The High Court of Pretoria has ruled that bulk surveillance conducted by the National Communications Centre (NCC), an entity within the State Security Agency, is unlawful and invalid.

This comes after the amaBhungane Centre for Investigative Journalism and journalist Sam Sole filed papers against South Africa’s intelligence apparatus in 2017.

Sole explained that the ammunition for amaBhungane’s court challenge came from former President Jacob Zuma’s own lawyer, Michael Hulley.

Hulley included a transcript of a conversation between Sole and advocate Billy Downer in court papers that opposed the DA’s attempt to overturn a decision by the National Prosecuting Authority in 2009 not to prosecute Jacob Zuma.

Downer was a senior advocate at the National Prosecuting Authority. Sole said that Downer led a team investigating Zuma on charges relating to the arms deal.

Armed with the transcript, amaBhungane launched legal action to challenge the constitutionality of the state’s ability to spy on its own citizens.

Much of the legal challenge centred on RICA — the Regulation of Interception of Communications and Provision of Communication-related Information Act of 2002.

amaBhungane was successful, and Judge Roland Sutherland found that parts of RICA were inconsistent with the South African constitution. Specifically:

The act fails to adequately prescribe the procedure for notifying a person whose information has been intercepted;

The act fails to adequately prescribe the proper procedures to be followed when state officials are examining, copying, sharing and sorting through data obtained through interceptions;

The act fails to adequately address situations where the subject of surveillance is either a practising lawyer or a journalist.

To remedy these issues, the judgement adds a number of new sections to RICA.

Sutherland’s ruling suspended the invalidity of RICA for two years to allow for Parliament to bring the legislation in line with the South African constitution.

Mass surveillance unlawful

In addition to his orders that RICA be improved, Sutherland also ruled that the NCC’s domestic surveillance activities were unlawful and invalid.

This comes after the Minister of State Security, the Office of the Interception Centres, the National Communications Centre, and the State Security Agency confirmed in an affidavit to the court that they conduct bulk surveillance.

They revealed that they tap or record “transnational signals”, including data sent over undersea fibre optic cables that connect South Africa to the rest of the world.

While they argued that bulk interception is aimed at foreign signal intelligence, they also admit that they can’t distinguish between foreign and domestic communication.

“The direction of communication can only accurately be determined by human intervention and analysis after the interception and recording process has been completed,” the affidavit states.

“Bulk surveillance systems cannot distinguish whether a communication emanates from outside the borders or simply passes through or ends in the Republic of South Africa.”

The affidavit stated that the agencies intercept any communication that emanates from outside the borders of South Africa, and passes through or ends in the country.

This is done to ensure the state is secured against foreign threats.

“The Signal Intelligence collection process is informed by the National Intelligence Priorities, which include imminent and anticipated threats. It also covers information about organised crime and terrorist-related activities. Bulk [surveillance] also deals with areas like food security, water security and illicit financial flows,” states the affidavit.

While bulk surveillance does not target an individual, the agencies do admit that it helps the state identify individuals, groups, and entities that pose a threat to the security of the nation.

Sutherland ruled against this practice in Order 6 of his judgement as follows:

“It is declared that the bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre are unlawful and invalid.”

South Africa, spying on her own citizens

Sutherland’s ruling is a victory for those who have been protesting bulk surveillance for at least thirteen years.

In 2006, the office of the Inspector-General of Intelligence issued a report which found that the National Intelligence Agency had abused the capabilities of the National Communications Centre (NCC) as part of Project Avani.

“The voice communications of at least 13 members of the public including senior members of the ruling party, the opposition, businessmen and officials in the public service were so intercepted,” the report stated.

“These facilities were used in a way that constituted a gross abuse of the bulk interception facilities of the NCC and constituted a circumvention of the legal interceptions regime”.

In 2008, the Matthews Commission found that the NCC was engaged in signals monitoring that was unlawful.

Earlier this year (2019), the Presidency released a report from a high-level review panel into the State Security Agency.

“A key finding of the panel is that there has been political malpurposing and factionalisation of the intelligence community over the past decade or more that has resulted in an almost complete disregard for the Constitution, policy, legislation and other prescripts,” the Presidency said in a statement.

Among the recommendations of the report was the urgent development of a National Security Strategy, and the splitting of the State Security Agency into two branches: foreign and domestic.

State Security Agency gets domestic branch

In August, News24 reported that President Cyril Ramaphosa has appointed Mahlodi Sam Muofhe as the new head of the domestic branch of the State Security Agency.

Muofhe is an activist lawyer and advocate who casts himself as a specialist in human rights. His other specialisations include media law and professional ethics.

Office of the Inspector-General of Intelligence (26 March 2006)

Matthews Commission Report (10 Sept 2008)

amaBhungane and Sam Sole vs State Security Agency et al, answering affidavit (19 July 2017)

High-Level Review Panel on the State Security Agency