Surveillance Of Private Communications Limits Right To Privacy: South Africa Constitutional Court Holds Its Surveillance Law Unconstitutional

Surveillance of private communications limits the right to privacy, the Constitutional Court of South Africa observed while holding that the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 RICA) is unconstitutional.

The Court upheld declaration of unconstitutionality by the High Court to the extent that the RICA fails to— (a) provide for safeguards to ensure that a Judge designated in terms of section 1 is sufficiently independent; (b) provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardizing the purpose of surveillance after surveillance has been terminated; (c) adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte; (d) adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data; and (e) provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

The High Court had held that the law is unconstitutional while allowing the applications filed by maBhungane Centre for Investigative Journalism NPC and Mr Stephen Sole – a journalist who had been the subject of state surveillance.

This declaration of unconstitutionality is suspended for 36 months to afford Parliament an opportunity to cure the defect causing the invalidity. During this period, the Court said that RICA shall be deemed to include the following additional sections:

1. Section 23A Disclosure that the person in respect of whom a direction, extension of a direction or entry warrant is sought is a journalist or practising lawyer :(1) Where the person in respect of whom a direction, extension of a direction or entry warrant is sought in terms of sections 16, 17, 18, 20, 21, 22 or 23, whichever is applicable, is a journalist or practising lawyer, the application must disclose to the designated Judge the fact that the intended subject of the direction, extension of a direction or entry warrant is a journalist or practising lawyer. (2) The designated Judge must grant the direction, extension of a direction or entry warrant referred to in subsection (1) only if satisfied that it is necessary to do so, notwithstanding the fact that the subject is a journalist or practising lawyer. (3) If the designated Judge issues the direction, extension of a direction or entry warrant, she or he may do so subject to such conditions as may be necessary, in the case of a journalist, to protect the confidentiality of her or his sources, or, in the case of a practising lawyer, to protect the legal professional privilege enjoyed by her or his clients.
2. Section 25A Post-surveillance notification (1) Within 90 days of the date of expiry of a direction or extension thereof issued in terms of sections 16, 17, 18, 20, 21 or 23, whichever is applicable, the applicant that obtained the direction or, if not available, any other law enforcement officer within the law enforcement agency concerned must notify in writing the person who was the subject of the direction and, within 15 days of doing so, certify in writing to the designated Judge, Judge of a High Court, Regional Court Magistrate or Magistrate that the person has been so notified. (2) If the notification referred to in subsection (1) cannot be given without jeopardizing the purpose of the surveillance, the designated Judge, Judge of a High Court, Regional Court Magistrate or Magistrate may, upon application by a law enforcement officer, direct that the giving of notification in that subsection be withheld for a period which shall not exceed 90 days at a time or two years in aggregate.

Following are some significant observations made in the judgment authored by Justice Madlanga: 

RICA does not discriminate between intimate personal communications and communications, the disclosure of which would not bother those communicating. 

If there ever was a highly and disturbingly invasive violation of privacy, this is it. It is violative of an individual's inner sanctum. In Hyundai Langa DP held that "privacy is a right which becomes more intense the closer it moves to the intimate personal sphere of the life of human beings and less intense as it moves away from that core". What I have typified – insofar as it relates to the sharing of intimate personal confidences – certainly falls within the "intimate personal sphere". RICA allows interception of all communications. The sanctioned interception does not discriminate between intimate personal communications and communications, the disclosure of which would not bother those communicating. Nor does it differentiate between information that is relevant to the purpose of the interception and that which is not. In other words, privacy is breached along the entire length and breadth of the "continuum".And this intrusion applies equally to third parties who are not themselves subjects of surveillance but happen to communicate with the subject. That means communications of any person in contact with the subject of surveillance – even children – will necessarily be intercepted  There can be no question that the surveillance of private communications limits the right to privacy. Unsurprisingly, the respondents do not dispute this. I

 invasion of an individual's privacy infringes the individual's cognate right to dignity

The invasion of an individual's privacy infringes the individual's cognate right to dignity,48 a right so important that it permeates virtually all other fundamental rights.49 About its importance, Ackermann J said "the right to dignity is a cornerstone of our Constitution". And in Hugo this Court quoted the words of L'Heureux-Dube J with approval.51 They are that "inherent human dignity is at the heart of individual rights in a free and democratic society".

On post-surveillance notification

Because of its likely outcomes, post-surveillance notification will go a long way towards eradicating the sense of impunity which certainly exists. The concomitant will be a reduction in the numbers of unmeritorious intrusions into the privacy of individuals. I explain this presently. In a sense, post-surveillance notification functions as less restrictive – or should I say less intrusive – means and serves at least two purposes. First, the subject of surveillance is afforded an opportunity to assess whether the interception direction was applied for and issued in accordance with the Constitution and RICA. If need be, she or he may seek an effective remedy for the unlawful violation of privacy. Second, because there will be challenges to illegally sought and obtained interception directions, that will help disincentivise abuse of the process and reduce violations of the privacy of individuals. 

 Confidentiality of lawyer-client communications and journalists' sources is particularly significant in our constitutional dispensation.

The confidentiality of lawyer-client communications and journalists' sources is particularly significant in our constitutional dispensation. There is thus a need that special consideration be given to this fact when interception directions are sought and granted. Plainly there are means that may help minimise this particularly egregious form of intrusion into privacy; particularly egregious because of its impact on other constitutional rights. Some of the foreign examples tell us as much. While reference to them should not be seen as dictation to Parliament, they serve as examples of less restrictive means, which do not subvert the purpose of RICA. RICA is thus unconstitutional to the extent that, when the intended subject of surveillance is a practising lawyer or a journalist, it fails to provide for additional safeguards calculated to minimise the risk of infringement of the confidentiality of practising lawyer and client communications and journalists' sources

CASE: AMABHUNGANE CENTRE FOR INVESTIGATIVE JOURNALISM vs. NPC MINISTER OF JUSTICE AND CORRECTIONAL SERVICES [Case CCT 278/19]

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