In February 2021 the Constitutional Court handed down a judgment that made notorious whistle-blower Edward Snowden tweet: “wow”.
Privacy and the protection thereof has become an increasingly hot topic of late, with the spotlight shining on the practices of social media giants, governments, and the like. As we increasingly rely on technology for our daily interactions, the potential points of entry into our most private sphere are ever-increasing, and so too is the scope of information that can be collected. We are now at a point where we no longer simply wonder, “Is anyone watching?” The pertinent questions now are “who, why and what are the rules?” Our Constitution enshrines the right to privacy as a fundamental human right, closely linked to the right to dignity, and therefore any intrusion thereon must be reasonable and justifiable in an open and democratic society based on inter alia human dignity, taking into account all relevant factors. Amongst the other components of the right to privacy, Section 14(d) of the Constitution specifically provides that everyone has the right “not to have the privacy of their communications infringed”.
There are instances when the monitoring and interception of private communication can be necessary and justified, such as when the state does so in the interest of national security and public safety – for example, in combatting organised crime. There is, however, a fine line to tread when fundamental rights hang in the balance. One must also, in considering this issue, be sensitive to our country’s history and the many atrocious acts that have historically been committed and justified under the guise of national security. It is in this light that Section 198(a) of our Constitution provides that “[n]ational security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life”.
The case of AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others (CCT 278/19; CCT 279/19)  ZACC 3 (“AmaBhungane”) had at its core the discord between the right to privacy, and the right of the state to engage in surveillance of individuals, and particularly the interception of their private communications in the context of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, No. 70 of 2002 (“RICA”). Spoiler alert: the right to Privacy won the day, and it was held that RICA is unconstitutional to the extent that it fails to adequately protect said right. Whilst recognising that RICA serves a vital government function, Justice Madlanga took no prisoners in his examination and eventual negative conclusion as to whether the Act does enough to reduce the risk of unnecessary intrusions and thus protect the privacy of citizens.
Overview of RICA
RICA regulates the interception of communications, including oral conversations, emails, and cell phone communications (such as pictures, text, and data) that are transmitted through a postal service or telecommunication system. As a general rule, it prohibits all forms of interception and monitoring of private communications, saves as in accordance with its provisions, and criminalises interceptions contrary thereto.
In a nutshell, interceptions are allowed upon application by any of a wide range of state agents to a designated Judge for authorisation to intercept private communications, with the proviso that such application must include
- the identity of the intended subject;
- the intended period of interception;
- the full particulars of the facts and circumstances in support of the application (including details of other investigative procedures that have been applied and failed);
- a description of the place of interception and type of communications to be intercepted; and
- the grounds on which the application is made (as an interception direction may only be issued on certain limited grounds).
Upon examination of the above, the Court found RICA to be silent on a number of crucial issues and lacking adequate safeguards to meet the reasonableness and justifiability threshold required by section 36(1) of the Constitution to allow the limitation of the fundamental right to privacy. The specific issues examined by the Court are discussed below.
- The notification issue
“What I am about to narrate manifests the power that state agencies entrusted with the mandate of surveillance wield and the lengths to which they can and do go for purposes best known to them, all facilitated by the fact that they operate in complete secrecy.” [para 39]
In the light of evidence regarding past abuses, Madlanga J observes that a designated Judge acts upon the information provided to him or her, and has no meaningful way to verify such information. Surveillance under RICA as it stands is by its very nature susceptible to abuse, as it is undertaken in secrecy and on the understanding that “the subject of surveillance who is best placed to identify an abuse will never know.” Whilst accepting that pre-interception disclosure would naturally defeat the very purpose of surveillance, the learned Judge postulates that some form of notice is necessary to put an end to the sense of impunity that flows from absolute secrecy. The conclusion being, as supported by comparative international practice, that post-surveillance notification “as soon as notification can be made without jeopardising the purpose of the surveillance after its termination” paired with some form of automatic review is the way forward.
The Court held RICA to be unconstitutional to the extent that it fails to provide for post-surveillance notification as to the default position, to be departed from only upon satisfaction by the designated Judge that such departure is justified.
- Issue of the independence of the designated Judge
The independence challenge has two grounds, namely that:
- RICA fails to prescribe or limit the designated Judge’s term of office, and thus the Minister of Justice (the “Minister”) can appoint or indefinitely reappoint a Judge for a duration determined at his or her whim; and
- appointments are exclusively made by a member of the Executive in a non-transparent manner.
