The Constitutional Court of South Africa this week ruled the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) as unconstitutional, at a hearing in Pretoria.
RICA is an act that permits state officials to intercept the private communications of any individual, subject to conditions.
The judgment, presided over by Justice Mbuyiseli Madlanga on Thursday, ruled against RICA saying that it did not provide “adequate” safeguards to render it lawful.
The ruling came after an appeal was made by the Amabhungane Centre for Investigative Journalism and it’s managing partner, Sam Sole, who had been the subject of state surveillance.
Sole appealed the court to confirm orders made by the High Court last September, which ruled the RICA act unconstitutional.
“At the heart of this matter is the right to privacy, an important constitutional right which, according to this Court, “embraces the right to be free from intrusions and interference by the state and others in one’s personal life,” said Madlanga.
“Whilst RICA prohibits the interception of any communication, it leaves the door wide open for the interception of communications in a variety of ways.”
Madlanga ruled against RICA, adding that it failed to provide safeguards if the subject of surveillance was a lawyer or journalist.
Furthermore, the court said that RICA was deficient in several aspects, to meet the threshold required by section 36(1) of the Constitution, which requires the act to justify its infringement of privacy.
The ConCourt suspended the act as of Thursday for 36 months in order for Parliament to cure the defect.
“The declaration of unconstitutionality by the High Court is confirmed only to the extent that the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA) fails to:
(a) provide for safeguards to ensure that a judge designated in terms of section 1 is sufficiently independent;
(b) provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after surveillance has been terminated;
(c) adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte;
(d) adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data; and
(e) provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.”