The Constitutional Court was compelled to step in to protect practising lawyers and journalists from wiretapping over-reach by intelligence and investigative agencies after the presidency failed to act.
This debacle around the Regulation of Interception of Communications & Provision of Communication-related Information (Rica) Act lays bare the incapacity, even incompetence, in the presidency, which has caused a legislative limbo that undermines constitutional governance.
“The real reason the president has approached this court is to get it to address the problem of the inoperability of Rica,” said outgoing deputy chief justice Mbuyiseli Madlanga in the unanimous July 25 judgment, which cut through a swathe of presidential rationalisations — from parliament flooding his office with draft laws just before the May 2024 elections to international travel and “the crisis that involved the widely publicised deaths of children as a result of ingesting foods purchased from spaza shops”.
President Cyril Ramaphosa’s legal advisers told him interim protections of journalists and practising lawyers alongside post-surveillance notifications would remain in place until the law is enacted. But the legislation was never signed. The president returned it to MPs in November 2024, about nine months after the three-year deadline the Constitutional Court had set in February 2021 to fix the interception law after investigative journalist group amaBhungane’s successful challenge.
In late August 2024 the justice director-general reminded Ramaphosa about this law, and warned of additional unconstitutionality arising when the term of the so-called bugging judge, who authorises interception requests from the State Security Agency (SSA), police crime intelligence and others, ended on September 10. It took until October for the president’s lawyers to drop their memo that the Rica amendment was unconstitutional and only on December 13 were presidential court papers filed to regularise this Rica mess.
With its unanimous judgment the Constitutional Court has closed the gap in the law. That the bugging judge must be told if the surveillance targets are practising lawyers and journalists is a crucial check in an era when national security is invoked to entrench and justify secrecy. Another safeguard is post-surveillance notification within 90 days of an operation ending, though this can be delayed in 90-day instalments for up to two years if an operation remains ongoing.
But it's not the end of the matter. New national security-motivated legislation on interception has been announced to replace Rica — even as MPs are still considering the returned Rica amendments. With national security and sovereignty thrown about in these uncertain — and noisy — times, it’s deeply ironic that the presidency factors in undermining the rule of law.
It was a fiction when minister in the presidency Khumbudzo Ntshavheni recently claimed the release of the national security strategy complied with the 2018 High-Level Review Panel Report into the SSA. That report had recommended that the national security strategy “should be widely consulted with the public and parliament before formal approval”. The expert panel on the July 2021 civil unrest reaffirmed the need for public consultations.
Instead the strategy — it appears more like a cut-and-paste wish list — was drafted in secret with three behind-closed-door briefings to parliament’s intelligence oversight committee. Similarly, Ntshavheni’s claim that the General Intelligence Laws Amendment Act provides a new democratic state security mandate ring hollow. Echoing the Rica debacle, Ramaphosa took 10 months before signing this law in March 2025, but must still proclaim its commencement. In effect the law in not yet law, and claims of democratic renewal are a mirage.
Rather than ministerial mumblings of coups d’état — remember the government not long ago branded non-governmental organisations a regime change threat — it is stalled laws and secrecy that endanger SA.
• Merten is a veteran political journalist specialising in parliament and governance.
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