South Africa: Understanding the impact of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002

Last Updated: 16 December 2010
Article by Corlett Manaka

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position in terms of Section 2(1) of the Interception and Monitoring Prohibition Act 127 of 1992 ("IMPA"), which was repealed by RICA was as follows: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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions