MADLANGA J
obligations;169 or, lastly, it is necessary to gather information concerning property which
is or could probably be an instrumentality of a serious offence or is or could probably
be the proceeds of unlawful activities.170 So, the dislocation of our surveillance system
would have a grave impact on matters that are important to the country and its people.
To avert this, we must suspend the declaration of invalidity.
[139] The High Court suspended its orders of invalidity for a period of two years to
allow Parliament time to cure the various constitutional defects identified.
The
Minister of Justice requests that this period be increased to three years. He submits that
a process to review RICA has already commenced although there is no Bill in place yet,
and advises that the Executive requires time to proceed with its investigations and
develop suitable remedial legislation. To this end, he argues that three years is not
inordinately long when the following factors, amongst others, are taken into account:
the technical and complex nature of the legislation; the need for extensive consultation
due to the contentious nature of the legislation and the obligations that it will impose on
telecommunication service providers; the need for a careful consideration of
developments and trends in other countries on the interception of communications; and
the fact that the process of consultation and collation of comments received during the
Bill drafting stage takes considerable time. The Minister of Justice further submitted
that three years will guard against the Executive having to return to this Court to request
an extension.
[140] This is reasonable. Thus the declaration of invalidity must be suspended for
three years.
Interim relief
[141] The High Court granted interim relief, the effect of which was to make
substantial insertions into RICA, to be applicable during the period of suspension. The
169
Section 16(5)(a)(iv).
170
Section 16(5)(a)(v).
73
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