Advocacy release: AmaB wins battle against spying abuse as ConCourt declares bulk surveillance unlawful, Rica surveillance provisions unconstitutional

The apex court has confirmed amaBhungane’s landmark high court victory. The State Security Agency must stop bulk interception immediately, journalists’ sources must be protected, and you must be notified after you were bugged.

Four years after amaBhungane challenged the constitutionality of parts of the state’s surveillance architecture, the Constitutional Court today upheld its arguments on all counts.

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, a non-profit investigative newsroom, brought the challenge under its advocacy mandate, which is to help secure the information rights that are the lifeblood of investigative journalism.

AmaBhungane launched a high court challenge in 2017 after it emerged that phone calls between its managing partner Sam Sole and a prosecutor involved in the investigation of former president Jacob Zuma had been intercepted.

Read: Analysis: Inside amaBhungane’s landmark ruling on surveillance

The high court found comprehensively in amaBhungane’s favour but this was subject to appeals and a Constitutional Court confirmation hearing.

Sole said of today’s victory: “It’s been a long haul since 2008, when the interception actually happened. But I’m proud of amaBhungane for vindicating not only journalists’ rights but also the rights of all citizens to be protected against surveillance”.

The Constitutional Court found in a majority judgment that the practice of bulk surveillance – sucking up all voice and data traffic that enters and leaves South Africa and monitoring it for search terms – was not authorised by any law and is therefore unlawful.

The effect of this decision is that the State Security Agency’s National Communications Centre will have to stop bulk surveillance immediately.

The court also made findings about the constitutionality of parts of the Regulation of Interception of Communications and Provision of Communication Related Information Act (Rica), the law that governs interception.  Rica provisions were declared unconstitutional to the extent that they:

  • Fail to provide for post-surveillance notification of the subjects of surveillance;
  • Fail to provide mechanisms to enable sufficient independence of designated judges who hear surveillance applications behind closed doors;
  • Lack sufficient safeguards to address the fact that interception directions are sought and obtained without prior notice to the subject of surveillance;
  • Fail to prescribe adequate procedures to ensure that data obtained through surveillance is managed lawfully and not used or interfered with unlawfully; and
  • Fail to provide for additional safeguard to protect confidentiality of communications between lawyer and client and between journalist and their sources.

The declaration of invalidity has been suspended for three years to allow Parliament to correct the defects in Rica.
Nevertheless, the court ordered that in the interim certain protections be deemed to be included in Rica. This includes a requirement that if a state agent seeks permission from a designated judge to conduct surveillance of a practising lawyer or journalist, additional safeguards must be applied to protect legal professional privilege and the confidentiality of journalists’ sources.

In addition, subjects of surveillance must be notified within 90 days after the interception has ended. If disclosure would jeopardise the original purpose of the interception, extensions of up to two years may be given.

AmaBhungane was awarded its costs, included the costs of two counsel. Advocates Steven Budlender, Itumeleng Phalane and Stuart Scott represented amaBhungane, instructed by Webber Wentzel.

View documents related to this case here.

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