In South Africa, the recording, interception and monitoring of communications is governed by the Regulation of Interception of Communications and Provisions of Communications-Related Information Act, 70 of 2002 (“RICA”).
The general rule of RICA is that no person may intentionally intercept or attempt to intercept any communication in the course of its transmission in South Africa.
To whom does the prohibition applies to?
The prohibition of interception applies to all persons, private or public bodies. However, it is subject to a number of exceptions. These exceptions include, among others, making a recording if:
- you are a party to the conversation (“single-party consent”);
- you have the prior written consent of at least one of the parties to the conversation; or
- the conversation relates to, or occurs in the course of, the carrying on of your business.
Can an ordinary person secretly record a conversation they are a party to without the consent of the other party?
In terms of Section 4(1) of RICA, any person other than a law enforcement officer may intercept any communication if he or she is a party to the communication. However, such communication must not be intercepted for purposes of committing an offence.
Can an employer record his employees’ phone calls without their consent?
An employer can record his employees’ phone calls if they are related to him and his business. The High Court in the case of Protea Technology v Wainer held that an employer is not entitled to intercept private calls made by an employee, however, in instances where the employee is engaged in matters that pertain to the employer and his business, the employee in such circumstances has lost the right to privacy.
In the case of Harvey v Niland , the court confirmed that South African courts have a discretion to admit recordings as evidence despite the commission of an offence or violation of a constitutional right in obtaining the recording. The courts in exercising the discretion to exclude unlawfully obtained evidence must consider all the relevant factors which include the extent to which, and the manner in which, one party’s right to privacy (or other right) has been infringed, the nature and content of the evidence concerned, whether the party seeking to rely on the unlawfully obtained evidence attempted to obtain it by lawful means.
What does POPIA provide regarding recordings of conversations?
The Protection of Personal Information Act No. 4 of 2013 (“POPIA”) creates a civil liability for the infringement of the right to privacy. POPIA prohibits processing of personal information without consent of the party or subject. In terms of POPIA processing of personal information includes collecting, receiving, recording, organising, retrieving, using such information; distributing or making such personal information available.
Personal information relates to an identifiable living natural person and where applicable an identifiable existing juristic person. Therefore, recording personal information without the consent of the other party is prohibited even if the person recording is a party to the conversation. The enforcement of POPIA is scheduled to begin on 1 July 2021.
It is not illegal for anyone to secretly record a conversation they are a party to. The information obtained through a recording can also be admissible as evidence in a trial or disciplinary hearing if it is in the interest of justice to do so. However, in terms of POPIA personal information of another person cannot be processed (recorded) without their consent.
Source: Eversheds Sutherland | Co-authored by: Mpendulo Mabaso