Picture: 123RF/STOKETTE
Picture: 123RF/STOKETTE

Sections of SA's surveillance law has been declared unconstitutional by the high court in Pretoria as it does not lay out any procedures for notifying a person whose communication is being intercepted.  

The court further declared that mass surveillance activities and the interception of foreign signals by the National Communications Centre was “unlawful and invalid”. 

The judgment, which will have far-reaching consequences for state institutions that rely on interception, such as the State Security Agency (SSA) and the justice department, was handed down on Monday by judge Roland Sutherland.

The case was brought by journalist Sam Sole and the amaBhungane centre for investigative journalism. They sought an order declaring some sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) unconstitutional.

Right2Know and Privacy International joined amaBhungane's application as friends of the court. 

Sutherland declared several sections of the act inconsistent with the constitution and invalid as it failed to prescribe the procedure for notifying the subject of the interception. The court suspended the declarations of invalidity for two years to allow for parliament to rectify the different defects in the legislation. 

Sutherland ruled, however, that while the legislation was amended, an applicant that obtained interception direction will have to notify the person who was the subject of that interception in writing, within 90 days of its expiry, that the person was the subject of it.

The person who obtained the direction would then have to certify to a designated judge that the person has been notified. 

The judge may in exceptional circumstances , direct that the obligation is postponed for a further “appropriate” period, which may not exceed 180 days. 

If the orders of deferral of notification amounted to three years after the surveillance has ended, the application for any further deferral must be made before a panel of three judges. 

The judgment also declared that the use of the definition “designated judge” was inconsistent with the constitution and invalid in the extent that it failed to prescribe an appointment mechanism and terms for the judge, which ensures their independence.

Section 16(7) of the act was inconsistent with the constitution as it failed to provide adequately for a system with appropriate safeguards to deal with the fact that the orders are granted ex parte — which does not require all parties to be present.    

Rica was also declared inconsistent with the constitution as it failed to prescribe proper procedure to be followed when state officials are examining, copying, sorting through, using, destroying or storing the date obtained from the interceptions. 

It was also declared unconstitutional in that certain sections failed to address express circumstances where a subject of surveillance is a journalist or a practising lawyer.

Pending the amendments to the legislation, those applying for an interception order would have to disclose to the judge that the person is a journalist or a lawyer, and the judge will only grant the order if it is necessary and appropriate. The judge may then include limitations or conditions which he or she may deem necessary.

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