South Africa's surveillance laws found to be wanting by court

Sections of SA’s surveillance law have been declared unconstitutional by the high court in Pretoria as it does not lay out any procedures for notifying a person whose communication is being intercepted.

The court declared further that mass surveillance activities and the interception of foreign signals by the National Communications Centre was unlawful and invalid.

The judgment, which will have far-reaching consequences for state institutions that rely on interception, such as the State Security Agency and the justice department, was handed down on Monday by judge Roland Sutherland.

The case was brought by journalist Sam Sole and the amaBhungane centre for investigative journalism, who had sought an order declaring some sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) unconstitutional.

Right2Know and Privacy International joined amaBhungane’s application as friends of the court.

Sutherland declared several sections of the act inconsistent with the constitution and invalid as it failed to prescribe the procedure for notifying the subject of the interception.

The court suspended the declarations of invalidity for two years to allow for parliament to rectify defects in the legislation.

Sutherland ruled, however, that while the legislation was amended, an applicant that obtained interception direction would have to notify the person who was the subject of that interception in writing, within 90 days of its expiry.

The person obtaining the direction would then have to certify to a designated judge that the person had been notified.

The judge may, in exceptional circumstances, direct that the obligation is postponed for a further period not exceeding 180 days.

If the orders of deferral of notification amounted to three years after surveillance has ended, the application for further deferral must be made before a panel of three judges.

The judgment also declared use of the definition “designated judge” was inconsistent with the constitution, and invalid, as it failed to prescribe an appointment mechanism and terms for the judge.

Section 16(7) was inconsistent with the constitution as it failed to provide adequately for a system with appropriate safeguards to deal with the fact that the orders were granted ex parte – which did not require all parties to be present.

Rica was also declared inconsistent with the constitution as it failed to prescribe proper procedure when officials examined, copied, sorted through, used, destroyed or stored data from interceptions.

It was also declared unconstitutional in that certain sections failed to address circumstances where a subject of surveillance was a journalist or practising lawyer.