Sometimes, during a court hearing, a judge will ask one question that, with alarming speed, unravels one side’s argument — sometimes even their whole case. Or, it sets the day’s argument on a new and unexpected course.
The Supreme Court of Appeal’s Justice Mahomed Navsa is especially good at these. He will say, sometimes even before the hearing gets properly under way, that he wants to put a question to counsel; then he suggests that counsel “take an instruction” —that’s legalese for counsel to phone their client about what to do.
Back in the day at the Consti-tutional Court, this sometimes happened when Justice Kate O’Regan began a question with, “I have a difficulty.” Experienced counsel knew that these words meant trouble.
On Tuesday at the Constitutional Court it happened again: Justice Chris Jafta asked a question that seemed to change the whole trajectory of the case. The hearing was about whether to confirm a judgment of the high court that had set aside, as unconstitutional, chunks of the law on surveillance — the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica).
The case had been brought by the amaBhungane Centre for Investigative Journalism, after renowned investigative journalist Sam Sole found out — completely by chance — in 2015 that he had been surveilled in 2008.
Under the Act, the state may apply to a judge — specially designated by the minister of justice as the surveillance judge — for an order allowing someone’s phone and emails to be intercepted. The application is made “ex parte” — without any notification to the person targeted and without their presence in court.
That’s normal (notification would, after all, defeat the very purpose of surveillance). But in many democracies, especially those with justiciable bills of rights, the state has a duty to inform the surveilled party — after its investigation is over. Not here in South Africa — which is a breach of someone’s right to privacy, said amaBhungane, and also of their right of access to courts. For how can you challenge the lawfulness of your surveillance (even after the fact) in court if you never knew about it?
The high court agreed. Pretoria high court Judge Roland Sutherland also agreed with amaBhungane’s other grounds for why Rica was unconstitutional: the Act did not make special provision for journalists and lawyers, whose conversations with sources and clients had special legal protection; the Act did not properly regulate what was to be done with all the information gathered after the state was finished with it; and there were insufficient institutional safeguards for the independence of the designated judge.
It was during argument about the designated judge that Jafta asked his question: Is there a provision in the Act that empowers the minister of justice to designate a judge?, he asked Steven Budlender SC, counsel for amaBhungane. Budlender answered that he supposed that the power was granted by implication — because the definition of “designated judge” in the Act says the designated judge is the retired judge designated as such by the minister of justice.
No, said Chief Justice Mogoeng Mogoeng, “you can’t exercise a power from a definition”. Jafta even said: “This legislation is one of the worst drafted [laws] I have ever seen.”
The apparently unanswerable question was a surprise to Budlender, but it supported his overall case, enabling him to make a quick recovery, even joking that a colleague had told him “one shouldn’t be fussy about how one wins”. He responded that if the court was “minded” to find that the Act did not empower the minister to designate a judge, it was unconstitutional on that basis as well.
But the question was a crushing blow for counsel for the government — especially the ministers of police and state security — because the Act hinges to a large extent on the existence of the designated judge. There is, under the Act, no lawful surveillance of individuals without an order by the designated judge.
Counsel for state security, Kennedy Tsatsawane SC, had opposed the confirmation of every one of Sutherland’s orders, arguing that the Act did put enough safeguards in place to justify the limitation of privacy rights. But when he conceded that there was no provision empowering the minister to designate a judge, Mogoeng asked: “So where does that leave your case?”
Counsel for the police minister, Simon Phaswane, also struggled, saying that the minister’s real concern was Sutherland’s order on post-surveillance notification, because it could put informers and witnesses in danger. When asked directly about what he was conceding, Phaswane then appeared to retract a concession, saying he had not taken instructions from his client. It was a classic Navsa moment, if ever there was one.
However, Budlender was also put through his paces by the justices of the highest court — particularly on the question of institutional safeguards for the designated judge. Budlender argued that it was unconstitutional for the designated judge to be “hand-picked” by the minister of justice and for his appointment as designated judge to be renewed every year, as is the practice. The judge should be interviewed in public by the Judicial Service Commission, as is done with judges of the electoral court, he said.
But Mogoeng warned against impliedly maligning the integrity of judges, saying once a judge was appointed, he or she was independent and, even after they retired, still received a salary pegged to the salary of active judges.
“You’ve got to have something concrete to begin to question the independence of the judges. Just to say ‘Okay, it’s the minister who appointed her, [so] she must be, or she is potentially, the minister’s lackey’, I think it’s a bit dangerous.”
Budlender responded that he was not questioning the integrity of any individual judge — his argument was an institutional one. There would be a “reasonable perception that a judge hand-picked by the executive for a renewable term is not going to be seen as independent”. He referred to earlier judgments of the Constitutional Court where the court had said as much.
Backing him on this was counsel for friends of the court Right2Know Campaign and Privacy International, Michael Bishop, who added that the designated judge was a retired judge, and would be receiving more money for being the designated judge. There could be a perception that this was a financial benefit that would influence the judge — because he could fear that he would not be reappointed next time, thus losing the extra income, said Bishop.
Judgment was reserved.