A Daily Maverick webinar hosted by Heidi Swart, senior investigative journalist, and research and journalism coordinator for Intelwatch, dived deeper into the conversation of why legal reforms to South Africa’s espionage laws are urgent and examined the effectiveness of the 20 year-old bill. It also explored whether or not the reform would be a step forward or yet another constitutional deficiency. 

The Regulation of Interception Communication and Provision of Communication-related Information Amendment bill was introduced by The Department of Justice more than two years ago, after the Constitution Court detected and declared significant parts of the surveillance law to be unconstitutional in a case by amaBhungane Centre For Investigative Journalism in 2021. 

Parliament had extended input from the public on its new bill to amend RICA from August until 6 October 2023.

  B28-2023_RICA by janet on Scribd

A copy of the bill

RICA is a South African law that regulates the interception of communications. It was formed in 2002 and later published by the Government Gazette of South Africa in early 2003. The law has in the past been used unlawfully to spy and invade people’s data without their knowledge. This has depressed the country’s intelligence services since apartheid. 

RICA is currently being renewed for next year’s publication, but there are concerns about the government possibly accessing and monitoring the data of every South African in the name of “national security”.

Read more in Daily Maverick: Rica and Gilab – the two surveillance bills before Parliament that should give every freedom-loving South African pause for thought

Panellists Caroline James of the amaBhungane Centre for Investigative Journalism and Advocacy coordinator, and Acting Executive Director for Intelwatch, Murray Hunter, shared their insights.

James provided background information that motivated the reform of the 2002 RICA Amendment Act, stating that Amabhungane’s managing partner Sam Sole had been the subject of state surveillance, which drove the centre to challenge the Act’s constitutionality. Sole’s privacy had been unlawfully invaded and thus infringed section 14 of the Constitution.

Said James: “This all began in 2008 when Amabhungane’s managing partner, Sam Sole, began to believe that his communications were being intercepted, and he contacted the Inspector General of Intelligence to try and find out whether there has been a surveillance order issued against him, and the only answer he got was that there was ‘no wrongdoing’, which of course did not give Sam any real information as to whether he had been under surveillance.” 

And there were “already concerns that the law that was governing surveillance, which was RICA, was faulty and had some significant weak points in it” so “even if any surveillance had been undertaken in accordance with that law, there might still have been significant problems with that”.

Bugged

James explained that it was only in 2015 that Sole finally found out that he had been under surveillance and been “bugged”. “He only found out coincidentally because a transcript of a conversation he had had in 2008 with Advocate Billy Downer about the NPA’s investigation into the Arms deal, and former president Jacob Zuma’s role in that… that transcript was attached to court documents in a completely different case, it did not involve Sam,” said James.

Read more in Daily Maverick: amaBhungane’s Rica victory: Big Brother can no longer watch us with impunity

The new RICA Amendment Bill was introduced to Parliament’s National Assembly in August 2023.

The bill was manifested when Amabhungane successfully challenged the legitimacy of RICA, after the law failed to protect persons who were subject to surveillance by the government. The Constitutional Court highlighted that the right to privacy is tied to the right to dignity, and ruled that RICA was unconstitutional as it was inadequate in protecting “the right to privacy, as buttressed by the rights of freedom of expression and the media, access to courts and a fair trial”.

The new bill took three years to be introduced to Parliament. 

Bill is faulty

Murray said that the bill is still faulty in replicating and meeting court orders, which states that “people who have been targeted for surveillance need to be notified after the fact”. 

“The court said that the judge that oversees the surveillance requests needs more independence, and so the bill kindof said, okay, instead of just the minister appointing this person, it will be the minister with the chief justice, fairly uncontroversial. 

“The court said RICA needs to include standards and procedures for how data needs to be handled once it has been intercepted by the intelligence agencies. Essentially if I put out surveillance and I collect a great deal of data of you and your contacts… some of that might not be relevant to the investigation, I’ll need a process to either score that or delete it.”

“One of our concerns is that you have a judge who sits essentially to oversee these decisions. It is a single judge often, and for the quality of oversight, we need a bunch of judges doing these things; we do not need this person working through the night to try and scramble things. We need a resourced panel of judges to oversee these decisions,” said Hunter.

New legislation that impacts RICA

Swart shared with webinar attendees a new piece of legislation presented to Parliament that impacts the RICA amendment bill called the General Intelligence Laws Amendment Bill.

“The State Security Agency has a mass surveillance capability that is housed in the National Communications Centre, which was struck down as unlawful in the Constitutional Court order. However the RICA Amendment Bill in its current state does absolutely nothing to address mass interception or The National Communication Centre. 

“What makes things worse is that this new General Intelligence Laws Amendment Bill actually does make provision for the National Communication Centre, but it has none of the safeguards that are in RICA currently, nor any of the new safeguards that have been brought about by the RICA Amendment Bill.”

James believes more pressure should be put on Parliament. “I think that we need to be putting a little bit more pressure on Parliament to act truly as our representatives. They are there, they are voted by us, they are put in that position by us.”

He suggests that Parliament, as a key democratic institution, needs to step up and question why it took three years to finally receive the new RICA bill, when the law has proven time and time again to be faulty. 

“They have known about this case since at least 2015, and they have been murmuring and making comments about the problems with RICA before then. So it is a disappointment that the bill has come so late … 

“I think we can expect more from our parliamentarians and the representatives who we have placed in positions of incredible power to act on our behalf.” DM