Ramaphosa worries about government surveillance bill

President Cyril Ramaphosa has referred the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (RICA) Bill to the National Assembly.

However, the parts of the bill he found concerning were highlighted as points of interest during the initial amendment process.

The areas of concern for the President are section 25A(2)(b), which fails to provide for notifying a subject of surveillance after the fact.

Ramaphosa also believes the bill lacks procedures for managing confidential information.

Both of these were highlighted as areas that required change by the Constitutional Court, which struck down parts of the law and instructed Parliament to amend it.

In addition, the President would also like the bill to provide adequate safeguards to address interception directions and notification suspension applications obtained in the interests of only one side.

The RICA Amendment Bill was first introduced by the Department of Justice in 2023 after the Constitutional Court declared critical parts of the surveillance law to be unconstitutional two years earlier.

This came after investigative journalist Sam Sole and the amaBhungane Centre for Investigative Journalism applied to challenge the Act’s constitutionality.

Government agents had used RICA to secretly spy on Sole’s phone communications while he was reporting on corruption.

Jacob Zuma’s lawyer revealed that Sole had been targeted in evidence provided to fight the Democratic Alliance’s application to reinstate criminal charges against the former President.

Although acknowledging the importance of communication surveillance in preventing crime, the Constitutional Court found that the interception of communications allowed under RICA was highly invasive and infringed on an individual’s right to privacy.

Along with a number of other points, the applicants argued that RICA did not provide adequate protection or recourse for persons subject to government surveillance.

The Constitutional Court acknowledged that the state’s surveillance of communications was important in preventing crime, but it found that the interception of communications enabled under RICA was highly invasive and greatly infringed on the individual’s right to privacy.

However, the Ministry of State Security appealed against the earlier judgement.

Government representatives acknowledged the significant invasion of privacy enabled by RICA. Still, they said that due to the importance of state surveillance, the provisions made for the activity under the regulations were 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.”

The Ministry of State Security appealed the earlier judgement, with the Constitutional Court ruling against the appeal.

The court ruled against the appeal and highlighted that RICA had the following failures:

• The designation of an independent judge;
• The designation of an independent review judge;
• The designation of the powers and functions of the review judge;
• Specify the tenure of designated and review judges;
• Adequate safeguards for practising lawyers and journalists who are the subject of surveillance;
• A means of notifying persons of their surveillance without jeopardising the purpose of their surveillance;
• Safeguards to address the fact that interception directions are pursued and obtained ex parte;
• Procedures to ensure data obtained is managed lawfully and not used or interfered with unlawfully;
• Procedures to be followed for processing, examining, copying, sharing, disclosing, sorting through, using, storing, or destroying any data; and,
• Principles for the safeguarding of data during its management.

Parliament was given three years to fix the deficiencies in RICA — a deadline which passed on 4 February 2024.