UPDATE | Victory for amaBhungane as ConCourt upholds ruling on surveillance of journalists

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The Constitutional Court.
The Constitutional Court.
Alon Skuy, Gallo Images, Sowetan
  • The amaBhungane Centre for Investigative Journalism scored a victory in the Constitutional Court on Thursday in a ruling on the surveillance of journalists. 
  • The court found the Regulation of Interception of Communication Act (RICA) is unconstitutional to the "extent that it fails to provide adequate safeguards to protect the right to privacy".  
  • The declaration of invalidity was suspended for three years.

The Constitutional Court on Thursday ruled in favour of the amaBhungane Centre for Investigative Journalism, confirming a South Gauteng High Court ruling deeming parts of the Regulation of Interception of Communication Act (RICA) unconstitutional.  

In a majority judgment written by Justice Mbuyiseli Madlanga, the court dismissed an appeal by the minister of police and State Security Agency with costs.

READ | amaBhungane files papers in ConCourt to confirm high court ruling deeming RICA unconstitutional, invalid

He said the declaration of unconstitutionality by the High Court was confirmed only to the extent that RICA failed to provide for safeguards to ensure a designated judge was sufficiently independent.

Madlanga added RICA failed to "adequately prescribe procedures to ensure that data obtained pursuant to the interception of communication is managed lawfully and not used or interfered with unlawfully".

He said it also failed to "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". 

In addition, RICA failed to provide adequate safeguards where the subject of surveillance was a practicing lawyer or a journalist, Madlanga added, saying it also failed to "adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully…"

The court suspended the declaration of invalidity for three years. 

amaBhungane had approached the apex court for a confirmatory ruling.

In 2019, it emerged victorious after the High Court declared mass surveillance and the interception of foreign signals by the National Communications Centre "unlawful and invalid", News24 reported at the time.

The legal battle began in 2017 when the publication received confirmation its managing partner, Sam Sole, had been under surveillance under RICA legislation.

News24 previously reported this occurred while he was investigating a National Prosecuting Authority decision to drop corruption charges against former president Jacob Zuma. 

In its judgment, the Constitutional Court found the interception and surveillance of an individual's communications under RICA was a "highly and disturbingly invasive violation of privacy".

"There can be no question that the surveillance of private communications limits the right to privacy. Unsurprisingly, the respondents do not dispute this," Madlanga said. 

And although he acknowledged that RICA served an "important government purpose" in ensuring the safety of the public and in preventing serious crimes, he questioned if it was doing enough to reduce the risk of "unnecessary intrusions".

Madlanga added: "The interception and surveillance of an individual's communications under RICA is performed clandestinely.

"By nature, human beings are wont - in their private communications - to share their innermost heart's desires or personal confidences, to speak or write when under different circumstances they would never dare do so, to bare themselves on what they truly think or believe.

"And they do all this in the belief that the only hearers of what they are saying or the only readers of what they have written are those they are communicating with. It is that belief that gives them a sense of comfort - a sense of comfort either to communicate at all; to share confidences of a certain nature or to communicate in a particular manner.

"Imagine how an individual in that situation would feel if she or he were to know that throughout those intimate communications someone was listening in or reading them. If there ever was a highly and disturbingly invasive violation of privacy, this is it. It is violative of an individual’s inner sanctum."

In a statement, amaBhungane said the court ordered that in the interim, certain protections be deemed to be included in RICA.

If a state agent sought permission from a designated judge to conduct surveillance of a practicing lawyer or journalist, additional safeguards had to be applied to protect legal professional privilege and the confidentiality of journalists' sources. 

Subjects of surveillance must also be notified within 90 days after the interception has ended. If disclosure would jeopardise the original purpose of the interception, extensions of up to two years may be given.

"The decision is a resounding affirmation of the need to guard against state agencies abusing their power and intruding on ordinary persons' communications without good cause," amaBhungane added.

"The judgment is particularly apposite given recent Zondo commission testimony that spies involved themselves in factional battles and infiltrated the media."

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