The minister of police is in the odd position of upholding the same spying system that targeted him, writes Murray Hunter
Dear Minister Bheki Cele, this is awkward.
As minister of police, today you are in the Constitutional Court seeking to block a major reform to the state's spying powers - the case of amaBhungane vs the spies, which will determine the constitutionality of South Africa's main surveillance law, RICA.
You know the back story.
The state's spying powers are meant to be tightly regulated and only used to combat the most serious crimes and threats to national security - but these spying powers have been turned to all kinds of corrupt purposes: To spy on journalists, whistle blowers, political operatives, government watchdogs, and others.
Getting proof was always the problem. That changed a few years ago when evidence came to light that government spies had secretly listened in on the private calls and messages of a journalist named Sam Sole.
They used the law called RICA, but Sam was not suspected of any of the grand crimes that such spying powers are meant to be reserved for; the only danger he posed was to a few individuals who wanted to keep their corrupt dealings off the front pages.
So last year, a judge in the High Court heard all this evidence and decided that there was a problem with RICA.
The judge agreed with amaBhungane and advocacy groups that a law that would enable such an abuse must be at odds with the constitutional rights to privacy, freedom of expression (and of the media), and an open and just democracy.
And that is why, in September 2019, the High Court of Gauteng struck down key parts of RICA as being unconstitutional, ordering a swath of reforms to boost transparency and oversight over these spying powers, and to limit how they can be used in the future.
ADVOCACY ANALYSIS | Inside amaBhungane’s landmark ruling on surveillance
Today, the Constitutional Court must decide whether RICA is unconstitutional, and whether the reforms ordered by the High Court are justified.
I guess it should not come as a surprise that the minister of police is one of the parties to oppose this. (Along with your counterpart, State Security Minister Ayanda Dlodlo.)
But what is unusual, minister, is that you are one of the most high-profile targets of exactly the kind of spying abuses that this court must now consider.
I'm sure you remember; you were police commissioner at the time. Your phone number was slipped into an illicit crime intelligence bugging operation that also targeted two Sunday Times journalists.
Today, your lawyers will argue in court that RICA protects against surveillance abuses because a judge must give permission before someone's phone can be bugged.
But as you know, this did not protect you from being spied on by your own officers: They simply told the RICA judge that the phone numbers belonged to suspected criminals - yours, I believe, was assigned to a Thabani Mdlalose of Lamontville - and the judge unwittingly authorised the bugging.
So that brings us to the substance, such as it is, of your appeal. Unlike the submissions by the state security minister - whose bloody-minded appeal seeks to contest every point and detail of the High Court judgment - you have focused on blocking just one of the reforms contained in the High Court order: surveillance notification.
The High Court struck down RICA's "notification ban", which prohibits people who have been targeted for surveillance from ever learning of it, even long after any investigation has lapsed.
This system of secrecy has enabled a culture of surveillance abuses in our security agencies - officials know they can abuse their spying powers with little risk of being caught, except by chance.
The High Court's ruling would require authorities to notify those they have spied on within 90 days, unless a judge can be persuaded to postpone such notification to protect an ongoing investigation.
Your lawyers have, of course, argued that a surveillance notification would spell ruin for the police - ignoring, of course, that such a notification would only happen after the fact, and can be postponed if it would tip off a criminal who is still under investigation. Your appeal papers say, "the very purpose of the RICA [combatting crime] can only be achieved if there is a total ban on notification".
I'm sorry you feel that way.
If RICA had required notification back when your officers spied on you, it might have allowed you to act sooner to protect yourself and make good on your promise of cleaning up criminal elements in the crime intelligence division.
Instead, it took a series of factional leaks and media reports to bring that case to light.
At the Zondo commission, and in the president's inquiry into the intelligence services, we have seen how unchecked surveillance powers have been a crucial tool for corrupt officials and their private associates.
This may be of particular interest to you because, among documented abuses of our spying system, the second most common target for corrupt cops (after journalists) seem to be other cops.
Your lawyers have argued that the surveillance reforms in our RICA case would somehow make South Africa less safe.
But how safe we should feel now, in a system where even the top cop can be spied on, and the only protection is luck, leaks, and a single judge who is left to guess whether she is being duped again.
Minister, let's look again at those safeguards. By all means, put your chest out and stomach in - but keep your mind open.
- Murray Hunter is amaBhungane's acting advocacy co-ordinator.
AmaBhungane's challenge of RICA is under its advocacy mandate, which aims to secure the information rights (access to information, and freedom of expression and the media) which are the lifeblood of investigative journalism.