Parliament gives SA police permission to intercept calls and communication – but they were doing it anyway

 ·3 May 2023

The government has given the South African Police Service (SAPS) the green light to procure and use equipment to intercept communication in the country.

However, members of the portfolio committee on justice are criticising the move, saying that permission has come far too late – and after the SAPS already used the equipment illegally.

During a hybrid NA plenary on Tuesday (2 May), MPs debated an exemption granted to the SAPS in terms of the Regulation of the Interception of Communications and Provision of Communication Act (RICA).

The exemption was given by Justice Minister Ronald Lamola, which would allow the SAPS to procure and use interception technologies.

On 15 March 2023, the minister of justice submitted a certificate of exemption to the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA). However, it was up to Parliament to determine if it would proceed.

In terms of RICA, no person may possess, manufacture, sell or advertise listed equipment – including those which track or obtain information from devices without the targetted person being aware of the act.

RICA does, however, exempt any law enforcement agency from acts of possession of this equipment following consultation with the cabinet.

The act further requires the minister of justice to grant an exemption if it is in the public’s best interests.

The SAPS has previously been unsuccessful in applying for such exemptions as many ministers were not on board with the move.

The parliamentary committee said the necessary consultation has now taken place, and the granted certificate has conditions to regulate the use and abuse. The exemption would apply for a period of five years.

However, committee members also noted that using such equipment would be very invasive.

There were also major red flags raised over the delayed timeline of the exemption and the fact that it is known that the SAPS has been using the communication interception equipment already.

Janho Engelbrecht, a member of the opposition party, the Democratic Alliance, said that using such equipment, such as ‘grabbers’, is critical in the fight against crime in South Africa; however, the right to privacy is enshrined in the Consitution.

The procurement of equipment by SAPS to circumvent these rights – without the exemption – has been illegal, said Engelbrecht.

“The issue is that the Minister of Police, in 2019, had SAPS purchase grabbers at the cost of R102 million illegally. SAPS, which is responsible for upholding the law, broke the law themselves.”

A grabber is a device that can intercept communications such as SMSes, turn a phone into a tracker and eavesdrop on conversations, said the member of parliament.

Engelbrecht said that illegally-obtained information – which could have been acquired through SAPS’ previous use of the devices – cannot be used in court proceedings.

The EFF opposed the exemption certificate, echoing the DA’s stance that the exemption application was submitted at a time when SAPS was already using the equipment.

Yoliswa Yako from the EFF said that there are no accountability standards within the certificate and no vetting process as to who would use the equipment.

“What would stop SAPS from using this legal avenue to abuse its powers to not only illicitly monitor citizens but also to use this to advance the political interests of those now in power?”

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