A secret tape recording of a Springbok coach making abusive and racist remarks about other rugby officials set in motion a chain of events that has forever tarnished his reputation. In addition, as the recent furore surrounding various politicians and claims of “spying” continues to intensify, questions have been raised about the legal enforceability of tape recordings or wire tapping, which is required to be balanced with other fundamental rights, such as the right to privacy.
In South Africa the interception, recording and monitoring of communications is governed by the Regulation of Interception of Communications and Provisions of Communications-Related Information Act, 70 of 2002 (“RICA”). In principle RICA provides that no person may intentionally intercept or attempt to intercept any communication in the course of its transmission in South Africa. This prohibition of interception applies to all persons, private or public, but is subject to a number of exceptions detailed in sections 3 to 11 of RICA.
The primary exceptions to the general prohibition are the following:
3.1 Where the intercepting party is a party to the communication being intercepted. Effectively, therefore, where meetings are concerned, the person making a recording of a meeting must be participating in the meeting;
3.2 Where one of the parties to the communication has provided prior written consent to the interception. Theoretically this refers to the employer – employee relationship, where as a condition of employment, the employee consent to his communication being intercepted. Except for the said instance, it is almost impossible to conceive of other instances where a party would voluntarily consent, in writing, to his communications being intercepted.
Although it was promulgated in December 2002, RICA only came into effect in September 2005. Being relatively new, there are few cases regarding its application and interpretation having reached the courts.
There is, however, a plethora of cases which have been decided in terms of RICA’s predecessor (the repealed Interception and Monitoring Prohibition Act 127 of 1992) which deals with the circumstances in which one of the participants to a conversation monitors the conversation. These cases should carry weight when it comes to interpreting and applying RICA’s provisions on the interception of communications, which are less onerous than those of the 1992 Act.
In S v Kidson 1999 (1) SACR 338 (W), for example, an accomplice to a murder was given a voice-activated tape recorder by the police which he carried in his jacket pocket, using it to record a conversation with the accused, detailing the planning and execution of her husband’s murder. In determining the admissibility of the recordings, the court distinguished between ‘third party monitoring’ (a conversation ’by’ a person), and participant monitoring (a conversation ’with’ a person), holding that information voluntarily imparted in a two-party conversation is not ’confidential information’ in relation to the other party to the conversation, and is thus admissible as evidence.
In addition, the court confirmed that the interception of a telephone call to which one is a party does not constitute ‘third party monitoring’ as it would be flawed to say that one is eavesdropping on one’s own conversation. Examples used by the court to illustrate the absurdity of assigning third party status to the interception of phone calls included intercepting a telephone call from a kidnapper demanding a ransom, or intercepting calls from a perverted caller.
The overriding principle in the court’s decision was that the party to the conversation had a legitimate interest in intercepting a conversation or meeting, and did not intend using the recording in order to commit an offence.
What about juristic persons?
It has been contended that juristic persons (typically companies) and other organisations do not have a right to privacy due to the human nature inherent in this right. However, in Financial Mail (Pty) Ltd v Sage Holdings Ltd, the Appeal court confirmed that although a corporation has ’no feeling to outrage or offend’ , it is theoretically entitled to protection from invasion of its right to privacy and its right to identity.
In this matter, an (unauthorised) “eavesdropping” or tapping device had been installed in the basement of Sage’s premises, enabling conversations on the telephone line to be intercepted and tape-recorded. The appellant, the Financial Mail, who was in no way party to the making of the tape recordings, and did not solicit them, wanted to use some of the information contained on the tapes in a news article.
The court held that the tape recorded information was sensitive and confidential, as it concerned Sage’s internal affairs and delicate business negotiations, and that the publication by the appellant of those parts of the article derived from the tape recordings would infringe Sage’s and corporate executives’ rights to privacy, thus rendering it unlawful.
This case is a working example of a case in which the parties to a conversation have not provided prior written consent to the interception, thus rendering the use of the recording unlawful, as the parties intending to use the tape recordings were not a party to the conversation. In addition, the case lays bare the fact that it is almost always illegal to record a conversation to which one is not a party, in respect of which one does not have consent to tape, and which one would not naturally overhear.
While participant monitoring is, for all intents and purposes, legally valid, it should be noted that the admissibility and authenticity of tape recordings and transcripts are almost always disputed. A legitimate interest for wishing to use recordings should go a long way in advancing a call for having such evidence admitted. However, one should be wary of judicial boundaries and be careful to not transgress these, as our courts would only allow the infringement of a person or entity’s right to privacy in extraordinary or exceptional circumstances.
Article written by:
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Bowman Gilfillan, Cape Town
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