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Some thoughts on judge Sutherland’s surveillance decision handed down in Jhb High Court today. It’s the first major challenge to the surveillance regime in SA law. @amaBhungane succeeded in all of its 6 arguments - it’s a full house. Here are the 6 challenges:
1. #RICA is unconstitutional because fails to prescribe procedure to notify subjects of interception after the interception has occurred. Pending Parliament fixing within 2 years, subjects must generally be notified within 90 days of the expiry of the interception direction.
2. #RICA unconstitutional in not prescribing appointment and terms for designated judge (who grants interception orders) that ensure the judge’s independence. Pending Parliament fixing within 2 years, designated judge means one appointed by CJ for non-renewable term of 2 years.
3. #RICA unconstitutional in failing to have safeguards for ex parte nature of applications for interception orders, and Parliament must fix within 2 years [eg possibly a public advocate present at application stage - Sutherland J says many options Parliament can consider]
4. #RICA unconstitutional because fails to provide procedures for state officials to follow when processing [my word] data obtained from interception. Parliament has 2 years to cure defect.
5. Very NB for media law : #RICA unconstitutional where fails to expressly address circumstances where a subject of surveillance is either a practising lawyer or a journalist. Parliament must remedy in 2 years; pending this, application must draw this to attention of judge.
6. Bulk surveillance activities and foreign signals interception unlawful and invalid - no law of general application exists to justify these surveillance activities. [My comment - profound implications]
At heart of these successful challenges is importance of constitutional right 2 privacy of citizens, which is also as Sutherland J says, aim & scheme of #RICA. Case is about whether the right balance has been struck between privacy & important government objectives eg security
In relation to surveillance of journos, paras 131 & 133 are poetry. ‘It is hypocritical to both laud the press & ignore their special needs [source protection]’. And: ‘right to withhold identity of a source must extend to protection from being spied on’
Lots more to say about the judgment but will do so in a longer piece. Suffice to conclude that the judgment is critical for privacy and media freedom & of international significance. Next step is confirmation proceedings at the Con Court ...
