A battle has been won for privacy, but the fight against Rica not over yet

While the court yesterday ruled in favour of journalism investigative centre amaBhungane’s challenge of the country’s surveillance law, the ruling is not final yet.

AmaBhugane is now expected to make an application to the Constitutional Court to confirm the ruling.

There is also bad news for those hoping that the ruling would exempt them from having to go through pesky SIM card registrations, since those requirements remain very much in place.

The two-year legal battle started in 2017, after amaBhungane learnt that managing partner and investigative journalist Sam Sole had been the target of state surveillance under Rica (the Regulation of Interception of Communications and Provision of Communication-Related Information Act) while investigating the decision by the National Prosecuting Authority to drop corruption charges against then president Jacob Zuma.

Sole told The Citizen that at the time he felt it was an invasion of his privacy because “one does everything on one’s phone”.

“If they have access to [all] communication, there is a sense of invasion. As a journalist, there is a concern that it is much too easy for the state to get access to communication-related information and it is important that we are able to protect and commit to protecting our sources,” he said.

The centre focused on two sections within the surveillance law for their court actions: one that allowed for the “interception of communications of any person by authorised state subject to prescribed conditions” and the other that admitted to the “practice of the state in conducting ‘bulk interceptions’ of telecommunications traffic on the basis that no lawful authority exists to do so”.

Joining the court action as friends of the court were two organisations, Right2Know and Privacy International. They argued that the bulk surveillance was an extraordinary violation of rights and demanded an end to the practice.

Judge Roland Sutherland at the High Court in Johannesburg declared yesterday that sections in the Act were “unlawful” and “invalid”. He found that sections 16(7), 17(6),18(3)(a), 19(6), 20(6) and 22(7) of Rica were inconsistent with the constitution and invalid to the extent they failed to prescribe procedures for notifying the subject of the interception.

“Rica, including sections 16 (7) thereof, is inconsistent with the constitution and accordingly invalid to the extent that it fails to adequately provide for a system with appropriate safeguards to deal with the fact that the orders in question are granted [without notice] and the declaration of invalidity is suspended for two years to allow parliament to cure defect.”

The declaration of invalidity was suspended for two years, in order for parliament to amend the Act.

Attorney Natasha Moni said the ruling would not affect the everyday citizen, but would affect those who required privacy and privilege of communications, such as journalists and legal practitioners, who needed to be able to protect their sources or clients’ identity.

She said at the moment when there was an ex parte application (an application made to a court where only the party making the request is represented and the other side is not given any notice) brought by the state to intercept communication and get information, there is no sufficient safeguard for the party whose information was being sought.

Therefore, this party would not be notified and in turn could not defend themselves when their information was being accessed. “It will not affect the everyday person,” said Moni. “You will still have to Rica your SIM cards. It may affect people who sell the cards and those who buy SIM boxes because that is illegal.”

AmaBhungane advocacy coordinator Karabo Rajuili said the ruling was a huge vindication not only for the investigative unit but for all journalists.

“It has been a 10-year battle,” she said.

What the Act permits

While the recording of conversations without consent by a participant in the conversation is inadmissible upfront, the ability to prove its relevance eventually allows it to be accepted as evidence in a court of law. A technical piece of legislature, Rica focuses on direct and indirect communications.

While it is illegal to record communications between parties without consent, no consent is required if the person recording is involved in the communication, and if they are not law enforcement officers. This applies to a variety of communications, including telephonic conversations and other modes of communications. The Act allows for the monitoring, interception and recording of conversation without restraint.

Within an employment setting, while parties have the legal right to record conversations without consent, it often does more harm than good in an employment relationship.

– jenniffero@citizen.co.za

For more news your way, download The Citizen’s app for iOS and Android.