The department of justice & correctional services has come under fire from MPs for the long delay in tabling legislative amendments to the spying act to comply with a Constitutional Court order that set February 4 as the deadline for them to be on the statute books.
The issue concerns amendments to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica).
The department blamed a lack of capacity and the Covid-19 pandemic for the delay during a meeting of parliament’s justice committee. But committee chair Bulelani Magwanishe and MPs from the ANC, DA and ACDP were not impressed as the late tabling of the amendment bill in parliament gives the committee little time to process it before the top court’s deadline.
This is one of many bills that parliament has to deal with over the next few months.
If parliament does not meet the Constitutional Court’s deadline it will have to ask for an extension, which it did twice regarding the required amendments to the Electoral Act.
Magwanishe noted the bill not only has to be processed by the National Assembly, but also the National Council of Provinces. A number of other bills are before the committee.
“We do know that you [the department] have challenges with resources but ... a big part of it is just a lack of proper planning” and the lack of strategic deployment of its limited resources so that work is properly prioritised.
Limited itself
“In a way you are putting a gun [to] our heads because you are saying this is a Constitutional Court deadline and the deadline has to be met, not taking into account that you are not giving us enough time to apply ourselves and discharge our responsibilities,” Magwanishe said.
Deputy justice minister John Jeffery told MPs that instead of a comprehensive overhaul of the act as initially envisaged the department has limited itself to the Constitutional Court findings.
Deputy director-general for legislative development Kalay Pillay said 90% of the legislation unit of the department comprises new officials who were appointed in the past two years. The bill deals with complicated matters including ever-changing technological developments, she said.
On February 4 2021, the Constitutional Court ruled in the case of the amaBhungane Centre for Investigative Journalism vs the minister of justice that the act was unconstitutional. It suspended the declaration of unconstitutionality for 36 months to give parliament time to make the necessary amendments. Interim relief was granted by reading certain provisions into the act that would apply for the period of the suspension.
The act was found to be unconstitutional in that it fails to provide adequate safeguards to protect the right to privacy. It failed, among other things, to provide for notifying the subjects of surveillance as soon as notification can be given after the surveillance has been terminated without jeopardising its purpose.
The court also found the act fails to adequately prescribe procedures to ensure that data obtained through the interception of communications is managed lawfully, and failed to provide adequate safeguards in cases in which the subject of surveillance is a practising lawyer or journalist.
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