AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others

AmaBhungane Centre for Investigative Journalism and journalist Stephen Patrick Sole challenged the constitutionality of the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (RICA). They alleged that RICA inadequately safeguards the right to privacy guaranteed in section 14 of the Constitution. Mr Sole had experienced surveillance and interception of his communications in 2008, but was denied disclosure of details despite efforts to obtain information from the Inspector-General of Intelligence. In 2015, transcripts of his telephonic conversations surfaced in court proceedings, proving the interception had occurred. He remained unable to ascertain the lawfulness or basis for the surveillance. The applicants challenged RICA on multiple grounds: lack of post-surveillance notification, insufficient independence of designated judges, inadequate safeguards for ex parte applications, absence of data management procedures, lack of special protections for lawyers and journalists, and unlawful bulk surveillance by the National Communications Centre.

• Whether RICA's limitation of the right to privacy is reasonable and justifiable under section 36(1) of the Constitution
• Whether RICA fails to provide for post-surveillance notification
• Whether RICA ensures sufficient independence of designated judges
• Whether RICA provides adequate safeguards for ex parte applications for interception directions
• Whether RICA prescribes adequate procedures for managing intercepted data
• Whether RICA provides special safeguards where the subject of surveillance is a lawyer or journalist
• Whether there is a legal basis for bulk communications surveillance
• Whether the Minister has power under RICA to designate a judge

Appeals by the Ministers of State Security and Police dismissed with costs. Applicants' appeal against the High Court costs order upheld. High Court's declaration of invalidity confirmed only to the extent specified in paragraph 6 of the order. Declaration suspended for 36 months. Two sections read into RICA during the suspension period: section 23A (requiring disclosure when subject is lawyer/journalist and imposing conditions to protect privilege/sources) and section 25A (requiring post-surveillance notification within 90 days unless it would jeopardise the purpose of surveillance). Costs awarded to applicants against the Ministers of Police and State Security in both the High Court and Constitutional Court, including costs of two counsel.

RICA's limitation of the right to privacy is unconstitutional to the extent that it fails to provide adequate safeguards, assessed under section 36(1) of the Constitution. While surveillance serves important purposes (combating serious crime, national security), the limitation must be reasonable and justifiable. Post-surveillance notification is constitutionally required as the default position - notification must be given as soon as it can be provided without jeopardising the purpose of surveillance after surveillance has terminated. Perpetual secrecy is overbroad and facilitates abuse while serving no legitimate purpose. RICA unconstitutionally fails to ensure structural and perceived independence of designated judges - the appointment process (by Minister alone, with potential indefinite renewals, without transparency or JSC involvement) creates reasonable apprehension of lack of independence. RICA unconstitutionally lacks sufficient safeguards addressing the ex parte nature of applications for interception directions. RICA unconstitutionally fails to adequately prescribe procedures for examining, copying, sharing, using, storing and destroying intercepted data. RICA unconstitutionally fails to provide special safeguards where the subject is a lawyer or journalist - legal professional privilege and confidentiality of journalists' sources are constitutionally protected and require additional safeguards to minimize risk of infringement. Section 2 of the National Strategic Intelligence Act does not authorize bulk surveillance - it is too ambiguous and lacks necessary safeguards. The Minister has an implied power to designate a judge under section 1 of RICA read with provisions on designated judge functions (majority view). [Minority: No such power exists as definition sections serve interpretative purposes only and cannot confer powers; implied powers require express powers from which they derive.]

The Court suggested (but did not mandate) that Parliament consider automatic review of interceptions as a complementary safeguard to notification, particularly to protect vulnerable and financially disadvantaged persons who cannot afford litigation. This could be a summary, paper-based process by the designated judge. The Court noted that while RICA must provide safeguards for lawyers and journalists, it did not address civil society actors or children, as these issues were not properly raised in the High Court and would require fuller consideration. The Court distinguished between implied primary powers and implied ancillary powers - an implied primary power is one that exists on its own and is not pegged to another power, derived from reading the Act as a whole and applying constitutional interpretation principles. The Court emphasized that formalism should not override substance and that courts must balance providing appropriate relief with respecting separation of powers. Reading-in is appropriate as interim relief during suspension where it addresses egregious rights violations, is sufficiently precise, and does not unduly intrude into legislative domain. The Court noted that search and seizure cases (requiring independent judicial authorization) apply a fortiori to surveillance given its secret nature and limited possibility of challenge. Judges are presumed independent but structural mechanisms protecting independence remain important - the fact that someone is a judge does not eliminate need to scrutinize appointment processes and safeguards.

This landmark judgment establishes comprehensive constitutional standards for surveillance legislation in South Africa. It affirms that while surveillance serves important governmental purposes (crime prevention, national security), RICA's limitations on privacy rights must be justified under section 36(1). The judgment mandates structural safeguards including: judicial independence in authorizing surveillance, post-surveillance notification as a default position, procedures for managing intercepted data, and special protections for constitutionally significant communications (lawyers and journalists). The case clarifies that blanket secrecy perpetuating indefinitely is unconstitutional and that subjects of surveillance must eventually be notified to enable them to exercise their right to challenge unlawful surveillance. The judgment balances security imperatives with fundamental rights, requiring Parliament to craft a surveillance regime with adequate safeguards. It demonstrates the Court's remedial flexibility through reading-in provisions while respecting separation of powers by suspending the declaration to allow legislative remedy. The minority opinion raises important questions about implied powers and the limits of judicial reading-in. This case is crucial for understanding privacy rights in the digital age, the intersection of privacy with other constitutional rights (freedom of expression, fair trial, access to courts), and the constitutional limits on state surveillance powers.