The Zondo commission of inquiry into state capture has, over the past few weeks, exposed how state intelligence institutions were abused to serve the political ends of those in power. In light of such revelations, a recent ground-breaking judgment by the Constitutional Court is a move towards transparency.
The Constitutional Court declared certain sections of the Regulation of Interception of Communication and Provision of Communication-Related Information Act (Rica) unconstitutional as it violates the right to privacy.
Dario Milo, the legal representative of amaBhungane, the centre for investigative journalism that brought the matter to the court, welcomed the judgment.
“The effects of this judgment would be felt around the world,” said Milo. He added that the case aligns South Africa with jurisdictions that have progressive and transparent surveillance laws, such as Germany and Canada.
“In some respect we are now heading the field – we are actually ahead of a number of countries who don’t do what they should. I am hoping that this will serve as an international precedent, because it’s so well reasoned and is such a wonderfully written judgment and wonderfully argued that I think it’s going to be very persuasive around the world.”
In 2013, National Security Agency contractor Edward Snowden exposed how spy agencies linked to the United States and British governments used bulk surveillance signals to spy on people and create permanent records of everyone.
It took litigation by non-governmental organisations and whistleblowers to have governments acknowledge the existence of these pervasive forms of surveillance. The South African government begrudgingly acknowledged that it was spying on every citizen through bulk interception when amaBhungane took it to court. This form of surveillance was also declared unconstitutional by the Constitutional Court.
Notifying the surveilled person
During the “Spy Tapes” era, amaBhungane’s investigative journalist and managing partner, Sam Sole, had his communications intercepted in 2008 without his knowledge. His attempt at confirming his suspicion did not come to any fruition. He was told that Rica prohibited disclosure of information relating to surveillance.
But through court proceedings in 2015, in which Sole did not take part, he came to learn that the state had listened to a conversation between himself and state prosecutor advocate Billy Downer. The telecommunication was in the form of a transcript and attached through an affidavit. It was apparent that indeed the government had spied on Sole in 2008. When he approached the State Security Agency to provide him with the basis of this interception, he was given the transcript but no reasons for having his communication intercepted were furnished.
Sole, together with amaBhungane, approached the high court to declare certain sections of Rica unconstitutional for not having enough safeguards against intrusion on the right to privacy.
In 2019, Judge Ronald Sutherland of the high court in Pretoria found Rica to be unconstitutional and indeed replete with defects. Sutherland ruled that Rica was found wanting in so far as it did not have a provision mandating that the subject of surveillance ever be notified of it after the surveillance has been concluded. The court went on to rule that the subject of surveillance will have to be notified 90 days after the expiry of an instruction to surveil them.
The court also said the judge designated by the minister of justice to authorise surveillance lacked independence and was susceptible to political interference.
It put an end to the widespread abuse by state agents who didn’t declare the profession of the subject of surveillance. Mzilikazi wa Afrika and another journalist who were investigating police corruption had their phones tapped by the police’s crime intelligence unit. The judge issuing the authorisation to tap their phones was told the two journalists were ATM bombers. The court ruled that there is an obligation on state institutions to declare to the judge if the subject of surveillance is a journalist or a lawyer.
The high court further ruled that Rica safeguards around the retention of archived intercepted communication needed to be improved as they were inadequate and exposed the privacy of those who were subjects of surveillance. Sutherland declared bulk interception or surveillance unlawful and illegal.
Confirmation of victory
The Constitutional Court judgment upholding the 2019 high court decision confirms amaBhungane’s victory. It is a victory that has far-reaching effects, even outside the world of law and journalism.
Justice Mbuyiseli Madlanga suspended the order of invalidity for three years, allowing Parliament and the executive to fix the defects and introduce constitutionally compliant legislation.
About this, Milo said: “There are three things that are absolutely critical that happen immediately. The one is, post-surveillance notification will happen in the interim. Within three months of being surveilled, you have to be notified as a general rule.
“The second thing is bulk surveillance is completely outlawed. It is not permitted until the government is able to pass a statute on that.
“And the third is journalists and lawyers – particularly journalists – don’t have to be as concerned now that they are going to be victims of a surveillance order, because now it’s the duty of the government to tell the judge that one of the targets is a journalist and the judge will ask questions [about] why you need this order.”
Milo added that this is a first step towards dealing with the widespread abuse of Rica. Madlanga, like Milo, strongly believes that post-surveillance notification is a crucial mechanism to ensure there is less abuse of surveillance. People will be able to take legal action against ill-conceived surveillance of their communication.
Though this will not be immediate, Madlanga advised the state to consider automatic review of any surveillance once it has been concluded. “In South Africa, the vast majority of people cannot afford to litigate where they have suffered the infringement of their rights at the hands of the state,” said Madlanga.
“For many, therefore, post-surveillance notification will not translate to the vindication of their privacy rights through the exercise of the right of access to court. As a result of financial want, exercising the right will be an impossibility. It seems to me what could give this vulnerable group of South Africans a fair chance of also being in a position to vindicate their privacy right would be if they were to be afforded relatively inexpensive, speedy and effective access to judicial review.”
Although the Constitutional Court confirmed the high court’s ruling, it did find that the court had misdirected itself when it came to the question of costs. It ordered those who opposed the application at the high court and the Constitutional Court, respectively, to pay amaBhungane’s legal costs.