Issued by Daniela Ellerbeck and Lusanda Mahkuntsu on behalf of the FW de Klerk Foundation on 12/12/2025

Introduction

This case note examines the Constitutional Court’s recent ruling about whether the Court should allow South Africa’s surveillance law (the Regulation of Interception of Communications and Provision of Communication-Related Information Act, commonly known as “RICA”) to keep working after it became invalid, while Parliament finishes fixing it. This note outlines the facts, issues and legal principles considered by the Court. It then explains how the Court applied those principles to reach its conclusion.

Facts

RICA unconstitutional:

RICA came under scrutiny after the Court’s 2021 judgment in Amabhungane Centre for Investigative Journalism NPC v Minister of Justice when it was revealed that it had been used to spy on journalists. The Court found that the Act unjustifiably limited the right to privacy (section 14 of the Constitution), because it, amongst other things:

• Failed to provide for notification: People who were spied on never had to be told that it happened, even after the spying ended.
• Failed to provide for either an independent judge or fair process: The judge who approved the spying was not fully independent, plus there was no system to protect the person being spied on during the secret application process.
• Failed to have strong enough rules to keep the stored information safe or control who could access it.
• Did not give any extra protection for lawyers or journalists when the person being spied on was a lawyer or a journalist: This is despite that fact that the confidentiality of journalists’ sources is crucial for the media to fulfil their obligations and this confidentiality is thus constitutionally protected (by section 16(1)(a) of the Constitution). Likewise, legal privilege is an essential component of the rights to a fair trial and fair hearing (guaranteed by sections 34 and 35(e) of the Constitution).

The Court gave Parliament 36 months (until February 2024) to fix RICA. In the meantime, the Court created interim safeguards (such as requiring disclosure if a target was a lawyer or journalist and mandatory post-surveillance notice.)

Parliament’s attempt to fix RICA take 1:

The Justice Minister introduced the first version of the Amendment Bill on 28 August 2023. After a very hurried process, Parliament passed the second version of the RICA Amendment Bill (B28B-2023) less than four months later in December 2023 (two months before the deadline). It was then sent to the President to be signed into law.

The President’s concerns:

However, just under a year later, on 21 November 2024 the President, on legal advice, sent it back to Parliament. (The Constitution gives him the power to do so in section 79 if he is worried about the Bill’s constitutionality). In this case, he expressed concern that:

First, the Bill allows decisions that could mean a person under surveillance is never told they were monitored. Worse, there is no way to review a decision that suspends this notification indefinitely.

And second, the Bill still fails to provide strong safeguards. Interception orders and applications to suspend notifications are made and granted ex parte – i.e. without the knowledge or participation of the person affected.

Parliament’s attempts to fix RICA take 2:

In March 2025, Parliament’s Portfolio Committee on Justice resolved to seek clarity from the Presidency on the reservations and indicated that the Bill remained unconstitutional in parts.

The Court’s deadline passed. What now?

By February 2024, the interim safeguards from Amabhungane had lapsed. This left RICA inoperative, as no valid designated judge could be appointed and interception directions could not be issued lawfully. This threatened law enforcement and national security, which led to the President approaching the Constitutional Court in 2025.

Issues

• Can the Court grant new relief after the suspension expired without reviving the original order?
• What interim measures are just and equitable to render RICA operable while Parliament continues to fix RICA?

Law

Section 172(1)(b) of the Constitution empowers courts to craft “just and equitable” remedies after finding a legislation unconstitutional. And while expired suspension periods cannot be revived, courts may grant supplementary relief to ensure certainty and operability (see Ex parte Minister of Home Affairs at para 40: “..this Court cannot revive statutory provisions after the lapsing of the period of suspension. But there is nothing in our law that precludes us from ordering amplified just and equitable relief to supplement the 2017 order.”)

Application

The Court confirmed that a lapsed suspension cannot be revived, but held that the Constitution (section 172(1)(b)) empowers it to grant supplementary “just and equitable” relief (at paragraphs 14 and 15). It reinstated modified interim safeguards, requiring disclosure when surveillance targets are lawyers or journalists and mandating a stricter post-surveillance notification regime (at paragraph 21).

Conclusion

The Court ordered the immediate operability of RICA through interim provisions, namely: First, the appointment of three designated High Court judges (who must be nominated by the Chief Justice) and who are each able to act alone. Second, the continued protection of the confidentiality of journalists’ sources and of the legal privilege of a lawyers’ clients. Third, after the surveillance ends, the police must tell the person who was spied on within 90 days. (If telling them would harm the investigation, a judge can allow delays of up to 90 days at a time, but never more than two years in total.) Finally, the Court ruled that even if Parliament does not fix RICA, these above three measures will continue to apply.

* As at the date of writing, Parliament was still busy with the RICA Amendment Bill, and the Parliamentary Legal Services had advised Parliament about how to process the RICA Amendment Bill, given that the President had sent it back to Parliament and recommended that Parliament ask the President for clarity, which Parliament had said it will do.