Michael Power & Avani Singh
ALT Advisory & Power Singh Inc
In the recent judgment of amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others  ZAGPPHC 384, a South African High Court declared multiple provisions of South Africa’s surveillance law – the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (RICA) – unconstitutional and invalid. The judgment is a victory for the right to privacy, which is contained in South Africa’s Constitution, and sheds light on practices that constitute unjustifiable limitations to the right.
The matter was initiated by the amaBhungane Centre for Investigative Journalism (amaBhungane) and one of its managing partners and an investigative journalist, Sam Sole, who presented “undisputed first-hand experience” that he was spied upon. amaBhungane relied on multiple standing provisions contained in South Africa’s Constitution, including that it was in their own interest, in the interests of the class of investigative journalists, and in the public interest that the matter be heard. The Right2Know Campaign and Privacy International, two civil society organisations working on matters related to privacy and surveillance, were admitted as amici curiae or “friends of the court” in line with South Africa’s broad standing provisions.
In finding for the applicants and balancing the rights to privacy, freedom of expression (including press freedom), legal privilege and access to courts, against state interests, in terms of the limitations clause in South Africa’s Constitution, Sunderland J focused on four discrete constitutional challenges to RICA.
First, the absence of a right of notice to a person, who has been surveilled, of such surveillance: a post-surveillance notice. In this regard, the court, relying on the judgment of the European Court of Human Rights in Klass and Others v Germany ECHR  5029/71, held that the prohibition of any disclosure to the subject of surveillance violated the right of access to courts, which affords redress by a court, if an abuse occurs. The court held further that, 90 days after the expiry of an interception direction, the subject of surveillance must be notified and constitutional damages should be available to the subject, where unlawful surveillance is established. Accordingly, the court held that there “were less restrictive means” available and thus a limitation of the right could not be justified. In doing so, the court did acknowledge that a designated judge was permitted to issue deferral notices to the postsurveillance notice for finite periods of time, on good cause shown, should further surveillance be warranted. In the event that surveillance exceeded three years, further deferral notices should be considered by a panel of three designated judges.
Second, the shortcomings in RICA of the model of safeguards in respect of the selection of a designated judge who is empowered to authorise interception directions and the procedures employed to facilitate the role of the designated judge. In this regard, the constitutional concerns raised were two-fold: (1) the independence of the designated judge is compromised by the selection process and the unlimited duration of appointment; and (2) the absence of an adversarial process compromises the efficacy of the judicial role. In the first instance, the court held that that the present situation in which the designated judge is appointed solely by the Minister of Justice is unworkable and, instead, the nomination of the designated should be made by the Chief Justice and confirmed by the Minister of Justice for a non-renewable term of two years. In the second instance, the court held that the right to a fair hearing and the full application of the audi alterem partem principle or the “right to be heard” by the subject of surveillance did not presently exist within the RICA framework, rendering the relevant provisions unconstitutional.
Third, the shortcomings in RICA for safeguarding the custody and management of information gathered by surveillance. In this regard, the court found that RICA allows for the real-time inception of communications, which are stored at “Interception Centres”, and the collecting, archiving and storing of past communications, which must be retained by telecommunications companies for up to five years. The nub of the question before the court related to archiving and was: what is the necessary period of lawful retention of communications in South Africa? While the applicants argued that the five year-period was inconsistent with the Constitution, the court did not make a determination on the time-frame, stating that sufficient factual information was not before it. In terms of the oversight and management of stored communications, the court held that the RICA framework was unconstitutional in that is failed to prescribe proper procedures for the examination, copying, sharing, use and destruction communications data.
Fourth, the shortcoming in RICA to effectively preserve legal privilege in respect of lawyers and their clients and preserve the confidentiality of sources of investigative journalists. Here, the court held that RICA failed to protect legal privilege and sources of investigative journalism and that any application for an interception direction must expressly draw the designated judge’s attention to the fact that the subject is a practicing legal practitioner or a journalist.
Finally, the court issued a declaratory order in terms of bulk surveillance stating that: “The bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre are unlawful and invalid.” The rationale of the court in this regard was not to determine whether or not bulk surveillance is unconstitutional but that presently there is no law authorising it to take place.
In terms of South Africa’s Constitution, the declarations of unconstitutionality will now be referred to South Africa’s Constitutional Court for confirmation. If confirmed by the Constitutional Court, this judgment has the potential to significantly overhaul the surveillance regime in South Africa. First, the issue of notification of surveillance is one of the primary safeguards that has been argued for by various privacy activists. In this regard, the Constitutional Court may strengthen the protection further by providing, in line with the Necessary and Proportionate Principles, that the person being surveilled should be notified with enough time and information to challenge the decision, unless the notification would jeopardise the surveillance and such delay is granted by a competent authority. Added to this, the strengthening of other safeguards – including in terms of the designated judge and consideration of an appropriate retention period – is a welcome development that will compel the security services to undertake a major revisiting of existing procedures.
Arguably, the court’s finding on mass surveillance will lead to the most significant change to the way in which the state operates its surveillance regime. There is a strong argument to be made that mass surveillance is inherently disproportionate, and therefore unlawful. If the state intends to continue to undertake mass surveillance, it would first be required to prepare draft legislation and undertake a rigorous public participation process, which provides an opportunity for the public to engage fully on this issue.
Importantly, the scathing criticisms in the judgment against South Africa’s intelligence community for misusing South Africa’s surveillance mechanisms and targeting journalists are yet another step towards a heightened global awareness of the importance of vehemently safeguarding the right to privacy, amidst increasing state surveillance activity. It is hoped that this judgment will further bolster strategic litigation and advocacy in other jurisdictions, in an effort to compel a similar outcome of more transparent and accountable surveillance regimes globally.
A full bundle of pleadings in this matter, including heads of argument, can be found here.
Suggested Citation: Michael Power and Avani Singh, “South African High Court finds surveillance law unconstitutional” IACL-AIDC Blog (26 September 2019) https://blog-iacl-aidc.org/2019-posts/2019/9/26/south-african-high-court-finds-surveillance-law-unconstitutional