There is currently no legislation in South Africa that governs the use of Polygraph. The only requirement that there is, is that it has to be done by a properly trained polygraph examiner using a recognised technique with the consent of the examinee.
Under these circumstances the results of polygraph examinations have been used regularly in disciplinary hearings, CCMA cases, Labour Court cases as well as criminal matters.
Our examiners have extensive experience in testifying in the CCMA, Labour Courts as well as Criminal Trials. Further to this we take pride in the fact that two (2) of the cases quoted by everyone in the Polygraph Community, were done by ourselves, namely Harms vs, Rainbow Farms (Pty) Ltd (CCMA Case) and M. Shinga vs. Gilbeys Distillers & Vintners (Pty) Ltd.
Status of Polygraph Examinations at the CCMA
- IN the matter of Harmse vs. Rainbow Farms (Pty) Ltd, case number WE 1728 of 9 July 1997 and numerous other CCMA cases, the commissioners found that the negative outcome on a polygraph examination (deception indicated) coupled with circumstantial evidence, allows an employer to act against an individual on a balance of probability.
- PETUSA on behalf of VAN SCHALKWYK vs. NATIONAL TRADING COMPANY the commissioner stated – There are some independent indicators to support an inference of guilt and that the polygraph test results support that inference to the extend where the guilt of the applicant has been proven on the balance of probability.
Status of Polygraph Examinations in Labour Court
- In the matter of M, Shinga vs. Gilbeys Distillers & Vintners (Pty) Ltd, case number NHN 11/2/10237 Industrial Court of South Africa the presiding officers stated – I accept that some weight should be attached to the polygraph results and that they constitute an objective reason for the Respondents decision to differentiate between the thee (3) suspected employees. He further stated – What tilted the scales of justice against the Applicant apart from his mendacity and that of his witness was the outcome of the polygraph examination. And in conclusion he stated – In my view provided the test is administered by a properly trained examiner, for a specific incident such as theft a negative polygraph result prima facie suggest deception and may be used as a supporting fact together with all other evidence.
- Also see Magnum Shield Security vs. Commissioner Diale Ntsoane N.O and others, case number JR2799/04 as well as Truworths Ltd vs. CCMA & Others, case number JR789/07 – In both these Labour Court cases the presiding officer ruled that the awards against the companies were reviewed an set aside partly due to the fact that the CCMA Commissioners ignored the polygraph evidence that were led. In the Magnum Shield Security case the presiding officer stated – There was evidence of polygraph tests that was led before the commissioner. The commissioner ignored this evidence entirely. The result of the polygraph test was that the Responded was deceptive. That evidence was not disputed. It was therefore vital for the commissioner to take it into account in deciding if the offence had been proven. And in the Truworths case the presiding officer stated – In this case, the arbitrator completely ignored the outcome of the polygraph test in circumstances where a trained polygraphist testified at the arbitration and explained the results of the polygraph and the manner in which the test was conducted. That was a reviewable irregularity, leading to the review and setting aside of the award.
- Harmse vs Rainbow Farms, case no. WE 1728 of 9 July 1997 – CCMA
- Govender vs Cargo and Container Services, case no KN 4881 – CCMA
- A. Singh vs SBV Service Limited, case no KN 35440 (18 April 2000) – Commissioner C J Munks – CCMA
- Mr J M Qabalatsane vs Fidelity Cash Management, case no NW 14877 – CCMA – held at Klerksdorp – 5 July 2000
- Zulu vs Morkels Stores (Pty) Ltd, case no KN 41022 (22 September 2000) – Commissioner G. Jenkin – CCMA
- NECAWU vs Security Self Help, case no MP 10918.
- Bronwin Louisa Groenewald vs Nedbank case no, WE 22300 (31 January 2000)
- PETUSA vs National Trading Co, case no WE 15191 (3 April 2000)
- SASU obo D Mashele vs Security Self Help – Case No: MP14591 (7 April 2000)
- Vivian Majola & one other vs Ulundi Cash & Carry – KN 48471 (13 August 2001) Commissioner Charles Anthony Oakes.
- Govindamah Pillay vs CCW Catering, case no KN 49880 (1 November 2001) – Commissioner M I Madondo
- Avesh Sewran vs Standard Bank South Africa – Case No: KN5193-01 (1 February 2002) Commissioner Leigh-Anne Dayal.
- FAWU obo Manatha (Mandlenkosi O) – Michael Masondo (Union / Applicant) vs Pyramid Catering Supplier – Case No: KN12996-01 (16 May 2002) Commissioner Karen Charles.
- CEPPWAWU obo Maliboho vs New United Pharmaceutical Distributors (PTY) Ltd – Case No: GA14206-01 (26 September 2002) Commissioner Victoria van Rooyen
- SACCAWU vs The Cellars Hohenhort Hotel case no, WE 4118-02 ( 8 October 2002)
- NUMSA vs McCarthyMotor Holdings case no, WCU 76/02 (14 November 2002)
- NUMSA vs Shelco Shelving – case no, WE 9841-02 (12 March 2003) Commissioner Vicky Smith
- NUMSA vs Lowveld Implement & Farm Equipment – MP 2092-02 (17 June 2003) Commissioner Raymond Dibden
- Sadhasivan Naidu vs Antalis (Pty) Ltd case no, KN 18023-03 (3 December 2003) – Commissioner M M Govender.
- Gajadhou Sukdeo vs NBL Bakers Biscuits Division – KNDB664-04 (16 August 2004) Commissioner Wayne Paul
- Petros N Mzimela vs United National Breweries SA (PTY) Ltd – Case No: KNDB8571-04 (23 May 2005) Commissioner: Richard Lyster
- SACCAEU obo Mokalapa S vs Truworths – Case No: GAPT 549-06 (18 November 2006)
Commissioner: Braam van Wyk
- James N Njiyela vs Sasko Baking – Case No: KNDB10386-07 (29 October 2008)
- M. Shinga vs Gilbeys Distillers & Vintners (Pty) Limited, case no. NHN 11/2/10237 Industrial Court of South Africa
- Magnum Shield Security vs Commisioner: Dale Ntsoane N.O (1st Respondent)
Commission for Consiliation Mediation and Arbitration (2nd Respondent)
Pailos Moatshe (3rd Respondent)
– Case No: JR2799/04 (September 2006)
- Truworths Limited vs Commission for Conciliation and Arbitration (1st Respondent)
Khabo Mamba N.O (2nd Respondent)
Rawu obo Adeline Masilela (3rd Respondent)
– Case No: JR789-07 (1 August 2008)