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A “Without prejudice” communication made by one party to another in an attempt to negotiate settlement of a dispute or a debt is inadmissible in a court (and this would apply equally to the CCMA) and therefore a party to the proceedings cannot use such communication as evidence. The following are examples of exceptions to the rule.
1. Fraud or Misrepresentation: If the communication involves fraud, misrepresentation, or any other form of dishonesty, it can be used as evidence.
2. Waiver: If both parties agree to waive the “without prejudice” privilege, the communication can be admitted.
3. Establishing an Agreement: If the communication is used to prove that a settlement agreement was reached, it can be admitted.
4. Costs: In some cases, “without prejudice” communications can be used to determine the issue of costs in litigation.