Concourt slams RICA law

The Constitutional Court has slammed South Africa’s surveillance act, with one justice describing it as “one of the worst-drafted legislations” he has ever seen.

It emerged in court today that while the act in its current form provides for a designated judge to hear applications to carry out surveillance, it does not empower anyone to actually designate that judge.

“We are surprised that an omission of this nature can occur. We take Parliament to be well alive as to what the constitution requires when it passes legislation,” Justice Chris Jafta said.

Jafta and a full bench of his colleagues were hearing arguments around sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), which are before them for confirmation of a 2019 high court order, issued in Pretoria, declaring these sections unconstitutional and invalid.

The matter was first brought before the courts in 2017 – by the amaBhungane Centre for Investigative Journalism and its managing partner, Sam Sole, and in the wake of it having emerged that Sole had unknowingly been placed under surveillance – in terms of the RICA – while covering the National Prosecuting Authority’s 2008 decision to drop corruption charges against former president Jacob Zuma. These charges have since been reinstated.

The High Court last year ruled in favour of amaBhungane and Sole and found, among other things, that the RICA failed “to prescribe an appointment mechanism and terms for the designated judge which ensures his or her independence”.

Part of the amaBhungane team’s case is that the act does not do anything to ensure the independence of this designated judge.

Sole’s counsel, advocate Steven Budlender, argued that the act in its current form empowered the Minister of Justice and Constitutional Development to designate a judge and that this created the perception, at least, of potential bias.

But when Jafta asked Budlender where exactly in the act the minister was empowered in this way, he could only point to its definition of a ‘designated judge’ as “a judge of a high court discharged from active service … or any retired judge who is designated by the minister to perform the functions of a designated judge”.

“Is that an empowering provision? A definition of what a designated judge is?” Jafta asked sceptically.

“I suppose it’s implied,” Budlender said.

“Can it be implied?” Jafta pressed on.

“Well if it’s not, then the RICA is unconstitutional on that basis too,” Budlender replied, “Legislation enabling the state to engage in fundamental incursions into people’s rights should have crystal clarity on checks, balances, mechanisms and safeguards … The RICA does not”.

Jafta said: “It’s a serious matter. This legislation is one of the worst-drafted legislations I’ve ever seen”.

And Budlender agreed, describing the act as “a minefield”.

The issue also came up during arguments from the Minister of Justice and Constitutional Development’s legal team, when it was suggested again that the minister’s power to designate a judge was implied.

“The issue of an implied power arises when there is actual power. It becomes implied because it is incidental to the exercise of the power that is conferred. Where there is no power at all conferred, there can’t be implied power, can there?” Jafta said.

Judgment has been reserved.

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