Polygraph Examinations and the Law in South Africa
As the importance of the role of polygraph examinations in South Africa, and the rest of Africa for that matter, is being noted in regards to investigations, screenings and pre-employment screenings the question often arises: Are polygraph examinations legal? The short answer is, yes they are if conducted in a manner that is procedurally fair and used responsibly and appropriately. How much weight the polygraph examination will carry when used as part of a bundle of evidence depends on a few factors, including the qualifications and experience of the examiner and whether or not the correct protocols and procedures were used. So here is some valuable information about polygraph examinations and the law and what you can do to ensure that your examinations are conducted fairly and legally.
The Law and the Commission of Conciliation Mediation and Arbitration (CCMA)
In South Africa there is currently no legislation regulating the use of the polygraph. Therefore, there is nothing prohibiting or preventing the submission of polygraph results to corroborate other evidence in our Courts of Law. It is also legal to request employees to voluntarily subject themselves to polygraph examinations.
It is very important to note that the polygraph is an investigative tool and polygraph results should be used primarily to assist investigators in narrowing investigations by identifying suspects and collecting information relevant to the investigation. Polygraph results should therefore be submitted to a Court only when they can corroborate other admissible evidence and assist the Court in reaching a verdict.
Proper polygraph procedures comply in every respect with the contents of the Constitution and the Labour Relations Act, and actively promote fair labour practices and respect for the human rights of the examinee, because it affords the innocent person an opportunity to be heard and to prove their innocence.
Polygraph results can be utilized in labour disputes and disciplinary enquiries. The acceptance of polygraph examination results will depend largely on the credibility and qualification of the examiner and the manner in which the examination was conducted.
Polygraph results have been submitted and acknowledged in a number of Commission for Conciliation, Mediation and Arbitration (CCMA) cases recently, and they are frequently submitted during internal investigations and disciplinary hearings to corroborate other evidence. It appears that the question is not so much whether polygraph test results should be allowed, but rather how much weight they should carry. “Within the legislative framework and the general rules of evidence, the question really is how much weight will be accorded to polygraph test results, and the answer to this is probably dependant upon the type of test used and the qualifications and experience of the individual examiner” (Christianson, M. Industrial Law Journal 2000 vol 21:34).
The current status of the polygraph in the Commission for Conciliation, Mediation and Arbitration (CCMA)
In terms of South African Law, there is no legislation regarding the polygraph, either for or against the use thereof. Most of the respected legal experts are in agreement that when a person consents to a polygraph examination, it cannot be seen as done in contradiction of the constitution.
In recent years a number of interesting developments took place which brought the issue of Polygraph Evidence to the fore and in some instances into the spotlight.
According to the well-respected Edward Nathan and Friedland Inc Attorneys in Sandton, the case of Mncube & Cash Paymaster Services (Pty) Ltd KN1583, 6 May 1997 showed that the Commissioner accepted the polygraphist as an expert witness whose evidence needed to be tested for reliability.
According to the commissioner in Zoned & one other & Floccotan (Pty) Ltd KN2845, of 28 August 1997, the court went too far when rejecting lie detector evidence in the case of Mahlangu v Cim Deltak. The duty of the commissioner was seen to be to determine the admissibility and reliability of the evidence but the respondent did not prove the reliability thereof by calling upon the testimony of the expert. A similar finding was made in the instance of SACCAWU & Sterns Jewellery NP144, 30 April 1997.
In Hotellica Trade Union & San Angelo Spur WE3799, 24 November 1997, it was held that the lie detector test may not be interpreted as implying guilt but may be regarded as an aggravating factor especially where there is other evidence of misconduct.
By now most IR practitioners are familiar with the case of Harmse & Rainbow Farms (Pty) Ltd. In this matter the employee was one of 15 who had access or potential access to the missing equipment. When offered an exculpatory polygraph examination, Mr Harmse at first declined then changed his mind and did complete the test which he was the only person to fail. When offered another examination which could have led to his total pardon, he declined the opportunity and was then dismissed for reasons of breach of trust. The employer then dismissed him on the basis of not theft, but breach of trust relationship. This position and decision of the employer were upheld by the CCMA. Furthermore it was noted that:
- the employer has the right to dismiss an employee whom it can no longer trust provided there are reasonable grounds for such loss of trust based on the actions of the employee.
- the employer had reason to request polygraph examination as a result of suffering a substantial financial loss.
- an employer has a right in circumstances of such loss to exert some pressure on employees to cooperate in the investigation of the misconduct or crime.
- granting of the option of a re-examination may be seen as a show of good faith by the employer.
