When can conversations recorded without your consent be used against you

Today it is so easy for an employer or employee to record a conversation, using a cellphone.

Must the other party consent to such recording, before it can be used for or against him or her in a court of law, disciplinary enquiry, etc.?

In summary:

Section 14 of our Constitution provides that everyone has the right to privacy, which includes the right not to have the privacy of their communications infringed.

An employer is entitled to breach the privacy or secrecy 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.

It is not illegal for a person to record or intercept conversations that they are party to. 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.

Section 35(5) of the Constitution of South Africa provides that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence renders the trial unfair or will otherwise be detrimental to the administration of justice. 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.

The Labour Court has made it clear that employers may, in appropriate circumstances, utilise recorded conversations in disciplinary hearings and legal proceedings as evidence against an employee, considering the relevant facts of each case and the balancing of the respective interests involved.

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.

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.

The case law:

In the case of Protea Technology v Wainer, the court held that in respect of telephonic conversations pertaining to the employer’s affairs and at the employer’s business, there was no legitimate expectation of privacy and the employer was entitled to utilise recordings of such conversations as they were recorded at the employer’s business premises and within business hours. The employer was therefore entitled to require the employee to account for his activities during this time.
In Harvey v Niland and others, evidence was obtained by hacking into the respondent’s Facebook account. The court confirmed that South African courts retain a discretion to admit tape recordings into evidence notwithstanding the commission of an offence or the infringement of a constitutional right in obtaining the recording. Thus, regardless of how audio recordings are obtained, they may be admissible notwithstanding the infringement on constitutional rights and especially when in the interests of justice.