open court.”
The above law allows a person’s testimony to be heard in camera (behind closed doors) in situations where a they has been threatened or intimidated. The person must be able to clearly identify or point out a single person, or persons, responsible for making the threats though.
This development of the law assists many tribunals and courts in obtaining crucial evidence to decide matters properly. It allows people to testify truthfully without any fear of reprisal and disables others from using intimidation and thug tactics to ensure the outcome of their cases.
This is of great assistance and importance in labour disputes, especially during strikes when workers are threatened with harm or injury to property if they have seen something, or want to work during the strike. People can now freely speak of things without being scared of any consequences.