A remarkable judgment that will have a huge impact in South Africa

The High Court in Pretoria recently ruled that certain provisions of South Africa’s interception legislation, the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA), were unconstitutional – a ground breaking and remarkable judgment, which will not only have a huge impact in South Africa but will be cited around the world, says Baker McKenzie Johannesburg.

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

RICA aims to balance individual privacy rights, constitutionally entrenched in South Africa, with the need to prevent threats to the security of individuals and society, notes Darryl Bernstein, partner, dispute resolution at Baker McKenzie, and Rui Lopes, associate, dispute resolution at Baker McKenzie.

The law permits State surveillance and prescribes the conditions for law enforcement agencies to engage lawfully in targeted surveillance, after having made an application to a designated judge, in order to safeguard the privacy of persons regarding their communications, as provided for in section 14 of the Constitution.

The High Court found that RICA was deficient in a number of key respects and failed to justify its invasive interception mechanisms. “Essentially, it did not regulate surveillance in a manner sufficient to justify the significant dilution of privacy rights arising from it,” said Bernstein.

Specifically, the High Court found 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.

The additional safeguards provided to lawyers and journalists are of particular importance to South Africa’s democratic framework, Bernstein stressed.

“One additional aspect of particular importance canvassed in the judgment, related to bulk interception practices, which were considered to unreasonably and disproportionately encroach upon constitutionally entrenched privacy rights.

“These bulk interception practices take place when transnational signals are screened for specific cue words or phrases to guard against international threats. The court found this practice to be unlawful in the absence of any authorising law or legal framework allowing and regulating such conduct.”

Baker McKenzie noted that the High Court has afforded Parliament two years to remedy the law (either through an amendment to RICA or through the enactment of a new law), to bring RICA in line with the Constitution.

The High Court, however, sought to read in certain provisions into RICA, thereby providing immediate relief and protection against surveillance. These include a read in provision that an individual, who has been subjected to surveillance, must be informed of this within 90 days after the completion of the surveillance, it said.

The High Court noted that, similar to jurisdictions such as the United States and Germany, this would allow those individuals who were wrongfully placed under surveillance (thus having their right to privacy infringed) to approach a competent court for relief.

The High Court stated that it was justifiable that people were not notified beforehand that they were about to be subjected to surveillance as this would undermine the purpose of the surveillance.

AmaBhungane is now required to apply to the Constitutional Court in order to confirm the High Court’s ruling as to RICA’s unconstitutionality.

Read: High Court finds that South Africa’s surveillance act RICA is inconsistent with the Constitution