Earlier on 16 September 2019, the South Gauteng High Court ruled that some key parts of South Africa's Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (RICA) are illegal. The judgement is the result of a court battle that has been going on for several years between amaBhungane's Sam Sole who discovered that his ย communications were intercepted by South Africa's State Security Agency without his knowledge.

Over the years, as a result of the court battle, it was also revealed that South African authorities were indiscriminately conducting mass surveillance on the country's citizens by tapping undersea fibre cables, among many other forms of communications they were spying and collecting data on.

"From the analysis set out above, the conclusion that in several respects RICA is
deficient in meeting the threshold required by section 36 of the Constitution to justify the subtraction of the rights in section 14, 16(1) and 34 and 35(5) of the Constitution. Less restrictive means than those in force are feasible and ought to be enacted. The practice of bulk interception of international communications is unlawful for want of a law authorising it to take place," reads part of the judgement by Judge Roland Sutherland at the South Gauteng High Court.

RICA judgement orders. 

You still have to 'RICA' your SIM card

However, it is important to note that the judgement only covers sections of RICA that have to do with bulk and indiscriminate interception of communications and not the sections that relate to the registration of SIM cards as stated in other sections of RICA.

The registration of SIM cards and other sections of RICA not ruled on by Judge Sutherland remain lawful.

To further understand what this historic judgement means for South Africans in general I caught up quickly with Professor Jane Duncan of the University of Johannesburg. Professor Duncan is an activist who regularly champions media freedom matters and is the former director of the Freedom of Expression Institute in Johannesburg.

Big win for privacy in South Africa

iAfrikan: What did the judge specifically rule on as far as RICA is concerned?

Professor Jane Duncan: He ruled that it was unconstitutional for people not to be informed that their communication had been intercepted after the fact, and required these people to be informed within 90 days of the expiration of a warrant, unless there are compelling grounds not to.

He also ruled that there need to be special procedures for surveillance of journalists and lawyers, the procedures for the processing of personal data that has been intercepted are inadequate, and the mass surveillance activities of the State Security Agency are unlawful.

He also found that the appointment of the Rica judge lacked independence.

Does this also mean South Africans don't have to register their SIM cards anymore?

SIM card registration specifically was not ruled on, so it will remain a requirement of Rica for the time being.

Is the ruling or is it expected that the state will appeal it?

Iโ€™m almost certain that it will be appealed by the state, right the way up to the Constitutional Court. Itโ€™s their good right to do so. I doubt if theyโ€™ll reach a different outcome though.

What are the next steps, if any, to reverse the implementation of RICA?

The Department of Justice has to lead the revision of Rica and Parliament needs to pass an amended law. The judge suspended his findings of unlawfulness and unconstitutionality for a period of 2 years to allow this process to take place, but has set down some interim procedures.

Does the ruling exclude the intelligence agencies from spying as they wish?

No, absolutely not, the interception of peoples communications if there are reasonable grounds to suspect criminality, will continue.

Itโ€™s a massively significant judgement as it increases accountability in terms of state spying using communication networks, and puts South Africa at the forefront of reform efforts on these issues.

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