2.1 Interception and Monitoring Prohibition Act The Interception and Monitoring Prohibition Act specifically governs the monitoring of transmissions including e-mail.
Section 2 states that: no person shall –
‘intentionally intercept or attempt to intercept or authorize, or procure any other person to intercept or to attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission’.
This means in simple terms that conduct that:
(a) Intentionally and without the knowledge or permission of the dispatcher to intercept a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line; or
(b) Intentionally monitor any conversations or communications by means of a monitoring device so as to gather confidential information concerning any person, body or organization, is unlawful and therefore prohibited. One must note that the attempt thereof is as sanctionable as the actual act of unlawfully intercepting and monitoring of a data communication. One must however read the provision so as not to exclude any other accepted lawful grounds of justification such as, necessity, private defence, lawful interception, consent, court order or interception directive. In the English case of R v. Secretary of State for Home Department, ex parte Rudduck and others 1987 2 ALL ER 516, the court warned that the grounds of justification based on common law must be used sparingly and must not be readily available as a defence to the allegation of unlawful interception and monitoring of data communications. The learned judges made mention of the fact that there are provisions authorizing law enforcement officers to intercept and monitor data communication but the procedure for getting search warrants, interdict and/or interception and monitoring directives (as stated in the South African law) they must be strictly adhered to as this could cause an erosion to the individual’s right to privacy (see section 3 (a) and (b) of the RICPCIRA on the provision regarding the execution and issuing of interception directives).