Recorded Without Warning: What the Madlanga Commission Tells Us About Workplace Recordings
NMA Attorneys | Employment & Labour Law Insight | August 2026
The Madlanga Commission has turned South Africa into a nation of amateur evidence lawyers. Since public hearings began in September 2025, the Judicial Commission of Inquiry into Criminality, Political Interference and Corruption in the Criminal Justice System — chaired by retired Constitutional Court Justice Mbuyiseli Madlanga — has repeatedly turned on material that someone captured on a phone: WhatsApp exchanges, screenshots, and above all, audio.
In January 2026, the Commission heard a recording of a telephone call that a protected witness, “Witness E”, testified he had with Police Minister Senzo Mchunu. Strikingly, the witness told the Commission he had not set out to record the call at all — it was saved automatically by a caller-identification application on his phone. That single detail is why this matters far beyond Pretoria. Recording is no longer a deliberate act requiring planning and equipment. It is a default setting.
With President Ramaphosa having extended the Commission’s reporting deadline to 16 November 2026, these questions will stay in the headlines for months. So it is worth asking the workplace version of them: if an employee records a meeting with their manager — or a manager records an employee — is that lawful, and can it be used?
RICA: the starting point, not the finish line
The governing statute is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”). Section 2 lays down a broad prohibition on intentionally intercepting a communication in the course of its transmission.
The critical carve-out is section 4. A person who is a party to the communication may record it. South Africa is, in effect, a single-party consent jurisdiction: if you are in the conversation, you may record it without telling anyone else in it. Section 5 permits recording with the prior written consent of a party, and section 6 provides a limited exception for interception in connection with the carrying on of a business — the provision employers rely on when monitoring company systems, and which carries its own conditions around notification and consent.
The practical consequence is uncomfortable for employers: an employee who quietly records their own disciplinary hearing, grievance meeting or performance discussion is very likely acting within RICA. An employee who plants a device in a boardroom to capture a meeting they are not part of is not — that is interception, and it is a criminal offence.
Lawful, admissible and consequence-free are three different questions
This is where most workplace disputes go wrong. Confirming that a recording did not breach RICA answers only the first question.
On admissibility, South African civil courts have long held that there is no automatic exclusionary rule. In Harvey v Niland and Others 2016 (2) SA 436 (ECG), Plasket J confirmed that a court retains a discretion to admit unlawfully or improperly obtained evidence, weighing the nature of the right infringed, whether the evidence could have been obtained lawfully by other means, and the conduct of the parties. The court cautioned that the pursuit of truth cannot justify unrestrained reliance on the ends justifying the means — but declined to shut the evidence out.
At the CCMA and in bargaining council arbitrations the threshold is lower still. Section 138(1) of the Labour Relations Act 66 of 1995 allows a commissioner to conduct the arbitration in a manner they consider appropriate, with the minimum of legal formalities. Commissioners are not bound by the strict rules of evidence, and recordings are routinely received. The real fight is usually about authenticity — who made it, when, whether it is complete, whether it has been edited — which is precisely the kind of technical challenge that has surfaced at the Commission itself.
On consequences, the picture flips. In Geerdts v Multichoice Africa (Pty) Ltd (JA88/97) [1998] ZALAC 10, the Labour Appeal Court accepted that dismissing an employee for covertly recording a meeting could be substantively fair. Clandestine recording strikes at the trust and confidence at the heart of the employment relationship. So an employee may lawfully make a recording under RICA, successfully have it admitted at arbitration, and still face discipline for having made it. Each outcome turns on its own facts — content, context and motive all matter, and a recording made to expose genuine wrongdoing sits very differently to one made to entrap a colleague.
POPIA adds a further layer
A voice recording of an identifiable person is personal information under the Protection of Personal Information Act 4 of 2013. Employers who record calls, meetings or hearings need a lawful basis for processing, a defined purpose, proper security safeguards and a retention position. Recording everything “just in case” is not a strategy; it is a compliance exposure.
What employers and employees should do now
For employers:
- Adopt a written recording policy that states plainly whether recordings are permitted, by whom, and on what notice.
- Record disciplinary and grievance proceedings openly, and share the recording or transcript with the employee.
- Do not assume a covert recording will be excluded. Assume it will be heard — and conduct your meetings accordingly.
For employees:
- Being a party to the conversation protects you under RICA. It does not protect you from your employer’s disciplinary code.
- A poor-quality, partial or edited recording is not persuasive evidence, and may damage your credibility.
- Raise concerns through formal grievance channels first, and keep a contemporaneous written record.
The Commission has made one point unmistakable: in 2026, assume the conversation is being recorded.
This article is provided for general information and does not constitute legal advice. For advice on a specific workplace recording, disciplinary matter or POPIA compliance question, contact NMA Attorneys.