Rica 'spying' battle heads to ConCourt

The high court in Johannesburg was correct in finding that the Regulation of Interception of Communication and Provision of Communication Related Act (Rica) lacked the necessary safeguards to render it compliant with the constitution.

These are the submissions made before the Constitutional Court by the amaBhungane Centre for Investigative Journalism and its managing partner Sam Sole in their application for confirmation of the five orders made by the high court in September declaring Rica unconstitutional.

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

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

While the high court can declare that a section of the law is unconstitutional, that declaration of unconstitutionality will only be confirmed by the Constitutional Court.

The minister of police is appealing against one of the five orders, while the minister of state security filed a late application to appeal against the whole judgment of the high court.

The high court, in its judgment passed in September, held among others that Rica breached the right to privacy by not making a provision for a subject of surveillance ever to be notified that he or she has been subjected to surveillance, even once surveillance had ended.

In their heads of argument submitted on Tuesday, Sole and amaBhungane said it was important to note that they did not contend — and the high court did not find — that state surveillance of private communications was inherently unconstitutional.

“Rather (amaBhungane and Sole) accept that state surveillance can serve legitimate and important purposes and is at times necessary.

“But because state surveillance of private communications has such a serious effect on fundamental rights, it is imperative that there be in place proper and stringent safeguards to protect the rights of the public. A failure to put in place such safeguards renders Rica unconstitutional,” counsel for amaBhungane and Sole Steven Budlender SC, Stuart Scott and Itumeleng Phalane said in their written submissions submitted to the court on Tuesday.

amaBhungane and Sole's counsel said section 14 (d) of the constitution expressly provided that every person's right to privacy included “the right not to have ... the privacy of their communications infringed”.

They said the interception direction under Rica empowered the state to have complete access to all of a person's calls on their private cellular phone or all their e-mails — regardless of whether those calls or e-mails have anything to do with the basis for interception direction.

They also said Rica had no mechanism for protecting the rights of third parties that feature in the communications.

“If one takes Mr Sole's communications as an example — during the period under surveillance there may well have been numerous sources regarding various other investigations that he was conducting.

“The other parties to those calls plainly had a reasonable expectation of privacy.”