The Designated Judge for the Interception of Communications, Justice Bess Nkabinde, has revealed that there is no way for her office to verify whether the applications they receive from law enforcement are truthful or not.
Nkabinde is the judge responsible for evaluating and granting interception directions — a form of warrant allowing South African law enforcement to intercept someone’s communications legally.
Her office was created by the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA).
Most South Africans know RICA as the law that requires you to give proof of identity and address to a cellular service provider to activate a SIM card on their network.
According to Nkabinde, there are now several cases in the public record where law enforcement officers lied to get interception orders against targets such as journalists and prominent businesspeople.
“Undisputed evidence was before Court that in certain instances the agencies can obtain fictional intelligence report about an individual,” stated Nkabinde.
In one instance involving a journalist investigating corruption in the SAPS, a police official said that the phone numbers to be tapped were those of suspected ATM bombers.
Another instance involving a prominent businessman saw National Intelligence Agency (NIA) operatives claim that they had obtained emails revealing that their target was in bed with foreign intelligence services that threatened national security.
It was later revealed that the NIA operatives forged the emails they used to justify the application for an interception direction against their target.
Nkabinde said that it is of great concern that South Africa’s lawful interception regime continues to be abused by unscrupulous actors in law enforcement.
“These matters are, in the light of the constitutional imperatives and the rule of law, most disturbing and cannot be left unchecked by the relevant Ministry/Department of [the] agency implicated,” she said.
“Lying under oath is a criminal offence. Appropriate steps need to be taken against officers with such proclivity whose conduct result in violation of the privacy right of others without reasonable justification, whatsoever.”
Nkabinde provided statistics of how many applications were received from various agencies. These are summarised in the table below.
|RICA interception direction applications — 1 November 2018 to 28 February 2021|
|Type||SAPS Applications||SSA Applications||FIC/FICA Applications|
|Extension and Amendment||119||5||1|
Nkabinde said that an analysis of the statistics for the reporting period had revealed the following:
- Of the 622 applications received from SAPS for this reporting period, 208 cases related to drugs and drug trafficking, indicating how much the scourge has permeated our societies.
- Gauteng leads at 32.7%, followed by the Western Cape at 31.7%, Eastern Cape 13.94%, Southern Cape 8.65%, KwaZulu-Natal 4.8%, Limpopo 4.8%, Northern Cape 1.92% and North-West standing at 1.44%.
- 63 applications were received in relation to Cash in Transit Heists. Western Cape was at 29.3%, KZN 25.39%, Gauteng 20.63%, Eastern Cape 5.87%, Mpumalanga 6.35%, Northern Cape 1.58%.
Nkabinde’s report comes after the Constitutional Court struck down RICA as unconstitutional.
The ruling came 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 several other points, the applicants argued that RICA did not provide adequate protection or recourse for people who were subject to surveillance by the government.
The court sided with Sole and amaBhungane and gave Parliament three years to fix the law before it becomes completely invalid.
In the meantime, the Constitutional Court has injected a new section into the law to allow for post-surveillance notification.
It essentially states that the law enforcement agency that applied for an interception direction must inform the target 90 days after the surveillance operation ends.
To protect their investigation, officers can apply for extensions — 90 days at a time, to a maximum of two years.
In addition to highlighting that law enforcement officials lied to obtain interception directions, Justice Nkabinde also described how the Divisional Commissioner: Crime Intelligence, Lieutenant General Y Mokgabudi bemoaned the limitations of their tools.
“The OIC system is outdated, regularly collapses resulting in the loss of interception communication products,” Mokgabudi stated in a report.
“The fact that interception at OIC is limited to Voice and SMS data means that approximately 99% of the target’s communication is lost.”
Mokgabudi said that the Office of the Interception Centres (OIC) could not intercept WhatsApp messages or voice calls, Skype, emails, Facebook, and other social media platforms.
OIC systems were also unable to provide images or location data.
Lack of decentralised connectivity also limits how effectively interception directions may be implemented — especially “hot monitoring” communications in progress.