Court shuts down 'Super Snooper' law
Investigative journalism centre amaBhungane has successfully demolished sections of SA’s ‘Super Snooper’ law – the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica), notes Legalbrief.
In what is seen as a massive victory for privacy for all South Africans – and in particular removes shackles constraining the work of journalists and lawyers – the Gauteng High Court (Pretoria) has declared a number of sections of Rica unconstitutional.
The court also found that in the absence of a law authorising bulk surveillance and the interception of foreign signals such activity was unlawful and invalid.
Judge Roland Sutherland found that some of the safeguards in Rica against privacy abuses were not good enough.
In certain crucial respects, the law intruded more than was necessary into people’s privacy. In those respects, it was unconstitutional.
A Mail & Guardian report by legal writer Franny Rabkin says Sutherland has given Parliament two years to rectify the law and bring it into line with the Constitution. But he also ordered that, in the meantime, certain changes must be made immediately.
The case was brought after it emerged that amaBhungane journalist Sam Sole had been spied on, notes the M&G report.
‘Sole’s efforts to obtain details ... were furthermore met with contemptuous responses and unsubstantiated allegations that no irregularities occurred,’ the judge said.
Evidence before the court also showed that, in at least one case, a person who had applied to court for an order to intercept journalists Stephan Hofstatter and Mzilikazi wa Afrika had ‘lied blatantly’.
One of the immediate changes ordered by Sutherland was that a person who had come under surveillance must be told about it – within 90 days after the surveillance was finished.
In exceptional circumstances, the designated judge can grant extensions to this period. But if the extensions are to reach three years, this must be approved by a panel of three judges.
The judge said it was justifiable that people were not notified beforehand that they were about to be spied on – as this would undermine the very purpose of the surveillance.
Sutherland said that, within six months of his judgment, the Act must be read in such a way that the ‘designated judge’ – the retired judge appointed to authorise interceptions – must be nominated by the Chief Justice.
Before, the choice was in the hands of the Minister of Justice. The designated judge must also be appointed for a non-renewable term of two years, according to court order. Before, his or her term could be renewed by the Minister again and again. The changes were to ensure the designated judge’s independence.
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