RICA declared inconsistent with Constitution

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Some sections of the Regulation of Interception of Communications and Provision of Communication-Related Information (RICA) Act have been declared unconstitutional by the South Gauteng High Court.

This after in April 2017, news outlet amaBhungane filed an application in the High Court, challenging the constitutionality of the Act after its journalist Sam Sole’s communications were intercepted while he was reporting on the corruption investigation against former president Jacob Zuma.

amaBhungane had argued that RICA lacks necessary safeguards to protect the public’s right to privacy, saying the current regulations lack protection for journalists and their sources.

The news outlet added that if a subject has been placed under surveillance, they should be notified once the surveillance has been concluded, thereby safeguarding the principle of open justice.

Advocacy group Right2Know tweeted this morning: “RICA has been declared unlawful by Judge Roland Sutherland at the South Gauteng High Court.

“We congratulate @amaBhungane and the legal team and we are happy that this will bring an end to surveillance abuses.”

According to the judgement, bulk surveillance activities are unlawful and invalid.

Judge Sutherland declared that that: “Sections 16(5), 17(4), 19(4), 21 (4) (a), and 22(4) (b) of RICA are inconsistent with the Constitution and are accordingly invalid to the extent that they fail to address expressly the circumstances where a subject of surveillance is either a practising lawyer or a journalist.”

The declaration of invalidity is suspended for two years to allow Parliament to cure the defects, the judgement adds.

It notes that RICA, especially sections 35 and 37, are inconsistent with the Constitution and accordingly invalid to the extent that the statute, itself, fails to prescribe proper procedures to be followed by state officials in their application of the law.

RICA is a South African law that regulates the interception of communications and associated processes such as applications for and authorisation of interception of communications.

The law came into effect on 22 January 2003, when it was published in the Government Gazette of South Africa.

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