The judge declared that the bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre were unlawful and invalid.
After a drawn-out court battle first initiated by amaBhungane, Judge Roland Sutherland at the High Court in Johannesburg has declared the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) unlawful.
amaBhungane started legal proceedings in April 2017 after learning that managing partner and investigative journalist, Sam Sole, had been the target of state surveillance under Rica while investigating the decision by the National Prosecuting Authority to drop corruption charges against former President Jacob Zuma.
Earlier this year, Right2Know and Privacy International argued at the High Court in Pretoria that bulk surveillance is an extraordinary violation of rights and demanded an end to the practice.
The two organisations joined amaBhungane Centre of Investigating Journalism as friends of the court to declare some sections of Rica unconstitutional and invalid.
A senior counsel representing the State Security Agency (SSA), advocate Vuyani Ngalwana later countered this by arguing that journalists were not entitled to dictate how Rica should be implemented in order to accommodate them.
Ngalwana said journalists could not be given preferential treatment or risk national security when it came to terrorism threats.
He argued that he did not see the feasibility of post-surveillance notification, saying it served no purpose and would only compromise the intelligence agencies and national security.
“Courts are not there to dance to the tune of the media for brownie points. In any event, it is impermissible for the court to enter into the fray of powers of a legislative nature,” he said.
He said journalists should raise their concerns during public consultation periods.
“They cannot opt out of that process and come to court and seek to force their own version of what the law should say, when they are not accountable for the high crime rate, politicians are.”
In his closing statement, Ngalwana said amaBhungane should be ordered to pay costs because they knew as early as June 2017 that there was a bill in process to amend Rica.
amaBhungane’s first challenge targeted the constitutionality of several provisions of RICA, which permits the interception of communications of any person by authorised state officials, subject to prescribed conditions.
The second challenge related to “bulk interceptions” of telecommunication traffic by the State on the basis that no lawful authority exists to do so.
Judge Sutherland said part of the dynamic of investigative journalism was for investigative journalists to obtain information from whistleblowers and others who inform on their bosses without wanting to be identified.
Therefore, a need to keep sources private and secretive is “axiomatic to the exercise”.
Among the five orders granted, was an order that sections 16(7), 17(6),18(3)(a), 19(6), 20(6) and 22(7) of RICA were inconsistent with the Constitution and invalid to the extent it failed to prescribe procedures for notifying the subject of the interception.
“RICA, including sections 16 (7) thereof, is inconsistent with the Constitution and accordingly invalid to the extent that it fails to adequately provide for a system with appropriate safeguards to deal with the fact that the orders in question are granted ex parte (without notice) and the declaration of invalidity is suspended for two years to allow Parliament to cure defect.”
He suspended the declaration of invalidity for two years to give Parliament time to amend the act.
There was no costs order.
Article by Kaunda Selisho & The Citizen