By Rui Lopes and Kirsty Gibson, Lopes Attorneys
SOUTH Africa’s highest court, the Constitutional Court, handed down a significant judgment on 4 February 2021, declaring that certain provisions of the infamous Regulation of Interception of Communications Act (RICA) are unconstitutional.
In this ground-breaking judgment, the court held that certain provisions of RICA are unconstitutional in so far as RICA fails to provide appropriate safeguards and adequately prescribe procedures in many respects when it comes to undertaking surveillance.
This case was brought about by the amaBhugane Centre for Investigative Journalism having approached the Constitutional Court for confirmation of the declaration of unconstitutionality in the 2017 High Court decision.
To this end, the Constitutional Court noted that various provisions of RICA were inadequate and thus unconstitutional in so far as they failed to:
- Provide for safeguards ensuring that a Judge designated in terms of section 1 of the Act is sufficiently independent;
- Provide for notifying the subject of surveillance of the fact of their surveillance as soon as such may be given without jeopardising the purpose of surveillance after such surveillance has been terminated;
- Adequately providing safeguards to address the fact that interception directions are sought to be obtained ex parte;
- 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; and
- Provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.
The Constitutional Court ordered that such an order for the declaration of unconstitutionality is to take effect immediately and is suspended for a period of 36 months in order to afford Parliament an opportunity to cure the defect causing the invalidity. During this period of suspension, however, the Constitutional Court has read in certain provisions giving effect to the gaps contained in RICA as it currently stands.
In a democratic society founded on the democratic values of human dignity, equality and freedom, it is vital to ensure that persons be free from intrusions and interference by the State in one’s personal life, and this decision by the Constitutional Court goes a long way to enforce this.