Right to privacy under scrutiny as Constitutional Court hears Rica 'spying' case

25 February 2020 - 14:51 By Ernest Mabuza
The Constitutional Court is hearing arguments on whether Rica violates the right to privacy. Stock photo.
The Constitutional Court is hearing arguments on whether Rica violates the right to privacy. Stock photo.
Image: 123RF/dolgachov

The Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) violates the right to privacy in a number of areas — and for that reason it is unconstitutional.

This was the submission made on Tuesday by lawyers for the amaBhungane Centre for Investigative Journalism and journalist Sam Sole to the Constitutional Court.

They seek to confirm orders made by the high court in Pretoria in September 2019.

The high court declared that Rica was unconstitutional to the extent that it failed to contain adequate safeguards to protect the rights to privacy, access to courts, freedom of expression and the media, and legal privilege.

Steven Budlender SC, for amaBhungane and Sole, told the Constitutional Court that because state surveillance of private communications had a serious effect on fundamental rights, it was imperative there were in place proper and stringent safeguards to protect the rights of the public.

He said failure to put such safeguards in place rendered Rica unconstitutional.

Budlender said Rica's failure to notify the subject of surveillance that they were under surveillance rendered the act unconstitutional.

He said the act was also invalid as it failed to guarantee the independence of the “designated” judge who grants interception orders.

“The reasonable perception is that a judge picked by the executive for a renewable term will not be seen as independent,” Budlender said.

However, chief justice Mogoeng Mogoeng challenged Budlender on this point, and said judges were independent.

“Just saying the minister appoints her, she is a minister's lackey, is dangerous,” Mogoeng said, adding that judges heading commissions of inquiry were appointed by the executive.

Budlender said there was a world of difference between judges heading commissions of inquiry in public and a judge who issued surveillance orders in secret.

“It is about structural guarantees for independence,” Budlender said.

Budlender said the act was also unconstitutional as it failed to provide any special circumstances where the subject of surveillance was a journalist or a practising lawyer.

He said both these professions demanded special protection to protect the confidentiality of their sources.

Three ministers are in court on this case.

The minister of justice is not opposed to the application of the confirmation of orders made by the high court. However, the minister said the act has to be reviewed and asked that the executive be given space to make changes to the law. The minister has asked the court to give the executive three years to revise the policy and formulate the necessary legislation to cure Rica's defects.

The state security minister appeals against the whole judgment and orders of the high court.

One of her arguments is that post-surveillance notification would defeat the very purpose of that surveillance, which required continuous secrecy for intelligence-gathering purposes.

The minister of police appeals partially against the high court order, especially regarding the requirement for notification of surveillance subjects.

The matter continues.