Home South African Concourt finds sections of RICA act unconstitutional

Concourt finds sections of RICA act unconstitutional

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The Constitutional Court ruled that RICA failed to provide appropriate safeguards and adequately prescribe procedures in many respects when it came to undertaking surveillance.

A file image showing Right2Know and Privacy International members who joined amaBhungane Centre of Investigating Journalism as friends of the court to declare some sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) unconstitutional and invalid. Picture: Jonisayi Maromo/ANA

DURBAN – The Constitutional Court has declared certain provisions of the Regulation of Interception of Communications Act (RICA) unconstitutional.

The Court held on Thursday that RICA failed to provide appropriate safeguards and adequately prescribe procedures in many respects when it came to undertaking surveillance.

The case was brought to the apex court by the amaBhugane Centre for Investigative Journalism for confirmation of a 2017 High Court decision that some parts of the act was unlawful.

In a majority judgment written by Justice Mbuyiseli Madlanga, the Constitutional Court dismissed appeals lodged by the minister of state security and the minister of police and ordered them to pay costs.

The judgment found that various provisions of RICA were inadequate and thus unconstitutional in so far as they failed to provide for safeguards ensuring that, a Judge designated in terms of section 1 of the Act is sufficiently independent or provide for notifying the subject of surveillance without jeopardising the purpose of surveillance after such surveillance has been terminated.

According to the judgment, RICA also failed to adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data and provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

The Constitutional Court ordered that such an order for the declaration of unconstitutionality is to take effect immediately, and is suspended for a period of 36 months in order to afford Parliament an opportunity to cure the defects causing the invalidity. During this period of suspension, however, the Constitutional Court has read in certain provisions giving effect to the gaps contained in RICA as it currently stands.

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