Spying has just become much trickier for state operatives because the Constitutional Court has reiterated that several aspects of the country’s act regulating the interception of communications are unlawful.
The court’s ruling on Thursday, which bolsters and confirms a previous high court ruling, has several implications, including that if surveillance is conducted on someone, they must be told at some point afterwards.
Current legislation also fails to provide “adequate safeguards” when surveillance is conducted on practising lawyers or journalists, and this must change.
It has further been found that there is no law that authorises bulk surveillance – “the interception of all internet traffic that enters or leaves South Africa, including the most personal information such as emails, video calls, location, and browsing history”.
In a nutshell, the ruling is that the act relating to intercepting communications fails to:
- Notify the subject of surveillance that such action was conducted on them as soon as this could be done “without jeopardising the purpose of surveillance after surveillance has been terminated”;
- Provide “safeguards to address the fact that interception directions are sought and obtained”;
- Provide adequate safeguards when journalists and practising lawyers are the subject of surveillance;
- Have measures in place to try to ensure the independence of a judge dealing with surveillance;
- “Adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully.”
The findings of the court came into effect from the date of the judgment – Thursday.
However, these were suspended for three years “to afford Parliament an opportunity to cure the defect causing the invalidity”.
The AmaBhungane Centre for Investigative Journalism and managing partner Sam Sole drove the massive legal matter, that stems from nearly 13 years ago, that culminated in the Constitutional Court ruling.
In reaction to its court victory, AmaBhungane said: “The decision is a resounding affirmation of the need to guard against state agencies abusing their power and intruding on ordinary persons’ communications without good cause.
“The judgment is particularly apposite given recent Zondo Commission testimony that spies involved themselves in factional battles and infiltrated the media.”
AmaBhungane had pursued the legal matter as part of its advocacy mandate “to help secure the information rights that are the lifeblood of investigative journalism”.
Sole and AmaBhungane had challenged the constitutionality of Rica – the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002. The law effectively allowed authorised state officials to intercept any person’s communications.
They also challenged “bulk interception” carried out by intelligence services, pointing out that no law gave them the right to do so.
On the opposing side of their court challenge were, among others, the ministers of police, justice and correctional services, and state security.
Right to privacy
Handing down the judgment on Thursday, Justice Mbuyiseli Madlanga said the right to privacy was at the heart of the matter.
“The interception and surveillance of an individual’s communications under Rica is performed clandestinely. By nature, human beings are wont – in their private communications – to share their innermost hearts’ desires or personal confidences, to speak or write when under different circumstances they would never dare do so, to bare themselves on what they truly think or believe,” the judgment said.
“Imagine how an individual… would feel if she or he were to know that throughout those intimate communications someone was listening in or reading them. If there ever was a highly and disturbingly invasive violation of privacy, this is it.”
The judgment accepted that Rica had an important purpose for government, especially in terms of tackling crime, but said the focus was on whether enough was being done to “reduce the risk of unnecessary intrusions”.
It outlined how far-reaching Rica was.
“[It] regulates the interception of both direct and indirect communications, which are defined broadly to include oral conversations, email and mobile phone communications (including data, text and visual images) that are transmitted through a postal service or telecommunication system.
“Without a ‘designated Judge’ Rica would be substantially inoperable. With the exception of only one type, at the centre of all surveillance directions issued under Rica is a designated Judge; she or he must authorise all directions that fall within the purview of functions of a designated judge.”
This was why the independence of a judge was an aspect focused on in the court proceedings.
The matter before the Constitutional Court has roots going back 13 years.
In 2008, Sole had suspected his communications were being monitored and intercepted.
The following year he tried to find out more about this but did not manage to get confirmation that this had indeed happened.
Then in 2015, during court proceedings Sole was not part of, transcripts of phone conversations between him and Billy Downer, a prosecutor, were attached to an affidavit filed in court. This proved Sole’s communications had been intercepted.
Sole had previously explained that the transcripts of phone conversations had surfaced when Michael Hulley, who had been the attorney for Jacob Zuma, attached these to court papers.
“Downer was the senior advocate who led the National Prosecuting Authority team investigating various charges against President Jacob Zuma relating to the notorious ‘arms deal’.
“In 2008 I had some confidential exchanges with Downer about the investigation. Unbeknown to us they were recorded by the intelligence services, based on a judge’s authorisation under Rica,” Sole had said.
In Thursday’s judgment it was heard that Sole had not managed to establish why his communications had been intercepted.
Together with AmaBhungane he then approached the North Gauteng High Court “on the basis that Rica fails to provide adequate safeguards to protect the right to privacy”.
“They argued that Rica is unconstitutional to the extent that it does not provide for a subject of surveillance ever to be notified – even post-surveillance – that she or he was subjected to surveillance.”
Thursday’s judgment further said Sole and AmaBhungane had argued Rica was unconstitutional because it did not ensure the independence of a designated judge, and it “lacks adequate safeguards regarding the archiving of data”.
In addition, it was pointed out “that Rica fails to provide any special protections where the intended subject of surveillance is a practising lawyer or journalist”.
“Finally, the applicants contended that the bulk interception currently undertaken by the National Communication Centre is not authorised by Rica or any other law.”
In September 2019, Sole and AmaBhungae were successful: the high court declared Rica unconstitutional on several grounds and that bulk surveillance was unlawful as it was not authorised by law.
This is where the Constitutional Court case fits in – Sole and AmaBhungane wanted confirmation of constitutional invalidity.
Meanwhile, the police minister had also appealed an aspect of the high court finding, while the state security minister had appealed the entire high court judgment.
Thursday’s judgment said the police minister had appealed an aspect relating to post-surveillance.
The minister “is arguing for the retention of the blanket non-availability of notification. He contends that the Constitution confers no right to notification; not pre- or post-surveillance. That, of course, is a misconceived approach,” the court found.
It was pointed out that someone may be targeted for nefarious reasons.
“An individual whose privacy has been violated in the most intrusive, egregious and unconstitutional manner never becomes aware of this and is thus denied an opportunity to seek legal redress for the violation of her or his right to privacy.
“None of the respondents proffered any cogent reason why there should never be post-surveillance notification. And they could not have been able to. I say so because I just cannot conceive of any legitimate reason why the state would want to keep the fact of past surveillance a secret in perpetuity.”
In terms of bulk surveillance, the judgment said the respondents had explained it as “an internationally accepted method of strategically monitoring transnational signals, in order to screen them for certain cue words or key phrases”.
“The national security objective is to ensure that the state is secured against transnational threats. It is… done through the tapping and recording of transnational signals, including, in some cases, undersea fibre-optic cables.”
But the question the court had faced was whether it was lawful and it was found “the practice is… unlawful and invalid, as there is no law that authorises it”.
Dismissed with costs
The appeals by the police and state security ministers were dismissed with costs.
On Thursday, adding to Sole and AmaBhungane’s legal victory, the Constitutional Court ordered these ministers “pay the applicants’ costs in this court, including the costs of two counsel”. DM