A forensic investigation creates two very different legal problems, and they sit on opposite sides of the same file. We act on both, in separate matters: for the person or company being investigated, and for organisations that need an investigation done properly.
If you are the subject of an investigation
The first contact is usually an invitation to an interview, often described as informal, internal, and nothing to worry about. It is worth understanding what that interview actually is before you attend it.
An internal or forensic interview is not a police interrogation, and the constitutional protections that attach to an arrested or accused person do not automatically apply to an employee sitting in a boardroom. What you say there can nonetheless be recorded, included in a report, used in a disciplinary hearing, handed to the police, and relied on in a later criminal prosecution. People routinely talk their way into charges while believing they are helping to clear things up.
Three questions matter at that point. What exactly is being investigated. What obligation, if any, you actually have to participate. And what the consequences of answering, or declining to answer, are in each of the forums you may end up in.
Parallel proceedings
The same set of facts frequently produces a disciplinary process, a criminal complaint, and a civil claim to recover losses, running at different speeds. A statement that seems sensible in the disciplinary hearing can be damaging in the criminal matter. The sequencing of those processes is a strategic question, not an administrative one.
Legal representation at a disciplinary hearing
There is no automatic right to be represented by an attorney at an internal disciplinary hearing. There is also no lawful blanket ban. Following the Supreme Court of Appeal’s approach in Hamata, a chairperson must apply their mind to a request for legal representation and exercise a discretion, and fairness may require it where the matter is serious or legally complex. A refusal that was never properly considered is reviewable.
Search warrants, subpoenas and the Hawks
Where an investigation involves the police, the Directorate for Priority Crime Investigation or the Special Investigating Unit, the powers being exercised are statutory and limited. A warrant has a scope. A subpoena for information has requirements. Material covered by legal professional privilege does not stop being privileged because an investigator asks for it. Knowing what may lawfully be taken, and objecting properly at the time, is considerably more effective than complaining afterwards.
If you are commissioning an investigation
An investigation is only worth what you can do with it. Reports collapse for predictable reasons.
Evidence gathered in breach of privacy law is a liability rather than an asset. Monitoring and interception of communications is regulated, and the Protection of Personal Information Act applies to the personal information an investigation collects, including the information of the person being investigated. Investigators who exceed what the law allows create a second dispute alongside the one they were asked to resolve.
Privilege is the other common failure. A report commissioned directly by the company is often discoverable. Work properly commissioned through attorneys, for the purpose of obtaining legal advice or in contemplation of litigation, stands a far better chance of being protected. That structure has to be put in place at the start, not claimed afterwards.
Finally, findings have to be usable. A dismissal built on an investigation that denied the employee a fair process will not survive the CCMA, however sound the underlying conclusion.
Acting on one side only
We act for subjects and for organisations, but never on both sides of the same investigation, and conflict checks are run before any instruction is accepted. If we are already acting for a party connected to your matter, we will tell you and decline.
How we work
These matters are usually urgent, and the first conversation is often the one that changes the outcome. A consultation of 45 minutes is R1 200 and includes reading up to 10 pages beforehand, such as the interview invitation, the allegations, the suspension letter or the investigator’s correspondence. The fee is credited in full against work instructed within 30 days.
Where the matter is already live, say so when you book, and bring everything you have received in writing.
Common questions
I have been asked to attend a forensic interview. Do I have to go?
It depends on your employment contract, the disciplinary code, and who is conducting the investigation. Whether you must attend and whether you must answer are two separate questions, and the answers differ depending on which forum the material may end up in.
Can what I say in an internal interview be used against me criminally?
It can. An internal interview does not carry the protections of a formal police process, and the resulting record can be handed to investigators and relied on later. This is the main reason to take advice before attending.
Can I bring a lawyer to my disciplinary hearing?
There is no automatic right, but an employer cannot impose a blanket ban either. The chairperson must consider the request and exercise a discretion, and legal representation may be required for fairness where the matter is serious or complex.
The investigators want my phone and my emails. Must I hand them over?
Not necessarily, and not always in full. Company systems and personal devices are treated differently, privileged material retains its protection, and any warrant has defined limits. Get the scope checked before handing anything over.
We need to investigate an employee. What should we get right first?
Decide at the outset how the report will be used, structure the work so privilege is available if you need it, keep the evidence gathering within what privacy and interception law allows, and preserve procedural fairness so the findings can support action afterwards.
Can you act for us if you have advised the other side?
No. We act for subjects and for organisations, but never on both sides of the same matter, and we run a conflict check before accepting any instruction.
Written by Hyran van Schalkwyk, B.Soc.Sci (cum laude), LLB. Admitted attorney, Legal Practice Council 104504.
Last reviewed 12 October 2026