- amaBhungane Centre for Investigative Journalism NPC* and Another v Minister of Justice and Correctional Services and Others; Minister of Police v amaBhungane Centre for Investigative Journalism NPC* and Others CCT 278/19 AND CCT 279/19 dated 4 February 2021 Constitutional Court (CC)
The applicants, namely amaBhungane Centre for Investigative Journalism NPC* and Mr Stephen Sole - a journalist who had been the subject of state surveillance* - approached the High Court in Pretoria (“the High Court”) on the basis of a number of constitutional challenges to the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (hereinafter referred to as “RICA”)*.
The High Court upheld (confirmed/maintained [Afrikaans: “bekragtig”]) the following challenges, namely –
(1) RICA makes no provision for a subject of surveillance ever to be notified that he or she has been subjected to surveillance (the notification issue);
(2) RICA permits a member of the Executive* (Cabinet Minister) unfettered (unrestrained/unrestricted) discretion to appoint and renew the term of the designated Judge - to whom reference is made in RICA and who is the functionary responsible for issuing directions for the interception of private communications (inter alia, lawful telephone tapping), and thus fails to ensure the independence of the Designated Judge (independence issue);
(3) RICA lacks any form of adversarial (opposed/hostile/involving conflict or opposition) process or other mechanism to ensure that the intended subject of surveillance is protected in ex parte (as the sole interested party/ by or from one party only) application process (the ex parte issue); and
(4) RICA lacks adequate safeguards for examining, copying, sharing, sorting through, using, destroying and/or fails to provide any special circumstances where the subject of surveillance is a journalist or practising lawyer (practising lawyers and journalist issue).
Accordingly, be reminded that the High Court declared RICA unconstitutional to the extent of the four failures supra.
As is required by section 172(2) of our Constitution, the High Court referred its findings to our Constitutional Court (“the Concourt”) for confirmation or otherwise.