Close Menu
TechCentralTechCentral

    Subscribe to the newsletter

    Get the best South African technology news and analysis delivered to your e-mail inbox every morning.

    Facebook X (Twitter) YouTube LinkedIn
    WhatsApp Facebook X (Twitter) LinkedIn YouTube
    TechCentralTechCentral
    • News

      Major new electric car brand launching in South Africa

      15 July 2025

      MTN empowerment investors see ‘modest’ return as Zakhele Futhi winds up

      15 July 2025

      Solly Malatsi seeks out-of-court deal in TV migration fight

      15 July 2025

      Eskom wants your solar system registered – but what does that actually mean?

      15 July 2025

      Beyond bandwidth: FNOs should prioritise customer service

      15 July 2025
    • World

      Grok 4 arrives with bold claims and fresh controversy

      10 July 2025

      Samsung’s bet on folding phones faces major test

      10 July 2025

      Bitcoin pushes higher into record territory

      10 July 2025

      OpenAI to launch web browser in direct challenge to Google Chrome

      10 July 2025

      Cupertino vs Brussels: Apple challenges Big Tech crackdown

      7 July 2025
    • In-depth

      The 1940s visionary who imagined the Information Age

      14 July 2025

      MultiChoice is working on a wholesale overhaul of DStv

      10 July 2025

      Siemens is battling Big Tech for AI supremacy in factories

      24 June 2025

      The algorithm will sing now: why musicians should be worried about AI

      20 June 2025

      Meta bets $72-billion on AI – and investors love it

      17 June 2025
    • TCS

      TCS+ | MVNX on the opportunities in South Africa’s booming MVNO market

      11 July 2025

      TCS | Connecting Saffas – Renier Lombard on The Lekker Network

      7 July 2025

      TechCentral Nexus S0E4: Takealot’s big Post Office jobs plan

      4 July 2025

      TCS | Tech, townships and tenacity: Spar’s plan to win with Spar2U

      3 July 2025

      TCS+ | First Distribution on the latest and greatest cloud technologies

      27 June 2025
    • Opinion

      A smarter approach to digital transformation in ICT distribution

      15 July 2025

      In defence of equity alternatives for BEE

      30 June 2025

      E-commerce in ICT distribution: enabler or disruptor?

      30 June 2025

      South Africa pioneered drone laws a decade ago – now it must catch up

      17 June 2025

      AI and the future of ICT distribution

      16 June 2025
    • Company Hubs
      • Africa Data Centres
      • AfriGIS
      • Altron Digital Business
      • Altron Document Solutions
      • Altron Group
      • Arctic Wolf
      • AvertITD
      • Braintree
      • CallMiner
      • CambriLearn
      • CYBER1 Solutions
      • Digicloud Africa
      • Digimune
      • Domains.co.za
      • ESET
      • Euphoria Telecom
      • Incredible Business
      • iONLINE
      • Iris Network Systems
      • LSD Open
      • NEC XON
      • Network Platforms
      • Next DLP
      • Ovations
      • Paracon
      • Paratus
      • Q-KON
      • SevenC
      • SkyWire
      • Solid8 Technologies
      • Telit Cinterion
      • Tenable
      • Vertiv
      • Videri Digital
      • Wipro
      • Workday
    • Sections
      • AI and machine learning
      • Banking
      • Broadcasting and Media
      • Cloud services
      • Contact centres and CX
      • Cryptocurrencies
      • Education and skills
      • Electronics and hardware
      • Energy and sustainability
      • Enterprise software
      • Fintech
      • Information security
      • Internet and connectivity
      • Internet of Things
      • Investment
      • IT services
      • Lifestyle
      • Motoring
      • Public sector
      • Retail and e-commerce
      • Science
      • SMEs and start-ups
      • Social media
      • Talent and leadership
      • Telecoms
    • Events
    • Advertise
    TechCentralTechCentral
    Home » Information security » Constitutional court bans bulk Internet surveillance in South Africa

    Constitutional court bans bulk Internet surveillance in South Africa

    By Duncan McLeod4 February 2021
    Twitter LinkedIn Facebook WhatsApp Email Telegram Copy Link
    News Alerts
    WhatsApp

    In a landmark judgment handed down on Thursday, the constitutional court banned the South African state from bulk surveillance of online communication, preventing security agencies from hoovering up Internet data.

    This sort of surveillance, which is routinely done by agencies such as the National Security Agency in the US and GCHQ in the UK – both of which have routinely tapped into submarine Internet cables – is now illegal in South Africa thanks to the country’s highest court.

