Although arbitration is an open process, an arbitrator has the discretion, on application, to make an order that the process or part thereof must be conducted in camera. This normally happens when the safety of a witness is in danger or reasonably perceived to be in danger because of intimidation or threats. It may also occur where it would be prejudicial to the parties or one of them to testify in open proceedings or if it is not in the public interest that the information that will become available during the arbitration, becomes known to outside persons (so called ‘sensitive evidence’).
The applicant party has to lay a basis for the in-camera testimony by making submissions and adducing evidence to convince the arbitrator that an order allowing one or more witnesses to give in camera evidence should be granted. In camera evidence is where the identity of the witness is protected from general knowledge. Usually, the order allowing it will require the witness to testify in the presence of the parties’ representatives and the presiding officer. Those present in the forum will be banned from disclosing the names or other identifying information about the witness(es) to anyone else. Special measures may be used to ensure that the record similarly protects the identity of the witness(es).
The other party should be given an opportunity to oppose the application, which may include them leading evidence in rebuttal of the allegations of the applicant party – to the effect that the witness(es) require special identity protection.
After hearing both parties, the arbitrator must consider the submissions and the evidence led and decide to dismiss or grant the application on any condition which s/he may deem appropriate in the circumstances. These conditions must be clearly spelt out in the order.
An example of the type of order that may be appropriate if in-camera evidence is to be allowed, is included in the CCMA practice and Procedure Manual, which reads as follows:
“A ruling that the arbitration or part thereof must be conducted in camera may include the following terms-
- The arbitration will be conducted in camera;
- The evidence of the witness (referred to as Mr X) will be heard in camera;
- The representative of the applicant party … may be present and participate in the proceedings when the evidence of Mr X is dealt with;
- The applicant may not be present and the identity of Mr X may not be disclosed to the applicant or any outside person during or after the arbitration proceedings;
- The respondent and its representative may be present when the evidence of Mr X is dealt with; The arbitration will continue at a time, date and place to be determined by the CCMA in conjunction with the applicant’s representative …, the respondent and the arbitrator;
- The evidence of Mr … [X] will be heard in camera and the contents of his evidence may not be published or disclosed to any outside person;
- The evidence regarding the respondent’s process of developing an auto catalyst will be heard in camera and may not be published or disclosed to any outside person.”
Where an application for evidence to be led in camera is brought, it is practice to adopt the three-tier approach favoured in NUM & others v Deelkraal Gold Mining Co Ltd.
First, the party bringing the application should be given an opportunity to lead evidence of an objective nature in ‘open court,’ to show that there is a real or bona fide belief in the minds of the persons giving evidence that the potential witness(es) who are seeking anonymity, have a real and genuine fear for their safety and that a real or potential danger exists or is genuinely perceived to exist, and that it is this danger or perception of danger that has induced the witness(es) not to be willing to testify in open proceedings. By its nature, this evidence will be hearsay evidence, because the parties on whom the evidence is based are not in the proceedings to corroborate it. It may be in the form of statements made by the witness(es) seeking anonymity with their names blacked out. The applicant should be allowed to make submissions as to why the witness(es) should be allowed to give evidence in camera and why they have fear for their safety should they testify in open proceedings. The other party should also be afforded an opportunity to lead evidence and make submissions about this issue. At the end of this objective phase of the procedure, the commissioner should rule whether the witness(es) seeking anonymity should be allowed to give evidence in camera regarding their subjective fear that they have for their safety, if they testify in open proceedings. The test that must be met in this first tier of the process was set out in Transport & General Workers Union & another v Durban Transport Management Board, where the court held that:
“… the test must surely be that the party seeking evidence in private must in open court establish prima facie 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 in relation to the merits from the ordinary principles.”
If the commissioner finds in favour of the applicant in the initial, objective phase, it will lead to the second, subjective phase, of the proceedings. In this phase, the party bringing the application should be given the opportunity of calling the witness(es) seeking anonymity themselves, in camera, to give evidence – including evidence of a subjective nature concerning their fears for their safety and the grounds therefore. They will give direct evidence corroborating the hearsay evidence led in the initial phase of the proceedings. The other party should be given an opportunity to lead rebutting evidence and to cross examine the witness(es). At the end of this phase, and after hearing the submissions of the parties, the commissioner must make a ruling on whether the witnesses seeking anonymity will be allowed to give their evidence on the merits in camera. In considering whether to make this ruling, the commissioner must inter alia consider the prejudice that the parties would suffer should such a ruling be made or not be made, and whether just and reasonable grounds exist for hearing the evidence in camera.
The prejudice that will be suffered by the party opposing the application, should it be granted, will usually be that their cross examination of the witness(es) will be hampered because the clients of the representative will not be in the proceedings, and also because they will not know the identity of the witness(es) and therefore cannot test their credibility and interrogate whether they bear any malice or grudges toward them. In NUM v Deelkraal Gold Mining, the court held that “of course one cannot deny that a party would be prejudiced to some degree in these circumstances”.
The prejudice that will be suffered by the applicant if the application to allow the in-camera testimony is not granted, will be that witness safety is endangered or that they would be unwilling to testify at all. Of course subpoenas may be obtained – but this is not an ideal situation.
In FAWU v CG Smith Sugar Ltd, Noodsberg, the court held that:
“This court in applying the above principles must never overlook the fact that it is called upon to deal with disputes which arise from the employment relationship. In these cases there will be a close daily relationship between the parties and the witnesses, not seen in ordinary courts of law.”
The court added that:
“… [it] must also bear in mind that the opportunity for harm is greater than it would be outside the employment sphere. It is very difficult to protect a witness in the employment sphere … They have to go home. They would use the same routes and the same transport as the employees who wish to harm them.”
The unique context of the workplace is no doubt the reason that the court in Transport & General Workers Union & another v Durban Transport Management Board held that although in general the approach to applications for in-camera evidence should follow the criminal approach, they should be more freely allowed in the labour context: “… with the result that principles such as open court proceedings and the presence of parties in proceedings to which they are a party must yield, where there is a conflict, to the greater principle that justice must be done”.
The court also noted that it was necessary to take into account “… the realities and … facts of life in a land where serious intimidation, necklacing, damage and destruction are all matters of recent and current history”. This observation is no less true today where violence and intimidation in the industrial sphere is commonplace.
If a ruling is made that the evidence of the witness(es) may be heard in camera, the party seeking to call the witness(es) is allowed to call them to give evidence in the presence of only the persons specified in the ruling. It may be possible to conflate the second phase of the proceedings with the final phase (evidence in camera on the merits) – where the merits duplicate the reasons why the witness(es) are applying to testify in camera. For example, in an unfair dismissal case, if the witness(es) are being required to testify about threats and intimidation that dismissed employees were charged with, found guilty of and dismissed because of – it is those very same threats and intimidation which result in the witness(es) not being willing to testify in open proceedings.