Johannesburg – On Monday the High Court declared that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) is unlawful.
The ruling followed a court battle brought by investigative journalism unit amaBhungane in 2017, after its journalist Sam Sole’s communications were targeted by state surveillance while he was reporting on corruption investigation against ex-president Jacob Zuma.
The case related to the NPA’s decision to drop corruption charges against Zuma.
Right2Know and Privacy International joined AmaBhungane’s case against bulk surveillance as friends of the court.
Judge Roland Sutherland said the legislation was inconsistent with the Constitution, as it failed to provide appropriate safeguards to deal with the fact that the orders were granted ex parte, or in the interests of one side only.
Judge Sutherland found that the legislation failed to provide procedures for notifying a subject of interception of their communications. “The legislation is invalid to the extent that it failed to prescribe proper procedures when state officials were examining, copying, sharing, destroying or storing information that had been intercepted.”
Mwanwhile new sections have been added to the Act, which included informing the person under surveillance. In future, when a surveillance order was sought, an agency also needed to disclose to the judge when the person was a journalist or a legal practitioner.
Sutherland also found the Act failed to prescribe an appointment mechanism for a designated judge to ensure the independence of the judge.
He declared that the validity of the judgment be suspended for two years in order for Parliament to rework the legislation. The judge also declared that bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre were unlawful and invalid.