The South African National Editors' Forum (Sanef) has announced its support for the constitutional challenge brought by investigate journalist unit amaBhungane against current South African surveillance law, and the RICA Act specifically.
Legal proceedings against the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA) were started in April 2017 by amaBhungane after receiving confirmation that its managing partner, Sam Sole, had been the target of state surveillance under RICA.
Sole was investigating the decision by the National Prosecuting Authority (NPA) to drop corruption charges against former president Jacob Zuma at the time.
This was not, however, the first or last alleged attempt by the state to use intelligence, state security and the provisions of RICA to target journalists.
In 2018, the Right2Know Campaign produced a report, " SPOOKED: Surveillance of Journalists in SA", documenting the numerous instances where prominent journalists had allegedly been the target of state surveillance.
"The secretive and unaccountable surveillance provisions of RICA leave it wide open to abuse and poses a chilling effect on media freedom and accountability journalism in South Africa," Sanef said in a statement on Tuesday.
Cases of surveillance
The following cases, in addition to Sole's, are cited by amaBhungane and the friends of the court, Right2Know and Privacy International, in their papers:
Stephan Hofstatter and Mzilikazi wa Afrika - In 2011, a source informed the two former Sunday Times journalists that a senior official within the KwaZulu-Natal police force wished to meet them to apologise for the tapping of their phones by members of Crime Intelligence during their investigation into Bheki Cele. It emerged that Crime Intelligence had lied to the RICA judge to bug their phones, after stories surfaced about police corruption.
"Donna" - In 2012, Donna, a reporter in Johannesburg, found herself the target of anonymous calls about her family, from what would later emerge to be an operative from Crime Intelligence. At the time, Donna was working on a series of stories involving former head of Police Crime Intelligence, Richard Mdluli.
Tom Nkosi - In January 2015, at a press conference former Mpumalanga premier, and current deputy president, David Mabuza announced that he was receiving briefings from State Security on the movements of journalists in the province. Mabuza singled out Tom Nkosi, an investigative reporter and editor of Ziwaphi, exposing corruption in the province, as one of those who he said had been having meetings "with his [Mabuza's] enemies" within the ANC.
SABC 8 - In 2016, the SABC 8 journalists spoke out against censorship and managerial interference under former SABC boss Hlaudi Motsoeneng, leading to their eventual dismissal. Throughout their battle to be reinstated, and during the parliamentary inquiry, the journalists received a constant stream of anonymous threatening SMSes, and the timing of these messages suspiciously coincided with private discussions among the SABC 8 or behind-the-scenes events - leading to suspicions that their private communications were not secure.
Peter Bruce and Rob Rose - In 2017, it emerged that a private investigator had illegally accessed the private phone records of business editors Peter Bruce and Rob Rose, apparently for the benefit of a Gupta-linked propaganda campaign. The private investigator allegedly obtained the records by bribing an employee of MTN. Telecommunication service providers are obliged under RICA to retain call-related data of their subscribers for a period of three years.
Sipho Masondo - In 2017, Sipho Masondo had been working on a series of investigations that the City Press called "WaterGate", which exposed corruption in South Africa's water delivery projects under the stewardship of former water and sanitation minister Nomvula Mokonyane. During the same year, Masondo says he received an anonymous SMS that he should stop driving his car as he was being followed. The caller had detailed information about his vehicle. A few months later, in June, a source in Crime Intelligence warned Masondo that somebody was listening to his calls.
Athandiwe Saba - In 2018, Mail & Guardian investigative reporter, Saba, discovered, through a leaked transcript, that her communications had been under surveillance during her reporting on corruption at the Railway Safety Regulator (RSR). It would eventually emerge that a s205 warrant had been issued by the judge in KwaZulu-Natal, possibly unlawfully.
Jacques Pauw - In May 2018, City Press reported that it had transcripts and recordings of a phone call between Jacques Pauw and Setlhomamaru Dintwe, the Inspector General of Intelligence. According to the City Press, on the transcript, Pauw is referred to as "Target 8". The existence of the transcript is strong evidence that the State Security Agency was indeed spying on Pauw's private communications - an operation he believes was designed to expose the whistleblowers behind his book, The President's Keepers .
The United Nations Educational, Scientific and Cultural Organisation's (Unesco) 2017 report " Protecting journalism sources in the digital age" found that, globally, journalism was increasingly under threat from laws which don't protect journalists' sources from the drag net of mass surveillance and indiscriminate data collection.
AmaBhungane's legal challenge is a first and significant step in addressing the concerns raised in the Unesco report.
The challenge is being heard in the Gauteng High Court in Pretoria before Judge Roland Sutherland from Tuesday.