Constitutional Court Judge Bess Nkabinde File photo: Steve Lawrence
Constitutional Court Judge Bess Nkabinde File photo: Steve Lawrence

Judge Nkabinde concerned about illegal tapping of communications for private and public individuals

By Mayibongwe Maqhina Time of article published Sep 14, 2021

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JUDGE Bess Nkabinde has expressed concern that there seemed to be “unceasing” unlawful interception of private and public officials’ communication.

“These matters are, in the light of constitutional imperatives and the rule of law, most disturbing and cannot be left unchecked by the relevant ministry/department of agency implicated,” Judge Nkabinde said.

“Appropriate steps need to be taken against officers with such proclivity whose conduct result in violation of the privacy right of others without reasonable justification, whatsoever.”

Judge Nkabinde, who is the designated judge to authorise interception, made the statement in the annual report on interception of private communications.

The report, which covered the period from November 2018 to February 2021, was tabled in Parliament in March and made public by the joint standing committee on intelligence today.

It was compiled without the submission of reports by the State Security Agency and the Financial Intelligence Centre (FIC).

Nkabinde’s report showed that the office of the designated judge received 622 applications from the SAPS Crime Intelligence during the period.

There were 61 applications from the State Security Agency and three from the FIC.

The report said seven each from the SAPS and SSA were declined.

Of the 622 applications received from SAPS, 208 were cases relating to drugs and drug trafficking.

Gauteng led with 32.7% followed by the Western Cape with 31.7%, the Eastern Cape with 13.94%, the Southern Cape with 8.65%, KwaZulu-Natal with 4.85%, Limpopo with 4.8%, the Northern Cape with 1.92% and North West 1.44%.

A total of 63 applications were received in relation to cash-in-transit heists. The Western Cape recorded 29.3%, KwaZulu-Natal 25.39%, Gauteng 20.63%, the Eastern Cape 15.78%, Mpumalanga 6.35% and the Northern Cape 1.58%.

“The remaining percentage of applications is spread between other crimes such as corruption, carjacking, murder, smuggling of motor vehicles, ATM bombings, rhino horn smuggling, rape murder, kidnapping and armed robbery.”

The 61 applications by the SSA were mostly for terrorism, espionage and other related crimes such as information peddling.

The FIC’s three applications were mostly more financial monitoring to combat illegal activities such as money-laundering and direct proceeds from illegal activities.

Judge Nkabinde said the Office of Interception Centre (OIC) reported her challenges or some of them that have been reported to the previous designate judge.

“The director made mention of the need for the centre to be independent and to change the reporting lines to Parliament

“He suggested that a comparable study to this effect may be done to determine efficacy of the proposed model,” she said.

Judge Nkabinde said the director had raised the issue of the safety of the OIC personnel.

“In my view, this matter should be prioritised.”

The judge also reported that her office received enquiries from then State Security Minister Ayanda Dlodlo complaining that her private communication has been unlawfully intercepted.

“The office confirmed that no unlawful interception direction was issued in relation to the minister. I thus requested my office to advice that a complaint be formalised to enable my office to make a follow up, but no formal complaint was received,” she said.

Judge Nkabinde said she was copied in a letter which was addressed to former SAPS crime intelligence divisional head Yolisa Mokgabudi by Willem de Klerk attorney, alleging surveillance of a journalist by the crime intelligence that their communications were intercepted with the use of the “grabber device”.

She said her staff did not find any lawful direction permitting such interception, but she had received e text message from the complainant “that her team asked her to alert me ‘to the possibility that their colleague’s number could have been slipped into legitimate applications and could have been included among legitimate numbers – a trick used sometimes’”.

Judge Nkabinde said the move emboldened the Constitutional Court’s remarks about the mendacity of the applicants seeking interception directions from the intercepting judge.

“It needs to be stressed that there is no interception that is conducted unlawfully by any office unless undetected underhand methods are used to hide information using other people’s numbers.

“This is so because my office conducts a thorough check of information provided before directions are issued,” the judge said.

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