Ramaphosa refuses to sign new surveillance laws for South Africa

President Cyril Ramaphosa has sent South Africa’s Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (RICA) Bill back to parliament.

Ramaphosa is concerned that the current version of the law will be vulnerable to constitutional challenge.

Ramaphosa conveyed his concern in writing to the Speaker of the National Assembly, Ms Thoko Didiza, and has brought this referral to the attention of relevant Ministers.

The Constitution states that the President must either assent to and sign a Bill referred to him or her by the National Assembly or, if he or she has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.

Ramaphosa is worried that there are several constitutional issues in the Bill passed by Parliament.

The RICA Amendment Bill was introduced to Parliament in late August following a constitutional court order in Amabhungane Centre for Investigative Journalism and Others v Minister of Justice and Correctional Services and Others [2021].

In the constitutional court, Amabhungane successfully challenged the constitutionality of RICA after it argued that RICA did not provide adequate protection or recourse for persons who were under government surveillance.

In response, former Minister of Justice and Correctional Services Ronald Lamola introduced the RICA bill in 2023, with the following aims:

• To insert certain definitions;

• To provide for the designation of an independent designated judge;

• To provide for the designation of an independent review judge; to provide for the powers and functions of the review judge;

• To provide for the tenure of designated and review judges;

• To provide for adequate safeguards where the subject of surveillance is a journalist or practising lawyer; to provide for post-surveillance notification;

• To provide for adequate safeguards to address the fact that interception directions are sought and obtained ex parte;

• To provide for adequate procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully;

• To provide for procedures to be followed for processing, examining, copying, sharing, disclosing, sorting through, using, storing or destroying of any data;

• To provide for principles for the safeguarding of data when dealing with the management of data;

Ramaphosa’s fears

Having looked at the case and the Bill, Ramaphosa expressed concerns over the law for the following reasons:

Ramaphosa believes that the Bill remains unconstitutional insofar as decisions in terms of section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified of the surveillance.

Section 25A(2) states that a designated judge can, upon application by a law enforcement officer, direct that giving a notification be withheld for such period as may be determined by the designated judge.

Ramaphosa also believes that the legislation is deficient insofar as no review is possible of a decision in terms of section 25A(2)(b) to indefinitely suspend post­ surveillance notification obligations.

He also wants the legislation to provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained ex parte (in the interests of one side or party only).

The President has requested that the National Assembly consider the Bill so that these objectives can achieved speedily and without the risk of any constitutional challenge.

The RICA Bill can be found below:

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