Rica aspects aimed at lawyers, journalists unconstitutional

The Constitutional Court has declared the Regulation of Interception of Communication and Provision of Communication-Related Information Act (Rica) unconstitutional in so far as it did not provide "adequate" safeguards to render it lawful. The amaBhungane Centre for Investigative Journalism and its managing partner Sam Sole had filed an application at the apex court for confirmation of the five orders made by the Gauteng High Court in September declaring Rica unconstitutional.

A TimesLIVE report notes that in a majority judgment by Justice Mbuyiseli Madlanga, the court found that Rica is unconstitutional to the extent that it fails to provide for adequate safeguards for independent judicial authorisation. Madlanga ruled Rica was unconstitutional to the extent that when the intended subject of surveillance was a practising lawyer or a journalist, it failed to provide for additional safeguards calculated to minimise the risk of infringement of the confidentiality of the practising lawyer and client communications and journalists’ sources. The court also found that bulk surveillance interceptions carried out by the National Communications Centre were unlawful, as there was no law that authorised the practice.

Madlanga said the right to privacy was at the heart of the matter. "The interception and surveillance of an individual’s communications under Rica is performed clandestinely. By nature, human beings are wont – in their private communications – to share their innermost heart's desires or personal confidences, to speak or write when under different circumstances they would never dare do so, to bare themselves on what they truly think or believe," the judgment said. "Imagine how an individual… would feel if she or he were to know that throughout those intimate communications, someone was listening in or reading them. If there ever was a highly and disturbingly invasive violation of privacy, this is it."

A Daily Maverick report notes the judgment accepted that Rica had an important purpose for government, especially in terms of tackling crime, but said the focus was on whether enough was being done to "reduce the risk of unnecessary intrusions." It outlined how far-reaching Rica was. "It regulates the interception of both direct and indirect communications, which are defined broadly to include oral conversations, e-mail and mobile phone communications (including data, text and visual images) that are transmitted through a postal service or telecommunication system."

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