SANEF supports landmark constitutional challenge to South Africa’s surveillance law, RICA

4 June 2019

The South African National Editors’ Forum (SANEF) supports the constitutional challenge brought by the amaBhungane Centre for Investigative Journalism against South Africa’s surveillance law, the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA). 

The challenge is being heard in the North Gauteng High Court before Judge Roland Sutherland from Tuesday, 04 June.

AmaBhungane’s legal proceedings were launched in April 2017 after the investigative journalism centre received confirmation that its managing partner, Sam Sole, had been the target of state surveillance under RICA, while investigating the decision by the National Prosecuting Authority to drop corruption charges against former President Jacob Zuma.

The constitutional challenge against RICA however is a concern not only for amaBhungane journalists, SANEF considers it to be of concern for all media reporting in the public interest and for press freedom in South Africa.

The secretive and unaccountable surveillance provisions of RICA leave it wide open to abuse and poses a chilling effect on media freedom and accountability journalism in South Africa.

In 2018, the Right2Know Campaign produced a report, “SPOOKED: Surveillance of Journalists in SA” documenting the numerous instances where prominent journalists have been the target of state surveillance capabilities. These cases, in addition to Sole’s, are cited by amaBhungane and the amici curiae, Right2Know and Privacy International, in their papers and include:

Jacques Pauw - In May 2018, the City Press reported that it had transcripts and recordings of a phone call between Jacques Pauw and Setlhomamaru Dintwe, the Inspector General of Intelligence. According to the City Press, on the transcript, Pauw is referred to as “Target 8”. The existence of the transcript is strong evidence that the State Security Agency was indeed spying on Pauw’s private communications – an operation he believes was designed to expose the whistleblowers behind his book, The President’s Keepers

Stephan Hofstatter & Mzilikazi wa Afrika - In 2011, a source informed the two former Sunday Times journalists that a senior official within the KwaZulu Natal police force wished to meet them to apologise for the tapping of their phones by members of Crime Intelligence during their investigation into Bheki Cele. It emerged that Crime Intelligence lied to the RICA judge to bug their phones after stories surfaced about police corruption.

Athandiwe Saba – In 2018, Mail & Guardian investigative reporter, Saba, discovered, through a leaked transcript, that her communications had been under surveillance during her reporting on corruption at the Railway Safety Regulator (RSR). It would eventually emerge that a s205 warrant was issued by the judge in KZN, possibly unlawfully.

Peter Bruce & Rob Rose - In 2017 it emerged that a private investigator had illegally accessed the private phone records of business press editors Peter Bruce and Rob Rose, apparently for the benefit of a Gupta-linked propaganda campaign. The PI obtained the records by bribing an employee of Telecommunications provider, MTN.  Telecommunication service providers are obliged under RICA to retain call related data of their subscribers for a period of three years.

“Donna” - In 2012, Donna, a reporter in Johannesburg, found herself the target of anonymous calls about her family, from what would later emerge to be an operative from Crime Intelligence. At the time, Donna was working on a series of stories involving former head of Police Crime Intelligence, Richard Mdluli.

Tom Nkosi - In January 2015, at a press conference Mpumalanga former Premier David Mabuza announced that he was receiving briefings from State Security on the movements of journalists in the province. Mabuza singled out Tom Nkosi, an investigative reporter and editor of Ziwaphi, exposing corruption in the province, as one of those who he said had been having meetings “with his [Mabuza’s] enemies” within the ANC.

Sipho Masondo - In 2017, Sipho Masondo had been working on a series of investigations that the City Press called ‘WaterGate’, which exposed corruption in South Africa’s water delivery projects under the stewardship of former water minister Nomvula Mokonyane. The same year, Masondo says he received an anonymous SMS that he should stop driving his car as he was being followed.  The caller had detailed information about his vehicle.  A few months later, in June, a source in Crime Intelligence warned Masondo that somebody was listening to his calls.

SABC 8 - In 2016, the SABC 8 journalists spoke out against censorship and managerial interference under former SABC boss Hlaudi Motsoeneng, leading to their eventual dismissal. Throughout their challenge to be re-instated, and during the Parliamentary inquiry, the journalists received a constant stream of anonymous threatening SMSes and the timing of these messages suspiciously coincided with private discussions among the SABC 8 or behind-the-scenes events – leading to suspicions that their private communications were not secure.

SANEF is particularly concerned about the effect of the provisions of the RICA on the protection of journalists’ sources.

SANEF is also deeply concerned about the risk of bulk surveillance and foreign signal monitoring being undertaken by the National Communications Centre and its potential impact on journalism.  This is possibly happening outside of any legal framework or oversight.

The United Nations Educational, Scientific and Cultural Organization’s (UNESCO) 2017 report “Protecting journalism sources in the digital age” found globally that journalism is increasingly under threat from laws which don’t protect journalists sources from the drag net of mass surveillance and indiscriminate data collection.

The report recommends that laws should be updated to adequately protect the online communications of journalists and whistleblowers.

AmaBhungane’s legal challenge is a first and significant step in addressing the concerns raised in the UNESCO report.

In support of amBhungane’s application, SANEF has provided a supporting affidavit, and endorses the relief sought by amaBhungane in its application.

Access all the pleadings in the hearing on amaBhungane’s webpage here: 

Statement issued by Kate Skinner, SANEF executive director, 4 June 2019