Unfettered state surveillance to end: RICA declared unconstitutional
On 4 February 2021, the Constitutional Court handed down judgment in the matter of AmaBhungane Centre for Investigative Journalism and Others v Minister of Justice and Correctional Services and Others, declaring the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) unconstitutional in certain respects, and confirming the order of the High Court of South Africa, Pretoria.
RICA was enacted to regulate the interception of direct and indirect communications of individuals, which are broadly defined to include various forms of communication such as those that are transmitted through oral, written, telephonic, postal, electronic, radio, mobile or cellular means.
Background:
Mr Sole, a journalist who had become aware that he was the subject of State surveillance, brought an application in the High Court alongside the AmaBhungane Centre for Investigative Journalism. The relief sought was that the State provide reasons for this surveillance and justify the infringement of his right to privacy provided for under the Constitution, and specific rights of privilege and confidentiality as a Journalist.
The State failed to provide lawful reasons for the surveillance and justify the infringement of Mr Sole’s right to privacy and his rights specific to privilege and confidentiality. The High Court found in Mr Sole’s favour, and stated further that RICA failed to provide appropriate safeguards to ensure the lawful surveillance and interception of individuals’ communications, as well as protection of information gathered in respect of such. The Pretoria High Court therefore found RICA to be unconstitutional in certain respects, a decision which was appealed to the Constitutional Court.
Findings of Unconstitutionality:
The Constitutional Court had to consider whether the limitation of the right to privacy imposed by RICA was reasonable and justifiable in an open democratic society, and whether it contained sufficient safeguards and less restrictive means to reduce the risk of unnecessary infringements. While the Court acknowledged the importance of State surveillance in the prevention of crime, it declared RICA unconstitutional in so far as it fails to protect adequately the right to privacy, access to courts, freedom of expression and the media, and legal privilege in the following ways:
RICA fails to provide for the notification of a subject of surveillance as soon as such can be given without jeopardising the purpose of thereof. The effect being that individuals are not made aware that they have been a subject of State surveillance, and are therefore not afforded the right of access to courts to challenge such. In addition, the Court held that such lack of notification facilitates the abuse of power by the State under the cloak of secrecy;
RICA fails to protect the specific rights of privilege of Legal professionals as it does not safeguard against the invasion of confidential client communications, and may infringe on a client’s right to a fair hearing and trial;
RICA fails to protect the specific rights of privilege of Journalists in relation to the disclosure of information related to their sources, and falls short of the protection afforded to Journalists in terms of the rights to freedom of expression and the media;
RICA fails to ensure that data obtained is managed lawfully and is not unlawfully used or interfered with. In addition, RICA lacks sufficient safeguards to regulate the storage, handling and destruction of information and communications intercepted by the State;
RICA fails to ensure the designation of a sufficiently independent judge for the authorisation of interception of communications, in that a member of the Executive, namely the Minister of Justice, is allowed the sole discretion to renew the term of a designated Judge; and
Lastly, bulk surveillance by the State has been declared unlawful and invalid, as it is not authorised in terms of RICA or any other legislation. Bulk surveillance involves the interception of any and all internet traffic which enters or leaves the Republic, including communications and information related to location, cellular and video calls and browsing history.
Parliament has been permitted 36 months to cure the defects in RICA. In the interim, the Court has read in provisions intended to bring the Act in line with the values of transparency and accountability as per the Constitution.
For more information relating to RICA kindly email us on info@hjw.co.za.
Written by Dyllon Nicholls – Candidate Attorney
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.