The Regulation of Interception of Communication and Provision of Communication-Related Information Act (Rica), meant to protect privacy and tackle crime, had its flaws. Rogue intelligence exploited these, prompting a legal battle led by the amaBhungane Centre for Investigative Journalism.

The Court identified five key reasons for declaring Rica unconstitutional:

1. Lack of notification: Individuals are not informed when they are under surveillance;

2. Independence issues: The processes for appointing and renewing the Rica judge lack independence;

3. One-sided hearings: The judge only hears from those applying for interception warrants, neglecting the other side;

4. Poor data management: Rica does not ensure the safe management of intercepted data; and

5. Neglecting professional confidentiality: Rica fails to recognize the professional duty of attorneys (legal representatives) and journalists to keep their sources and communications confidential.

In response, the Court introduced two interim measures during the redrafting of the law:

1. Firstly, within 90 days of a warrant lapsing, state agencies applying for surveillance must inform the subject that they have been surveilled; and

2. Secondly, applicants must inform the judge if the surveilled subject is an attorney or journalist.

The bill addresses some concerns, but raises questions about notification ambiguity and the need for a more thorough review process.

While a review judge is introduced, the absence of a public advocate leaves a gap in hearing both sides of the story. A missed opportunity, as this could have ensured a balanced decision-making process by hearing both sides of the narrative.

Critical safeguards for attorneys and journalists appear diluted in the amendment, thus jeopardizing the confidentiality of their communications. The bill further lacks specific provisions on the management of surveillance data – an oversight by the Constitutional Court.

What is more, the most critical issue – metadata surveillance – remains unaddressed in the amendment. The state’s underregulated access to communication data raises concerns, necessitating a more robust legal framework to prevent potential abuse.

The justice ministry’s delay in thoroughly reviewing surveillance laws is a miss. As the February 2024 deadline approaches, South Africa stands at a crossroads, where the balance between national security and individual privacy must be meticulously rectified.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.