MADLANGA J enables law enforcement agencies to not only physically – as opposed to electronically – invade the “intimate personal sphere”4 of people’s lives, but also to maintain and cement its presence there, continuously gathering, retaining and – where deemed necessary – using information. [2] At the heart of this matter is the right to privacy, an important constitutional right which, according to this Court, “embraces the right to be free from intrusions and interference by the state and others in one’s personal life”.5 State intrusions into individuals’ privacy may occur in many and varied ways. In this case, we are called upon to consider intrusions in the context of the surveillance of individuals, including the interception of their private communications, under the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA). Section 14(d) of the Constitution entrenches the right of everyone “not to have the privacy of their communications infringed”, which is a component of the right to privacy.6 Whilst RICA prohibits the interception of any communication,7 it leaves the door wide open for the interception of communications in a variety of ways. It does this by providing that interceptions may be effected as long as that is in accordance with the provisions of RICA. RICA then regulates the circumstances under which communications may be intercepted. taking place currently, or are up to 90 days old, it is called “real-time communication-related information” (see the definition in section 1). 4 Bernstein v Bester N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR (CC) 449 at para 77. 5 Gaertner v Minister of Finance [2013] ZACC 38; 2014 (1) SA 442 (CC); 2014 (1) BCLR 38 (CC) at para 47. 6 The right to privacy is protected in section 14, which provides: “Everyone has the right to privacy, which includes the right not to have— 7 (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.” Section 2. 7

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