South Africa’s RICA law is unconstitutional: court ruling

South Africa’s Constitutional Court has confirmed that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) is unconstitutional.

In a judgement handed down on Thursday morning (3 February), the court said that the legislation is unconstitutional in that it fails to provide adequate safeguards to ‘protect the right to privacy, as buttressed by the rights to freedom of expression and the media, access to courts and a fair trial’.

The ruling comes after journalist Sam Sole – who has been the subject of state surveillance – and the Amabhungane Centre for Investigate Journalism applied to challenge the Act’s constitutionality.

Alongside a number of other points, the applicants argued that the RICA did not provide adequate protection or recourse for persons who were subject to surveillance by the government.

In its majority judgement, the court found that the interception and surveillance of individuals’ communications under RICA is a highly invasive violation of privacy, and thus infringes on section 14 of the Constitution.

While the court acknowledged the importance of state surveillance in preventing crimes, it questioned whether there were enough safeguards in place to justify this intrusion. It highlighted the right to privacy, which is tied to the right to dignity.

Other issues identified With RICA include:

• RICA fails to provide for the notifying of a subject of surveillance after the fact;
• The lack of procedures on what to do with confidential information and how it should be managed;
• Legal professionals have specific rights of privilege when dealing with clients which is impacted by the RICA.
• The power of the executive to appoint a judge to approve the RICA process.

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