When fiction becomes reality – admissibility of recorded telephonic discussions

Employers frequently have questions that in effect are answered by the admissibility of evidence of the particular case.

A matter was decided at the end of the year last year that dealt with the admissibility of tape recorded evidence. (Davids v Special Investigation Unit 2011 12 BALR 1275 CCMA)

The facts are briefly as follows:

· At arbitration the employer intended placing reliance on recordings of telephone conversations which the employee had with another.

· The employee argued that the recordings were obtained illegally by invading his right to privacy and were therefore inadmissible. Furthermore it was the contention of the employee that the recordings were not made within the course and scope of his employment. The employee placed specific reliance on the Interception of Communications and Provision of Electronic Communication Act.

Section 2 of this Act provides:

· “Subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission.”

· Intercept is defined in section 1: “intercept” means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the–

Ø monitoring of any such communication by means of a monitoring device;

Ø viewing, examination or inspection of the contents of any indirect communication; and

Ø diversion of any indirect communication from its intended destination to any other destination, and “interception” has a corresponding meaning;

· The employer maintained that the information was secured through the lawful tapping of someone else’s cell phone thereby recording the conversation with the employee. The employer also argued that the same legal technicalities do not apply in the CCMA as they might in a court of law and that the commissioner should exercise his discretion in allowing the submission of the evidence.

The commissioner found that while it does have authority to hear evidence that may have been unlawfully obtained, the party who wishes to rely on the evidence, must first lay a factual basis for doing so. Considerations of equity are not regarded as being sufficient. The commissioner pointed out that further consideration need also be given to:

· Possible prejudice to the accused

· Interests of justice and public policy

While commissioners may handle matters with the minimum amount of formality it does not entitle them to act with impunity. Further, handling matters with a minimum of formality relates rather to procedure not law of evidence.

The evidence was found to be inadmissible and therefore could not be used by the employer.