Imagine for a moment that an employee has a telephone conversation with a colleague ("X"). He confides his displeasure with the way he has recently been treated by the employer, and mentions that he could place a major contract in jeopardy. Some time later, the company he works for loses a major contract and now faces liquidation. It later transpires that the colleague had in fact recorded the conversation and has made the recording available to the employer for its investigation. The employee now faces a possible civil claim by the employer for the loss of the contract. Is the recording admissible and if so, what evidentiary weight does it carry?
The previous position in terms of Section 2(1) of the Interception and Monitoring Prohibition Act 127 of 1992 ("IMPA"), which was repealed by RICA was as follows:
"2(1) No personal shall:
(a) intentionally and without the knowledge or permission of the dispatcher intercept a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line; or
(b) intentionally monitor any conversation or communication by means of a monitoring device so as to gather confidential information concerning any person, body or organization."
However, according to Sections 2(2)(a), 2(2)(b) and 2(2)(c) of IMPA, there are certain exceptions in which the court can direct that a particular communication be intercepted. These include the following:
"(a) a particular postal article or a particular communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line...;
(b) all postal articles to or from a person, body or organization or all communications which have been or are being or are intended to be transmitted by telephone or in any other manner over a telecommunications line, to or from a person, body or organization...; or
(c) conversations by or with, or communications to or from, a person, body or organization, whether a telecommunications line is being used in conducting those conversations or transmitting those communications or not..."
Furthermore, in Lenco Holdings Limited vs Ekstein 1996(2) SA 693 (N), it was held that the court in civil proceedings has the discretion to exclude evidence obtained by a criminal act or otherwise improperly obtained. Thus, given the same set of facts and even though X's conduct would have amounted to a criminal offence in terms of Section 8 of the IMPA, the court would still have a discretion as to the admissibility of the tape recording.
This judicial discretion was developed in the pre-constitutional era, but has a constitutional basis, as Section 34 of the Constitution of the Republic of South Africa of 1996 ("the Constitution") provides that everyone has a right to a fair civil trial. This principle relating to the judge's discretion was further confirmed in Protea Technology Limited and Another vs Weiner & Others 1997 (9) BCLR 1225 (W) where JA Heher, held that the IMPA does not expressly or by necessary inference render the projection of recordings made in contravention of its terms inadmissible as evidence in a civil trial.
The enactment of RICA has amongst others, repealed Section 2(1) of IMPA, in particular that such recordings are no longer rendered unlawful.
This is evident from Section 4(1) of RICA which provides that:
"4(1) Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for the purposes of committing an offence."
In terms of Section 1 of RICA, a party to a communication is defined as:
"(ii) a direct communication, any person:
(aa) participating in such direct communication or to whom such direct communication is directed;
(bb) in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her;
(iii) or an indirect communication:
(aa) the sender or recipient or intended recipient of such direct communication;
(bb) if it is intended by the sender of an indirect communication that such indirect communication received by more than one person, any of those recipients; or
(cc) any other person who, at the time of the occurrence of the indirect communication is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication".
Furthermore according to the provisions of RICA, a party to the communication in terms of Section 4 includes a person who might be listening, but not actively participating in the particular conversation. Thus even a passive listener can record the conversation and use same as evidence against a party in court proceedings, due to the fact that the particular individual is also regarded as a party to the conversation in terms of the definition of a "party to a communication".
Attention is drawn to the fact that the interception of such communication should not be with the intention to commit a crime. Thus taking into account the current set of facts, should the employee's colleague have intended to use the recording to later extort some sort of benefit from him or to use the recording to commit a crime then the recording would no longer be sanctioned by the provisions of RICA.
The answer to the question of whether the recording is admissible, is yes, the interception is no longer regarded as a crime subject to the requirements stated in Section 4 of RICA being met. The admission of such recordings will also depend on the authenticity thereof, which authenticity will need to be confirmed. In this regard the provisions of the Electronic Communications and Transactions Act 25 of 2002 ("ECTA") will find application.
Section 15 of ECTA deals with the admissibility and evidentiary weight of data messages such as voice recordings and provides that:
"15(3) In assessing the evidentiary weight of data message, regard must be had to:
(a) the reliability of the manner in which the data message was generated, stored or communicated;
(b) the reliability of the manner in which the integrity of the data message was maintained;
(c) the manner in which its originator was identified; and
(d) any other relevant factor".
Given that RICA grants more leeway in the interception of communications which were previously prohibited by the IMPA, an argument can be made that the provisions in RICA do not necessarily do away with the discretion that was granted to judges in matters relating to interception of communications which was previously afforded to the court in civil proceedings.
Although the judge still has the discretion as was the case during the IMPA era, now his or her discretion is confined to the requirements in Section 4 of RICA not being met.
This particular section of RICA is yet to be judicially considered and begs the question as to how the courts will deal with such a matter. The biggest question that the court will have to answer is whether or not this is a violation of the right to privacy in terms of Section 14 of the Constitution, which right is subject to limitation to the extent that the limitation is reasonable and justifiable in an open and democratic South Africa and taking into account the relevant factors set out in Section 36 of the Constitution.
The result of the enactment of RICA is that even when talking to a sales consultant over the phone, the consultant does not necessarily have a duty to inform the other participant that the particular conversation is being recorded. It will not be regarded as being unlawful taking into account that the requirements of Section 4 of RICA will be met.
The party intending to rely on tape recordings will also have to comply with Rule 35 of the Uniform Rules of Court and will be required to make discovery of such tape recordings by close of pleadings. All the requirements in terms of Rule 35 have to be complied with.
In applying the provisions of RICA to the set of facts, the following conclusions can be drawn:
- X is regarded as a party to the conversation.
- X did not have a duty to inform the employee that this particular conversation was recorded.
- X, being a party to the conversation, is able to consent to such tape recording being used in any civil or criminal proceedings against the employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.