Johannesburg - Police Minister Bheki Cele is heading to the Constitutional Court to protect his officers from being compelled to notify subjects of their investigations that they are under surveillance in terms of the Regulation of Interception of Communication Act (Rica).
Cele is opposing an application filed by the AmaBhungane Centre for Investigative Journalism to the apex court. The centre sought for the Concourt to uphold an order by the North Gauteng High Court declaring parts of Rica (the Regulation of Interception of Communication Act) inconsistent with the Constitution and invalid, as they do not make provision for the notification of the subjects of surveillance.
But, in his notice of appeal filed last month, Cele stated: “The high court ought to have found that in order for surveillance to serve the purpose for which it is used, it is necessary that the surveilled person is not notified of the surveillance”.
The minister is partially appealing the judgment handed down in September by Judge Roland Sutherland, who added amendments to the act while giving Parliament two years to rectify the defects.
Judge Sutherland also found that Rica’s definition of a designated judge was inconsistent with the Constitution, as it failed to prescribe the appointment mechanisms and terms for such judge to ensure independence.
The ruling changed the designated judge to be a retired judge nominated by Chief Justice Mogoeng Mogoeng for appointment by Justice and Correctional Services Minister Ronald Lamola for a non-renewable term of two years.
AmaBhungane is also appealing a part of Sutherland’s ruling over costs, saying he misdirected himself and they should have been awarded the costs as successful parties in a constitutional challenge.
The case in question relates to the abuse of Rica when AmaBhungane managing partner Sam Sole and a top prosecutor were spied on, and blatantly lying to a designated judge to intercept the communications of Independent Media investigative journalist Mzilikazi wa Afrika and Stephan Hoffstatter, formerly of the Sunday Times, under false pretext, as recounted by Judge Sutherland in the high court.
Cele maintained that the notification of surveillance, whether it is pre- or post-surveillance, defeats Rica’s purpose and that the very essence of surveillance is secrecy.