MADLANGA J
Judge, a Regional Court Magistrate or a Magistrate. The only surveillance that remains
possible where a designated Judge would otherwise have had to grant authorisation is
in instances where urgency or exceptional circumstances require of law enforcement
officers to act without first seeking authorisation from a designated Judge. 115 Surely
those instances must constitute a small percentage of surveillance conducted by law
enforcement agencies. So, this does not detract from the fact that without a designated
Judge, the RICA edifice becomes substantially inoperable; a far-reaching result.
[79]
Faced with that ominous terminal reality, I can conceive of no compelling reason
for not concluding that the power to designate is implied in the definition of “designated
Judge” in section 1 of RICA; it is an implied primary power. Considering section 1
with the structure and purpose of RICA as a whole, this seems the only viable
interpretation. The only argument against this that I can think of is purely the lack of
express provision in the substantive provisions of RICA conferring the power to
designate. Surely, that cannot of necessity be dispositive of the question. Not when we
115
Section 7(1) of RICA provides:
“Any law enforcement officer may, if—
(a)
he or she is satisfied that there are reasonable grounds to believe that a party to the
communication has –
(i)
caused, or may cause, the infliction of serious bodily harm to another person;
(ii)
threatens, or has threatened, to cause the infliction of serious bodily harm to
another person; or
(iii)
threatens, or has threatened, to take his or her own life or to perform an act which
would or may endanger his or her own life or would or may cause the infliction
of serious bodily harm to himself or herself;
(b)
he or she is of the opinion that because of the urgency of the need to intercept the
communication, it is not reasonably practicable to make an application in terms of section
16(1) or 23(1) for the issuing of an interception direction or an oral interception direction;
and
(c)
the sole purpose of the interception is to prevent such bodily harm,
intercept any communication or may orally request a telecommunication service provider to route
duplicate signals of indirect communications specified in that request to the interception centre
designated therein.”
And section 8(2) provides:
“A law enforcement officer . . . may, if he or she is of the opinion that determining the location of
the sender is likely to be of assistance in dealing with the emergency, orally request, or cause any
other law enforcement officer to orally request, the telecommunication service provider concerned
to act as contemplated in subsection 1(i)(aa)(bb).”
46