Judge Ronald Sutherland has declared unconstitutional certain sections of the Regulation of Interception of Communications and Provision of Related Information Act (Rica). Members of the media have called this judgement a major milestone in advancing the right to privacy and media freedom.
“The High Court was spot on in making the ruling,” said Professor Jane Duncan, head of journalism at the University of Johannesburg and author of Stopping the Spies: Constructing and Resisting the Surveillance State in South Africa. “It is a positive judgment and a much needed, because [there] were very serious faults with the law.”
Background of the case
Rica came into law in 2002. In instances where law enforcement needed to intercept communication, agencies had to apply for permission through a retired judge whom the minister of justice appointed on a renewable basis. Information gathered through surveillance remained classified. The person spied on would not know their communication was being observed. Only if the person was criminally charged and the information was used in a court as evidence would they find out they had been surveilled.
For those at the amaBhungane Centre for Investigative Journalism, this 2002 model was unconstitutional on a number of fronts. Rica posed serious threats to investigative journalists’ confidential sources and amaBhungane argued that any designated judge would lack independence and be susceptible to political influence. Not being notified of surveillance violated the right to privacy and potentially impinged on the freedom of the media as rules regulating the storage of data were deficient and prone to abuse by officials.
Managing partner of amaBhungane and veteran journalist Sam Sole, together with Right2Know and Privacy International, challenged Rica’s constitutionality in 2017. They wanted the North Gauteng High Court in Pretoria to declare the current model unconstitutional and replace it with a new one.
Government, through the department of justice, opposed the application on the basis that it was premature as they were busy with amendments to Rica. Judge Sutherland dismissed this argument, saying if provisions in Rica “fall foul of constitutional norms, this court must pronounce on such issues”.
Sutherland further dismissed government’s view that it would amount to judicial overreach if the court heard the matter, which was not raising abstract issues but tangible defects of law and should be adjudicated.
In testing the constitutionality of the Rica provisions in question, the court applied a two-fold strategy. It first assessed whether constitutional rights were violated and whether such violation was reasonable or justifiable in an open democratic society. A simple reading of the Act suggested a number of violations of constitutional rights, including the right to privacy, to access courts, to freedom of expression and to a fair trial.
For example, section 16 of Rica forbids any form of disclosure to the person being spied on. It is understandable not to alert the person before surveillance, but the court took issue with the absence of a post-surveillance notice. Addressing this issue, Sutherland quoted the European Court of Human Rights: “One cannot undermine democracy on the grounds of defending it … the court must be satisfied that whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse.”
The 2002 model did not guarantee against the possible abuse of a person’s information. The people being spied on would never know they were being observed, so should abuses take place, they could never initiate court proceedings to hold government or law enforcement to account.
Sole said that such abuse happened to him. “One of the reasons we took this on is because of the threat to journalist … that monitoring interception poses. That was my experience. My confidential conversations with Billy Downer [the state prosecutor] were monitored officially – although neither of us knew at the time. And that was a confidential conversation between a journalist and a prosecutor, which really should not have been the business of the intelligence services.”
In making a case for a post-surveillance notice, the judge referred to other jurisdictions where it is common practice. Canada and the United State grant post-surveillance notices within 90 days, and Japan does so within 30 days.
The judge granted an interim order that a person being spied on must be notified within 90 days. In cases where there is a need for continuous surveillance, a panel of three judges must decide on the deferral of the notice.
Another part of Rica found to be unconstitutional was regulation related to archived communication. Service providers have an obligation to retain personal communications for a period of three years. Subordinate rules regulate this. But the court found the “oversight regime [to be]… extremely light”. There were no safeguards within Rica to guarantee proper procedure in dealing with data obtained through interception.
Bulk interceptions, defined as “intercepting, processing and analysing reporting intelligence from electronic signals”, were declared unconstitutional as there is no law authorising them.
The court has given parliament two years to fix Rica and to create a law to regulate bulk interceptions.
Independence of the judge
“The present appointment process of a designated judge is plainly on the wrong side of history,” wrote Sutherland. The independence of judges is compromised when the justice minister appoints them and is solely in charge of renewing their terms. “In my view, it must be an embarrassment to the minister of justice to have to select and appoint the designated judge in terms of the present provisions of Rica,” said Sutherland.
AmaBhungane suggested the Judicial Service Commission nominate the judge, but Sutherland felt this was inappropriate as an interim order. In six months’ time, from the date of the judgment, the chief justice will nominate a retired judge and the minister of justice must appoint him or her on a non-renewable term.
“This is a reasonable compromise,” said Duncan. “The chief justice will have to select the candidates and the minister will have to appoint in a non-discretionary basis, even though it’s similar to appointing. It de-politicises the process.”
Effect on journalism
Sutherland said it must be disclosed in cases where the subject being intercepted is a lawyer or journalist to allow the judge to impose limitations in protecting legal privilege and sources.
For Duncan, the judgment will have a positive effect on journalism “because now the judge will have to be informed by the applicants whether the interception direction relates to the communications of a journalist”.
In the past, a “judge had not been informed this is a journalist and as a result had not been able to apply the extra layer of protection in considering whether to grant interception or not,” said Duncan.
In affirming the significance of the media, Sutherland said, “In a country as wracked by corruption in both our public institutions and in our private institutions as ours is, and where the unearthing of wrongdoing is significantly the work of investigative journalists, in an otherwise, seemingly, empty field, it is hypocritical to both load the press and ignore their special needs to be an effective prop of the democratic process. The right to withhold the identity of a source must extend to protection from being spied on too, subject only to the sort of extreme circumstances that warrant a breach of that norm.”
Sole is hopeful the ruling will help journalists do their jobs. “It’s going to make it difficult for the state to easily see who you are talking to and who’s talking to you and what they are saying. There are no guarantees, but hopefully it raises the bar a little bit. And offers just a little greater level of protection to confidential sources.”