Picture: 123RF/PHIVE 2015
Picture: 123RF/PHIVE 2015

The Constitutional Court on Thursday declared legislation aimed at preventing criminals from using cellphones for illegal activities unconstitutional, saying it did not provide adequate safeguards to render it lawful.

The amaBhungane Centre for Investigative Journalism and its managing partner, Sam Sole, had filed an application to the top court for confirmation of the five orders made by the high court in September declaring the Regulation of Interception of Communication Act (Rica) unconstitutional.

Sole and amaBhungane challenged the provisions of Rica after they received confirmation that Sole had been under surveillance.

Rica is the law that permits the interception of communications of any people by authorised state officials, subject to prescribed conditions.

In a majority judgment penned by justice Mbuyiseli Madlanga, the Constitutional Court found that Rica is unconstitutional to the extent that it fails to provide for adequate safeguards for independent judicial authorisation.

“Rica is unconstitutional to the extent that it fails adequately to prescribe procedures to ensure that data obtained pursuant to the interception of communication is managed lawfully and not used or interfered with unlawfully,” Madlanga ruled.

He said Rica was unconstitutional to the extent that when the intended subject of surveillance was a practising lawyer or a journalist, it failed to provide for additional safeguards calculated to minimise the risk of infringement of the confidentiality of the practising lawyer and client communications and journalists’ sources.

The court also found that bulk surveillance interceptions carried out by the National Communications Centre were unlawful as there was no law that authorised the practice.

The ministers of police, state security, justice, defence and military veterans, the office of interception centres, the national communication centre and the State Security Agency were ordered to pay amaBhungane’s costs of the high court application.

The court confirmed the declaration of unconstitutionality by the high court only to the extent that the act fails to:

  • provide for safeguards to ensure that a judge designated is sufficiently independent;
  • provide for notifying the subject of surveillance of her or his surveillance as soon as notification can be given without jeopardising the purpose of the surveillance;
  • adequately provides safeguards to address the fact that interception directions are sought and obtained;
  • adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and used and interfered with lawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using or destroying the data; and
  • provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

The declaration of unconstitutionality takes effect from the date of the judgment and is suspended for 36 months to allow parliament to cure the defects in the act.

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