Several people or employees find themselves in unwanted situations where they feel it is necessary to record conversations that occur. The main reason for this is so that the recording may be used as proof against the other person for several reasons. It could be in the workplace where you have recorded certain scenarios, such as disciplinary proceedings. The question that very often arises, however, is, are such recordings, without the person’s knowledge, legal? Furthermore, can the recording/s be used at a later stage as evidence?
Before answering these questions, Section 14 of the Constitution, which enshrines the right to privacy as well as the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), need to be considered.
The right to privacy as contained in Section 14 of the Constitution states the following:
“Everyone has the right to privacy, shall include the right not to have-
(a) their personal homes searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
However, in terms of Section 36 of the Constitution, the rights provided therein may be limited and therefore are not absolute. For instance, the court in the case of Bernstein v Bester discussed the extent to which the right to privacy can be limited. Known as the limitation clause, Section 36 provides that in order for a right to be lawfully limited, the ‘limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom…’. There must therefore be a legitimate expectation that the right to privacy may not be infringed upon in order to deem the infringement unlawful.
In South Africa, the recordings of communications are regulated by the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA). In terms of RICA, generally speaking, no person may record a conversation without consent. The general rule of RICA is that all intentional interceptions of any sort of communications during the course of its occurrence or transmission in the Republic are prohibited. Further, any recording of a conversation that has been done without the consent of a party thereto is deemed as unlawful.
There are, however, several exceptions that are applicable in the instance of a recording without consent, as contained in the Act, which are inter alia:
- Where you are a party to the communication;
- Where you have received the written consent from one of the parties to the communication; or
- Where the recording has been made for purposes of carrying on of business;
How does the above apply when dealing with employees recording their employers, or vice versa? The case of Protea Technology Ltd v Wainer followed the judgement in Bernstein v Bester and is relevant as the court had to deal with the admissibility of the transcripts of tape recordings made of telephonic communications by the employee, the First Respondent. The court also had to deal with the right to privacy as well as employees’ rights when dealing with interception and monitoring of communications. It was held that there had to have been a legitimate expectation of privacy by the employee, which was not evident in this case as he was aware of the telephone conversations being recorded. The court held further that in relation to the right to privacy contained in Section 14, this right had to be weighed up against the relevance of the evidence in the courts’ discretion in determining whether or not to admit the evidence.
By virtue of the communications taking place in the workplace or even on the work resources, it was argued that there could have been no legitimate expectation of privacy as the communications were being conducted during the business hours when the employee should have been conducting business. Employees are likewise entitled to record the communications with their employers, particularly when dealing with situations such as disciplinary proceedings, by virtue of them being a party to the communications itself. These recordings are thus admissible as evidence.
By ensuring that you comply with at least one of the exceptions as listed in RICA, it will ensure that your recording is admissible and can be used as evidence in your case.
Article by: Porthri Blauw
Dispute Resolution Official – George