APL4802
ASSIGNMENT 2 2026
DUE: 21 APRIL 2026
SEMESTER 1 2026
,APL4802 ASSIGNMENT 2 2026
DUE 21 APRIL 2026
ADVICE TO MR B: ADMISSIBILITY OF RECORDING TRANSCRIPT AT THE CCMA
You have asked whether the transcript of your recording which includes the disciplinary
hearing (where you were present) and conversations that occurred in your absence will
be admissible as evidence at your CCMA arbitration. Your employer objects under the
Regulation of Interception of Communications and Provision of Communication-related
Information Act 70 of 2002 (“RICA”), claiming the recording was made without consent
and in breach of privacy.
I advise that the transcript of the disciplinary hearing portion is clearly admissible, and
the portion recorded in your absence also has strong prospects of admission at the
CCMA’s discretion. Below I explain the legal principles and apply them to your situation.
2. THE LEGAL FRAMEWORK
2.1 The Constitution - privacy and the exclusionary rule
Section 14 of the Constitution guarantees the right to privacy, including the privacy of
communications. However, section 36 permits reasonable and justifiable limitations of
rights. Critically, section 35(5) provides that evidence obtained in violation of a right
must be excluded only if its admission would render the trial unfair or be detrimental to
the administration of justice. Thus, even if a right is infringed, admission is not automatic
the commissioner has a discretion.
, 2.2 RICA - the prohibition and the “party to the communication” exception
Section 2 of RICA prohibits interception of communications. However, section
4(1) creates a vital exception: any person, other than a law enforcement officer, may
intercept any communication if that person is a party to the communication, provided the
interception is not for the purpose of committing an offence.
The courts have confirmed that recording a conversation to which you are a party is
lawful. As held in S v Kidson (a case dealing with the predecessor to RICA), “participant
monitoring” does not constitute unlawful third-party interception.
2.3 The CCMA’s flexible evidentiary approach – section 138 of the LRA
Section 138(1) of the Labour Relations Act 66 of 1995 (“LRA”) gives a commissioner
discretion to conduct arbitration in a manner that determines the dispute fairly and
quickly, with minimum legal formalities. While commissioners must still have regard to
basic rules of evidence (see Exxaro Coal (Pty) Ltd & another v Chipana & others (2019)
40 ILJ 2485 (LAC) ), they are not bound by strict court rules. This flexibility favours
admitting relevant evidence, including recordings, where justice so requires.
2.4 Case law on admitting unlawfully obtained evidence
In Harvey v Niland and Others 2016 (2) SA 436 (ECG) , the court admitted evidence
obtained by hacking a Facebook account – conduct that was criminal. The court held
that the right to privacy is not absolute; personal space shrinks as one moves from
ASSIGNMENT 2 2026
DUE: 21 APRIL 2026
SEMESTER 1 2026
,APL4802 ASSIGNMENT 2 2026
DUE 21 APRIL 2026
ADVICE TO MR B: ADMISSIBILITY OF RECORDING TRANSCRIPT AT THE CCMA
You have asked whether the transcript of your recording which includes the disciplinary
hearing (where you were present) and conversations that occurred in your absence will
be admissible as evidence at your CCMA arbitration. Your employer objects under the
Regulation of Interception of Communications and Provision of Communication-related
Information Act 70 of 2002 (“RICA”), claiming the recording was made without consent
and in breach of privacy.
I advise that the transcript of the disciplinary hearing portion is clearly admissible, and
the portion recorded in your absence also has strong prospects of admission at the
CCMA’s discretion. Below I explain the legal principles and apply them to your situation.
2. THE LEGAL FRAMEWORK
2.1 The Constitution - privacy and the exclusionary rule
Section 14 of the Constitution guarantees the right to privacy, including the privacy of
communications. However, section 36 permits reasonable and justifiable limitations of
rights. Critically, section 35(5) provides that evidence obtained in violation of a right
must be excluded only if its admission would render the trial unfair or be detrimental to
the administration of justice. Thus, even if a right is infringed, admission is not automatic
the commissioner has a discretion.
, 2.2 RICA - the prohibition and the “party to the communication” exception
Section 2 of RICA prohibits interception of communications. However, section
4(1) creates a vital exception: any person, other than a law enforcement officer, may
intercept any communication if that person is a party to the communication, provided the
interception is not for the purpose of committing an offence.
The courts have confirmed that recording a conversation to which you are a party is
lawful. As held in S v Kidson (a case dealing with the predecessor to RICA), “participant
monitoring” does not constitute unlawful third-party interception.
2.3 The CCMA’s flexible evidentiary approach – section 138 of the LRA
Section 138(1) of the Labour Relations Act 66 of 1995 (“LRA”) gives a commissioner
discretion to conduct arbitration in a manner that determines the dispute fairly and
quickly, with minimum legal formalities. While commissioners must still have regard to
basic rules of evidence (see Exxaro Coal (Pty) Ltd & another v Chipana & others (2019)
40 ILJ 2485 (LAC) ), they are not bound by strict court rules. This flexibility favours
admitting relevant evidence, including recordings, where justice so requires.
2.4 Case law on admitting unlawfully obtained evidence
In Harvey v Niland and Others 2016 (2) SA 436 (ECG) , the court admitted evidence
obtained by hacking a Facebook account – conduct that was criminal. The court held
that the right to privacy is not absolute; personal space shrinks as one moves from
