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Article contributed by Fawzia Khan, an attorney based in Umhlanga, Durban 

Do you know for sure that a conversation you had with someone has not been recorded? With technology taking control in our day-to-day lives, it’s fair to say that our telephone conversations or even general conversations may easily be recorded by others, often without our knowledge.

Most cell phone devices come with standard recording features and often these devices may be hidden from view. This means that very often one of the participants may not be aware that his or her conversation is being recorded. Is this legal in terms of our law? You may be surprised to know that it’s not illegal to do so and it would be admissible in legal proceedings.

The proviso is that the person making the recording must be a party to the conversation at the time. The Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002, (The RICA Act), says that 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. This means that even though our rights of privacy are protected in the Constitution, it’s not illegal for a person to record a conversation that they are party to that conversation.

What if a recording or intercepting of information is obtained through illegal means? Will these be admissible in court? The short answer is that it depends on the facts of the case. The court has a wide discretion. It will need to balance the rights of privacy against the interests of justice.

In a labour matter, an employee wanted certain transcripts of telephone calls which were recorded by the employer through a surveillance device to be declared inadmissible. The court said that in the context of his employment, the surveillance device used by the employer was admissible and the employer was entitled to use those recordings of such conversations.

In another case, Harvey v Niland and Others, a man was accused of hacking into his former business partner’s Facebook account where he was able to access certain communications made by the ex-partner on Facebook. This act was clearly both criminal and an invasion of privacy. However, the court said that in terms of the common-law principle that all relevant evidence which is not inadmissible (because any exclusionary rule), would be considered admissible in a civil court, irrespective of how it was obtained. The court held that the rights of privacy are not absolute and that it has a discretion to admit certain evidence even if the evidence was obtained illegally.

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