Last month the Select Committee on Security and Justice in the National Council of Provinces voted in favour of the Rica (Regulation of Interception of Communications and Provision of Communication Related Information Act) Amendment Bill.

This decision was taken notwithstanding numerous submissions from across a wide spectrum of interested parties, pointing to the bill’s shortcomings and the submission of proposed amendments which would ensure that the Rica Act fulfils its intended purpose, rather than rashly addressing one narrow element arising from a court order.

The need to amend the Rica Act was sparked by a judgment of the Constitutional Court in a matter brought by amaBhungane. In its judgment, the nation’s apex court confirmed a High Court finding that the Rica Act failed to provide adequate safeguards to ensure the protection of the right to privacy. As a consequence of this finding, the legislature was given three years to rectify this shortcoming, which expires in February 2024.

Instead of using this three-year period to deliberately address the obvious and numerous shortcomings in Rica, Parliament waited until the last minute to act, and in this need for haste, there was little or no appetite on the part of the governing party to implement broader changes to the legislative framework.

These changes would have closed the gaping loopholes that undermine its effectiveness, would have assisted law enforcement and safeguarded the public from a plethora of risks including fraudulent SIM swaps, identity theft, and the sale of inadequately secured SIM cards.

Threat to consumers

Parliament instead confined its amendments to a very narrow issue, refusing to address the wider security and secure packaging issues that have played a material role in driving up crime and corruption in South Africa. This is especially concerning given that SIM cards are a pivotal part of the planning and execution of most crimes, including financial crimes and fraud.

The lack of agreed and codified standards for secure and tamper-resistant SIM card packaging in Rica also poses a substantial risk to consumers that their SIM cards can be cloned and used to defraud them or perpetrate crimes.

Similarly, the failure to mandate tamper-proof SIM cards means that SIMs can be used in criminal activity and then easily be repackaged or re-sold in an unpackaged format and sold to unsuspecting consumers.

The risk then, is not only that law enforcement cannot trace SIM cards to criminals, but also that SIM cards will implicate innocent, law-abiding citizens in crimes with which they are not associated, and compromise consumers’ identities to perpetrate fraud or engage in illegal activity.

Rica impact on economy

The security implications of Rica alone warrant further attention, but these are further exacerbated by the economic impact. South Africa was greylisted by the Financial Action Task Force in February 2023. The effect of this decision was to make it more complex to conduct business in South Africa at a time when energy, logistics and service delivery challenges have already severely undermined the attractiveness of the country as a place to do business.

Today, mobile phones are widely used to affect financial transactions. As such, no regulatory system can effectively combat money laundering, terrorism financing, SIM swap fraud, identity theft, phishing, and other such financial crimes without effective regulation over mobile phone transactions.

To this end, the alignment of Rica with other related legislation aimed at securing the financial system would go a long way towards helping South Africa reverse its greylisting, boosting business and investor confidence in the country.

What is particularly unfortunate about the failure to address these deficiencies is how simple and relatively inexpensive the fix would be, at least legislatively. By making minor amendments to section 40 of the act, the legislature could add minimum standards for SIM card packaging that would mandate and enable the crafting of regulations to help curb the use of SIM cards in criminality.

Simple requirements such as tamper-proof packaging that obscures essential security information such as ICCID and MSISDN numbers would help to render consumers less vulnerable, as well as bring us in line with international best practices.

While the Rica Amendment Bill represents a lost opportunity to help ensure a safer and more prosperous South Africa, it is a relatively quick legislative fix that should remain a priority for Parliament as we move forward.

There exists an opportunity to address what may arguably be the most urgent concerns related to surveillance control, oversight and enforcement of Rica. There is optimism that these shortcomings will be effectively addressed in the anticipated comprehensive review of Rica.

This forthcoming review presents a significant opportunity to rectify and enhance the existing framework, ensuring that it aligns more closely with the evolving landscape of transnational organised crime and, most importantly, the need to safeguard individual privacy rights and address the security shortcomings of the distribution of SIM cards.

So many of South Africa’s challenges cannot be easily fixed. However, were Parliament to enact more comprehensive Rica amendments, it would — at the stroke of the pen — help contribute to a more prosperous and secure South Africa.

It is hard to imagine a better motivation for every member of Parliament to champion the further revision of Rica. DM