ConCourt hammers ‘worst-drafted’ Rica law

The Constitutional Court has slammed SA’s Surveillance Act, with one justice describing it as “one of the worst-drafted legislations” he has ever seen.

While the Act in its current form provides for a designated judge to hear applications to carry out surveillance, it does not empower anyone to actually designate that judge, it emerged in court yesterday.

“We are surprised that an omission of this nature can occur. We take parliament to be well alive as to what the constitution requires when it passes legislation,” Justice Chris Jafta said.

Jafta and a full bench were hearing arguments around sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica), for confirmation of a 2019 high court order declaring these sections unconstitutional and invalid.

The matter was first brought before the courts in 2017, by the amaBhungane centre for investigative journalism and its managing partner, Sam Sole. Sole had unknowingly been placed under surveillance – in terms of the Rica – while covering the National Prosecuting Authority’s 2008 decision to drop corruption charges against former president Jacob Zuma. These charges have since been reinstated.

The high court last year ruled in favour of amaBhungane and Sole and found the Rica failed “to prescribe an appointment mechanism and terms for the designated judge which ensures his or her independence”.

Part of the amaBhungane case is that the Act does not ensure the independence of this designated judge.

Sole’s counsel, advocate Steven Budlender, argued the Act empowered the minister of justice to designate a judge and that created the perception of potential bias.

Jafta said: “It’s a serious matter. This legislation is one of the worst-drafted legislations I’ve ever seen”.

“The issue of an implied power arises when there is actual power. It becomes implied because it is incidental to the exercise of the power that is conferred. Where there is no power at all conferred, there can’t be implied power, can there?” Jafta said. Judgment is reserved.