The essential one-sidedness of ex parte applications by state agencies seeking to conduct surveillance and intercept communications should require that a public advocate with security clearance participate in the hearings before a judge, MPs were told on Friday.
An ex parte application is used for one party to ask the court for an order without providing the other party the usual amount of notice or opportunity to write an opposition.
Several presenters making submissions to parliament’s justice committee — amaBhungane, Intelwatch, Privacy International and University of Johannesburg visiting professor Jane Duncan — made this proposal during public hearings on the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill (Rica) by parliament’s justice committee.
The act allows surveillance regarding to serious crimes and threats to national security.
Duncan said that several jurisdictions provide for public advocates who represent the interests of the absent surveillance subjects in the application process.
Duncan said the provision in the bill for a review judge would not solve the problem of the one-sided nature of ex parte applications as it would not introduce an adversarial element into the process.
Amendments to Rica were ordered on February 4 2021 by the Constitutional Court, which suspended its declaration of the act’s unconstitutionality for three years for parliament to address the defects. The deadline for doing so is February 4 2024.
Managed lawfully
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 fails to provide adequate safeguards in cases in which the subject of surveillance is a practising lawyer or journalist.
Murray Hunter, acting executive director of Intelwatch, an NGO that promotes public oversight of surveillance and intelligence powers, said a public advocate with security clearance would help to prevent surveillance abuse and the judge from being given insufficient information.
He also said that the communication surveillance provisions of section 205 of the Criminal Procedure Act lacks the safeguards that the amendment bill intended to provide and allows for surveillance of minor offences. This creates a loophole that has been abused. Rica should be the only mechanism through which law enforcement agencies could access communication-related data, Hunter argued.
The amaBhungane Centre for Investigative Journalism, which brought the original application to the Constitutional Court, said the bill will not establish a strong surveillance regime that does not limit rights unjustifiably.
The centre’s advocacy co-ordinator Caroline James said it is concerned that the amendment bill provides for only one designated judge to consider surveillance applications, and argued that there should be a designated panel of judges or for the bill to allow more than one judge to be appointed. All judicial decisions should be subject to review.
There should also be a time limit on withholding notification of the surveillance to its subject; it should not be allowed to run indefinitely.
Campaign for Free Expression executive director and University of the Witwatersrand journalism professor Anton Harber stressed the need to get the amendment bill right “to put an end to state agencies or others to take gaps in the law” to undertake surveillance as he personally had been subjected to.
“Oversight has to be strong and truly politically independent,” he said. The review process after the ex parte application should be robust. Just having a second judge look at the decision of the first judge based on the same information is inadequate.
A public representative would be helpful or there should be a full review of the surveillance involving the subject of the surveillance after the subject has been notified that the surveillance has taken place. Judges should also be required to give the reasons for their decisions in the review process.
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