Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Others

• Jurisdiction: South Africa
• Judge: Sutherland J
• Judgment Date: 16 September 2019
• Docket Number: 25978/2017
• Hearing Date: 16 September 2019
• Counsel: S Budlender SC (with SJ Scott and I Phalane) for the applicants. SK Hassim SC (with MPD Chabedi) for the first, fourth and fifth respondents. V Ngalwana SC (with M Sikhakhane SC, F Karachi and Z Ngwenya) for the second, seventh, eighth and tenth respondents. M Bishop (with P Wainwright) for the amici curiae.
• Court: Gauteng Division, Pretoria

Sutherland J:

Introduction

[1] There are two discrete questions raised in this matter.

[2] The first is a challenge to the constitutionality of several provisions of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA), which statute permits the interception of communications of any person by authorised state officials subject to prescribed conditions.

[3] The second question is a challenge to the admitted practice of the state in conducting 'bulk interceptions' of telecommunications traffic on the basis that no lawful authority exists to do so. The National Strategic Intelligence Act 39 of 1994 (NSI) and the Intelligence Services Oversight Act 40 of 1994 (ISO) are implicated in the analysis of this issue.

[4] The two questions are addressed in turn, although much of the normative controversy that attaches to one or other question permeates the other question too.

[5] The parties to this case, where necessary to identify them individually, are referred to by their names as set out in the heading to this judgment. In support of the applicants' case, two amici curiae participated, Right2Know Campaign and Privacy International, represented by a single counsel. The Minister of Justice, the Minister of Defence and the Minister of Police were together represented by one set of counsel. A group of respondents forming the security cluster, ie the Minister of State Security, the Office for Interception Centres, the National Communications Centre and the Parliamentary Joint Standing Committee on Intelligence, was represented by one set of counsel. The other respondents played no part in the hearing.

Preliminary controversies about the application

[6] There are three preliminary controversies which are addressed thus:

[6.1]

The argument that the application is premature.

[6.2]

The argument that the relief sought violates the separation of powers between the judicial arm and other legislative and executive arms of the state.

[6.3]

The argument that the application raises issues in the abstract and for that reason ought not to be entertained.

Is the application premature?

[7] The respondents' argument is straightforward. The state is at work adapting RICA; leave it to get on with the task.

Sutherland J

[8] First, it must be asked, what is the state actually doing? In the answer given to Parliament by the Deputy Minister of Justice in 2017, vague remarks were made about consideration being given to amendments to RICA, which work would take about two years. That task was apparently not thought to be urgent, as the distraction of the 2019 general election was alluded to as a reason why progress could not be quicker. The hearing took place a month after that event. When prompted by me for an up-to-date account of progress, an affidavit by Robbertze, a senior state law adviser, was produced during the hearing. He is the lead person in the revision of RICA. He states that research of a comparative nature was carried out. Apparently, his team's recommendation is going to be that a new statute should replace RICA, rather than a series of amendments; by implication this must mean a significantly novel approach to the subject-matter in RICA. A first draft, it is said, 'could' be finalised by 31 August 2019, to be followed by extensive public consultation. Save as mentioned, the affidavit is scrupulously bereft of any hint of the substance of such proposed legislation.

[9] It was said that the Deputy Minister's parliamentary answers in 2017 addressed the issues and the terrain of at least some of the criticisms ventilated in the application and, so it is argued, foreshadow consideration being given to the themes covered in the applicant's affidavits. Hence the exhortation to the court not to duplicate the work.

[10] The counter to this line of argument is that the state's efforts in this regard do not matter to the application. No sound reason exists, it is argued, not to prosecute the application, even if the August 2019 deadline could be taken seriously. Indeed, it is argued that the ventilation of the issues raised in the application can do no less than to inform the legislative process and contribute to the open and transparent debate over the value choices inherent in this type of lawmaking.

[11] In this regard the authority in Mazibuko NO v Sisulu and Others NNO 2013 (6) SA 249 (CC) (2013 (11) BCLR 1297; [2013] ZACC 28) para 70 is invoked to argue that the purported imminence of reforming legislation could be no bar to the litigation. In that case the Rules of Parliament were at issue. The Constitutional Court held that the courts have no discretion to withhold a declaration of unconstitutionality if presented with such a proven fact. The riposte to the invocation of this decision was that it is distinguishable on the facts. So it is. However, the point of importance is not similarity of the factual circumstances; rather, the point is that the Constitutional Court held that there can be no merit in delaying a challenge to the inconsistency of a statute with constitutional norms on the ground that a repair job on the statute is work in progress.

