The dos and don’ts of recording conversations

The dos and don’ts of recording conversations

There are several reasons why a business may want to record its interactions / conversations with customers: improving customer service; ensuring that employees always treat customers in the best possible way; ensuring easy customer follow-up and resolution of disputes; demonstrating accountability to customers; and aiding reliable note-taking.

Several businesses may not, however, realise these benefits as they are unsure of the legality and legal parameters of recording conversations. To clear up grey areas and enable you to grow and improve your business using all tools available, we have set out the basics of recording conversations in South Africa.

Am I (or is my business) allowed to record conversations with customers?

While, in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA“), the general rule is that no person may record a conversation without consent, the Act does set out certain exceptions to this rule. The exceptions include (and you can therefore record a conversation) where:

  • you are a party to the conversation (“single-party consent”);
  • you have the prior written consent of at least one of the parties to the conversation; or
  • the conversation relates to, or occurs in the course of, the carrying on of your business (“the business exception”).

It is important to note that the business exception is subject to further requirements in terms of RICA.

As a side note, certain businesses (specifically those in the financial services and intermediary industry) are legally required to record certain conversations with customers and to maintain such recordings for a statutory minimum period. This is however beyond the scope of this article.

Consent to record

As stated above, consent of at least one party to the communication is required when recording a conversation. This rule does not apply where the recorder is also a party to the conversation.

However, where a third party is recording the conversation, the third party must obtain informed consent from one of the parties to the conversation in order to legally record the conversation.

Guidelines for recording conversations

  • When recording conversations under the business exception, it is required that you make all reasonable efforts, in advance, to inform all parties that you will be recording conversations. It is good business practice to ensure and be certain that all customers are aware when conversations are recorded.
  • Use reliable technology to record and store recordings of conversations – you want to make sure that your customers’ (and your business’s) information is protected! In this regard, ensure that any recordings and storage thereof comply with all relevant laws (including, for example, the Protection of Personal Information Act 4 of 2013)
  • Maintain an effective storage system so that you can make the most use of your recorded conversations in developing your business

The article is serves only as a basic introduction to the topic of recording conversations and legal advice should be sought in relation to specific circumstances.

39 thoughts on “The dos and don’ts of recording conversations

  1. I am a landlord and recorded the exit inspection of my “tenants from hell” on Monday 18 September. They had previously disagreed with me on all the items that were not as they were when they took possession of my flatlet. So I felt it was necessary to record this exit inspection and have it on record, in case they disputed what went down in the conversation. (There were MANY instances of them changing their stories in their 10-month tenancy. I found them to be VERY dishonest in their dealings with me. ) I felt I needed confirmation of what they had said on this last occasion before I gave them my “findings” when I detailed what happened to their deposit. I used up their whole deposit having to attend to all the items that needed fixing, replacement or cleaning. At the end of the day they owe ME. They are, of course, going to dispute the things that were said during the “flatlet inspection”. At this stage I don’t care about the money they actually owe ME, I just want them out of my life !!

    1. Thank you for your query. We will need additional information from you to adequately respond. Kindly call us on 021 6711550 to set up a time to chat.

  2. I used to work in a salon, and I was aware of camera monitoring placed strategically throughout the salon. This information was also brought to my awareness in a contract which I didn’t sign as it needed to be revised and afterwards this contract was never given to me again. However, belatedly, I found out that there was also audio monitoring. There are no signs inside or outside the premises to alert the ladies and clients of the salon of the entirety of this surveillance. In a salon, many confidential exchanges are made between clients, stylists, nail tecnicians etc.I have four questions: 1; Is it legal for these salon owners to have this kind of surveilance of the employees and clients and record audio and visual between clients and stylists 2.;The termination of employment was a horrid event which was humiliating and I want no aspect of me left behind for their entertainment. What can I do to have all footage of me erased 3; What can be done to make the public aware of this fact and the extent of surveilance? 4. Can footage of me used during arbitration even though I never received warnings nor disciplinary whilst working there.Can they present footage of me afterwards during these arbitration meetings.

    1. Good day Anon,

      While, in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 (“RICA”), the general rule is that no person may record a conversation without consent, RICA does set out certain exceptions where recording without consent is legal. These exceptions include (1) where you are party to the communication (2) you have written consent of one of the parties to the communication or (3) the recording is in connection with the carrying on of business. In your case, proper legal advice should be sought. You are welcome to contact Dommisse Attorneys to set up a consultation.

