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 NPC and its managing partner, 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 permitted intrusive state surveillance without adequate safeguards, infringing the constitutional right to privacy, particularly the privacy of communications. The Gauteng Division of the High Court declared several aspects of RICA unconstitutional, including the lack of post-surveillance notification, inadequate independence of the designated judge, insufficient safeguards for ex parte applications, inadequate data management protections, and the absence of special protections for journalists and lawyers. The High Court also declared bulk surveillance conducted by the National Communications Centre unlawful. The Ministers of Police and State Security appealed, while the applicants sought confirmation of the High Court’s declaration of invalidity.

The appeals by the Ministers of Police and State Security were dismissed. The Constitutional Court confirmed the High Court’s declaration of unconstitutionality only in respect of specific deficiencies in RICA relating to judicial independence, post-surveillance notification, ex parte safeguards, data management, and protections for journalists and lawyers. The declaration of invalidity was suspended for 36 months, with interim reading-in provisions imposed. Costs were awarded against the relevant Ministers. The High Court’s costs order against the applicants was set aside.

This is a landmark South African constitutional law decision on state surveillance and privacy. It establishes that secret surveillance regimes must contain robust safeguards, including post-surveillance notification and judicial independence, to be constitutionally valid. The case significantly strengthens protections for journalists and lawyers, reinforces media freedom, and shapes future legislative reform of surveillance law in South Africa.