The Law And Polygraph

At present there are no laws governing the administering of polygraph examinations nor are polygraph examiners governed by a professional body.

PSSA examiners are affiliated to the American Polygraph Association (APA) as well as the Polygraph Association of South Africa (PASA) and South African Professional Polygraph Association (SAPPA).

By law, employees cannot be compelled to submit to a polygraph examination, although the employer may, with just cause, exert some pressure on employees to undergo a polygraph examination.

Refusal by an employee to submit to a polygraph examination may not be regarded as implying guilt, but it can be regarded as an aggravating factor when there is other evidence of misconduct.

Polygraph examiners have been accepted as expert witnesses whose evidence ‘needed to be tested for reliability’. The onus rests with the Commissioner to determine the admissibility and reliability of the results of the polygraph examination. The polygraph examination cannot be used to prove guilt, but may be regarded as an aggravating factor when there is other evidence of misconduct.

Where voluntary confessions are obtained as the result of a polygraph examination, the courts have tended to hold the confessions as valid.

IN EVIDENCE
Although the polygraph examination does not in and of itself provide definitive evidence in the way that a fingerprint, DNA sample or other physical evidence does, it does assist an investigation by casting or dispelling doubt and evincing further avenues of investigation.

IN THE EYES OF THE LAW
Polygraph examinations do not have a defined status in the eyes of the law, but there are numerous examples where the courts, including the CCMA have allowed polygraph examinations as corroborating evidence.

JUST CAUSE
It is generally accepted that employers may use polygraph examinations to investigate specific incidents where:

Employees had access to the property where the incident occurred
There are reasonable grounds or suspicion that the employee was involved in the incident
There has been economic loss or injury to the employer’s business.
Polygraph examinations may also be justifiably called for when the employer is combating:

Dishonesty in positions of trust
Serious substance abuse
Fraudulent behavior
Fraud in the form of deliberate falsification of documents.