It is almost eight (8) years since the Regulation of Interception of Communication and Provision of Communication Related Act, 2002 ("RICA") was promulgated and almost nine (9) months since the compulsory registration of cellular sim cards. The operation of this Act has, unfortunately for the public, been confined to the registration of cellular phone sim cards. This has led to the erosion of the core intention of the legislation, which is to regulate the interception of communications. There is, however, another face to RICA which has far reaching effects on the employment relationship.

Internet social networks have gained immense popularity over the last few months, with facebook leading the pack with more than a billion subscriber world wide. Employees have been known to use company resources, like e-mails to seek for greener pastures. According to statistics by the US based firm - Proof Point, the interception of communications in the workplace has led to the largest number of dismissals for misconduct over the last 12 months. Interception of communications (especially internet blogging and e-mails) has been the most important weapon an employer has to monitor the activities of employees during working hours.

In the South African context, this practice is present, yet not prevalent. I can already hear the voices of human rights activists ready to raise objections. Indeed, interception of communications is a human rights issue, in light of the Constitutional protection of the right to privacy. This right has been extended by section 2 of RICA, which contains a prohibition on the interception of communications, subject to certain exceptions, such as the interception in the course of business. The exceptions constitute a limitation of the right to privacy in terms of section 36 of the Constitution.

One may ask, what constitutes interception? In terms of section 1 of RICA, interception includes the acquisition of the contents of any communication through the use of a means, including interception device, so as to make the contents of that communication available to an unintended recipient. In simple terms, where an employer gains access to an employee's workstation upon legitimate suspicion of misconduct, such act of acquisition of access may constitute an infringement of section 2 of RICA, as well as the right to privacy. An employer seeking to take disciplinary measures against an employee based on the information obtained in contravention with section 2 of RICA, will have to prove one of the exceptions outlined in the Act as well as justify the limitation of the employee's right to privacy in terms of section 36.

In my opinion, employers need to be proactive in dealing with the possible infringement of this provision of the Act. This could be done by incorporating the consent to access to information clause in the entity's/institutions' employment policy manual.

Written by: Pule Malahlela of Masephule Dinga Inc.