Given the crucial role that the designated Judge plays in authorising interceptions and the concomitant importance of his or her independence, the Court held RICA to be unconstitutional to the extent that it fails to ensure adequate safeguards for an independent judicial authorisation of interception.
- The ex parte issue:
RICA provides that “[a]n application must be considered and an interception direction issued without any notice to the person or customer to whom the application applies and without hearing such person or customer”.
While accepting that the logic for the above (what we term ex parte) process is obvious, it has the effect that the designated Judge is not in a meaningful position to interrogate the information. The Court is of the opinion that there are indeed ways in which the effects of the ex parte nature of the process can be mitigated, and holds RICA to be unconstitutional to the extent that it lacks such safeguards.
- Management of information issue
RICA provides that the Director of the Office for Interception Centres (the “director”) must prescribe what information must be kept by the heads of information centers, as well as the manner in, and the period for which such information must be kept.
The Court found that, in their totality, all the sections purporting to deal with the management of information “fail to give clarity or detail on:
o what must be stored;
o how and where it must be stored;
o the security of such storage;
o precautions around access to the stored data (who may have access and who may not);
o the purposes for accessing the data; and
o how and at what point the data may or must be destroyed.”
It was held that RICA is unconstitutional to the extent that it fails to provide for means that guarantee lesser invasions of privacy. The above omissions exacerbate the risk of unnecessary intrusions into the privacy of individuals by creating a real risk that private information may land in the wrong hands or be used for unlawful purposes. This makes the degree of the limitation of the privacy right even more shocking. Lastly, and in addition, there is no connection between the lack of safeguards regarding private intercepted communications and the purpose of state surveillance.
- Practising lawyers and journalists issue
While recognising that there cannot be a blanket prohibition on surveillance (including interception of communication) of practicing lawyers and journalists, the Court made it clear that the confidentiality of lawyer-client communications and journalists’ sources play a critical role in our democracy, and are of great constitutional importance. Both elements enjoy constitutional protection, respectively under the right to a fair trial (of which the right to legal professional privilege has been held to be an integral part) and the right to freedom of expression (which includes freedom of the press and the media). Consequently, individuals falling in these categories deserve special treatment and consideration in the context of applications for interception directions – a practice that is supported by foreign law.
RICA was held unconstitutional to the extent that it does not contain mechanisms to guard against the risk of infringement of the confidentiality of lawyer-client communications and journalists’ sources when the intended subject of surveillance is indeed a practicing lawyer or a journalist.
- The bulk surveillance issue
Bulk surveillance entails the monitoring by the state of transnational signals by tapping and recording transnational signals, in order to screen them for certain words or phrases. As RICA contains an express prohibition of interception of communications without an interception direction, and as there is no law that authorises bulk surveillance, it was held that this practice is unlawful.
- The remedy
Considering the important governmental purpose of intercepting of communications and the amount of time that the Minister will need to amend Rica to cure the numerous constitutional defects, given the technical and complex nature of the matter and the need for extensive consultation and participation, the declaration of invalidity has been suspended for three years.
As a consequence of the suspension, the gross invasion of the right to privacy will continue for some time, and the Court sought to mitigate the effect thereof by granting the following interim relief:
· As regards the notification issue, provisions are read-in that provide for post-surveillance notification as to the default position.
· As regards the issue of practicing lawyers and journalists, provisions are read in that require disclosure to the designated Judge in an application for an interception directive where the intended subject of surveillance is a journalist or practicing lawyer.
This case serves as an illustration of the tensions that are bound to arise in a constitutional democracy like our own. The protection and enforcement of one constitutionally protected right all too often infringe on another, and role players such as the Legislature are consequently tasked with the delicate and nuanced balancing act that must necessarily take place within the parameters of section 36 of the Constitution. There are certainly times, the AmaBhungane judgment being the case in point when the Legislature gets it wrong, and thankfully the Constitution provides for the mechanism of judicial review to check and balance exactly such untenable situations as on the facts at hand. At a time when privacy rights are facing threats from all sides, this judgment is an important victory for the individual and will hopefully serve as a reminder to policymakers and the like that fundamental rights are not to be shrugged off – even in the face of legitimate state objectives. It now remains to be seen exactly how the Legislature will get its act together in the next three years.