The Right2Know Campaign, Privacy International and the Legal Resources Centre welcome the Gauteng High Court ruling that parts of South Africa’s surveillance law, RICA, are unconstitutional and invalid.

16 September 2019

The case was brought by amaBungane Centre for Investigative Journalism after confirming that security officials had spied on the communications of one of its journalists (see 2017 statement here). 

R2K and Privacy International represented by the Legal Resources Centre joined the amaBhungane's RICA challenge as amici curiae (friends of the court).  

There is a growing body of evidence of surveillance abuses in South Africa.  In July 2018, R2K  published a report on surveillance of journalists in South Africa. An inquiry into the State Security Agency launched by President Cyril Ramaphosa found widespread corruption and criminality in the SSA, and evidence that civil society organisations had been spied on (see the panel’s report here).

We are elated by today’s judgment found RICA to be inconsistent with the Constitution, with the effect of:

1. Ending secret spying abuses, by ensuring that people whose communications are secretly intercepted by the state are informed within three months unless law-enforcement agencies convince a judge to grant a postponement.

2. Ensuring extra safeguards when the state applies for authorisation to intercept communications of journalists or lawyers.

3. Ordering the state to stop mass surveillance activities, which it has been conducting through the shadowy ‘National Communications Centre’ in Gauteng — without any legal regulation.

4. Ordering Parliament to drastically amend RICA within 2 years, to improve the independence and oversight of the ‘RICA judge’ who oversees surveillance requests, and to provide clear procedures for how state officials handle data that they have intercepted.

This is a major victory in the struggle against surveillance abuses in South Africa. But it is also just a step forward. The South African parliament has two years to adopt a new legislation. To meaningfully protect ordinary people against the climate of surveillance, much more is needed:

- The Inspector-General of Intelligence must finalise the many investigations of illegal surveillance lodged by members of the public and civil society. No more delays!

- The state must end the delays in giving full legal protection to ordinary citizens’ privacy: the Protection of Personal Information Act (POPI) must be brought into force. The privacy watchdog, the Information Regulator, must show that it can act to protect against abuse of people’s personal information.

- All individuals that were illegally surveilled should be appropriately remedied!

The struggle against surveillance is crucial to the broader struggle for equality, dignity, and democracy. Let the people of South Africa say it together: Stop the spying!

Issued by Busi Mtabane, Right2Know Communicator, 16 September 2019