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.