      Thank you.

  3. I have a recording app on my phone that records all calls automatically , a guy named Michael Theron never paid me for an ktem I shipped to him, does the RICA terms of consent apply to domestic calls as well? Or does it only apply to companies. I want to take him to small claims court , will this recording backfire on me because no consent was given?

    1. Hi David,

      Thank you for your query. RICA provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).

      It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation.

      You are welcome to contact us to seek legal advice in relation to your specific circumstances and we will provide you with a quote.

  4. Hi Anon,

    I would like to know if I may record material for the use of Customer Service training in retail stores?
    Thank you.

    1. Hi David,

      Thank you for your query. RICA provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).

      It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation.

      You are welcome to contact us to seek legal advice in relation to your specific circumstances and we will provide you with a quote.

  5. a college recently had a disciplinary hearing in which he decided to record the proceedings secretly. he did this due to previous proceedings not being recorded accurately and the result went against the staff. with no proof they had no leg to stand on. can this recording be used in as a comparison to the proceedings that the company did record for the disciplinary at the ccma?

    1. Hi Diane,

      Thank you for your query. RICA provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).

      In simple terms, a person who is party to a meeting, conversation or even a disciplinary hearing can legally record the proceedings, even without the consent of other present parties as it is regarded as participant monitoring and same would be admissible as evidence.

      You are welcome to contact us should you need more information or assistance in this regard.

  6. Hi there
    I am going into a CCMA process tomorrow with my previous employer. I have made the case for being dismissed without any procedures. I suspect that he has recorded our meeting without me knowing and is going to present that tomorrow. what is my rights regarding this and will it be allowed by CCMA?

    1. Hi Denette,
      Thank you for your query. Apologies for not replying before you appeared at the CCMA. It is very difficult to answer this question without full knowledge of your employment conditions and your workspace policy. While the general rule in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) is that no person may record a conversation without prior consent of the other, RICA does set out certain exceptions to this rule. The exceptions include where (1) you are a party to the conversation (2) you have the prior written consent of at least one of the parties to the conversation or (3) the conversation relates to or occurs in the course of, the carrying on of business. Therefore, your options would have been to challenge the admissibility of the recorded evidence before he may be able to use it. We are a specialised corporate and commercial law firm and would suggest that you consult a labour specialist in your matter. We are also able to refer you to our contact if needs be. Please feel free to consult with us in future should you have other queries.

  7. I understand that the RICA does state that the recording of communication is acceptable provided that the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”)….I just wanted to know what grounds govern the recording of racial abuse(or any form of abuse) in the work place from a third party? is regarded legal to record the abuse under the exception that it is taking place in course of carrying on of business?

    1. Hi Phumzile,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation.
      You are welcome to contact us to seek legal advice in relation to your specific circumstances and we will provide you with a quote.

  8. HI

    we work in an office environment and there are cameras, which we have no problem with but can conversaions be recorded or staff members be allowed to record staff talking about work or staff not harmful talk on their cell phones

    1. Hi Marion,
      Thank you for the query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation.

  9. Hi can a manager allow staff in depth to record staff conversations he has a camera in his office that he says he can hear staff

    1. Hi Marion,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless taken under recognised exceptions, namely: (1) the recorder is party to the conversation; (2) the recorder has prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). The business purpose exception is subject to further requirements in terms of RICA. You are welcome to contact us for further assistance.

  10. I’m a truck driver by profession. My employer has installed cameras in my truck for “insurance purposes”, which I disagree with but can hardly do anything about. However, there is also an audio recording device attached, able to record all conversations I have on the phone, including the private ones I have with my wife and co-workers. Is this legal?

    1. Hi Steve,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless taken under recognised exceptions, namely: (1) the recorder is party to the conversation; (2) the recorder has prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). The business purpose exception is subject to further requirements in terms of RICA. You are welcome to contact us for further advice in this regard.

  11. If my telephone conversation is recorded by a company do I have a right to a copy of the said conversation and if so in terms of what law?

    1. Hi Theo,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless taken under recognised exceptions, namely: (1) the recorder is party to the conversation; (2) the recorder has prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). The business purpose exception is subject to further requirements in terms of RICA. Therefore, you would be permitted to access a copy of the recording which you have consented to. We would need more information to give you a comprehensive response. Please contact us on 021 671 1550.

