ATC231101: Report of the Portfolio Committee on Justice and Correctional Services on the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill [B28 - 2023], Dated 1 November 2023

Justice and Correctional Services

Report of the Portfolio Committee on Justice and Correctional Services on the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill [B28 - 2023], Dated 1 November 2023.

 

The Portfolio Committee on Justice and Correctional Services, having considered the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill [B28 – 2023] (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports the Bill with amendments [B28A – 2023]:

 

1. On 4 February 2021, in Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2021 (3) SA 246 (CC) (Amabhungane), the Constitutional Court confirmed the declaration by the High Court of South Africa, Gauteng Division, Pretoria that the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act No. 70 of 2002) (RICA) is unconstitutional to the extent that it fails to provide adequate safeguards to protect the right to privacy, as buttressed by the rights of access to courts, freedom of expression and the media, and legal privilege.

 

2. The Constitutional Court declared RICA to be unconstitutional to the extent that it fails to—

• Provide for safeguards to ensure that a judge designated in terms of section 1 is sufficiently independent;
• Provide for notifying the subject of surveillance of his or her surveillance, as soon as notification can be given without jeopardising the purpose of surveillance, after surveillance has been terminated;
• Adequately provide safeguards to address the fact that directions are sought and obtained ex parte;
• Adeqately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing, or destroying the data; and
• Provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

 

3. The Constitutional Court suspended the declaration of unconstitutionality for 36 months to afford Parliament an opportunity to cure the defects causing the invalidity, that is by 3 February 2024.

 

4. The Court granted interim relief by way of a reading-in of certain provisions to RICA, which provisions (on the disclosure that the person in respect of whom a direction, extension of a direction or entry warrant is sought is a journalist or practising lawyer and post-surveillance notification) will operate for the duration of the suspension.

 

5. Briefly, the Bill seeks to amend RICA to provide for —

• The designation of an independent designated judge;
• The designation of an independent review judge and the powers and functions of the review judge;
• The tenure of designated and review judges;
• Adequate safeguards where the subject of surveillance is a journalist or practising lawyer;
• Post-surveillance notification;
• Adequate safeguards to address the fact that interception directions are sought and obtained ex parte;
• Adequate procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully;
• Procedures to be followed for processing, examining, copying, sharing, disclosing, sorting through, using, storing or destroying of any data; and
• For principles for the safeguarding of data when dealing with the management of data.

 

6. The Bill was introduced on 29 August 2023 and referred to the Committee for consideration and report. The Committee was briefed on the contents of the Bill on 8 September 2023 and the Bill was advertised for public comment with a closing date of 6 October 2023.

7. The Committee acknowledges the objection that the Bill addresses the Constitutional Court’s order in a minimalist fashion falling short of the comprehensive reform of RICA that is required to prevent future abuse, as well as the specific objections raised in the submissions received. The Committee notes that the Bill is intended as an interim measure to address the defects identified by Constitutional Court within the given timeframe and is not a comprehensive reform of RICA. The Committee is informed that the Department of Justice and Constitutional Development will develop the necessary legislation and, consequently, urges the Ministry to introduce a Bill that comprehensively overhauls RICA to achieve the correct balance of rights and interests by the end of January 2025. Furthermore, the Committee will include a recommendation addressing the need for comprehensive legislation in its Legacy report for the incoming Committee of the Seventh Parliament to prioritise.

 

 

Report to be Considered