[12] Moreover, given the spirited resistance to almost every contention advanced by the applicant in criticising RICA, there can be no expectation that the reforming legislation, which we are told is being contemplated at this time, is in the least benign towards the criticisms advanced and solutions offered to address the criticisms.

Sutherland J

[13] In my view, the argument of prematurity fails. If the provisions of RICA fall foul of the constitutional norms, this court must pronounce on such issues, not prevaricate.

Would granting the relief sought be judicial overreach?

[14] Of the four issues raised about RICA, and the issue concerning bulk interceptions, the applicant seeks various forms of relief, some of it interim; for example, in respect of the designated judge whose function in RICA is to authorise secret interceptions, it is proposed that, in order to demonstrate convincingly the independence of the designated judge, the incumbent be appointed by the Judicial Service Commission, not the Minister of Justice, and that notice to a person who has been subjected to surveillance be given in order to facilitate an effective remedy for alleged abuse of the surveillance process. There are other examples in similar vein.

[15] The gravamen of the criticisms is that the several provisions of RICA oblige, or permit, conduct at odds with the Constitution. Were a court to reach such a conclusion, no trespass into the domain of the executive or the legislature occurs. This outcome is plain because the state cannot perform any exercise of public power that is not authorised by a law, and, in turn, that law must be constitutionally compliant. [1]

[16] The fact that the state is allegedly engaged in revision of the legislation has been addressed above. The subject-matter of the challenge is not a ground for what is called deference to the policy-making preserve of Parliament. True enough, as stated in Case and Another v Minister of Safety and Security and Others; Curtis v Minister of Safety and Security and Others 1996 (3) SA 617 (CC) (1996 (1) SACR 587; 1996 (5) BCLR 609; [1996] ZACC 7) para 73: '(O)ur role is to review, rather than redraft legislation.' Another caution was articulated in Prince v Minister of Justice and Others 2017 (4) SA 299 (WCC) paras 111 – 112 that our country is not a 'juristocracy'.

[17] But in this case no such danger exists. The critique is about the statute and its inadequacies. Either the provisions are compatible with the Constitution or they are not. Interim relief to ameliorate the unconstitutionality of a statute is no trespass onto the legislature's terrain.

Are the challenges 'in the abstract' ripe to be heard?

[18] What restraints should a court impose on itself when it is alleged a law is unconstitutional? The respondents join in protesting the propriety of the application per se. Their premise is that there is no factual basis laid for the attack on RICA; thus the challenge is in the abstract, which is said to be undesirable, and ought to result in the application being dismissed on that ground alone. Two questions arise: first is it true that

Sutherland J

there are no facts; and, second, even if there were not any such facts to ground the critique, is not the very existence of a law that intrudes on rights sufficient, even if the challenge is in the abstract?

[19] Several examples of abuse of RICA are recounted in the founding affidavit. Among them is the undisputed first-hand experience of the deponent, Sam Sole, who, together with Adv Downer, a state prosecutor, was spied upon. No rebuttal or explanation or effort to justify the interception is attempted. No good reason exists not to hear the matter on the facts alleged by Sole alone. Because Sole has no right to demand disclosure, he being forbidden by RICA from being informed, the fact of the spying became public knowledge fortuitously. Sole's efforts to obtain details — plainly fruitless in the light of the prohibition on disclosure — were furthermore met with contemptuous responses and unsubstantiated allegations that no irregularities occurred. In my view, these facts, alone, take the matter out of the abstract.

[20] Secondly, it is common cause that at least one applicant lied blatantly to a designated judge to obtain an interception order in respect of the journalists Hofstatter and Wa Afrika, claiming falsely that their details were those of criminals. The designated judge, doubtless in good faith, was taken in by the lies and authorised a surveillance for a corrupt purpose. [2]

[21] As to the other examples, all widely canvassed in the public domain, no rebuttals are offered that the interceptions were...