“Everyone has the right to privacy, which shall include the right not to have ...the privacy of their communications infringed” This is the right to privacy as stated in section 14 of the Constitution of South Africa Act 108 of 1996 (“the Constitution”). This right was constitutionally entrenched though it had common law origins. At common law, the unlawful intrusion on a person’s personal privacy constitutes an iniuria and can give rise to a delictual claim. The courts have in the past acknowledged this right in cases where privacy was infringed, inter alia, by the wire-tapping of private premises.

The Regulation and Interception of Communications and Provisions of Communication-Related Information Act 70 of 2002 (“RICA act”) is a contentious act which prima facie gives the state far-reaching powers to override the above right in certain broadly specified instances in the name of combating the modern day hydra called terrorism. It seems that the state takes on the role of the all-seeing eye, able to intercept any information under the guise of combating terrorism and organised crime. It must however be remembered that no right is sacrosanct and every right, if violated, must go through the constitutional Section 36 limitation “test”. Should it pass this test, then the right can be justifiably limited and will not be “infringed”.

As a point of departure, any searches and seizures that invade privacy must be conducted in terms of legislation which clearly defines the power to search and seize. Such searches are also only permissible to achieve compelling public objectives and must be endorsed as necessary for such a purpose by an independent authority before they may be conducted. In short, searches and seizures which violate the right to privacy must be authorised by a warrant.

The RICA act is only one of a number of acts which authorise searches and seizures and limit the right to privacy. However, before an act can be held to be able to validly limit such right, it must pass the test of Section 36 of the Constitution. To comply with Section 36, the limiting act must properly define the scope of the power to search and seize. It cannot confer wide discretionary powers which are too broadly defined because there must be checks and balances to minimise the extent of the intrusion of privacy. The extent of the invasion must be proportionate to the purpose of the RICA act. Terrorism today has become a very real and ever present threat to our way of live due to increased globalisation and technology. Its perpetrators are highly sophisticated, skilled people with intricate knowledge of the communities in which they perpetrate their atrocious acts. They operate covertly employing guerrilla type tactics which are difficult to detect, trace or monitor. The limiting act must also require prior authorisation of the search by an independent body.

Further, it must require the independent authority to be persuaded by evidence on oath that there are reasonable grounds for conducting the search. The RICA act regulates the interception of communication, the monitoring of radio signals and radio frequency spectrums and the provision of communication-related information – information relating to indirect communication in the records of telecommunication service providers. It also regulates applications for interception of communication and provision of communication-related information under certain circumstances.

The RICA act regulates law enforcement where interception of communication is involved and prohibits the provision of telecommunication services which do not have the capability to be intercepted and requires telecommunication service providers to store communication-related information (CRI). It also provides for the establishment of interception centres. Lastly it prohibits the manufacturing, assembling, possessing, selling, purchasing or advertising of interception equipment without a certificate of exemption issued by the relevant Minister.

The RICA act may seem far-reaching, but when we consider the ever present threat of terrorism in our daily lives, we may reconsider the limitation to the right to privacy by the RICA act as being reasonably justifiable. There are far too many threats to our way of life and these may be good enough reason to limit the right to privacy in relation to interception of our communications. We also should appreciate the two-pronged nature of the RICA act, in that it does ensure that a database is created with current names and addresses of cellphone users. This is a step in the right direction towards combating not only terrorism and organised crime, but helps keeps checks on small time criminals who also disturb our lives.

Prepared by Lisa Jana

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