This article is authored by Akash Krishnan, a student from ICFAI Law School, Hyderabad. It discusses in detail the judgement of the South African Supreme Court wherein a surveillance regime managed by the State was declared unconstitutional.

Introduction

Imagine having a conversation with your friend wherein you speak freely about your emotions. Imagine the level of trust and comfort you have with that person while sharing your emotions. Now imagine a world wherein every word you speak could be heard and recorded by a third party. Imagine a regime where people are constantly under surveillance and they have no notice regarding the same. This imaginary scenario had become a reality in South Africa.

The Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (RICA) allowed the State to intercept and record the communications of any citizen after obtaining permission from a State-appointed judge. A clear-cut case of bias can be seen at the very inception of these surveillance orders wherein the concept of separation of powers is being completely ignored. Under this Act, the Government of South Africa was running a surveillance regime where data privacy was nothing but a myth. In this article, we will discuss the case where these actions of the State were criticised and RICA was held to be unconstitutional on the ground of breach of privacy. Let us now discuss the case in detail.

Amabhungane Centre for Investigative Journalism NPC v. Minister of Justice and Correctional Services & Ors (2021)

Provisions involved

Constitution of South Africa

Right to Privacy

Section 14 of the Constitution states that every citizen of South Africa has the Right to Privacy. This Right includes the following:

1. Right against the unlawful search of their person, house or property being searched.
2. Right against seizure of their belongings or property.
3. Right against infringement of the privacy of their communications.

Freedom of Expression

Section 16 of the Constitution states that every citizen of South Africa has the Right to Freedom of Expression and this Right includes the Freedom of the Press and Other Media.

Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (RICA)

Designated judge

Under Section 1 of RICA, a ‘designated judge’ is defined as a judge of the High Court who has been discharged from active service or a retired judge who is appointed by the Minister of Justice to perform the functions under RICA.

Direction for surveillance

Under Section 16 of RICA, a direction for surveillance can be issued by the designated judge on the following grounds:

1. A serious offence has been or is being or will probably be committed.
2. The information is necessary to protect public health, safety, national security and national economic interests.
3. The information is necessary to combat any actual or potential threat.
4. The information is necessary to comply with an international mutual assistance agreement.

Combined order for interception

Under Section 18 of RICA, the designated judge is empowered to issue a combined order for the interception of real-time communications, archived communications by the communication service providers or both.

Decryption direction

Under Section 21 of RICA, the designated judge is empowered to issue directions for decrypting any encrypted data that has been acquired through surveillance. Before issuing such a direction, the designated judge has to consider the extent and nature of the encrypted information, the reason for decryption and if there are any adverse effects to the decryption.

Brief facts

1. In the Hon’ble High Court, the Managing Partner of the Amabhungane Centre For Investigative Journalism, Mr. Sole, contented that he suspected that his communications were being monitored and intercepted in the year 2008 and that in the furtherance of the same, he had approached the Inspector General of Intelligence to confirm these activities and to seek his acknowledgement in this regard.
2. However, the Inspector General of Intelligence did not provide him with any disclosures and he rather Stated that the National Intelligence Agency (NIA) and the criminal intelligence division of the police did not commit any such activities and therefore were not guilty of the allegations levelled against them by Mr. Sole. In a letter issued by the Inspector General of Intelligence in this regard, he stated that even if any surveillance activities were carried out, due to the provisions under the RICA, no disclosures could be made regarding the same. To conclude, Mr. Sole did not receive any information about the alleged surveillance of his communications in the year 2008.
3. In a court proceeding in 2015, Mr. Sole’s conversations with Mr. Downer were produced as evidence. However, Mr. Sole was not a party to the suit and neither had consented to the recording of the conversation. In light of the same, he contended that he was indeed under surveillance in the year 2008 and in furtherance of the same he had reached out to the State Security Agency to obtain the relevant disclosures.
4. The State Security Agency provided him with the details of the directions issued on the basis of which he was subjected to surveillance and also provided him with his conversations with Mr. Downer that were used in the Court as evidence. However, the State Security Agency failed to provide him with any appropriate details as to the reason for which he was subject to surveillance.  
5. In light of these facts, Mr. Sole had knocked the doors of the High Court to challenge the unconstitutionality of RICA on the ground that it is in contravention to the Right to Privacy of the individuals and that the provisions of State surveillance under RICA had indeed limited the Right to Privacy guaranteed by the Constitution.