  12. Is my wife allowed to record a conversation btwn us for the sole purpose of using it in court?

    1. Hi Brad,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless taken under recognised exceptions, namely: (1) the recorder is party to the conversation; (2) the recorder has prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). We are a specialised commercial law firm and would recommend that you seek advice from a litigation specialist or family law firm.

  13. Hi
    I recorded a teacher apologising for assaulting my son.She was recently called to court and pleaded not guilty.Can I use the recording as evidence?.

    Regards
    T

    1. Hi Thuli,
      At first glance, the recording would not be admissible in court as the teacher did not consent to it and it does not fall under the exceptions provided in terms the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”). We would need more information to provide you with a meaningful opinion in this regard. Please feel free to contact us with further details and we will gladly assist.

  14. Hi

    I am a manager at a lodge, am I allowed to record conversations between me and staff without the knowing?

    1. Hi Martin,
      In terms the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”), you may only record conversations between you and your staff with their consent or under exceptions as provided in terms of RICA. Please provide us with further details for us to assist you.

  15. Is it legal , one of my workers did record other workers with out them nowing he record them , now he wants to use the recordings against our company in a court or sosial media ; some of the recording he said is people sleep on duty , that one of our people fire shots months ago etc all is only hear say.

    1. Hi Andries,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).
      It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation.
      You are welcome to contact us to seek legal advice in relation to your specific circumstances and we will provide you with a quote.

  16. Will it be admissible in court if a woman tapes on her cellphone when she and her minor children is verbally abused and threatened by her husband without him knowing about the recording

    1. Hi Anonymous,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”). As such, any recording that does not fall within the three exceptions above will likely be inadmissible in court.
      You are welcome to contact us to seek legal advice in relation to your specific circumstances and we will provide you with a quote.

  17. Hi. I had my disciplinary hearing today (it was postponed for lack of particularity of the charges). I informed the parties that I was recording the proceedings due to disputes with the minutes from a grievance hearing I initiated. Initially there were n objections but after 5 minutes, the HR manager called the director out of the hearing. When she returned, she informed the chairperson that they objected to the hearing being recorded as it was against company policy. I asked for proof of the policy but none was available. The chairperson then made a ruling that I could not continue with the recording. the hearing continues tomorrow and I am again going to request that I be allowed to record. What rights do I have if it is again denied?

    1. Hi Rafael,
      Thank you for your query and apologies for the late response. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).
      It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation and such parties must provide you with written consent. You are welcome to contact us to for legal advice in relation to your specific circumstances and we will provide you with a quote.

  18. I am going through a bit of a tough time with my ex and biological father of my 3 month old son.
    When I found out I was pregnant, he wanted an abortion and I left him, although he now wants to be a part of my sons life.
    Anyways, I won’t give you all the ins and outs but our last call before we broke up, he was very violent. He was swearing and shouting, telling me I had ruined his life and generally emotionally abusive. When he does visit our son, I refuse to be alone with him and always have family and friends around, however he does still slander me on Whatsapp, I have kept the messages, but I just want to find out if he does phone me, am I allowed to record that phone call?
    I kept on saying that I wish I had recorded that last phone call but I don’t even know if it is legal

    1. Hi Megan,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).
      It is safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation and such party must provide you with consent.

  19. Hi there a law enforcement officer, in her personal capacity, came into my home provoking an argument while secretly recording it for the purpose of letting a third party listen to it. Is this legal?

    1. Hi Claudia,
      Thank you for your query. The Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (“RICA”) provides that all forms of monitoring and interception of communications are unlawful unless they take place under one of the recognised exceptions. There are several exceptions to the general rule, but it can generally be accepted that you will be permitted to record a conversation if (1) you are a party to the conversation (2) you have prior written consent of at least one of the parties to the conversation and (3) the conversation relates to or occurs in the course of the carrying on of business (“the business purpose exception”).
      It is important to note that the business purpose exception is subject to further requirements in terms of RICA, but it’s safe to say that you should make all reasonable efforts in advance, to inform the other party that you will be recording the conversation and such parties must provide you with written consent.
      You are welcome to contact us to for legal advice in relation to your specific circumstances and we will provide you with a quote.

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