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Why the Rica Act has been declared unlawful

The High Court in Johannesburg on Monday declared that the Rica Act is unlawful and sent it back to Parliament to be reworked.

Picture: Pixabay.com

JOHANNESBURG - The High Court in Johannesburg on Monday declared that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) was unlawful.

The ruling followed a court battle brought by investigative journalism unit amaBhungane in 2017, after its journalist Sam Sole’s communications were targeted by state surveillance while he was reporting on the corruption investigation against former president Jacob Zuma.

The case related to the NPA’s decision to drop corruption charges against Zuma. Right2Know and Privacy International joined AmaBhungane’s case against bulk surveillance as friends of the court.

WHY IT’S UNLAWFUL

Judge Roland Sutherland said the legislation was inconsistent with the Constitution as it failed to adequately provide appropriate safeguards to deal with the fact that the orders were granted ex parte or in the interests of one side only.

Judge Sutherland found that the legislation failed to provide procedures for notifying a subject of interception of their communications.

Sutherland explained the legislation was invalid to the extent that it failed to prescribe proper procedures when state officials were examining, copying, sharing, destroying or storing information that’s been intercepted.

WHAT'S NEXT FOR RICA?

In the meantime, new sections have been added to the Act, which included informing the person who was under surveillance. In future, when a surveillance order was sought, an agency also needed to disclose to the judge when the person was a journalist or a legal practitioner.

Sutherland also found the Act failed to prescribe an appointment mechanism for a designated judge to ensure the independence of the judge.

He further declared that the validity of the judgment be suspended for two years in order for Parliament to rework the legislation.

The judge also declared that bulk surveillance activities and foreign signals interception undertaken by the National Communications Centre were unlawful and invalid.

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