Plans For Changing Surveillance Laws In South Africa

A summary of the changes made to the Regulation of Interception of Communications and Provision of Communication-Related Information (RICA) Bill has been made available by the Department of Justice and Constitutional Development.

RICA is South Africa’s legal intercept legislation, albeit its know-your-customer clauses are perhaps what South Africans are most familiar with.

For instance, giving mobile network carriers confirmation of identification and residence is frequently referred to as “RICA a SIM card” in South Africa.

The modifications, according to the justice department, provide definitions to more clearly define the roles of specific parties and offer protections where the subject of surveillance is an active journalist or lawyer.

“The bill arises from the Constitutional Court judgement in Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others,” the summary states.

The case brought attention to government mass monitoring and the value of the right to privacy.

The Constitutional Court took an extraordinary step by striking down portions of RICA and introducing interim legislation while Parliament crafted an amendment to address the flaws in the statute.

The flaws must be fixed by Parliament by 4 February 2024.

The decision, among others, outlawed mass surveillance, added measures for post-surveillance notifications, and established a procedure for the designated RICA judge to use discretion whether the surveillance target is a journalist or an active lawyer.

With some protections to attempt and avoid jeopardizing ongoing investigations, law enforcement officers have a defined period of time to inform surveillance suspects that they were targeted.

The new definitions in the amendment bill aim to provide the following:

• The designation of an independent judge.
• The designation of an independent review judge.
• The designation of the powers and functions of the review judge.
• Specify the tenure of designated and review judges.
• Adequate safeguards for practising lawyers and journalists that are the subject of surveillance.
• A means of notifying persons of their surveillance without jeopardising the purpose of their surveillance.
• Safeguards to address the fact that interception directions are pursued and obtained ex parte.
• Procedures to ensure data obtained is managed lawfully and not used or interfered with unlawfully.
• Procedures to be followed for processing, examining, copying, sharing, disclosing, sorting through, using, storing, or destroying of any data; and,
• Principles for the safeguarding of data during its management.

The Constitutional Court’s decision in the case underlined each of these flaws.

The Constitutional Court declared in February 2021 that the South African government is prohibited from mass surveillance of its population.

“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’,” the court said.

“RICA allows interception of all communications. The sanctioned interception does not discriminate between intimate personal communications and communications, the disclosure of which would not bother those communicating.”

Following a request by the amaBhungane Centre for Investigative Journalism and journalist Sam Sole, the court issued the ruling.

Sam Sole had been watched over by the government.

Sole had been singled out in evidence presented to oppose a Democratic Alliance request to revive criminal charges against the former president, according to Jacob Zuma’s lawyer.

The Constitutional Court concluded that, despite recognising the value of communication surveillance in deterring crime, the interception of communications permitted by RICA was very intrusive and encroached on a person’s right to privacy.

Government officials concurred that RICA made it possible for a major infringement of privacy. The restrictions made for this action under the regulations, they claimed, are justified because of the significance of state monitoring.

The Ministers of Police and Justice both argued for this point.

“South Africa is plagued by serious and violent crime which necessitates the adoption of measures such as RICA to detect, investigate, and curb serious crimes,” said Ronald Lamola, South Africa’s Minister of Justice.