In the recent Pretoria High Court case of AMABHUNGANE CENTRE FOR INVESTIGATIVE JOURNALISM NPC Judge Sutherland had to consider two discrete questions:-
- The first is a challenge to the constitutionality of several provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act 70 of 2002 (RICA) which statute permits the interception of communications of any person by authorised state officials subject to prescribed conditions.
- The second question is a challenge to the admitted practice of the State in conducting ‘bulk interceptions’ of telecommunications traffic on the basis that no lawful authority exists to do so. The. National Strategic Intelligence Act 30 of 1994 (NSI) and the Intelligence Services Control Act 40 of 1994 (ISO) are implicated in the analysis of this issue.
- Did not provide a notification procedure for subjects of interception;
- Did not ensure sufficient judicial independence for authorising authorities;
- Failed to provide appropriate safeguards when an order was granted without notice to individuals under surveillance;
- Lacked appropriate procedures to be followed when state officials examine, copy, share, sort through, use, destroy and/store data obtained from interceptions;
- Failed to prescribe special procedures for cases when the subject of surveillance was either a practicing lawyer or a journalist.