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

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 139 (GP)

Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Others
2020 (1) SACR 139 (GP)

2020 (1) SACR p139

Citation	2020 (1) SACR 139 (GP)
Case No	25978/2017
Court	Gauteng Division, Pretoria
Judge	Sutherland J
Heard	September 16, 2019
Judgment	September 16, 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.

Flynote : Sleutelwoorde

National security — Telecommunications — Interception of communications — State practice of 'bulk interceptions' of telecommunications traffic — Whether interpretation of National Strategic Intelligence Act 39 of 1994 providing authority — Practice unlawful, given absence of any law authorising such practice — National Strategic Intelligence Act 39 of 1994.

Constitutional law — Legislation — Validity — Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 — Interception of communications — Failure of Act to provide right of notice to subject of interception order — Less restrictive means existing to achieve objectives of Act — Infringement of rights to privacy and access to justice not justifiable — Constitution, ss 14, 34 and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, ss 16(7), 17(6), 18(3)(a), 19(6), 20(6), 21(6) and 22(7).

Constitutional law — Legislation — Validity — Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 — Interception of communications — 'Designated judge' — Failure of Act to prescribe appointment process and terms for designated judge that ensured independence — Less restrictive means existing to achieve objectives of Act — Infringement of rights to privacy not justifiable — Constitution, ss 14 and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, s 1 sv 'designated judge'.

Constitutional law — Legislation — Validity — Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 — Interception of communications — No proper procedures in Act to be followed when state officials examining, copying, sharing, sorting through, using, destroying and/or storing collected data — Less restrictive means existing to achieve objectives of Act — Infringement of rights to privacy not justifiable — Constitution, ss 14 and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, ss 35 and 37.

Constitutional law — Legislation — Validity — Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 — Interception of communications — Journalist — Potential for exposure of confidential sources — Failure to expressly address circumstances where subject of surveillance is journalist — Less restrictive means existing to achieve objectives of Act — Unjustifiable breach of right to freedom of expression and of media — Constitution, ss 16(1) and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, ss 16(5), 17(4), 19(4), 21(4)(a) and 22(4)(b).

2020 (1) SACR p140

Constitutional law — Legislation — Validity — Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 — Interception of communications — Lawyer — Potential revealing of legally privileged communications — Failure to expressly address circumstances where subject of surveillance is lawyer — Less restrictive means existing to achieve objectives of Act — Unjustifiable breach of right to privacy, freedom and fair-trial rights — Constitution, ss 14, 35(5) and 36(1)(e); Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002, ss 16(5), 17(4), 19(4), 21(4)(a) and 22(4)(b).

Headnote : Kopnota

The present matter concerned the constitutionality and lawfulness of aspects of South Africa's communications surveillance regime. The chief focus was the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA). That Act allowed for state officials to intercept communications on exceptional grounds, ie serious crimes and threats to national security, and only once (subject to certain exceptions) having successfully applied for the permission from an independent authority — the so-called designated judge appointed by the Minister of Justice (see [27] – [35]). Also in issue in this matter was the admitted state practice of 'bulk interceptions' of telecommunications traffic.

In these application proceedings heard before the High Court (Pretoria), the Amabhungane Centre for Investigative Journalism — a non-profit company committed to the development of investigative journalism — challenged the constitutionality of RICA, on four grounds: (a) its failure to provide for a right of notice, to a person who had been surveilled, of such surveillance; (b) its failure to provide adequate safeguards in respect of the selection of a designated judge to authorise surveillance operations, and in respect of the procedures employed to facilitate their role; (c) its failure to provide adequate safeguards concerning the custody and management of information gathered by surveillance; and (d) its failure to provide adequate safeguards to effectively (1) preserve legal privilege in respect of lawyers and their clients, and (2) preserve the confidentiality of the sources of investigative journalists. The applicants challenged the lawfulness of 'bulk interceptions' on the ground that there was no law authorising such practice. The state, as represented by various parties connected with state security — inter alia, the Minister of Justice, the Minister of State Security and the Minister of Police — opposed the application.

It was common cause that RICA violated the right to privacy protected in s 14 of the Constitution (see [36]). The focus, then, was whether the infringement of the Constitution was justifiable in terms of s 36 of the Constitution, in particular, having regard to whether, in terms of s 36(1)(e), less restrictive means existed to achieve the purposes of RICA. (See [36] – [37].) In these respects the court proceeded from the premise that there might be circumstances in which the interception of telecommunications was justifiable (see [41]).

(a) Lack of notice — RICA, in terms of s 16(7)(a), expressly forbade any disclosure to the subject of the interception. In doing so, the court held, RICA violated the right to access to courts secured in s 34 of the Constitution, as the subject who might have wrongly had their privacy violated was denied the chance to seek redress (see [43]). The court noted that the approach adopted here was out of sync with other democratic countries, which had embraced the right to a post-surveillance notice, subject to the power of the relevant judicial officer to delay the granting thereof, should good cause be

2020 (1) SACR p141

shown. (See [47] – [51].) Such a mechanism served to ameliorate the intrusion into the privacy of persons, because it afforded redress by a court if abuse occurred (see [48]). This mechanism, the court held, as contemplated by s 36(1)(e) of the Constitution, amounted to a less restrictive means to achieve the purpose of RICA, and the state had not justified its rejection (see [51] – [52]). The court declared RICA, including ss 16(7), 17(6), 18(3)(a), 19(6), 20(6), 21(6) and 22(7), unconstitutional to the extent that it failed to prescribe a procedure for notifying the subject of the interception. In addition, it declared that RICA should be deemed to read to include, inter alia, an obligation on the applicant who had obtained an interception notice to subsequently notify the subject of the interception. (See [53] – [54], and see [169] for full orders.)

(b) Designated judge and process of evaluation — The court held that the independence of the designated judge was compromised where their appointment — to perform, in secret, such an inherently contentious function, for which they received remuneration — was at the sole discretion of the Minister of Justice, and where their term of office was renewable (see [62] – [63]). It declared RICA (including the definition of 'designated judge' in s 1) unconstitutional in its failure to prescribe an appointment process and terms for the designated judge that ensured such judge's independence. The court left the question of the final choice — a question of policy — as to a more appropriate appointment process, in the hands of Parliament, but, as an interim measure, granted a declarator to the effect that the Chief Justice nominate the appointees for the role of 'designated judge' (to be appointed by the Minister for a non-renewable term). (See [70] – [71] and full order in [169].)

The court further held that the fact that the designated judge evaluated, alone, the applications for interception on a purely ex parte basis — and without any input from a third party — implicated the interception subject's rights to a fair hearing (see [72]). Less restrictive measures as envisaged in s 36(1)(e) of the Constitution existed to achieve the objectives of RICA (see [73]), which included the creation of the role of a public advocate to assist in the evaluation process (see [72]), or to have a panel of judges evaluate the interception application (see [80]). The court declared RICA unconstitutional...