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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 (CCT 278/19; CCT 279/19) [2021] ZACC 3

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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 (CCT 278/19; CCT 279/19) [2021] ZACC 3

5th February 2021

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Click here to read the full judgment on Saflii

On application for confirmation of the order of the High Court of South Africa, Gauteng Division, Pretoria:

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1.                  The appeal by the Minister of State Security is dismissed with costs, including the costs of two counsel.

2.                  The appeal by the Minister of Police is dismissed with costs, including the costs of two counsel.

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3.                  The appeal by the applicants against the costs order granted by the High Court, Gauteng Division, Pretoria (High Court) is upheld with costs, including the costs of two counsel.

4.                  The High Court’s order referred to in paragraph 3 is set aside.

5.                  The Minister of Justice and Correctional Services, the Minister of State Security, the Minister of Defence and Military Veterans, the Minister of Police, the Office for Interception Centres, the National Communications Centre and the State Security Agency must pay the applicants’ costs of the application before the High Court, such costs to include the costs of two counsel.

6.                  The declaration of unconstitutionality by the High Court is confirmed only to the extent that the Regulation of Interception of Communications and Provision of Communication­Related Information Act 70 of 2002 (RICA) fails to—

(a)              provide for safeguards to ensure that a Judge designated in terms of section 1 is sufficiently independent;

(b)              provide for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance after surveillance has been terminated;

(c)              adequately provide safeguards to address the fact that interception directions are sought and obtained ex parte;

(d)              adequately prescribe procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully, including prescribing procedures to be followed for examining, copying, sharing, sorting through, using, storing or destroying the data; and

(e)              provide adequate safeguards where the subject of surveillance is a practising lawyer or journalist.

7.         The declaration of unconstitutionality in paragraph 6 takes effect from the date of this judgment and is suspended for 36 months to afford Parliament an opportunity to cure the defect causing the invalidity.

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