    The minister of state security had appealed an earlier high court judgment on the legality of bulk communication surveillance. The lower court had already declared bulk surveillance unlawful. The judgment by the constitutional court means the state has run out of legal options and any bulk surveillance is now unlawful and invalid.

    The minister of state security had appealed an earlier high court judgment on the legality of bulk communication surveillance

    The concourt held that section 2 of the National Strategic Intelligence Act of 1994 is ambiguous, and should be interpreted in a manner that best promotes the right to privacy, and does not contradict the prohibition of communication interceptions without interception directions contained in Rica, the legislation that governs the lawful interception of communications.

    Aspects of Rica — known formally as the Regulation of Interception of Communications and Provision of Communication-Related Information Act — are also unlawful, the concourt found.

    The legislation 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, it said.

    Earlier ruling

    The judgment upheld an earlier ruling by the high court, which found in favour of investigative journalism outfit amaBhungane and journalist Sam Sole, who had been subjected to state surveillance without his knowledge or without being informed of the surveillance during or after the fact.

    The minister of police had argued for the continued prohibition of all post-surveillance notification but the constitutional court held that such a blanket prohibition facilitates the abuse of interception directions, which are applied for, granted and implemented in complete secrecy.

    “Even if a direction ought not to have been granted, the subject will never know and is thus denied the opportunity to seek legal redress for the violation of her or his right to privacy,” the court said in an explanatory note to the media. “This renders the rights guaranteed by sections 34 and 38 of the constitution to approach a court to seek appropriate relief for the infringement of the right to privacy illusory and promotes impunity. Post-surveillance notification would serve a purpose comparable to less restrictive means.”

    The court concluded that post-surveillance notification should be the default position. Rica is, as a result, unconstitutional in that it fails to provide for notifying a subject of surveillance as soon as this can be done without jeopardising the purpose of surveillance after it has been terminated.

    In addition, Rica was found to be in breach of the constitution to the extent that it fails to ensure adequate safeguards for an independent judicial authorisation of interception and to the extent that it lacks sufficient safeguards to address the fact that interception directions are sought and obtained on an ex parte (without the party present) basis. The court left the choice of what measures are most suitable to parliament to fix in the legislation.

    The legislation was also found to be unconstitutional to the extent that it fails adequately to prescribe procedures to ensure that data obtained pursuant to the interception of communication is managed lawfully and not used or interfered with unlawfully.

    The confidentiality of journalists’ sources is protected by the rights to freedom of expression and the media

    The court acknowledged that the confidentiality of journalists’ sources is protected by the rights to freedom of expression and the media. In relation to the confidentiality of lawyers’ communications, the court accepted that legal professional privilege is an essential part of the rights to a fair trial and fair hearing. These rights were found to weigh in favour of special consideration being given to the importance of the confidentiality of lawyer/client communications and journalists’ sources, in order to minimise the risk of infringement of this confidentiality. Rica’s failure to do so rendered it unconstitutional.

    Despite these findings, Rica will remain in force for a period of three years to allow parliament time to develop remedial legislation. However, given that the infringement of the privacy right is “egregiously intrusive”, and the period of suspension is relatively long (three years), the court deemed it necessary to grant interim relief in respect of the notification issue, and the lawyers’ and journalists’ issue.  — © 2021 NewsCentral Media



    amaBhungane Rica Sam Sole top
    Subscribe to TechCentral Subscribe to TechCentral
    Share. Facebook Twitter LinkedIn WhatsApp Telegram Email Copy Link
    Previous ArticleCell C is playing the long game, by Douglas Craigie Stevenson
    Next Article NetFlorist sharpens gift production, delivery with Xerox Versant 180

    Related Posts

    Icasa wants control of Rica

    1 April 2025

    This mobile provider is failing to implement Rica

    12 November 2024

    The great big flaw with Rica – and how to fix it

    8 May 2024
    Company News

    Mental wellness at scale: how Mac fuels October Health’s mission

    15 July 2025

    Banking on LEO: Q-KON transforms financial services connectivity

    14 July 2025

    The future of business calling: Voys brings your landline to the cloud

    14 July 2025
    Opinion

    A smarter approach to digital transformation in ICT distribution

    15 July 2025

    In defence of equity alternatives for BEE

    30 June 2025

    E-commerce in ICT distribution: enabler or disruptor?

    30 June 2025

    Subscribe to Updates

    Get the best South African technology news and analysis delivered to your e-mail inbox every morning.

    © 2009 - 2025 NewsCentral Media

    Type above and press Enter to search. Press Esc to cancel.