Spy ombud, interception judge raise alarm about surveillance notifications

The spy ombud and the designated judge of interception of communication have questioned a Constitutional Court directive that requires intelligence services to inform the person whose communication is intercepted that they are under surveillance.

The latest joint standing committee on intelligence’s (JSCI) annual report published on Tuesday reveals interception judge Bess Nkabinde and inspector-general of intelligence Imtiaz Fazel have suggested the post-surveillance notification affected intelligence service’s operations.

In its 2023/24 annual report, the JSCI said Nkabinde indicated a need to discuss the proposed amendments on interception as post-surveillance notification presented a challenge — and the challenge was that suspects who often were criminals or terrorists would be informed that they were intercepted.

“This would be counterintuitive and compromise the work of law enforcement agencies,” she said.

The committee said it was explained that instead of post-notification, the courts should allow for legal redress and allow individuals to approach the courts.

Nkabinde further explained that the courts used foreign jurisprudence to make decisions, and the lived experiences in South Africa were not the same, thus, certain read-in provisions were problematic.

“Justice Nkabinde mentioned that the courts do not make legislation, they only interpret it. It remained parliament’s mandate to craft legislation that would enable the work of law enforcement agencies.”

Nkabinde said the read-in provisions by the Constitutional Court judgment had affected the work of law enforcement agencies as demonstrated by the decrease in applications for interception. There were only 146 applications during the period under review, in contrast to 600 applications in the previous two years.

Fazel also found that the ConCourt order on post-surveillance notification had “a chilling effect”, which in a legal context implies discouraging the State Security Agency’s (SSA) desire to perform certain duties due to the need to adhere to the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica.

“The SSA viewed the post-surveillance notification order as highly problematic due to operational projects being conducted covertly and the need-to-know principle was sacrosanct in the SSA’s tradecraft.”

Concerns were raised that notifying the target may result in litigation, he said.

Among unlawful activities and contraventions that Fazel noted was the failure by the agencies to provide post-surveillance notification to targets of lawful interceptions in transgression of the Constitutional Court ruling.

He found that the police’s crime intelligence viewed a post-surveillance notification order as problematic, which resulted in noncompliance.

It was, however, recommended that the agency remedy the noncompliance.

The Constitutional Court handed down a judgment in February 2021 that Rica was unconstitutional, to the extent that it fails to provide adequate safeguards to protect the right to privacy, as buttressed by the rights of access to courts, freedom of expression and the media, and legal privilege.

Even if a direction ought not to have been granted, the subject will never know and is thus denied the opportunity to seek legal redress for the violation of her or his right to privacy.

—  ConCourt

AmaBhungane Centre for Investigative Journalism had approached the high court challenging the constitutionality of Rica and, among the problematic provisions, that it makes no provision for a subject of surveillance ever to be notified that she or he has been subjected to surveillance.

The court declared the law unconstitutional, but the declaration of invalidity was suspended for three years to allow parliament to cure the defects.

An interim relief, in the form of reading-in, was granted in respect of the notification issue among others.

In a majority judgment, the ConCourt held that interception and surveillance of an individual’s communications under Rica is a highly invasive violation of privacy, and thus infringes section 14 of the constitution.

The court acknowledged the constitutional importance of the right to privacy, which is tied to dignity. It further accepted the importance of the purpose of state surveillance, which is to investigate and combat serious crime, guarantee national security, maintain public order and thereby ensure the safety of the republic and its people.

The minister of police had argued for the continued prohibition of all post-surveillance notification, but the ConCourt held that such a blanket prohibition facilitates the abuse of interception directions, which are applied for, granted and implemented in complete secrecy. “Even if a direction ought not to have been granted, the subject will never know and is thus denied the opportunity to seek legal redress for the violation of her or his right to privacy,” it said.

The court concluded that post-surveillance notification should be the default position, and Rica was held to be unconstitutional to the extent that it fails to provide for notifying the subject of surveillance of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after it has been terminated.