SOUTH AFRICA: CONSTITUTIONAL COURT UPHOLDS DECLARATION OF INVALIDITY OF RICA

By John Paul Ongeso Friday, February 05, 2021
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On 4 February 2021, the Constitutional Court upheld a finding of constitutional invalidity of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) on five separate grounds by the High Court in September 2019 in amaBhungane Centre for Investigative Journalism NPC and another v Minister of Justice and Correctional Services and others ([2019] ZAGPPHC 384).

Justice Madlanga, for the majority, found that RICA fails to:

  • provide for safeguards to ensure that a judge designated in terms of section 1 to hear applications for interception is sufficiently independent (independence of designated Judge). The interception of communications is generally prohibited (even by the Government), unless an interception direction is obtained from a designated Judge in accordance with the procedures set out in RICA. The court examined the procedure for the appointment of a designated Judge under RICA and held that this procedure indicates that there is a ‘lack of structural, operational and perceived independence of the designated Judge’ and that ‘this lack of structural independence may also lead to a reasonable perception of lack of independence’ (paragraph 93);
  • provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after surveillance has been terminated (post-surveillance notification). The court held that the lack of post-surveillance notification deprives the subject of the possibility of challenging the lawfulness of an interception direction as these directions ‘are applied for, granted and implemented in complete secrecy’ (paragraph 43). The court further held that this ‘facilitate[s] the abuse of the process under the cloak of secrecy’ (paragraph 44) and that there was no legitimate reason why the State would want to keep the fact of past surveillance a secret in perpetuity. In declaring RICA unconstitutional on this basis, the court held that ‘post-surveillance notification should be the default position, which should be departed from only where, on the facts of that case, the state organ persuades the designated Judge that such departure is justified’ (paragraph 48);
  • adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte (ex-parte applications). In acknowledging the rationale for the ex parte process in terms of which applications for interception are made, the court found that the designated Jude is required to issue an interception direction on the basis of one-sided information (from the State). The designated Judge, the court held, is not in a position meaningfully to interrogate the information presented by the State (paragraph 96). The failure of RICA to provide for some form ‘adversarial process to ensure that the interests of the subject of surveillance are properly protected and ventilated before an interception direction is granted’ must be upheld as a ground rendering RICA unconstitutional (paragraphs 97-100);
  • adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data (management of information issue). The court found that RICA failed to safeguard the right of privacy of subjects of surveillance by failing to provide clarity or detail on what intercepted data must be stored, how and where it must be stored, the security of such storage, precautions around access to the stored data (who may have access and who may not), the purposes for accessing the data and how and at what point the data may or must be destroyed. The court held that there is a real risk that the private information of individuals may land in wrong hands or, even if in the ‘right’ hands, may be used for purposes other than those envisaged in RICA (paragraph 107);
  • provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist (practising lawyer or journalist issue). The court accepted that practising lawyers (who owe clients a duty to keep communications between them confidential) and journalists (who must preserve the confidentiality of the identities of their sources) are not exempt from surveillance, which includes the interception of their communications. However, the court held that because keeping journalists’ sources confidential is protected by the rights to freedom of expression and the media and because legal professional privilege is an essential part of the rights to a fair trial and fair hearing, less restrictive means must be used to intercept lawyer-client communications and communications that may reveal the identity of journalists’ sources, which do not subvert the purpose of RICA.

The court also considered whether there is a legal basis for the State to conduct bulk communications surveillance. The National Strategic Intelligence Act 39 of 1994 (NSIA) permits the practice of ‘bulk interceptions’ of telecommunication by the State (bulk surveillance).

Bulk interception refers to an internationally accepted method of intercepting, processing, analysing and reporting intelligence from electronic signals from communication and data associated with the communication.

The objective for conducting bulk interception is to ensure state security against transnational threats.  It is done through the tapping and recording of transnational signals, including, in some cases, undersea fibre optic cables.

The court held that while it is understandable that the State, through its intelligence services, may wish to use the latest technological means to ensure the safety of its citizens and uphold national security through the monitoring of communications, that monitoring constitutes the exercise of public power.

This power can be exercised only in a constitutionally compliant manner. The court found that given the impact of the intrusions into the right to privacy that arise from bulk surveillance, section 2 of NSIA fails to provide a legal basis for the authorisation of bulk surveillance and is thus unlawful and invalid (paragraphs 129 to 135).

Suspension of declaration of invalidity

In upholding the High Court’s declaration of invalidity, the Constitutional Court suspended the order of invalidity for a period of three years to allow Parliament time to cure the various constitutional defects identified.

Post-surveillance notification to be read-in and disclosure that a subject of surveillance is a journalist or practising lawyer

The Constitutional Court held that, notwithstanding its suspension of its order of invalidity, RICA’s provisions must be read in, to provide for post-surveillance notification as a default position as this does not affect how RICA operates.

The court also upheld the interim relief granted by the High Court in respect of interception or surveillance directions affecting practising lawyers and journalists. In terms of this relief, the State would be required in submitting an application for interception, to disclose to the designated Judge the fact that the intended subject of the direction, extension of a direction or entry warrant is a journalist or practising lawyer.