Roy Bregman
Roy Bregman
  • The Constitution says you have a right to privacy - but it is not illegal for a person to record a conversation that they are party to, says a Johannesburg attorney.
  • Labour Court rulings have also made it clear that employers may record and use your conversations against you. 
  • For more, go to Business Insider SA.

Contrary to what may you think, it’s perfectly legal for anyone to secretly record a conversation they have with you, says a Johannesburg attorney.

While the Constitution provides that everyone has the right to privacy, it is not illegal for a person to record a conversation that they are party to, says Roy Bregman of Bregman Moodley Attorneys. Bregman has been practising law for more than four decades. 

“Section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (RICA) provides that 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.”  

The recorded conversation can also be used in a court against you – even though the Constitution says that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded.

“This would of course mean that if evidence (such as audio recordings) is obtained in a manner that violates an employee’s right to privacy, it would not be admissible. However, section 35(5) of the Constitution qualifies this to essentially provide that such evidence would be admissible if it is in the interests of justice to do so,” says Bregman.

Labour Court rulings have also made it clear that employers can record and use your conversations against you. 

An employer is entitled to breach the privacy of an employee if it can prove that the employee gave his or her consent or that the breach was justified by necessity or in the interests of justice to do so, says Bregman.

“An employer can present evidence in disciplinary hearings or arbitrations in the form of audio recordings (legally or illegally obtained), if doing so would be in the interests of justice and even if obtaining them infringes on an employee’s right to privacy,” says Bregman. 

However, employers are still required to follow a fair process and provide the employee with a fair opportunity to state his case and to respond to the evidence presented against him.  

In a recent case, an IT firm in Sandton used an employer's recorded telephonic conversations in a lawsuit.  The court found that this is permissible, given that that the conversations took place at the employer's premises and within business hours. There was therefore "no legitimate expectation of privacy", Bregman says. 

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