Johannesburg - State Security Minister Ayanda Dlodlo has told the Constitutional Court that lawyers and journalists could be the subjects of surveillance for intelligence gathering.
Dlodlo filed her notice of appeal in the apex court in a bid to overturn North Gauteng High Court Judge Roland Sutherland’s ruling declaring parts of Rica invalid and inconsistent with the Constitution.
Dlodlo said Judge Sutherland got it wrong because he did not address the circumstances where the subject of surveillance was a practising lawyer or journalist.
“The State Security Agency gathers or collects intelligence for purposes of ensuring the security of the republic, and the Constitution does not prohibit the gathering of such from practising lawyers or journalists,” she insisted.
The minister said lawyers and journalists already had sufficient protection in law, in that they could not be compelled to disclose the contents of privileged communications with their clients, or to disclose their sources, and that the sections declared inconsistent with the Constitution did not purport to take away that protection.
Dlodlo was appealing against Judge Sutherland’s judgment declaring sections of Rica (the Regulation of Interception of Communication Act) inconsistent with the Constitution and invalid, as they did not make provision for the notification of the subjects of surveillance.
She told the court that these sections provided a reasonable and justifiable limitation of the constitutional rights relied upon.
“The high court erred in rejecting the minister’s contention that the Constitution conferred no right of post-surveillance notification on the basis that ‘it would not be expected for such a right to be expressed in the Constitution itself’,” read Dlodlo’s notice of appeal.
She said Judge Sutherland should have found that the Constitution did not provide for a right to pre- and post-surveillance notification and then dismissed the challenge on that basis alone.
AmaBhungane Centre for Investigative Journalism has applied to the Constitutional Court to confirm Judge Sutherland’s ruling, which was handed down in September last year.
The suit relates to abuse of Rica when AmaBhungane managing partner Sam Sole and prosecutor Billy Downer were spied on, and lying to a designated judge to intercept communications of Independent Media investigative journalist Mzilikazi wa Afrika and Stephan Hoffstatter, formerly of the Sunday Times, under false pretext.
According to Dlodlo, Judge Sutherland erred in not finding that post-surveillance notification would defeat the very purpose of surveillance, as intelligence gathering may continue way after surveillance had ended.
“Post-surveillance notification could compromise steps taken the state to eliminate threats to the security of the republic, its people and other countries,” warned Dlodlo.
Arguments for the confirmation of the high court ruling, which Dlodlo wants replaced with an order dismissing AmaBhungane’s application, will be heard next month.