No, in terms of Section 4(1) of the Regulation of Interception of Communications and Communication-Related Information Act, 2002 (Act No. 70 of 2002), (hereinafter referred to as the Act) any person, other than a law enforcement officer, may intercept any communication if he or she is party to the communication, unless such communication is intercepted by such person for purposes of committing an offence. In terms of Section 4(2) of the Act, any law enforcement officer may intercept any communication if he or she is:
In terms of Section 1 of the Act, “intercept” is defined to mean 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:
A “communication” is defined in Section 1 of the Act, to include both a direct communication and an indirect communication.
A “direct communication” is defined to mean an:
An “indirect communication” is defined as the transfer of information, including; a message or any part of a message, whether it is:
(a) in the form of:
(b) in any other form or in any combination of forms, that is transmitted in whole or in part, by means of a postal service or an electronic communication system1. (Own underlining).
In light of the above, the Act prohibits the interception of audio communications (in other words the interception of what is spoken). Visual images, such as those recorded by closed circuit television, are not transmitted by means of the postal
' The definition of indirect communication in the Act was amended by the Electronic Communications Act No. 36 of 2005”. The definition of telecommunication system was replaced by “electronic communication system”. (Government Gazette No. 28743 of 18 April 2006).
services or an electronic communications system. The actions, gestures or activities of a person, without sound, fall outside the definition of a “direct communication”.
The Act aims to protect the privacy of communications, in general. It is submitted that the prohibition of the Act, does not apply in circumstances, where a person makes an oral communication in circumstances, where there is no reasonable expectation of privacy (for instance in a police station).
In line with the Act, closed circuit television at police stations does not record audio communications but only activities that take place. Body-worn cameras, which have the ability to record activities and audio communications may, however, contravene Section 4(1)(a) of the Act. (Own underlining).
Response to question 207 recommended/
GENERAL RICAN POLICE SERVICEResponse to question 207 approved/not approved
MINISTER OF POLICEBH CELE, MP
Date: