A loophole in South Africa’s criminal law has allowed magistrates to authorise thousands of “surveillance operations” which ignore procedures required by RICA, said the Right2Know Campaign.
RICA – the Regulation of Interception of Communications and Provision of Communication-related Information Act – imposes stringent requirements in law enforcement in South Africa.
Authorities must first apply for an “interception direction” from a judge, who was designated by the Minister of Justice to grant such requests, before they can execute a surveillance operation.
Surveillance operations include getting call records and listening in on calls.
Legal experts have told MyBroadband that the RICA process is intended to provide safeguards against infringements on privacy rights.
In 2016, MyBroadband reported that former police officer turned private investigator Paul Scheepers used Section 205 subpoenas to circumvent RICA.
Scheepers, called “Zille’s spook” for ensuring DA phones were not bugged by the National Intelligence Agency, faced 26 criminal charges relating to contravening RICA.
According to reports, he was accused of conducting illegal surveillance on lawyers and police officers.
The Daily Maverick has also reported on a case presided over by senior magistrate of the Cape District, HJ Venter, which is now back in the Western Cape High Court due to how Section 205 orders were issued.
According to the report, RICA allows for Section 205 orders to be used, but demands they only be used if other attempts to gather evidence have failed or are too dangerous.
A case docket with a witness statement or other form of evidence must be opened as part of the motivation for the order.
These procedures are not being followed correctly in South Africa’s courts, with magistrates regularly doing little more than “rubber stamping” Section 205 applications, according to reports.
It is also possible for police to write down additional phone numbers on a court order after it has been approved.
This is because there is no standard form for Section 205 orders.
Abuse of the Section 205 process is done without the knowledge of operators and is usually perpetrated by an individual law enforcement officer who wants to sell information to third parties, stated the report.
In response to this, Right2Know has filed PAIA requests with Cell C, MTN, Telkom, and Vodacom for statistics on the number of Section 205 orders they have been served.
The requests make it clear that R2K is not after any identifying information, only high-level statistics on how many times it happens per year.
“These requests don’t apply to RICA-related warrants, although we have an ongoing interest in statistics for those as well,” said R2K.