Sun, 31 May 2020

The State Security Agency (SSA) on Monday said - while it respected the ruling by the High Court in Johannesburg on the Communications and Provision of Communication-Related Information (RICA) Act - it was regrouping with its legal team to figure out a way forward, EWN reported.

Investigative journalism centre amaBhungane walked out of court victorious on Monday after successfully challenging parts of RICA.

The court declared mass surveillance and the interception of foreign signals by the National Communications Centre "unlawful and invalid", News24 reported.

The legal battle against RICA started in April 2017 after amaBhungane received confirmation that its managing partner, Sam Sole, had been under surveillance under RICA.

At the time, Sole was investigating a National Prosecuting Authority (NPA) decision to drop corruption charges against former president Jacob Zuma.

The SSA's Mahlodi Muofhe reportedly said the judgment did not close the door completely on government's work on the act.

'No rights are absolute'

Even in terms of the Constitution, no rights are absolute; rights are also restricted, Muofhe told EWN.

The investigative journalism unit's first challenge targeted the constitutionality of several provisions of RICA, which permits the interception of communications of any person by authorised state officials, subject to prescribed conditions.

The second challenge related to "bulk interceptions" of telecommunication traffic by the State on the basis that no lawful authority exists to do so.

Judge Roland Sutherland said part of the dynamic of investigative journalism was for investigative journalists to obtain information from whistleblowers and others who inform on their bosses without wanting to be identified.

Therefore, a need to keep sources private and secretive is "axiomatic to the exercise".

The editor of Stuff Magazine, Toby Shapshak, told EWN government needed to think through various scenarios in this act and make sure there were no other unconstitutional elements.

READ | Victory for amaBhungane as court declares mass interception by State 'unlawful and invalid'

"It's kind of heavy thinking in policy and legislation that we've been very disappointed by, by the ANC and their committees," he reportedly said.

Among the five orders granted, was an order that sections 16(7), 17(6),18(3)(a), 19(6), 20(6) and 22(7) of RICA were inconsistent with the Constitution and invalid to the extent it failed to prescribe procedures for notifying the subject of the interception.

"RICA, including sections 16 (7) thereof, is inconsistent with the Constitution and accordingly invalid to the extent that it fails to adequately provide for a system with appropriate safeguards to deal with the fact that the orders in question are granted ex parte (without notice) and the declaration of invalidity is suspended for two years to allow Parliament to cure defect," Sutherland said.

He suspended the declaration of invalidity for two years to give Parliament time to amend the act.

Speaking outside the court, Sole said he was happy with the judgment because amaBhungane had approached the courts so that journalists, specifically investigative journalists, would be able to give people a form of guarantee or assurance that their identities will not be disclosed.

"That's key to us being able to get people to talk to us. And if there is a general perception that the State can just call up Sam's phone records and see exactly who he is talking to without any problem, [it] has a chilling effect on our ability to get information," Sole said.

There was no costs order.

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