Grounds on which the unconstitutionality of RICA was challenged

Notification issue

The Applicants challenged that when the State undertakes surveillance of any person under the provisions of RICA, there is no duty imposed on the State to notify the person under surveillance. Even after the surveillance was completed, the State did not notify the individual. Therefore, the individuals were always kept in the dark about any kind of surveillance activities that they were subject to.

Independence and ex parte issue

The Applicants argued that for commending surveillance activities, the State did not have to seek permission from an independent judge or magistrate because the Magistrate from whom such permission was sought was appointed under RICA arbitrarily without any proper procedure. There was a complete lack of adversarial process and the State could act of its own volition and therefore abuse the powers under RICA. Further, individuals were not protected in any proceedings or order that would be initiated/passed against them ex parte based on the surveillance recordings. Also, if an individual’s conversations were being made part of a suit or proceeding to which the individual was not a party, the prior consent of the individual was not being obtained for the same.

Safeguards issue

The Applicants contended that the provisions under RICA fail to provide adequate safeguards regarding data archiving and accessibility of communications. This contention was based on two specific grounds:

1. The communication service providers were directed to mandatorily store all communications that were made using their services for a period of 5 years from the date of communication and store these communications in a dedicated data archive.
2. There was no clarity as to how the State has access to this data archive and what is the procedure to be followed by the State for the examination, copying, sharing and storing of this information in the government archives.

Surveillance issue

The Applicants argued that the communications between lawyers and their clients, journalists and their sources contain crucial information and are covered under the ambit of non-disclosure. There could be several consequences if the data regarding ongoing legal proceedings or names of whistleblowers and other sources of the journalists is leaked or misused. It was further contended that the National Communication Centre (NCC) was conducting extensive surveillance activities. However, no power was vested in the NCC under any of the provisions of RICA to conduct such surveillance activities.

Order of the High Court of South Africa, Gauteng Division, Pretoria

1. Regarding the notification issue, the High Court observed that not notifying the individuals as to them being subject to surveillance is a breach of their Right to Privacy. In light of the same, the Court directed the State to create a post-surveillance notification regime wherein the individuals will be informed of the surveillance activities including the duration and reason for which the surveillance was undertaken after it had concluded.
2. Regarding the independence and ex parte issue, the High Court noted that the process for the appointment of judges under RICA was not clear. Arbitrary power was given to the Minister of Justice for the selection of the judge for an indefinite term and thus, the independence of the appointed judge could not be ascertained as there was a probability of bias on his part towards the State. In light of the same, it declared these provisions unconstitutional. The Court took a similar stance w.r.t the ex parte issue and observed that individuals under surveillance were not protected against ex parte orders and on the ground that every person should have a reasonable opportunity to defend themselves, the Court declared the provision regarding ex parte orders unconstitutional.  
3. Regarding the safeguards issue, the High Court noted that the provision regarding retention of communications by the communication service providers are constitutional and the Court shall not interfere with the intent of the legislature behind enacting the provision. However, the provisions regarding the State accessing the information were held unconstitutional because there was no proper procedure established for the transfer and storing of the information by the State.   
4. Regarding the surveillance issue, the High Court acknowledged the importance of attorney-client privilege. In light of the same, the Court held that even though the communications of the attorneys are not protected, these communications could involve matters regarding the clients and the information of the client should not be disclosed at any cost. Coming to journalists, the Court noted that it is imperative that the Freedom of Speech and Expression should be protected. Thus, it is important that the identity of the secret informers of journalists is not revealed. Section 16 of the Constitution allowed the Courts to expand the scope of the rights guaranteed under the Constitution and in furtherance of the same, the Court held that protecting the secret informers of the journalists is part of the journalists Right to Freely express their Opinion. Thus, in both instances, i.e., for lawyers and journalists, the High Court held that the provisions of RICA to this extent are unconstitutional. However, the Court noted that in extreme circumstances, journalists could be subject to surveillance.
5. Regarding the surveillance activities being undertaken by the National Communication Centre, the High Court held that these activities were not warranted by RICA and therefore are unconstitutional in nature.
6. In light of all the aforesaid observations, the High Court held RICA unconstitutional to the extent of the inconsistencies mentioned above.

