JAFTA J
the implied power to dismiss was the corollary of the power to appoint. In those matters,
both kinds of power vested in the same functionary.
[186] For all these reasons I conclude that here the power to designate a Judge is not
expressly or impliedly conferred by RICA. As mentioned, this conclusion has a bearing
on the remedy proposed in the first judgment.
[187] But before addressing the question of remedy, it is necessary to express a view
on the validity of the impugned provisions. While the applicants acknowledge that the
right to privacy, on which they rely for their challenge, is not absolute, they contend
that the limitation of that right by the relevant provisions of RICA is not reasonable and
justifiable. Their attack is directed mainly at Chapter 3 of RICA which authorises
interception of private communications by public officials. As the first judgment
illustrates, the interception of communications which are not authorised by this Chapter
are unlawful.
[188] Such interceptions primarily limit the right to privacy guaranteed by section 14
of the Constitution.199 This section pledges privacy of communications. The limitation
imposed by Chapter 3 of RICA on this right may be constitutionally permissible only if
it is reasonable and justifiable. The respondents bore the onus of proving this fact. In
an attempt to justify the limitation, the Minister of Justice contended, in an affidavit
filed on his behalf, that the designation of a Judge to authorise the interception
safeguards the privacy of the affected parties. He submitted that “the appointment of
the designated judge is governed by the Judges’ Remuneration and Conditions of
Employment Act” which provides that retired Judges must be available to perform
199
Section 14 of the Constitution provides:
“Everyone has the right to privacy, which includes the right not to have—
(a)
their person or home searched;
(b)
their property searched;
(c)
their possessions seized; or
(d)
the privacy of their communications infringed.”
91
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