The Regulation of Interception of Communication Act (RICA) fails to provide any special protection in two categories: Where the subject of surveillance is a lawyer or journalist, the Constitutional Court heard on Tuesday.
"It has never been our contention that lawyers and journalist are absolutely immune to surveillance. We accept that there will be times that it is necessary to [be] surveilled," advocate Steven Budlender SC argued on behalf of the amaBhungane Centre for Investigative Journalism.
"But as RICA stands at the moment, there is no requirement for the SSA [State Security Agency] to tell the judge that as a lawyer they just need to say what they are investigating me for. It is the same for journalists - the extraordinary sensitive conversations he has with sources - the state should not be able to listen to those," Budlender said.
This as amaBhungane approached the country's highest court seeking a confirmatory ruling deeming the RICA Act "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.
Among the five orders granted by Judge Roland Sutherland was an order that sections 16(7), 17(6), 18(3)(a), 19(6), 20(6) and 22(7) of RICA were inconsistent with the Constitution and invalid to the extent it failed to prescribe procedures for notifying the subject of the interception, News24 reported.
The case began in 2017 after amaBhungane's management partner 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 decision to drop charges against former president Jacob Zuma.
Justice Zukisa Tshiqi questioned why special protection needed to be afforded to lawyers and journalists but not civil society.
"There is a good argument for auditors and civil society activists, but we have singled out two persons that the law has recognised who have legal privilege because they have legal protection. The state cannot ask to see the memo for my clients or ask Mr Sole for his conversations with sources/whistle blowers," Budlender argued in response.
While amaBhungane accepts that surveillance plays an important role in law enforcement, it questions whether there are any safeguards in the RICA Act.
"Surveillance [of] my private communication violates my right to privacy. There must be sufficient safeguards to prevent the abuse of that power.
"There is nothing in RICA that creates sufficient safeguards, Mr Sole gets surveilled and he never finds out until years later. When you look at RICA and the absence of safeguards, it is patently unconstitutional," Budlender said.
He further said it allowed the state to exercise its coercive power over an individual without the individual ever knowing about it
The confirmatory proceedings are continuing.