Appeal/application before the Supreme Court

1. The Applicant, i.e., Mr. Sole had approached the Supreme Court to seek confirmations of the order passed by the High Court.
2. The First Appellant, i.e., the Minister of Police had filed a partial appeal regarding the order of the High Court pertaining to the surveillance issue. The Minister prayed before the Supreme Court that the direction regarding the post-surveillance notification should be set-aside.
3. The Second Appellant, i.e., the Minister of State Security had filed an appeal seeking invalidation of the entire order passed by the High Court.

Issues before the Supreme Court

1. Whether RICA fails to protect the Right to Privacy of the citizens of South Africa and therefore is unconstitutional?
2. Whether the Constitution empowers the State to conduct bulk surveillance?

Observations of the Supreme Court

1. The Right to Privacy is one of the most intricate parts of human life. Every person has the Right to Privacy. RICA allows interception of all forms of communications, i.e., it does not draw a line of difference between the personal conservations of the individual and the communications that may or may not be a threat to the country.
2. The intimate conversations of a private human being are of no threat to the country and therefore intercepting and recording the same is completely invalid. Also, the individuals who confide in the individuals who are being subject to surveillance, their conversations are also exposed even though they are not under surveillance.
3. The communication devices being intercepted might be used by other individuals of the household as well. Thus, the family of the person under surveillance is also being subject to surveillance. The Right to Privacy of the entire household cannot be breached just because of one individual.
4. In light of the same, RICA is held to be unconstitutional because it breaches the Right to Privacy enshrined under Section 14 of the Constitution.  
5. Coming to the second issue, the Supreme Court held that the provisions of the Constitution do not allow the bulk surveillance of individuals.
6. Regarding the notification issue, the Supreme Court upheld the observations of the High Court and held that post-surveillance notifications should be mandatorily issued.
7. Regarding the independence issue, the Supreme Court held that the Minister of Justice has the power to appoint the designated judges and there was no transparency in the process of appointment. Also, the term of the designated judge was to be decided on the basis of the arbitrary opinion of the Minister. Thus, this provision was declared unconstitutional. Regarding the independence issue, the Supreme Court upheld the views of the High Court.
8. Regarding the safeguards and surveillance issues, the Supreme Court yet again upheld the order of the High Court and declared the provisions to be unconstitutional.
9. Having declared RICA unconstitutional, the Supreme Court directed the Minister of Justice to develop remedial legislation in this regard.

Conclusion

The Right to Privacy has been recognised by the Constitution of South Africa. Both the Supreme Court and the High Court have upheld this Right and have declared RICA unconstitutional. It is pertinent to note herein that the personal rights of an individual were given priority. This was because the privacy of several individuals who were associated with the person under surveillance was also breached. Therefore, the Court found it fit to protect the Right of Privacy and limit the abuse of power on part of the State.

References

1. https://www.concourt.org.za/index.php/judgement/383-amabhungane-centre-for-investigative-journalism-npc-and-another-v-minister-of-justice-and-correctional-services-and-others-minister-of-police-v-amabhungane-centre-for-investigative-journalism-npc-and-others-cct278-19-cct279-19
2. https://www.justice.gov.za/reportfiles/2017-CJPreport-Nov2015.pdf
3. https://www.cambridge.org/core/journals/journal-of-african-law/article/south-african-constitutional-court-upholding-the-rule-of-law-and-the-separation-of-powers/3745843DACB6021AE25296F765B3D462

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