The Constitutional Court has ruled that the South African government may not conduct bulk surveillance on citizens.
The court said in a judgement handed down on Thursday 4 February 2021 that any bulk surveillance within South Africa is unlawful, upholding a previous decision made in a High Court judgement.
The case specifically revolved around the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), with the court ruling that this legislation is unconstitutional.
The Ministry of State Security appealed the earlier judgement, and the Constitutional Court has now ruled against this appeal.
“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.”
“In other words, privacy is breached along the entire length and breadth of the ‘continuum’,” the court said.
RICA ruled unconstitutional
The ruling comes after journalist Sam Sole – who has been the subject of state surveillance – and the Amabhungane Centre for Investigative Journalism applied to challenge the Act’s constitutionality.
Alongside a number of other points, the applicants argued that RICA did not provide adequate protection or recourse for persons who were subject to surveillance by the government.
The Constitutional Court acknowledged that the surveillance of communications by the state is important in the prevention of crime, but it found that the interception of communications enabled under RICA is highly invasive and greatly infringes on the individual right to privacy.
The court pointed out the following issues with the mass surveillance enabled under RICA:
- RICA fails to provide for the notifying of a subject of surveillance after the fact;
- The lack of procedures on what to do with confidential information and how it should be managed;
- Legal professionals have specific rights of privilege when dealing with clients which is impacted by the RICA.
- The power of the executive to appoint a judge to approve the RICA process.
Surveillance is justifiable – Government
Government representatives also acknowledged the significant invasion of privacy enabled by RICA but said that due to the importance of state surveillance, the provisions made for this activity under the regulations are justifiable.
The Ministers of Police and Justice both argued for this point, with the latter stating that “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”.
Government representatives which argued for the necessity to conduct bulk surveillance under RICA included the Minister of Communications, Minister of Defence and Military Veterans, the National Communications Centre, and the State Security Agency, as well as those mentioned above and others.
The court has ruled against the appeals by government representatives and found that RICA is unconstitutional.
However, the regulation will remain in effect for up to three years while the government creates legislation to remedy the invasion of citizens’ privacy.
The court granted interim relief over the issue of post-surveillance notification, as well as in the issue related to the applicants.