MADLANGA J
[100] In sum, RICA is unconstitutional to the extent that it lacks sufficient safeguards
to address the fact that interception directions are sought and obtained ex parte.
Management of information issue
[101] Once a person’s communications are intercepted and obtained, does RICA
contain safeguards relating to how that information is handled, stored, and eventually
destroyed? The applicants contend that RICA lacks procedures for examining, copying,
sharing, sorting through, using, storing or destroying surveillance data. RICA is thus
unconstitutional to the extent of this shortcoming. The applicants’ concern is that the
lack of regulation in this regard exposes subjects of interceptions to even more
aggravated intrusions into their privacy. The Minister of State Security argues that
section 35(1)(f) and (g), read with section 37 of RICA, provides the necessary
procedures and that, in any event, section 42 provides for a general prohibition of the
disclosure of intercepted communications. The High Court upheld the applicants’
contention.
[102] Section 35(1)(f) does no more than to enjoin the Director of the Office for
Interception Centres (director) to prescribe what information must be kept in terms of
section 37 by the heads of information centres.142 Such information must include
particulars relating to: applications for the issuing of directions; the directions
themselves; and the results obtained pursuant to the execution of each direction. As the
applicants correctly argued, reference to “particulars” means all that the director need
prescribe must be kept is an identification of both the application for directions and the
directions issued, and an indication of the nature of the result obtained pursuant to the
142
The section provides:
“(1)
In order to achieve the objects of the Act, the Director—
...
(f)
must prescribe the information to be kept by the head of an interception centre
in terms of section 37, which must include particulars relating to—
(i)
applications for the issuing of directions and the directions issued
upon such applications which is relevant to the interception centre
of which he or she is the head; and (ii) the results obtained from
every direction executed at that interception centre.”
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