Court Rules That South African RICA Laws Are Unconstitutional
Earlier this year, South Africa’s Constitutional Court confirmed that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) is unconstitutional.
In the judgement handed down on 3 February 2021, the court stated that the legislation is unconstitutional in that it fails to provide adequate protections to shield the right to privacy, as strengthened by our rights to freedom of expression and the media, access to courts and a fair trial.
The constitutionality of section 16 of RICA first came under the spotlight in the Pretoria High Court decision of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2020 (1) SA 90 (GP) – whereby In the court was called upon to decide the constitutionality of several of South Africa’s surveillance schemes including and particularly certain sections of RICA, specifically section 16 thereof.
The case related to a South African journalist becoming aware that his communications had been intercepted after a lawyer referred to transcripts of private conversations in an unrelated legal proceeding. The journalist approached the court, challenging the provision’s privacy-encroaching nature and “its failure to provide notice of surveillance; the lack of sufficient safeguards in relation to the safety and custody of information gathered by way of surveillance and the preservation of the confidentiality of sources of investigative journalists.”
In the majority judgement, the court found that the interception and surveillance of individuals’ communications under RICA is a highly invasive violation of privacy, and thus infringes on section 14 of the Constitution. While the court acknowledged the importance of state surveillance in preventing crimes, it questioned whether there were enough defenses in place to justify this infringement. It highlighted the right to privacy, which is tied to the right to dignity.
This judgment of Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others should not be viewed as invalidating RICA in its entirety. There is still a way to go in addressing all the issues with RICA raised by the Constitutional Court.
It is likely that we will be seeing a few more of the RICA provisions come under fire in courts over the next few years as the growing awareness of our rights to privacy are highlighted in the space of remote working and online supervision.