Following amaBhungane’s court victory on Monday 16 September, our advocacy coordinator Karabo Rajuili discussed the Johannesburg High Court judgement with Kaya FM‘s David O’Sullivan.
In April 2017 amaBhungane launched a legal challenge against the Defence Ministry, the State Security Agency and others over the constitutionality of certain sections of the Regulation of Interception of Communications Act (Rica).
Rajuili told O’Sullivan: “The court ruled that parliament must amend Rica … there are temporary provisions for those sections of Rica, found by the court to be constitutionally invalid. These will be enforced until parliament (reforms) the legislation.”
Listen to the interview:
“However, there is one aspect of the judgement that I think has very far-reaching ramifications. In the judgement we have six difference orders, and the sixth one is related to bulk interception. In our application we argued this type of surveillance falls outside of any type of oversight framework,” Rajuili said.
“The court in this matter ruled that it is simply unlawful: in this instance it isn’t a matter of the State fixing or remedying it, it has been declared unlawful. So it has to stop.”
In his judgment on the issue of bulk interceptions, Sutherland said, “… in my view, no lawful authority has been demonstrated to trespass onto the privacy rights or the freedom of expression rights of anyone, including South Africans, whose communications criss-cross the world by means of bulk interception. A declaratory order to that effect is appropriate. The applicant seeks an order in these terms, which I endorse:
‘The bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre are unlawful and invalid.’
“Whether or not bulk interception per se could be constitutionally compliant in our law, were there to be a law that allows it, it is unnecessary to decide,” Sutherland ruled.