amaBhungane asks ConCourt to confirm Rica is ‘unconstitutional, invalid’

The amaBhungane Centre for Investigative Journalism filed papers in the Constitutional Court on Wednesday seeking a confirmatory ruling deeming the Regulation of Interception of Communication Act (Rica) “unconstitutional” and “invalid”.

This after amaBhungane emerged victorious after the Gauteng High Court in Johannesburg declared mass surveillance and the interception of foreign signals by the National Communications Centre “unlawful and invalid” in September last year.

The legal battle began in 2017 when the publication received confirmation its managing partner, Sam Sole, had been under surveillance under Rica.

News24 previously reported this occurred while Sole was investigating a National Prosecuting Authority (NPA) decision to drop corruption charges against former president Jacob Zuma.

This is not the first case of surveillance where it is alleged that the state allegedly uses intelligence, state security and the provisions of Rica to target journalists.

Among the five orders granted by Judge Roland Sutherland was an order 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 it failed to prescribe procedures for notifying the subject of the interception.

“RICA, including section 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 ex parte [without notice] and the declaration of invalidity is suspended for two years to allow Parliament to cure [the] defect,” Judge Sutherland said.

In summary, the investigative unit in its court papers is seeking the Constitutional Court to determine whether RICA is unconstitutional and invalid on the following issues:

• Whether Rica, including sections 16(7), 17(6), 18(3)a, 19(6), 20(6), 21(6) and 22(7) thereof, is inconsistent with the Constitution to the extent that it fails to prescribe procedures for notifying the subject of the interception.
• Whether Rica, including sections 16(7) thereof, is inconsistent with the Constitution to the extent that it fails to provide for a system for a public advocate or other appropriate safeguards to deal with the fact that the orders in question are granted ex parte.
• Whether Rica, including the definition of “designated judge” in section 1, is inconsistent with the Constitution to the extent that it fails to prescribe an appointment mechanism and terms for the designated judge that ensures the designated judge’s independence.
• Whether Rica, including sections 37 and 30(2)(a)(iii) thereof, is inconsistent with the Constitution to the extent that it fails to prescribe the proper procedure to be followed when state officials are examining, copying, sharing, sorting through, using destroying and/or storing the data obtained from interceptions.
• Whether sections 16(5), 17(4), 19(4), 21(4)(a), 22(4)(b) of Rica are inconsistent with the Constitution to the extent that they deal with an application related to a subject who is a journalist or a lawyer.

The case will be heard on February 25 in the final appellate court for constitutional matters.

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