MADLANGA J
or grant interim relief, in the event of a suspension of the declaration of invalidity, and
if we do, what its nature should be.
Retrospectivity
[137] If the declaration of invalidity has full retrospective effect, that will render
unlawful everything done under RICA pursuant to the grant of all previous interception
directions. These should not be undone. That scrambled egg is incapable of being
unscrambled. Indeed, this Court has held that “[a]s a general rule . . . an order of
invalidity should have no effect on cases which have been finalised prior to the date of
the order of invalidity”.165
Suspension of declaration of invalidity
[138] There is no question that interceptions of communications in terms of RICA
serve an important government purpose. That much is clear from the several purposes
for which interception directions may be issued, which have been discussed above. The
country’s surveillance system would be seriously dislocated if a declaration of
invalidity were not suspended. To refocus our minds on what would be affected, let me
render a collection of the purposes for which interception directions may be issued.
They may be issued if there are reasonable grounds to believe that: “a serious offence
has been or is being or will probably be committed”;166 it is necessary to gather
information concerning an actual threat to the public health or safety, national security
or compelling national economic interests;167 it is necessary to gather information
concerning a potential threat to the public health or safety or national security;168 the
rendering of assistance to a foreign country in connection with or in the form of
interception of communications is in accordance with an international mutual assistance
agreement or is in the interests of South Africa’s international relations or
165
S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC); 1995 (12) BCLR 1579 (CC) at para 32.
166
Section 16(5)(a)(i).
167
Section 16(5)(a)(ii).
168
Section 16(5)(a)(iii).
72
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