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Intercepting communications
How private are your telephone calls and can they be recorded without your knowledge?
by Alayne Meinesz
Most of us are aware that we have a fundamental right to privacy and that this right is
constitutionally protected. We are not always aware, however, how far this right will go to
protecting what we deem to be private communications and in what circumstances our right to
privacy may be ousted.
The Constitution states at s 14 that ‘everyone has the right to privacy which includes the right not
to have … the privacy of their communications infringed’. The Regulation of Interception of
Communications and Provision of Communication-Related Information Act 70 of 2002 (See 2005
(Dec) DR 38 – Editor) (which came into effect on 30 September 2005) (the Act) repealed the
Interception and Monitoring Prohibition Act 127 of 1992 (the IMP Act) and provided more specific
parameters in relation to the right to have private communications as set out in the Constitution.
The Act provides for a general prohibition of the interception of communications at s 2 where it
states that
‘no person may intentionally intercept or attempt to intercept, or authorise or procure any other
person to intercept or attempt to intercept, at any place in the Republic, any communication in the
course of its occurrence or transmission’.
Although the word ‘intercept’ was initially interpreted in the context of the IMP Act by the court in
the case of Diablo Trade 28 (Pty) Ltd and others v Madiba Air (Pty) Ltd [1999] 3 All SA 305 (W) to
imply that the interception must have been done by a third party to the conversation, the Act has
now defined ‘intercept’ to mean
‘the aural or other acquisition of the contents of any communication through the use of any
means’
and as such it includes the recording of a communication by a party directly involved in such
communication.
Exceptions to the general provision
Relevant exceptions to the above general provision are contained in ss 4, 5 and 6 of the Act
which state that interception is permitted in the circumstances set out below.
Where the person intercepting the communication is a party to the communication (s 4).
Accordingly any person is entitled to record his communications with another person without the
other person’s or persons’ knowledge or consent.
Where the prior written consent of one of the parties to the communication has been obtained (s
5). In these circumstances if one of the parties to the communication has provided its prior written
consent, a third party may intercept that party’s communications with any other person without
the other person’s or persons’ knowledge or consent. For example, if a trader on the JSE
consents in writing, his employer may record all such communications.
The interception is performed by a person in the course of the carrying on of any business where
the indirect communication (which includes telephone, cell phone, e-mail, instant messaging and
SMS) involves a transaction entered into in the course of that business (s 6(1)(a)), relates to that
business (s 6(1)(b)), or which takes place in the course of the carrying on of that business (s
6(1)(c)). The telecommunication system concerned must also be provided or used wholly or partly
in connection with that business and all reasonable efforts must have been made to inform in
advance persons who intend to use such system that communications may be intercepted (s 6).
Unlike the previous two exceptions this exception does not require the prior consent of either
party to the communication but merely that one of the persons using the communication system
has been informed that communications may be recorded.
The privacy of communications in the workplace
The exception contained in s 6 provides much needed clarity regarding the interception of
communications in the workplace. An employer may intercept the communications of its
employees if the employees have been adequately advised of such interceptions and where the
communication falls within the provisions of either s 6(1)(a), (b) or (c). An employer may, in
addition, intercept a communication for the purpose of investigating or detecting the unauthorised
use of the telecommunication system.
Therefore, even where an employer has made all reasonable efforts to inform employees of
interception, such interception will be considered to have been performed within the confines of
the Act only where the communication falls within either s 6(1)(a), (b) or (c). Personal information
of an employee intercepted by an employer will not have been obtained within the confines of the
Act as, in most cases, it does not relate to the business of the employer. Could such information
still be used against an employee in court?
Use of information in court
Where communications have been intercepted in violation of the Act the court may, in addition,
consider whether a person’s right to privacy has been infringed which will, of course, include a
constitutional assessment of the specific facts to the case at hand.
It must also be borne in mind that even where evidence is obtained unlawfully, for example where
an employee has not been informed that his communications may be intercepted, a court will still,
in accordance with the general rules of evidence, have a discretion to admit such
communications as evidence if the court deems the communications to be sufficiently relevant
(See Waste Products Utilisation (Pty) Ltd v Wilkes and another 2003 (2) SA 515 (W) at 547–585
in this regard). In this case the onus would be on the party seeking to benefit from the information
to prove that although the information was unlawfully obtained and/or infringed the person’s right
to privacy, the court should exercise its discretion in favour of admitting the evidence.
Conclusion
There are, of course, consequences of intercepting communications where none of the
exceptions in the Act exist. Section 49(1) of the Act states that any person who intentionally
intercepts or attempts to intercept, or authorises or procures any other person to intercept or
attempt to intercept, at any place in South Africa any communication, other than as per the
exceptions set out above, is guilty of an offence. If convicted of such an offence a person may be
liable to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years.