New government surveillance laws for South Africa are coming

 ·4 Sep 2023

The Department of Justice has published new surveillance laws for South Africa which aim to correct the unconstitutionality of the Regulation of Interception of Communication and Provision of Communication-Related Information (RICA) Act.

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

Amabhungane successfully challenged the constitutionality of RICA after it argued that RICA did not provide adequate protection or recourse for persons who were subject to surveillance by the government.

In the ruling, the Constitutional Court found that the RICA was unlawful and invalid as it failed 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 invalidity of the Act is currently suspended until February 2024 to give Parliament enough time to amend and correct it – but that deadline is approaching quickly.

The new RICA amendments now include provisions for journalists and lawyers to be notified when they are being subject to state surveillance, as well as other safeguards for protecting data.

Broadly, it 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; and to provide for matters connected therewith

State’s already using surveillance

State surveillance is nothing new, and Justice Minister Ronald Lamola recently gave the South African Police Service (SAPS) an exemption to RICA, allowing them to intercept calls.

Although RICA states that no person can use equipment to track or obtain information from devices without the targetted person being aware, law enforcement agencies can be exempt from this.

In the past, the SAPS has failed to obtain exemptions due to opposition from several ministers.

However, a recent parliamentary committee said the necessary consultation had taken place and gave the SAPS an exemption for a period of five years.

Many committee members said that the use of this equipment was very invasive, with concerns also arising due to the fact that SAPS had already been using the equipment.

“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,” Janho Engelbrecht from the Democratic Alliance said.

The new Regulation of RICA Amendment Bill can be found below:

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