“Chairperson,
The ACDP believes that the lawful interception of communication by law enforcement agencies remains a crucial tool in the fight against ever increasing crime in the country. South Africa is plagued by serious and violent crime which necessitates the adoption of measures such as RICA to detect, investigate and curb serious crimes. Without question, it is crucial for the state to secure the nation, ensure that the public is safe and prevent serious crime. These are constitutional obligations. Through RICA, interceptions of communications have come to be central to the fulfilment of these obligations. Thus they serve an important purpose. Unsurprisingly, a number of constitutional democracies have adopted similar measures.
We stress the word “lawful”, as interception of communications “is a serious invasion of any citizen’s privacy”.
In the Con Court case of Amabhungane Centre for Investigative Journalism v Minister of Justice, Judge Mbuyiseli Madlanga placed the right to privacy at the heart of the case by saying:
“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 hearts’ 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.”
Yet the court accepted that, in common with a number of constitutional democracies, the power to intercept serves an important purpose in our democracy: to investigate and combat serious crime, guarantee national security and maintain public order.
How does one balance these rights. In the ConCourt case of Amabhungane Centre for Investigative Journalism v Minister of Justice, Madlanga asks, “Is [Rica] doing enough to reduce the risk of unnecessary intrusions?” The court answered that question with a resounding no. The court found that RICA did not go far enough in protecting the right to privacy, found parts of it unconstitutional. Today we are dealing with the remedial legislation required.
In reaching its decision, the Court in the above matter highlighted actual abuses that had taken place.
“[38] We have before us evidence of abuse of the power of surveillance. One example is that of two journalists, Mr Mzilikazi wa Afrika and Mr Stephen Hofstatter, whose phones were tapped by the police’s Crime Intelligence Division while the two were investigating corruption scandals in the South African Police Service. In order to obtain interception directions under RICA, the police told the designated Judge that the phone numbers to be tapped were those of suspected ATM bombers. That, of course, was a lie. The interception direction was granted on the basis of that lie. It authorised the real-time interception of the calls, text messages and metadata of the journalists. These facts have not been disputed by the respondents.
The purpose of the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill, 2023 (‘‘the Bill’’), is to amend the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, (Act No. 70 of 2002) (‘‘the RICA’’), to give effect to the Constitutional Court judgment to the extent that it fails to provide adequate safeguards to protect the right to privacy, as buttressed by the rights of access to courts, freedom of expression and the media, and legal privilege.
Parliament was given three years from 4 February 2021 to rectify the position.
The Bill gives effect to the Constitutional Court’s judgment by providing for the notification of persons of their surveillance as soon as the notification can be given without jeopardising the purpose thereof after surveillance has been terminated. The Bill seeks to provide for the designation of an independent designated judge, the designation of an independent review judge, powers and functions of the review judge and the tenure of designated and review judges. It also seeks to provide for safeguards to address the fact that interception directions are sought and obtained ex parte. It further provides for procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully. The Bill further seeks to provide for procedures to be followed in examining, copying, sharing, sorting through, using, storing or destroying the data. Finally, the Bill provides for adequate safeguards where the subject of surveillance is a practising journalist or lawyer.
Journalists and lawyers fall into a special category when it comes to surveillance – not because they can never be the subject of legitimate surveillance but because additional safeguards are necessary. This is because communications between clients and lawyers are protected by legal privilege. And for journalists, “keeping the identity of journalists’ sources confidential is protected by the rights to freedom of expression and the media”.
Journalists have played a key role in exposing state capture and corruption in the country. The ACDP would like to pay tribute to investigative journalists who often at great personal risk are prepared to expose the most nefarious practices in society. We salute you.
The ACDP supports these amendments.”
