MADLANGA J
the private communications of any person, provided certain requirements are met. In
summary, RICA requires the application to include the identity of the intended subject,
the intended period of interception, the full particulars of the facts and circumstances in
support of the application (including details of other investigative procedures that have
been applied and failed), a description of the place of interception and type of
communications to be intercepted, and the ground on which the application is made.62
The latter requirement is important; an interception direction may only be issued on
certain limited grounds, and – as discussed above – all are of some magnitude.63
[35]
However, RICA is silent on a number of crucial issues, many of which have been
highlighted by the applicants.
[36]
The United Nations Human Rights Committee’s 2015 report on RICA supports
the contention that the structures, processes and safeguards in RICA are insufficient to
protect the privacy rights of subjects. To this end, the report states:
“The Committee is concerned about the relatively low threshold for conducting
surveillance in the State party and the relatively weak safeguards, oversight and
remedies against unlawful interference with the right to privacy contained in
[RICA].”64
[37]
I turn to specific constitutional challenges on the basis of which the applicants
claim the safeguards contained in RICA are inadequate. In this judgment my use of
(d)
the head of the Directorate or an Investigating Director authorised thereto in writing
by the head of the Directorate;
(e)
a member of [any component of the prosecuting authority, designated by the National
Director to specialise in the application of Chapter 6 of the Prevention of Organised
Crime Act], authorised thereto in writing by the National Director; or
(f)
a member of the Directorate, if the member concerned obtained in writing the approval
in advance of the Executive Director.”
62
Section 16(2) of RICA.
63
Section 16(5)(a) of RICA. See also [12].
64
United Nations Human Rights Committee for the International Covenant on Civil and Political Rights: List of
issues in relation to the initial report of South Africa, adopted at its 114 session (29 June 2015 to 24 July 2015),
dated 19 August 2015.
26