President Cyril Ramaphosa has referred the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (RICA) Bill back to the National Assembly for reconsideration.
This, as the draft law may be vulnerable to constitutional challenges, says a Presidency statement.
The National Assembly last year passed the RICA Bill, a process that would be followed by referring the legislation to the president for concurrence and signed into law.
The RICA Bill issue emanates from the Constitutional Court judgement of Amabhungane Centre for Investigative Journalism versus the minister of justice and correctional services and others when the Constitutional Court confirmed RICA is unconstitutional. It stated it fails to provide adequate safeguards to protect the right to privacy as reinforced by the rights of access to courts, freedom of expression and the media, and legal privilege.
In the statement, the Presidency says Ramaphosa has conveyed his concern in writing to the speaker of the National Assembly, Thoko Didiza, and has brought this referral to the attention of the relevant ministers.
“President Ramaphosa is, however, concerned that a number of constitutional matters in the Bill passed by Parliament require reconsideration so that this important statute achieves its intended purpose, without the risk of being set aside by the courts.”
Having considered the Bill, as well as the 2021 Constitutional Court judgement in the Amabhungane case, the Presidency says Ramaphosa has expressed his reservations about the constitutionality of the Bill for various reasons.
“In the president’s view, the Bill remains unconstitutional insofar as decisions in terms of section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified of the surveillance.
“The president also believes the legislation is deficient insofar as no review is possible of a decision in terms of section 25A(2)(b) to indefinitely suspend post-surveillance notification obligations,” the statement reads.
The Presidency adds that Ramaphosa wishes to see the legislation provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained in the interests of one side or party only.
“President Ramaphosa has requested the National Assembly to consider the Bill afresh, so that its objectives can be realised speedily and without the risk of any constitutional challenge.”
South Africa’s RICA requires the details of all telecommunications users to be registered. It also aims to assist law enforcement agencies to track criminals using telecoms services for illegal activities.
The RICA Bill seeks to amend RICA by, among others, boosting the independence of RICA judges who approve surveillance warrants by changing how they are appointed, putting in place adequate procedures to ensure data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, and creating procedures for the handling and deletion of any data collected through surveillance.
It also seeks to provide for post-surveillance notification. This means if someone’s communications are intercepted as part of an investigation, they should be notified after the fact. This would help to ensure that when someone is spied on unfairly, they can eventually take steps to protect themselves.
Furthermore, the Bill wants to ensure additional safeguards are in place for when the person being targeted is a practising lawyer or journalist, since people in these jobs have a professional duty to communicate confidentially.
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