Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

Seven Interesting Facts about Surrogacy

1.       Not for convenience

The artificial insemination of a surrogate mother is only lawful if the commissioning parent/ parents have a permanent and irreversible condition and are therefore unable to give birth to a child.

2.       The surrogate mother may not receive any form of payment

The surrogate mother may not receive any form of payment or reward apart from reasonable hospital/ medical expenses.

3.       The child and the commissioning parents must share genes

For a surrogate motherhood agreement to be valid, the genetic material of both commissioning parents, and if this is not possible, at least one of the commissioning parents MUST be used.

4.       The surrogate mother may, in some instances, change her mind within 60 days after the child’s birth.

If the surrogate mother shares genetic material with the child (in the instance where only one of the commissioning parents’ genes were used), the surrogate mother may change her mind without incurring any liability.

5.       A surrogate mother may get an abortion

The commissioning parents only receive full parental rights and responsibilities the moment the child is born. The surrogate mother must hand over the baby to the commissioning parents as soon as possible.

6.       The child may not claim maintenance from the surrogate mother

The surrogate mother has no parental rights or responsibilities in terms of the surrogate child. The child may also not claim maintenance from the surrogate mother’s husband or partner.

7.       Prior to 1 April 2010 there was no law regulating or prohibiting surrogacy

‘Mater semper certa est’ = Common Law rule stating that the mother who gives birth to the child is always the parent. This meant that the surrogate mother had to put the child up for adoption and the commissioning parents had to apply in order to adopt the child.  

Today chapter 19 of the Children’s Act regulates surrogacy and explicitly states that no potential surrogate mother may be artificially inseminated without a High Court confirming the written surrogate motherhood agreement between the parties.  

Question received via freeadvice@legalhero.co.za - Illegal Eviction

Please note that readers may direct questions to freeadvice@legalhero.co.za. In our sole discretion, four questions will be answered each month via Facebook update - the reader’s identity will be protected. It is our way of giving back and saying thank you for your loyal support.

  

Our first question really shocked us. We hope that this answer sheds some light on how to deal with some of the issues lessees (persons who rent apartments/ houses) unfortunately face on a daily basis.

Question and photo received:

“My 'landlord' never told the owner of the house that im renting the granny flat next to the house and she showed up and thew all my stuff out on street. Yes it's illegal I know, but the police cant do anything and the tribunal council wants me to come see them in town whilst evetything is lying outside. Anyone have a solution? No I didnt receive notice or any documentation regarding the illegal surprize eviction. Anyone want to help please?”

Reply:

Section 26(3) of our Constitution: “No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

The disgraceful act of the owner was therefore illegal, as correctly pointed out by Ms X. One understands Ms X’s frustration, as the Rental and Housing Tribunal (RHT)’s mediation of the dispute could take a while to resolve (often up to three months) and the question is… what happens to Ms X and her personal belongings in the meantime?! 

Luckily the RHT is in a position to grant Ms X an interdict. An interdict orders someone to act in a certain way (either to do something or not to do something). In this case it will order the owner NOT to evict Ms X and not to throw out her personal belongings. This interdict will be valid for three months pending the outcome of the mediation session and the good news is that Ms X will be able to apply for an extension of this interdict after the expiry of the three months (should the matter remain unresolved). Once the interdict is granted, the Police WILL be in a position to assist should the owner of the property disregard the terms of the interdict.

As for Ms X’s personal belongings, we advise that Ms X tries to safely store her personal belongings with a friend or a facility – at the owner’s expense of course! Should any of her personal belongings be harmed or go missing during the time it was outside, and Ms X can prove same, Ms X also has a claim for damages against the owner of the property.

In Afrikaans there is a maxim ‘‘huur gaat voor koop’ which means that lessees may complete the term of their lease agreement regardless of a new owner/ lessor.

Note that the RHT is a free service available to all lessees and you can locate the provincial office closest to you by contacting 011 355 4000. You may notify the RHT of a dispute you have with your lessor/ landlord by completing and submitting a RHT complaint form. A file will then be opened and a case number assigned. Both parties (the lessee and lessor/ landlord) will receive the date, time and place of the mediation session that follows.

We wish you all the best and hope that you found this article useful. 

Kind Regards,

Legal Hero.