High court finds parts of Rica ‘unconstitutional’



In a massive victory against unwarranted state surveillance, the Pretoria high court has declared a number of sections of South Africa’s interception law unconstitutional. The court also found that — in the absence of a law authorising it — bulk surveillance and the interception of foreign signals is unlawful and invalid.

Judge Roland Sutherland said that the “aim and scheme” of the Regulation of Interception of Communication and Provision of Communication Related Information Act (Rica) is to protect the privacy of people’s communications. Under the Act, there are exceptions where the state may justifiably intercept people’s communications — like serious crimes or espionage — but these are subject to safeguards against abuse.

READ MORE: Journalist surveillance — Spooks are back in action

However some of the safeguards were not good enough, Sutherland found. In certain crucial respects, the law intruded more than was necessary into people’s privacy. In those respects, it was unconstitutional.

Sutherland has given Parliament two years to rectify the law, to bring it into line with the Constitution. But he also ordered that, in the meantime, certain changes must be made immediately.

The case was brought to court by the Amabhungane Centre for Investigative Journalism after it emerged that one of its journalists — Sam Sole — had been spied on.

“Sole’s efforts to obtain details … were furthermore met with contemptuous responses and unsubstantiated allegations that no irregularities occurred,” the judge said. Evidence before the court also showed that, in at least one case, a person who had applied to court for an order to intercept journalists Stephan Hofstatter and Mzilikazi wa Afrika had “lied blatantly”.

READ MORE: Surveillance — The silent spy on citizens and journalists faces court challenge

One of the immediate changes ordered by Sutherland was that a person who has been surveilled must be told about it — within 90 days after the surveillance is finished. In exceptional circumstances, the designated judge can grant extensions to this period. But if the extensions are to reach three years, this must be approved by a panel of three judges.

The judge said it was justifiable that people were not notified beforehand that they were about to be surveilled — as this would undermine the very purpose of the surveillance. But, as is done in countries like Germany, Japan and the USA, they were entitled to know afterwards. This would allow those who were wrongfully surveilled — and therefore had their right to privacy infringed — to approach the courts.

Sutherland said that, within six months of his judgment, the Act must be read in such a way that the “designated judge” — the retired judge appointed to authorise interceptions — must be nominated by the Chief Justice. Before, the choice was completely in the hands of the minister of justice. The designated judge must also be appointed for a non-renewable term of two years, according to court order. Before, his or her term could be renewed by the minister again and again. The changes were to ensure the designated judge’s independence.

Another immediate change is that, where the person being surveilled is a journalist or a lawyer, this fact must be specifically disclosed to and brought to the attention of the designated judge. In a boost for the protection of journalists’ confidential sources, Sutherland found that “the right to withhold the identity of a source must extend to protection from being spied on too” — subject to “rare” exceptions like if the journalist was per se the suspect of criminal activity.

He said it could not be ignored that it was journalists who, in investigating corruption, “attract the attention of powerful and influential persons who are capable of suborning the apparatus of the State to smell out their adversaries”.

These immediate changes were effected by Sutherland’s inserting new wording into the Act — to last until such time as Parliament amends the law or enacts a new act.

Sutherland also found that “the practice of bulk interception of international communications is unlawful for want of a law authorising it to take place”. Bulk interception is where transnational signals are screened for specific cue words or key phrases — to guard against transnational threats. Sutherland found that while this may be commonplace in other countries, there has to be a law authorising it; and there is none in South Africa.

Unless his judgment is appealed, this declaration means that bulk surveillance by the National Communications Centre must stop — until there is a law in place which authorises it.

Sutherland also declared other aspects of Rica unconstitutional, but did not order any immediate change, leaving these to Parliament to fix. Rica did not adequately provide for safeguards against the fact that there is no one to oppose when applications are made to the designated judge. The Act also did not put in place proper procedures for when state officials examine, copy, share and store the data from interceptions, he declared.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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