Journalists and lawyers whose communication is intercepted by the state must be notified of such surveillance as soon as possible.
This is one of the proposed amendments to the Regulation of Interception of Communications and Provision of Communication-related Information Act (Rica).
Justice minister Ronald Lamola has tabled the Rica Amendment Bill in parliament, which addresses findings made by the Constitutional Court when amaBhungane challenged the constitutionality of the law.
“The bill gives effect to the Constitutional Court’s judgment by providing for the notification of persons of their surveillance, as soon as the notification can be given without jeopardising the purpose thereof, after surveillance has been terminated,” said justice ministry spokesperson Chrispin Phiri.
It also addresses the tenure of the judge and the inability to review the judge’s decision, he said.
The bill introduces a review panel. Phiri explained that a new proposed section 23A in the bill provides that when the person in respect of whom surveillance, or extension of surveillance, is sought, is a journalist or practising lawyer, the designated judge must grant the application only if satisfied that it is necessary to do so, but on the conditions necessary to protect the confidentiality of a journalist’s source or, in the case of a practising lawyer, to protect the legal professional privilege enjoyed by his or her clients.
“So when making an application to intercept you will be obliged to disclose that you are intercepting a journalist’s calls or lawyer’s call. There was no such requirement before,” he said.
In dealing with the lawyers and journalists’ issue, the court acknowledged that the confidentiality of journalists’ sources is protected by the rights to freedom of expression and the media.
The ConCourt ruled in February 2021 that certain sections of the Rica Act were unconstitutional to the extent that they fail to provide adequate safeguards to protect the right to privacy, as buttressed by the rights of access to courts, freedom of expression, the media, and legal privilege.
The AmaBhungane Centre for Investigative Journalism approached the Pretoria high court on the basis of a number of constitutional challenges to Rica.
The high court upheld the challenges that:
- Rica makes no provision for a subject of surveillance ever to be notified that she or he has been subjected to surveillance.
- Rica permits a member of the executive unfettered discretion to appoint and renew the term of the designated judge (the functionary responsible for issuing directions for the interception of private communications), and thus fails to ensure the independence of the designated judge.
- It also agreed that Rica lacks any form of adversarial process or other mechanism to ensure that the intended subject of surveillance is protected in the ex parte application process, and the law lacks adequate safeguards for examining, copying, sharing, sorting through, using, destroying and/or storing the surveillance data. It also fails to provide any special circumstances where the subject of surveillance is a journalist or practising lawyer.
Rica was accordingly declared unconstitutional to the extent of these failures.
The declaration of invalidity was suspended for two years to allow parliament to cure the defects. Interim relief, in the form of reading-in, was granted in respect of the notification issue, the independence issue and the practising lawyers and journalists’ issue.
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 infringes section 14 of the constitution.
While the court acknowledged the constitutional importance of the right to privacy, which is tied to dignity, it also 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.
However, in light of the egregiously intrusive nature of the limitation, the court held that the question to answer is: is Rica doing enough to reduce the risk of unnecessary intrusions?
In dealing with the lawyers and journalists’ issue, the court acknowledged that the confidentiality of journalists’ sources is protected by the rights to freedom of expression and the media.
In relation to the confidentiality of lawyers’ communications, the court accepted that legal professional privilege is an essential part of the rights to a fair trial. These rights were found to weigh in favour of special consideration given to the importance of the confidentiality of lawyer-client communications and journalists’ sources, to minimise the risk of infringement of this confidentiality.
Rica’s failure to do so rendered it unconstitutional, said the court.
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