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SECRET RECORDINGS: Are they legal…when can you use them as evidence?

SECRET RECORDINGS: Are they legal…when can you use them as evidence?

Yes – they can be legal in certain situations specified in RICA[1]. This is the law which regulates the interception of communication and use of the information that comes from it.

RICA allows a person who is not an officer of the law to record and to allow others to listen in on their own conversations in which they are one of the parties. It also allows a person to record speech made generally to multiple persons when the person recording it is within natural hearing range. The most common example is a meeting which the person attends with others.

The relevant sections of RICA are –

Section 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 purposes of committing an offence.’

This relates to what RICA defines as “direct communication.” “Direct” is when the person making the recording actually participates in the communication with one or more other people – such as in a meeting or on a phone call. It also covers a person who may not be a participant but who can hear others communicating – such as people talking in the room next door.

Section 5 (1) Any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted by such person for purposes of committing an offence.’

This relates to what RICA defines as “indirect communication.” “Indirect” is when the person making the recording does not participate in the communication personally or does not overhear it first-hand – such a postal service or an employer who installs a monitor on its office phone system to record a conversation between an employee and other people. The employer is a third party and must get prior permission in writing from the employee to record the conversation. If there is no permission, the recording will be illegal and cannot be used as evidence in enquiries, in court or for any other purpose.

The exception to the rules in both direct and indirect communications is when the recording is made to commit an offence – such as a conversation between people about a plan to rob a bank. This recording can be used without permission as evidence to prosecute a person who is accused of committing a crime.

TIP: An employer should include a clause in every contract of employment which secures written permission upfront to record and intercept communications via the employers’ phones, email, intercom and other systems. And it would also be advisable to routinely check whether anyone present in a meeting or phone call is recording the conversations secretly. This would help to decide how to manage the situation appropriately.

[1] Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002
Source: SANCS Blog by Marc Aupiais


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