Johannesburg – Media Monitoring Africa, represented by Power Singh Inc., has been admitted as an amicus curiae (friend of the court) in the confirmation proceedings before the Constitutional Court of South Africa in amaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others CCT278/19 (State Surveillance Case). 

The matter concerns the constitutionality of various provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002 (RICA), which authorises state surveillance. This creates a chilling effect on the right to privacy and associated human rights. In written submissions filed today, MMA supports the High Court order declaring certain provisions of RICA unconstitutional but suggests that the Constitutional Court should go further in two respects.

First, MMA submits that the Constitutional Court should carve out a specific child-sensitive remedy to ensure that the best interests of the child principle which is enshrined in section 28(2) of the Constitution, is protected and promoted. This is particularly relevant in the context of the surveillance of children, which RICA does not expressly prohibit. 

Acknowledging that children in our society require special protection, MMA submits that before any interception direction (surveillance order) can be granted, the Designated Judge responsible for the granting of such an order must be informed that the subject of the surveillance order is a child, or may implicate a child, and must ensure that a series of appropriate safeguards have been complied with before a surveillance order can be granted.

Second, MMA enjoins the Constitutional Court to safeguard the rights of civil society actors who, like practising lawyers and journalists who receive heightened protection in the High Court order, require additional safeguards before a surveillance order can be granted. 

MMA makes this submission based on the fact that, by their very nature, civil society actors (such as human rights defenders and organisations, social movements and online activists) often expose abuses of public and private power, and therefor are more susceptible to surveillance as a result of their role as public watchdogs. 

As such, before any surveillance order can granted, the Designated Judge must be advised that the potential subject of surveillance is a civil society actor and a surveillance order must only be granted if it necessary and appropriate to do so. The matter is set-down for hearing at the Constitutional Court on Tuesday, 25 February 2020 at 10h00 and it is open to the public.

Resources and court papers are available here.

NOTE TO EDITORS

About MMA: MMA acts as a watchdog, taking on a role to promote ethical and fair journalism which supports human rights. It promotes democracy and a culture where the media and the powerful respect human rights to encourage a just and fair society.

About Power Singh Inc.: Power Singh Inc. is a public interest law firm seeking to ensure public and private sector accountability and the full realisation of fundamental rights and freedoms.