Author: Kamogelo Tselane
INTRODUCTION :
The High Court of South Africa, Gauteng Division, Pretoria (High Court) declared that the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) is unconstitutional to the extent that it fails to provide adequate safeguards to protect the right to privacy, which is supported by the rights of access to courts, freedom of expression and the media, and legal privilege. The Constitutional Court rendered its decision on February 4, 2021.
On the basis of several constitutional objections against RICA, the applicants, AmaBhungane Centre for Investigative Journalism NPC and Mr. Stephen Sole, a journalist who had been the target of governmental surveillance, petitioned the High Court.
1. CASE TITLE : AmaBhungane Centre for investigative journalism NPC v Minister of justice and correctional Services and other : Minister of police v AmaBhungane Centre for investigative journalism NPC and others [ 2021 ] ZACC3 3 SA 246 (CC)
2. CITATION :
[ 2021 ] ZACC3 3 SA 246 (CC)
3. COURT :
The High Court of South Africa, Gauteng Division, Pretoria
4. BENCH :
Mogoeg CJ, Jafta J, Madlanga J ,Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
5. Date of judgement :
4 February 2021
6. Relevent Statues :
– Section 14, Right to privacy
– Section 16, Freedom of expression
– Regulation of Interception of Communications and Provision of Communication
– Related Information Act 70 of 2002
7. Brief facts :
– AmaBhungane contested RICA’s constitutionality following the covert interception of a journalist’s conversations.
– The group contended that RICA permits surveillance without sufficient protections, especially impacting journalists and their private sources.
– Concerns included lack of transparency and weak oversight mechanisms.
8. Issues involved :
Whether the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), including sections 16(7), 17(6), 18(3)(a), 19(6), 20(6), and 22(7), is inconsistent with the Constitution ?
Whether RICA, including the definition of “designated judge” in section 1, is inconsistent with the Constitution ?
Whether the RICA including sub-sections 16(7), 17(6), 18(3)(a), 19(6), 20(6) and 22(7) is inconsistent with the Constitution ?
Whether the RICA including the definition of “ designated judge” in section 1 is inconsistent with the constitution?
Whether RICA, including section 16(7), is inconsistent with the Constitution to the extent that it fails to provide adequate safeguards for interception orders granted ex parte.
Whether the RICA especially sub-section 35 and 37 is inconsistent with the constitution ?
Whether Sections 16(5), 17(40, 19(4), 21(4)(a) and 22(4)(b) of RICA are inconsistent with the constitution ?
9. Arguments :
Applicant :
Claimed that constitutional rights were breached by the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA).
claimed that RICA permitted surveillance without adequate protections, particularly:
No obligation to inform people following surveillance
Insufficient autonomy in the selection of the appointed judge
Insufficient safeguards for reporters and their sources
argued that this violated the freedom of expression (section 16) and the right to privacy (section 14).
Respondents:
– Claimed that RICA was essential for preventing crime and maintaining national security.
– Maintained that RICA’s judicial supervision was adequate to stop misuse.
– According to section 36 of the Constitution, the alleged restrictions on rights were reasonable and justified.
10. Judgement :
A number of RICA’s provisions were ruled unlawful by the Constitutional Court.
– It was determined that the law did not offer sufficient protections against the misuse of surveillance authorities.
– Mandated that RICA be amended by Parliament within 36 months.
– Established temporary safeguards, such as: Post-surveillance notification mandate
– Stronger safeguards for lawyers and journalists
11. Ratio Decidendi :
– The Constitutional Court held that surveillance laws such as RICA must contain clear, detailed, and effective safeguards to protect the constitutional right to privacy under Section 14.
– The absence of a post-surveillance notice is unconstitutional because people must have the opportunity to challenge unlawful surveillance.
– The right to Privacy ( section 14) was breached
12. Final Decision :
The High Court declared RICA unconstitutional to the extent of the following failures:
1. RICA makes no mention of informing a subject of surveillance that they have been under observation;
2. In accordance with RICA, a member of the Executive (in this case, the Minister of Justice) is granted unrestricted power to extend the term of a designated judge, so failing to guarantee the independence of the designated judge;
3. In the ex parte process, RICA lacks an adversarial procedure or any other safeguard for the subject of governmental surveillance;
4. There are no protections in place at RICA regarding the handling and storage of data obtained through surveillance;
5. When a journalist or practicing lawyer is the target of monitoring, RICA does not give any unique circumstances.
6. It was decided that RICA was unconstitutional l since it did not allow for the subject of surveillance to be informed as soon as possible without endangering the monitoring’s objectives.
7. RICA was unconstitutional to the extent that it fails to ensure adequate safeguards for an independent judicial authorization of interception.
8. RICA was unconstitutional because it did not provide enough protections to deal with the ex parte request and acquisition of interception directives.
9. RICA was unconstitutional insofar as it did not provide sufficient guidelines to guarantee that information gathered through communication interception is handled and utilized legally and is not tampered with illegally.
10. It was unconstitutional for RICA to omit to give practicing attorneys and journalists special attention.
Resources
Case law
AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services and Others 2021 (4) SA 1 (CC)
Reports
Web Resources
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