South Africa: Safeguards From 'Infringement' in RICA Are Sufficient, Concourt Hears

26 February 2020

The safeguards from any unreasonable infringement of the right to privacy in the Regulation of Interception of Communication Act (RICA) are enough, the Constitutional Court heard on Tuesday.

"We submit that it is not correct that RICA does not contain sufficient safeguards to protect the unlawful infringements of rights during its implementation and even after the data is collected," advocate Kennedy Tsatsawane SC argued on behalf of the state security minister.

"RICA has a blanket prohibition against interception, so this is not a situation of a free-for-all," he added.

The Constitutional Court was hearing an application from the amaBhungane Centre for Investigative Journalism seeking a ruling deeming RICA "unconstitutional" and "invalid".

This after the investigative unit emerged victorious after the Gauteng High Court in Johannesburg declared mass surveillance and the interception of foreign signals by the National Communications Centre "unlawful and invalid" in September last year, News24 reported.

The case began in 2017, after amaBhungane's management received confirmation its managing partner, Sam Sole, had been under surveillance under RICA around the time when he was investigating the National Prosecuting Authority's (NPA) decision to drop charges against former president Jacob Zuma.

The court heard that to this day, Sole does not know why he was put under surveillance.

Tsatsawane said it was the act itself that told you the grounds on which a designated judge would grant you such a direction.

"There must be a factual basis to believe that the evidence you seek will be obtained. You have to say what are the facts. Interception is a measure of the last resort - a designated judge knows what that means," he added.

Earlier, the applicant submitted that "it cannot be correct that the measures are inaccurate".

"We submit that these measures they put the designated judge in a situation where he/she is able to apply his/her mind whether or not the infringement of privacy is justified under the circumstances presented to him. The act allows him to seek further information if that is not the case," Tsatsawane said.

The country's highest court, however, was not convinced that these safeguards were in fact adequate.

Justice Christopher Jafta questioned how the designated judge would know that the information presented before him/her was truthful and hence warranted an order.

"The first one is the requirement that says you must satisfy the designated judge that all investigative measures have been exhausted and secondly you must put up facts that justify that the evidence you seek will be obtained by the order, but generally there is nothing that tells him what has been placed before him is truthful," Tsatsawane said in response.

Chief Justice Mogoeng Mogoeng probed whether there were any safeguards in RICA outside of the designated judge.

"The act does not make provision for that and it does not appear the designated judge is capacitated to that extent," Tsatsawane explained.

The court previously heard in amaBhungane's application that without any safeguards, the act could be deemed unconstitutional.

Judgement is reserved.

Source: News24

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