It was essential that the intelligence community's eavesdropping facility operated within the law, a member of the former government-appointed commission on intelligence said on Tuesday.
"This is a matter of great constitutional significance," said Laurie Nathan.
"It is also a matter of great practical importance as the country moves through turbulent political water towards a general election."
Nathan was reacting to comments from the Inspector-General of Intelligence (IGI) on the National Communications Centre (NCC).
The NCC is the government facility for intercepting electronic signals transmitted via satellite, used by the intelligence community
to keep an eye on individuals and organisations identified for monitoring.
The three-person commission, appointed by former intelligence minister Ronnie Kasrils and disbanded this month, said in a report that
the NCC "appears to be involved in signals monitoring that is unlawful and unconstitutional".
It said interim operational procedures introduced by Kasrils did not address this concern.
IGI Zolile Ngcakani told Sapa, however, he believed the interim directives "create a basis for the lawful operations of the NCC and which are constitutionally aligned".
The NCC was subject to "rigid scrutiny" by his office, he said.
Nathan said the commission had carefully considered the eavesdropping activities of the NCC and had concluded that they were inconsistent with the Constitution and other law.
The Constitution said clearly that the rights in the Bill of Rights could be limited only by law of general application.
"The NCC intercepts communication and therefore infringes the right to privacy but it does not do so in terms of legislation. It is therefore acting unconstitutionally," he said.
Moreover, the Regulation of Interception of Communication Act (Rica) expressly prohibited interception of communication without judicial
authorisation.
Although NCC policy reviewed by the commission emphasised the need for proper control and oversight, it made no reference to Rica and
ignored the obligation to obtain a judge's approval.
NCC policy also made no reference to a ministerial instruction, issued in January 2007, which forbade the centre from monitoring South African phone numbers without first obtaining a judge's permission.
The ministerial instruction was itself flawed because everyone in South Africa had the right to privacy, regardless of whether they had South African or non-South African phone numbers.
Nathan said the IG himself had told the commission he was concerned about the fact that there was no legislative mandate for the NCC and electronic collection of signals.
He said that earlier this year Kasrils introduced two bills intended to ensure the legality of the NCC's operations.
The parliamentary committee that considered the bills had ended up deciding "correctly in the view of the commission" that the bills were flawed and should be revised.
"In the interim, it is essential that the NCC complies with the RICA legislation," Nathan said.
The ministry told Sapa earlier that the bills would be reintroduced next year.
In the interim, it said, the NCC would continue to function under the oversight of the minister, the IGI and the parliamentary intelligence committee. - Sapa