Author: Imraan Mahomed - Practice Area Lead, Employment/Labour Law
The advent of the cell phone has brought photography into a new dimension with the introduction of pocket cameras. Often acts of misconduct are caught on cell phones. But are such photos admissible as evidence in the CCMA?
Recently the Gauteng High Court (Johannesburg), in a criminal matter (Skhosana v The State) involving housebreaking and theft, set very clear guidelines for the admissibility of a cell phone photograph as evidence in a criminal trial. In this particular case the photo in question was taken by a security guard on his cell phone prior to the arrest of the suspect.
The High Court made it clear that in order for a cell phone photograph to be admissible it:
must be relevant;
should have a bearing on issues to be decided by the court;
should be verified as being a true image of what was captured by the person who took it;
should be clear and not edited;
should be presented in court to be viewed; and
the device, on which the photo was captured, should be reliable.
If all the above factors are present, the court can have regard to the photograph and admit it into evidence.
By and large this is the test that we have applied to the introduction of photographs generally in CCMA proceedings. The introduction of cell phone photos should follow the same format in future in CCMA litigation.
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