Automated Summary
Key Facts
The Constitutional Court of South Africa granted supplementary just and equitable relief to address the inoperability of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA). This followed the expiration of a 36-month suspension period (ending 3 February 2024) for RICA's constitutional invalidity, which had been declared in 2021 due to inadequate safeguards for designated Judges, journalists, and lawyers. The President applied for relief after the interim measures from the prior judgment lapsed, leading to a backlog of surveillance applications. The Court extended the interim remedy by deeming RICA to include revised definitions for 'designated Judge' (nominated by the Chief Justice and appointed by the Minister for 24 months) and new procedural requirements for post-surveillance notification and data management. The relief remains in effect pending corrective legislation or until 2026, whichever comes first.
Issues
- Whether the Court should grant supplementary just and equitable relief to address the inoperability of RICA after the suspension period expired, including redefining the appointment process for designated Judges to ensure independence by requiring Chief Justice nomination and Ministerial appointment.
- Whether RICA should be amended to require disclosure to designated Judges when surveillance targets are journalists or practising lawyers, ensuring decisions are made only if necessary and with safeguards for confidentiality or legal privilege.
- Whether RICA should include post-surveillance notification requirements, obliging law enforcement to inform subjects of surveillance within 90 days (with exceptions for national security) and certify compliance to a judicial officer.
Holdings
- The court clarified that the President cannot seek to revive the expired suspension period but may request supplementary relief under section 172(1)(b) of the Constitution. The relief granted ensures RICA's operability by requiring the appointment of three designated Judges nominated by the Chief Justice and mandating judicial scrutiny for surveillance applications involving journalists or lawyers.
- The Constitutional Court of South Africa granted supplementary just and equitable relief to extend the interim remedy from the AmaBhungane case, deeming RICA to include a revised definition of 'designated Judge' and additional sections 23A and 25A. These provisions ensure safeguards for journalists and practising lawyers during surveillance authorizations and mandate post-surveillance notification to subjects within 90 days, with potential extensions under specific conditions.
- The court emphasized that the interim remedy applies until corrective legislation is enacted. If no legislation is passed, the orders for the revised designated Judge framework and additional safeguards will remain in force. This addresses the inoperability of RICA caused by the expired term of the designated Judge and the lack of constitutional compliance in the original Act.
Remedies
- Section 1 of RICA is deemed to include a new definition of 'designated Judge' as a retired High Court Judge nominated by the Chief Justice and appointed by the Minister for a 24-month non-renewable term.
- RICA is deemed to include Sections 23A (requiring disclosure of journalist or lawyer status in surveillance applications) and 25A (mandating post-surveillance notification to subjects within 90 days, with possible extensions).
- If the corrective legislation is not enacted, the orders in paragraphs 1(a) and 1(b) will continue to apply, ensuring RICA remains operable under the interim remedies.
Legal Principles
The court relied on judicial review doctrines, particularly the power under section 172(1)(b) of the Constitution, to evaluate and grant supplementary just and equitable relief. This addressed the constitutional invalidity of RICA, ensuring its operability pending corrective legislation. The relief included redefining 'designated Judge' to enhance independence and mandating post-surveillance notification protocols to protect privacy rights.
Precedent Name
- Zondi v MEC, Traditional and Local Government Affairs
- Ex parte Minister of Home Affairs; In re Lawyers for Human Rights v Minister of Home Affairs
- AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services
Cited Statute
- Constitution of South Africa
- Judges' Remuneration and Conditions of Employment Act 47 of 2001
- Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA)
- Criminal Procedure Act 1977
Judge Name
- Majiedt
- Dambuza
- Rogers
- Tshiqi
- Mhlantla
- Opperman
- Madlanga
- Maya
- Kollapen
- Goosen
- Theron
Passage Text
- The President is not seeking a revival of the expired period of suspension. What he is asking for, instead, is supplementary just and equitable relief in terms of section 172(1)(b) of the Constitution, which is to apply pending the coming into effect of the amended RICA. As it held in Ex parte Minister of Home Affairs, this Court does have the power to grant such relief.
- "designated Judge" means any one of three Judges of the High Court who is retired or discharged from active service under section 3(2) of the Judges' Remuneration and Conditions of Employment Act 47 of 2001, who is nominated by the Chief Justice, and upon which nomination is, and must be, appointed by the Minister, for a non-renewable term of 24 months, to perform the functions of a designated Judge for purposes of this Act.
- Within 90 days of the date of expiry of a direction or extension thereof issued in terms of sections 16, 17, 18, 20, 21 or 23, the applicant must notify the subject of surveillance in writing and certify this to the designated Judge. Notification may be withheld for up to 90 days at a time or two years in aggregate if doing so would jeopardize surveillance purposes.