by Michelle Naidoo / Partner
Lavona Appanna / Associate
In our increasingly digital and connected world, recording conversations, whether over the phone, via Zoom, or in person, is common. Yet, many South Africans are unaware that not all recordings are lawful, and recording without proper consent can lead to serious legal consequences. The law governing this is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA).
What is RICA?
RICA was enacted to regulate the interception of communications in South Africa. Its primary purpose is to protect privacy while providing mechanisms for lawful interception under specific circumstances, particularly for law enfor3cement. Interception includes listening to, monitoring, or recording a conversation as it occurs or is transmitted.
Consent: The Key Factor
The cornerstone of lawful recording under RICA is consent:
- Single-party consent – If you are a participant in the conversation, your consent alone is sufficient. This means that you may legally record a conversation you are part of, even if the other party is unaware. This type of recording can, under certain circumstances, be used as evidence in civil or criminal proceedings.
- Third-party interception – Recording a conversation between others, in which you are not a participant, is strictly prohibited without judicial authorisation. To lawfully do so, one must obtain an interception warrant under Section 2 of RICA. This safeguard ensures that private communications are not unlawfully accessed.
Recording via Telecommunication Devices
RICA applies to all forms of electronic communication, including:
- Mobile and landline telephones
- VoIP services like Zoom, Teams, or WhatsApp calls
- Any device capable of transmitting communications electronically
Recording through these devices is treated the same as any other interception. Your participation and consent remain central to legality.
Practical Considerations
Even if legally permitted, concealed recording is rarely recommended. Courts may allow such recordings as evidence, but they can be challenged, especially if the context suggests bad faith or entrapment. From a professional standpoint, transparency fosters trust. Informing participants that a conversation is being recorded is often the safest route.
Disciplinary Consequences in the Workplace
Even if a recording is technically lawful under RICA, employees may still face disciplinary action if the recording breaches workplace policies, undermines trust, or captures confidential company information. Many organisations consider secret recordings of colleagues or management as misconduct, which can lead to warnings, suspension, or even dismissal. In Geerdts v MultiChoice Africa (Pty) Ltd [1998] 4 BLLR 341 (LAC), a manager was dismissed for secretly recording a private managerial meeting. The Labour Appeal Court upheld the dismissal, emphasising that surreptitious recordings breach trust and confidentiality, justify disciplinary sanction, and may warrant dismissal. It is important to note that it is not the mere act of recording that seals an employee’s fate, but the context the motive, the content, and the impact on the relationship of trust.
Why It Matters
For businesses, accurate records can prevent disputes, clarify commitments, and protect against misunderstandings. For individuals, understanding your rights ensures you stay on the right side of the law while preserving professional integrity.
In conclusion, if you are part of the conversation, you can record it. If not, obtain consent. Legal compliance, professional ethics, and common sense should guide every decision to record. When in doubt, transparency is your best friend. Employers and employees should also be mindful about the use of AI recording tools and etiquette. To be cautious, always request consent from other participants before permitting AI tools into meetings and calls.
Photo by Kenny Eliason on Unsplash
