Long-awaited amendments to RICA published to address unconstitutional aspects

On 25 August 2023, the Minister of Justice and Correctional Services published the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill 2023 (the "Bill"). The Bill aims to amend the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 ("RICA"), in light of an order made by the Constitutional Court in the case of Amabhungane Centre for Investigative Journalism and Others v Minister of Justice and Correctional Services and Others. The Bill aims to offer protection because interception directions are often requested and granted without the subject being aware of the application.

In the Amabhungane case, the Constitutional Court held that certain aspects of RICA were unconstitutional because it does not:

  • Provide safeguards to ensure that a designated judge, who hears applications and issues interception directions, remains independent;
  • Provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist, as there is a need for them to protect their client and source confidentiality;
  • Requires that individuals be promptly informed, without compromising the surveillance's objectives, once the surveillance has concluded, that they were subject to monitoring at a specific time and
  • Adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed and processed lawfully.

As a result of the verdict, the Constitutional Court found that RICA needed to be amended, and Parliament was given three years from 4 February 2021 to remediate the identified issues causing the invalidity of the statute.

The Bill introduces sections 15A, 15B, and 15C, which prescribe the processes for appointing designated and review judges in terms of RICA and the duties and responsibilities of the judges conferred in terms of RICA. A designated judge or a review judge must be any judge of the high court who has retired or has been discharged from active service as a judge. The judge must be appointed following consultation with the Chief Justice, and the appointment must be promulgated in the Government Gazette. In terms of the new section 15D, the tenure of the designated or review judge is for a non-renewable period not exceeding seven years.

When issuing an interception direction or entry warrant, the designated judge must immediately share a copy of the decision with the review judge. The review judge must consider and either confirm, vary or set aside any decision made by the designated judge. For written applications, the review judge must consider the decision and provide a response within five days of receipt of the copy of the decision made by the designated judge, and any other information that the designated judge considered in issuing the direction. Given the urgency behind oral applications for a direction, the review judge must provide a response immediately or as soon as practicable after receiving a decision by the designated judge.

When the application for an interception direction or entry warrant concerns a subject who is a journalist or a practising lawyer, the applicant must disclose this information in the application for the designated judge to note. If the designated judge issues the direction or entry warrant, the judge can impose specific conditions regarding the surveillance to protect the confidentiality of a journalist's sources or to uphold a practising lawyer's confidentiality duties to their clients.

Within 90 days of the expiry of an interception direction or extension thereof, the applicant of the interception direction must inform the subject in writing that they were being surveilled. The applicant must also inform the designated judge, a high court judge, or a magistrate that the person has been notified of this within 15 days. However, if the notification to the subject will jeopardise the purpose of the surveillance or has the potential to impact negatively on national security, then an application can be made to a judge or magistrate to direct that the notification to the subject be withheld for a period that the judge finds necessary. This order cannot exceed a period of 90 days at a time or two years in aggregate.

Any data obtained from the interception of communications under RICA must be in the prescribed manner and conditions. The procedures to be followed for the handling and processing of data must consider the principles and conditions for the lawful processing of information, such as those prescribed in the Protection of Personal Information Act, 2013.

When the Bill comes into force, the term of any designated judge appointed before the commencement of the Bill will remain in force for five years from the date of commencement of the Bill. Any order, interception direction, or entry warrant issued or made prior to the commencement of the Bill will remain in force from the date of commencement of that Bill until the date on which it was intended to expire.

The Bill has only been introduced to Parliament and is still under consideration in the National Assembly. The deadline for the amendment of RICA that the Constitutional Court imposed is six months away. It is hoped that the proposed amendments will result in upholding data subject's right to privacy while balancing the need to investigate and combat serious crime, guarantee national security, and maintain public order.

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