In what can fairly be described as a ground-breaking and far-reaching judgment, both for state security on the one hand, and freedom of the media on the other, one Judge sitting as the Pretoria High Court has declared as unconstitutional a raft of provisions of the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) and afforded Parliament two years within which to remedy the constitutional invalidity.
Until the constitutional invalidity, as declared by the Judge, in those myriad provisions of RICA has been remedied by Parliament, the Judge has, at the instance effectively of the media, directed how various provisions of RICA will read, including adding a new provision, section 16A, which is intended specifically for the protection of journalists and practising legal practitioners.
In terms of the South African Constitution, the declaration of constitutional invalidity as declared by the Judge will take effect only if the Constitutional Court confirms it. But in terms of the order of the Judge, it appears that the provisions read into RICA by the Judge take immediate effect, including the new provision that relates to journalists and practising lawyers. The provision which relates to the definition of “designated judge” takes effect six months after the date of the order by the Judge.
To be clear, Amabhungane did not seek an order that notice of surveillance by the state be given before the surveillance. The order that was sought was that notice be given after surveillance. See paras 86 & 87 of AmaBhungane Heads of Argument below.
Together with the Full Judgment, all sets of pleadings and written Heads of Argument by all parties are provided. Annexures to affidavits have not been provided.
Read the Full Judgment Judgment in AmaBhungane et al v Min of Justice et al – 16 September 2019:
Related documents: Written Arguments
AmaBhungane Heads of Argument
Amicus Heads of Argument
State Security – Court Address
State Security Heads of Argument
Justice, Defence & Police Heads of Argument
Notice of Motion
Founding Affidavit – Sam Sole
Answering Affidavit – SAPS Crime Intelligence
Answering Affidavit – Dep Min of Justice
Answering Affidavit – Chief of Staff SANDF
Answering Affidavit – DG State Security Agency
Replying Affidavit – Sam Sole