Good attempt but RICA Bill still flawed, say legal experts

Admire Moyo
By Admire Moyo, ITWeb's news editor.
Johannesburg, 15 Nov 2023
The Constitutional Court confirmed that RICA is unconstitutional.
The Constitutional Court confirmed that RICA is unconstitutional.

Legal experts have raised concerns that the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill (RICA Bill) still does not address privacy issues that are fundamental to South Africa’s democracy.

This, after the National Assembly yesterday, during its hybrid plenary, passed the RICA Bill together with three other proposed legislations – Divorce Amendment Bill, Cannabis for Private Purpose Bill and Marine Oil Pollution (Preparedness, Response and Cooperation) Bill.

The RICA Bill emanates from the Constitutional Court judgement of Amabhungane Centre for Investigative Journalism versus the minister of justice and correctional services and others when the Constitutional Court confirmed RICA is unconstitutional. It stated it fails to provide adequate safeguards to protect the right to privacy as reinforced by the rights of access to courts, freedom of expression and the media, and legal privilege.

The Bill seeks to amend RICA by, among others, boosting the independence of RICA judges who approve surveillance warrants by changing how they are appointed, putting in place adequate procedures to ensure data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, and creating procedures for the handling and deletion of any data collected through surveillance.

It also seeks to provide for post-surveillance notification. This means if someone’s communications are intercepted as part of an investigation, they should be notified after the fact. This would help to ensure that when someone is spied on unfairly, they can eventually take steps to protect themselves.

Furthermore, the Bill wants to ensure additional safeguards are in place for when the person being targeted is a practising lawyer or journalist, since people in these jobs have a professional duty to communicate confidentially.

The Bills will now be sent to the National Council of Provinces for concurrence.

Holistic approach

Advocate Dirontsho Mohale of Baakedi Professional Practice tells ITWeb that the Constitutional Court found the Act unconstitutional on five grounds.

The apex court found that subjects were not being advised they are or had been under surveillance; there was lack of independence of the appointment of a judge and of the judge; inadequate safeguards in relation to information collected; no provision for legal professional privilege; and no provision for a fair hearing in applications for interceptions.

“The Bill is a good attempt at correcting these and only those outlined by the Constitutional Court. However, I am with the team that says this amendment process should have been used to review the Act holistically,” says Mohale.

“I support a lesser infringement of the right to privacy. The inclusion of the provisions of the Protection of Personal Information Act 04 of 2013 could also have been enhanced for the purpose of the Act, specifically in relation to security safeguards and destruction of personal information,” she adds.

“While the Act cannot operate in isolation of all other laws and the very operation of the law, I am concerned that subjects are not notified adequately and timeously to put forward their side, and that is if they can get to court.”

Advocate Dirontsho Mohale of Baakedi Professional Practice.
Advocate Dirontsho Mohale of Baakedi Professional Practice.

Sadia Rizvi of PPM Attorneys comments that the post-surveillance notifications provided for in the Amabhungane judgement has been incorporated into the RICA Bill.

“However, it further provides that where post-surveillance notification has the potential to impact negatively on national security, the designated judge may, upon application by a law enforcement officer, direct that the giving of notification be withheld for a period as may be determined by the designated judge.

“Although the RICA Bill seeks to correct the deficiencies raised in the Amabhungane judgement, further consideration is necessary to align the provisions to accord with the right to privacy, a constitutionally protected right which is fundamental to our democracy,” she says.

Step in the right direction

Nonetheless, for Mohale, the Act itself is important because its main purpose is to further protect the rights and freedoms of South Africans, such as the right to security, privacy and access to information by regulating how these rights can be infringed as permissible by the Bill of Rights in section 36.

“The right to privacy of persons is equally important as the right to security of the person,” she says.

“The Bill addresses matters like access to courts by all people; ultra vires and often unlawful processing of personal information; the right to information; and most importantly, the continued right to general privacy. There is much debate on the redressing of the constitutional flaws, but the Bill is a step in the right direction.”

Mohale explains that before a Bill can become law in SA, it must be considered by both houses of parliament – the National Assembly and National Council of Provinces – and then relevant committees prior to being gazetted to fulfil public participation requirements.

She notes the RICA Bill was introduced in the National Assembly and has been out for public comments since mid-September.

The closing date for public comments is 24 November.

“The committee will consider the comments and table the amended version of the Bill for further debate and a vote. A favourable vote will result in the Bill being referred to the other house for consideration and vote prior to being tabled for assent by the president.

“If the vote is unfavourable, the Bill will be sent back to the committee for more work until a vote in the affirmative is gained.”