South Africa’s constitutional court has ruled that the country’s 2002 Regulation of Interception of Communications and Provision of Communication-Related Information Act is unconstitutional as it fails to provide adequate privacy safeguards.

The case was first brought before the high court by the AmaBhungane Centre for Investigative Journalism NPC and Stephen Sole, a journalist who had been the subject of state surveillance. That court upheld the following challenges to the act:

  •    it makes no provision for someone subject of surveillance ever to be notified of the fact;
  • a member of the executive has unfettered discretion to appoint and renew the term of the designated judge to issue directions for interception of private communications, thereby failing to ensure the judge’s independence; 

  • there is no adversarial process or other mechanism to ensure the intended subject of surveillance is protected in the ex-parte application process; 

  • there are inadequate safeguards for examining, copying, sharing, sorting through, using, destroying and/or storing surveillance data; and 

  • for having no provision for special circumstances where the subject of surveillance is a journalist or practicing lawyer.

 Various parties including the state security minister appealed to the constitutional court which, in a majority judgment, held that interception and surveillance of an individual’s communications under the act is a highly invasive violation of privacy and infringes the constitution. 

“The court acknowledged the constitutional importance of the right to privacy, which is tied to dignity,” an official summary of the ruling read.

The court suspended its declaration of invalidity for three years, as requested by the justice minister, to allow Parliament time to investigate and develop suitable remedial legislation.