MADLANGA J
could, for example, be in the form of automatic review by the designated Judge in an
informal, mainly paper-based non-court process. It could, of course, be open to the
designated Judge to call for whatever information she or he might require from
whomsoever. The idea is for a summary, but effective process. The detail on how the
process should unfold is best left to Parliament.
[50]
In addition to the vindication of the privacy right, here is what commends
automatic review. The knowledge by the relevant law enforcement officers that the
vast majority of South Africans are most likely not going to be in a position to challenge
their surveillance may serve as an incentive for continued abuse. And – as shown by
the examples I gave above – abuse is a shocking reality. On the other hand, constant
awareness that all interceptions of communications in respect of which RICA has been
invoked will be subjected to automatic review will likely serve as a disincentive.
[51]
Automatic review is not an unknown quantity in our legal system.
Two
examples are the automatic review by Judges of certain sentences imposed by
Magistrates81 and the automatic review by the Land Claims Court of orders of eviction
granted in the Magistrates’ Courts.82
Plainly, these examples are an attempt at
guaranteeing justice, and the vast majority of those who stand to benefit are the
vulnerable and financially deprived. What we have before us in this application is
comparable.
[52]
Automatic review is thus another possible safeguard which, though not
highlighted by the applicants, Parliament may consider, given the context in which the
current surveillance regime exists. However, it is worth noting that the lack of such a
process does not alone render RICA unconstitutional, as the lack of post-surveillance
notification does. Automatic review is a complementary mechanism tied to notification.
81
Section 302 of the Criminal Procedure Act 51 of 1977.
82
Section 19(3) of the Extension of Security of Tenure Act 62 of 1997.
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