The state’s ability to spy on people’s communication without informing them is unconstitutional and its ability to conduct bulk surveillance on South African citizens has been declared unlawful and invalid by the Johannesburg High Court.

On Monday, Judge Roland Sutherland issued the judgment – a victorious end for the amaBhungane Centre for Investigative Journalism which challenged the constitutionality and validity of parts of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica), to reduce the state’s one-sided powers to spy on citizens.

AmaBhungane launched the legal battle against the ministers of justice and state security after it became aware that journalist Sam Sole was being spied on by the state under Rica.

The act allows for the state to justifiably intercept people’s communications in light of serious crimes and threats to national security.

The fact that a person’s information was intercepted can be kept secret for perpetuity unless it is revealed in court proceedings as part of the evidence.

Abuse of secrecy powers

Listing how abuses of the act can occur due to this secrecy, Sutherland’s judgment noted that the state provided “no rebuttal or explanation or effort to justify why the interception was attempted” on Sole’s communication.

Beyond Sole, the judgment also made note of further abuses where journalists Stephan Hofstatter and Mzilikazi wa Afrika were spied on under false pretences, after the surveillance applicant had “blatantly lied” about them being criminals in order to gain a court order to authorise the surveillance.

In order to remedy these “vulnerabilities” the judgment has found sections of Rica to be unconstitutional and invalid, starting with the fact that the act does not prescribe a process for people to be informed about state surveillance.

Parliament has been given two years to remedy these “defects”.

In the interim Sutherland has ordered that an applicant that is conducting surveillance should inform the individual being spied on within 90 days of finishing the surveillance. The applicant will also have to confirm with the designated judge that the person has been notified.

Extensions to delaying disclosure may only be granted in “exceptional circumstances” and this delay should not exceed 180 days. Should the delay reach three years, the decision has to be adjudicated by a panel of three judges.

The “designated judge” who grants court orders allowing for interception is currently interpreted as a retired judge appointed at the discretion of the justice minister, who serves a fixed but renewable term.

AmaBhungane argued that the judge’s independence is compromised by the selection process and the unlimited duration of their appointment. In his order, Sutherland said the retired judge should rather be nominated by the chief justice and then appointed by the minister for a “non-renewable term of two years”.

Balancing act

Media lawyer Dario Milo, a partner at Webber Wentzel, the instructing attorneys for amaBhungane, said the order curbed the abuse of power to surveil.

“It allows the subject who was unlawfully surveilled to challenge the surveillance [even though it is after the fact] and claim damages or a declaratory order,” said Milo. “It assists in ensuring [that] privacy is preserved because state officials will know they can only apply for surveillance in clear cases.”

Independent legal analyst Phephelaphi Dube described the judgment as a “a delicate balancing act between the right of the state to ensure that citizens are kept safe and for the individual rights of privacy”.

“It isn’t necessarily saying the state must always notify an individual, because obviously that can jeopardise ongoing investigations. But it provides a more nuanced approach in terms of how the courts can go about granting this court order.”

For instance, Sutherland notes that the authorities can’t inform individuals prior to surveillance being completed, because this could jeopardise an investigation.

The judgment further calls for parliament to prescribe a process for how state officials need to gather, handle, store and destroy collected data.

Journalists and media freedom

Sutherland’s judgment now requires applicants to disclose that the subject of their surveillance is a journalist or a lawyer when seeking authorisation to conduct surveillance.

“The designated judge shall only grant the order sought if satisfied that the order is necessary and appropriate,” states the court document, adding that the designated judge could add limitations they may consider necessary given the subject’s occupation and the privacy implications thereof.

“Around the world, surveillance on journalists is a major threat to media freedom,” said Milo.

He added that “this judgment recognises the sanctity of the relationship” between a journalist and their source (and a lawyer and their client).

‘Extra layer’ of privacy protection

Putting it more bluntly, Dube said considering that what had prompted the case was unjustified surveillance on Sole, the order limits the ability for organs of state to be abused in order to further the interests of highly connected political individuals.

“If you look at discussions about the Sars Rogue Unit and state capture it is important to have that extra layer over organs of state to ensure that the original mandate is not being subverted to further narrow party political interests,” said Dube.

Mass surveillance and foreign surveillance interception by the National Communications Centre has been declared unlawful and invalid, given that South Africa does not have a law that allows for this.

Next, amaBhungane will apply to the Constitutional Court to confirm the declarations of invalidity made by the High Court, as required by the constitution.

Dube said in terms of general practice it is rare for the Constitutional Court to overturn such findings.