Some RICA provisions found to be unconstitutional

In the recent Pretoria High Court case of AMABHUNGANE CENTRE FOR INVESTIGATIVE JOURNALISM NPC Judge Sutherland had to consider two discrete questions:- 

·         The first is a challenge to the constitutionality of several provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (RICA) which statute permits the interception of communications of any person by authorised state officials subject to prescribed conditions.

·         The second question is a challenge to the admitted practice of the State in conducting 'bulk interceptions' of telecommunications traffic on the basis that no lawful authority exists to do so. The. National Strategic Intelligence Act 30 of 1994 (NSI) and the Intelligence Services Control Act 40 of 1994 (ISO) are implicated in the analysis of this issue.

The challenge to RICA’s constitutionality arose when one of the journalists of the investigative journalist group, the amaBhungane Centre for Investigative Journalism, discovered that he was being spied on during South Africa’s infamous “Zuma Spy Tapes” saga.

It was argued that bulk interception practices were considered to unreasonably and disproportionately encroach upon constitutionally entrenched privacy rights.

The judge agreed and found that the act was inconsistent with the constitution in that RICA:

• Did not provide a notification procedure for subjects of interception;
• Did not ensure sufficient judicial independence for authorising authorities;
• Failed to provide appropriate safeguards when an order was granted without notice to individuals under surveillance;
• Lacked appropriate procedures to be followed when state officials examine, copy, share, sort through, use, destroy and/store data obtained from interceptions;
• Failed to prescribe special procedures for cases when the subject of surveillance was either a practicing lawyer or a journalist.

To remedy these issues, the judgment suspended the invalidity of the act for two years to allow for parliament to bring the legislation in line with the constitution, but in the interim, added a number of new sections to the RICA Act to remedy the above issues. These safeguards provided to lawyers and journalists are of particular importance to South Africa’s democratic framework.