Lisa Thornton Consulting

In the North Gauteng High Court, in Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others, Judge Sutherland has found that certain provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act are unconstitutional.  

First, RICA is unconstitutional because it does not provide for notice (after the fact) of the interception.  Second, there are not adequate safeguards in place where an interception order is granted without prior notice.  Third, there are not adequate procedures set out to be followed in examining, copying, using, destroying or storing data obtained by interception.  Fourth, there are not adequate safeguards protecting journalists and lawyers.  The unconstitutionality is suspended for two years.  And it must be confirmed by the Constitutional Court.  However, certain amendments to the legislation were ordered pending action by Parliament to rectify the unconstitutional provisions.

In addition to these decisions on constitutionality, Judge Sutherland found that the practice of bulk surveillance in South Africa is not authorised by any law and therefore unlawful.