- the polygraph examination phase was seen as an integral and crucial part of the investigation.
- the advance notification in writing of the examinees of the intention of the employer to institute polygraph examination as part of the investigation was seen to be fair.
- the procedure was not viewed as an unfair labour practice nor as an infringement of the fundamental rights of the examinee.
- the procedure underscored the fact that the examination was considered as voluntary.
Although the Lower Court has been slow to admit polygraph evidence and the High Court has yet to rule on the admissibility of polygraph results and establish what weight should be placed upon it, the CCMA is acknowledging it as a forensic tool.
Are pre-employment examinations legal in South Africa?
The short answer is once again a simple yes they are if conducted in a manner that is procedurally fair and used responsibly and appropriately.
“It is generally accepted that the employer has a right to full and accurate information that is genuinely pertinent to the decision to employ a job applicant.” – Nicolene Erasmus and André Claassen.
There is a distinct difference between the information that can be requested from the examinee, and information of the examinee that can be used in making official decisions with regards to employing the applicant. Section 6 of the Employment Equity Act prohibits discrimination against applicants on a number of different distinct grounds, including amongst other race, gender, pregnancy, age, disability only to name a few.
“The Act further states that it is not unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job, meaning that we may ask applicants to disclose information in order to determine their suitability for a specific position. It is also evident that it is not prohibited to ask applicants about their past criminal records since the Act does not mention criminal records as a form of discrimination.” – Nicolene Erasmus and André Claassen.
As quoted above, in many of these cases there are exceptions, with the general rule being that if the information is necessary for the position it can be requested from the examinee. It is the responsibility of the company to determine what information is genuinely pertinent to the potential position of the applicant.
Pre-employment examinations thus provide in depth information regarding a potential employee that can and should be used by the employer as part of the decision making process. It is again however important to note the role of the polygraph examiner in giving information to the client, facilitating the use of proper questions and question techniques and generally assisting the client in the correct implementation of the examinations.
As with polygraph examinations being used as evidence the weight of the examination is determined by the qualifications of the examiner and whether or not the examiner used the correct protocols and procedures.
So what can you do to ensure your company implements polygraph examinations fairly and legally?
The Polygraph Examiner
As mentioned earlier a great deal of importance is placed on the credibiliy, qualifications and experience of the examiner. So take care to select only a polygraph examiner that:
- The polygraphist must have been trained at a polygraph training facility accredited by the Southern African Polygraph Federation (SAPFED). This implies adherence to a strict code of conduct and ethics.
- The polygraphist must be a member in good standing at the Southern African Polygraph Federation (SAPFED).
- The polygraphist must be experienced enough to be able to analyse the chart tracings or polygrams and such experience must have been gathered while working under supervision.
- The polygraphist must be independent, impartial and objective.
- The polygraph technique and test procedure must be explained to the examinee.
- Polygrams or chart tracings must be assessed manually and computerised evaluation may be used only for the purpose of quality control or to obtain other opinions.
- The polygraphist must be able and willing to testify as an expert witness.
The Polygraph Examination Technique
- An internationally accepted, valid questioning technique must be used.
- All questions must be thoroughly reviewed with the examinee before the collection of charts takes place.
- A minimum of two polygraph charts should be recorded during the chart collection phase of the examination. Three charts are however the standard.
- The environment in which the examination is administered should be conducive to proper polygraph testing, i.e. a quiet environment without serious visual or audio interference.
Areas that would not be inquired into during a polygraph examination
No examiner of the Polygraph Institute of South Africa will ask questions about any of the following areas during an examination:
- religious beliefs or affiliations
- beliefs or opinions regarding racial matters
- political beliefs or affiliations
- beliefs, affiliations or lawful activities regarding unions or labour organisations
- sexual preferences or activities
So with this knowledge in mind it is important for the company to select carefully when deciding on a polygraph examiner, and selecting an examiner because they are the cheapest might end up beign an extremely expensive mistake.
Always make sure that the examiner has all the correct qualifications and that they are members of the Southern African Polygraph Federation. Any good examiner will be willing to provide that information.
A word of caution though, don’t take the examiner’s word for it, feel free to visit the Southern African Polygraph Federation (SAPFED) site to request information regarding a particular examiner. It has been brought to our attention that there are examiners promoting themselves as members that are not affiliated with the orginzations or have have been removed due to unethical activities. For more information regarding the Southern African Polygraph Federation (SAPFED) please follow this link:
The fact is that if you use examiners that have the correct qualifications and affiliations your company will be in good hands. Which is why we recommend only using the best, and which is why we insist on being the best.
Charles Allen Kemp
27 July 2017