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—
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(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
Section 2.
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