SAPS uses illegal spy tech, claims DA

Admire Moyo
By Admire Moyo, ITWeb's news editor.
Johannesburg, 20 Jul 2023
Police minister Bheki Cele.
Police minister Bheki Cele.

The Democratic Alliance (DA) is looking to press charges against police minister Bheki Cele and national commissioner Fannie Masemola, as leaders of the South African Police Service (SAPS), for their alleged involvement in the unlawful possession of illegal cellphone grabbers.

Says Andrew Whitfield, DA shadow minister of police, in a statement: “In an alarming revelation, police minister Bheki Cele has acknowledged, in response to a DA parliamentary question, that the South African Police Service purchased spy equipment known as ‘grabbers’ without obtaining the necessary exemption certificate under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) from the minister of justice.”

He adds that minister of justice Ronald Lamola separately confirmed to the DA that the use of this equipment without a valid exemption certificate is unlawful and constitutes a criminal offense.

A grabber is a device capable of intercepting calls and SMS messages, and cloning cellphones, effectively transforming a phone into a tracking and surveillance tool.

“This intrusion on citizens’ right to privacy raises serious concerns about the ANC government’s potential to monitor and spy on political opponents, media and critics of the party, risking the erosion of a democratic state into a fear-inducing dictatorship.”

Facing the consequences

ITWeb reached out to SAPS for comment on the allegations but had not received a response by the time of publishing.

In May, SAPS was given the go-ahead to intercept cellular communications for mass-surveillance purposes.

This, after Lamola gazetted a five-year “certificate of exemption”, under RICA. The exemption grants the police the right to own what may otherwise be illegal devices intended for surveillance, such as keystroke recorders that attach to computers, as well as laser microphones and tiny video cameras.

Responding to the opposition party’s parliamentary questions, SAPS says: “It is important to note that in order to fulfil its mandate, the South African Police Service was in possession of the listed equipment, before the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), 2002 came into effect.”

It notes it had made five applications to the justice department to be allowed to use the spying equipment since 2010.

“Regrettably, none of the earlier applications received the attention they deserved, although the minister of justice and correctional services indicated that sufficient circumstances exist, which justify an exemption, and that it is in the public interest to grant the exemption.

SAPS points out the minister of justice and correctional services could not approve any application without the consent of the relevant Cabinet members – communications, defence, state security and policing.

“During the course of 2022, the consent of the relevant Cabinet members could finally be obtained, with assistance, intervention and facilitation by the minister of police, the national commissioner and the Joint Standing Committee on Intelligence.”

SAPS says this resulted in approval of the exemption by the Justice Portfolio Committee during March 2023, after the Department of Justice and Constitutional Development’s referral of the matter to the speaker of Parliament.

“As stated above, the SAPS was in possession of listed equipment before the RICA came into effect and there was equipment procured after the promulgation of the RICA. In instances where there were irregularities during any regulatory or departmental process, consequence management was implemented.

“It is important to mention that consequence management is not only limited to disciplinary processes, but is inclusive of any other remedial action that led to the department obtaining the exemption certificate.”

Widespread privacy breach

Whitfield charges that despite numerous unsuccessful attempts to obtain an exemption certificate, Cele proceeded with the illegal acquisition of the grabbers, along with Masemola.

“This reckless action not only defies the rule of law but also represents a direct violation of their duties and responsibilities as leaders in the country,” says Whitfield.

“According to the RICA, and as admitted by minister Cele himself, Section 45(1) unequivocally prohibits the manufacture, assembly, possession, sale, purchase, or advertisement of such listed equipment.”

He notes that as SAPS possesses these grabbers, which fall under the category of listed equipment, Cele and Masemola, being in positions of leadership and knowledge, knowingly allowed a criminal offense to occur, compromising the privacy rights of every South African.

“This blatant disregard for the rule of law and abuse of power as outlined in the Constitution warrant serious consequences. Minister Cele and national police commissioner Masemola must face criminal investigations, potentially leading to up to 10 years of imprisonment, in accordance with RICA.”

According to Whitfield, the charges will be filed at Cape Town Central Police Station.