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CaseLaw
CaseLaw, Attorney
Category: South Africa Law
Satisfied Customers: 1749
Experience:  BCom; LLB; Masters in Law
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I have a question on voice recording in South africa.

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Hi. I have a question on voice recording in South africa.

JA: What state are you in? It matters because laws vary by location. Customer: Western Province, |South Africa

JA: Has anything been filed or reported?

Customer: Our country does not have states; only provinces.

JA: Anything else you want the lawyer to know before I connect you? Customer: It pertainbs to the workplace Hi. This question pertains to law in South Africa.

A grievance has been put in against myself and 2 colleagues by a colleague who recorded our conversations when she left the room. She did this as she is very unpopular due to poor work attendance and she expected she was discussed.

I am angry at myself for being pulled into gossip, but would like to know if it is legal in South Africa to record people's conversations in this way?

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will try to assist you with your legal question but please feel free to ask as many follow up questions in order to clarify your initial question. If you have a new question, you must please open a new thread.

In South Africa the rule is that you need at least 1 person's consent in a conversation to record that conversation.

That means that if person A is talking to person B, person A can record the conversation, or person C (with person A's permission) can record the conversation.

If person A is talking to person B and a third party (person C) records the conversation without obtaining permission from either person A or person B, AND person C was not a party to the conversation, then the recording will be illegal. The recording could also NOT be used against person A or person B in court or for anything else.

If my answer hasn't provided you with enough clarity regarding your initial question, please send me a REPLY with follow up questions so that I can continue to assist you in this same thread for as long as you need. Let me know if you need more advice - don't just rate my answer as "bad".

If my are HAPPY with my answer then please click one of the STAR ratings or the SMILEY FACES to rate my answer!

Good luck and best regards,

CaseLaw

Customer: replied 1 year ago.
Thanks. Does this illegality apply to grievance hearings as well or only to the courts?

grievance hearings have similar rules regarding the admissibility of evidence. If the evidence should not be admitted for court, it should also not be admitted for grievance hearings.

Customer: replied 1 year ago.
Thank you very much. The grievance is based on voice recordings. I was instructed to attend the grievance hearing; can I start my statement by saying "the evidence" cannot be seen as evidednce and I ask the chairperson to dismiss this grievance as the e"evidence" was illegally obtained? Thanks

Yes.

Hi, sorry, our phone lines are currently down. Is there no way that I can assist you here?

CaseLaw and other South Africa Law Specialists are ready to help you
Customer: replied 1 year ago.
I am thinking the incorrect procedure was followed by the company as the letter looks like a displinary hearing letter but is called a grievance hearing
Customer: replied 1 year ago.
I can phone you on a cell if you can

Look, there are certain differences between grievance procedures and disciplinary procedures:-

DIFFERENCE#1: Who starts it
For grievances, your employee will lodge the complaint. But for disciplinary procedures, you will initiate the disciplinary action.

DIFFERENCE#2: The number of stages
A grievance procedure can have many stages or levels. In larger companies, there can be several levels – moving from lower management up to higher levels of management if a grievance is not resolved. For disciplinary procedures, however, there are two stages with regard to the specific incident, namely the 'hearing' and the 'appeal' stages. Also, don't forget the various stages involved in 'corrective action' you can use in a disciplinary procedure – such as written or verbal warnings.

DIFFERENCE#3 What the decisions are based on
In a grievance procedure, the decisions are based around a grievant's wishes and expectations. But for disciplinary procedures, the decision made is based on what you find appropriate – given the facts.

DIFFERENCE#4: When they occur
Unless a grievance is lodged, a grievance procedure will not take place. But for disciplinary procedures, you don't have to wait for an employee to lodge a grievance procedure. As soon as you are aware of misconduct, you can initiate disciplinary action.

DIFFERENCE#5: Their purposes
The purpose of a grievance procedure is to resolve an employee's grievance and the purpose of a disciplinary procedure is to either correct an employee's behaviour or punish them for it (depending on the seriousness of the offence).

It appears to me that your co-employee lodged a grievance with the company about how you (the staff in general perhaps) treat that employee. You happened to be the person who was caught out on tape speaking badly about the employee. So now the company has decided to institute grievance procedures. Remember the purpose of the grievance procedures.

My advice is to take the attitude of being apologetic for your actions, and try to focus more on "you're sorry" rather than "you can't tape me speaking without my consent".

If this employee thinks that your apology is sufficient, that should be the end of the matter.