Issued by Shanees Nkandu on behalf of the FW de Klerk Foundation on 15/05/2025

In a significant development concerning South Africa’s surveillance legislation, President Cyril Ramaphosa has sent the Regulation of Interception of Communications and Provision of Communication-Related Information Act Amendment Bill (the “Bill”) back to the National Assembly. Citing potential constitutional challenges, the President expressed reservations about specific provisions within the Bill that may infringe upon constitutional rights and the lack of adequate oversight mechanisms.

Background: The RICA Amendment Bill

The Bill was introduced to address constitutional deficiencies in the original Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (“RICA”). These legislative changes were prompted by the 2021 Constitutional Court ruling in Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others. The Court found that RICA failed to provide sufficient safeguards for the right to privacy (section 14 of the Constitution). This was especially true for the surveillance of journalists and lawyers (see paragraphs 115 through 119 of the Court’s judgment). The Court granted Parliament a 36-month period, which came to an end on 4 February 2024, to fix RICA’s constitutional defects (see paragraphs 140 and 157 of the Court’s judgment).

Presidential Concerns

Parliament adopted the Bill on 6 December 2023 to fix RICA’s defects. It then sent it to the President to be assented to (i.e. signed into law). Upon reviewing the Bill, however, President Ramaphosa identified several areas of concern:

• Lack of Post-Surveillance Notification: Clause 25A(2)(b) of the Bill allows for decisions to postpone notifying a surveillance subject indefinitely. It also does not provide a process to review such decisions. This may result in surveillance subjects never being told they were surveilled, contravening the Constitutional Court’s directive for post-surveillance notification (see paragraph 8 of the President’s concerns).
• Ex Parte Applications: The Bill fails to provide adequate safeguards to prevent the abuse of the ex parte (i.e. without the knowledge or participation of the surveillance subject) process for interception directions and notification suspension applications (see paragraph 8 of the President’s concerns).
• Judges are still blind: The Bill also fails to address the hole in RICA that a designated judge, who has to decide whether to grant these applications etc. is unable to effectively validate the information presented to him (see paragraph 8 of the President’s concerns).

These concerns led the President to send the Bill back to Parliament, emphasising the need for revisions to ensure the law is constitutional and effective.

Parliament’s Response

Parliament’s Legal Services advised Parliament regarding the processing of the RICA Amendment Bill, pursuant to a referral by the President in terms of section 79 of the Constitution. It recommended that Parliament ask President Cyril Ramaphosa to provide clarity on several matters regarding the Bill, which Parliament has said it will do. It also informed Parliament of the The President of the Republic of South Africa v The Speaker of the National Assembly and Others case, which is an application by the President to the Constitutional Court, asking it to reinstate the interim measures (that have lapsed), pending the outcome of the Parliamentary process.

Conclusion

While the Amabhungane judgment reflects the judiciary’s active role in defending the Constitution and ensuring that the laws politicians make are consistent with it, the return of the Bill to Parliament presents an opportunity for Parliament to strengthen the public’s trust in the State’s surveillance processes by embedding clear limitations, reporting duties and independent checks.

Going forward, civil society organisations, legal experts and the broader public are likely to play an important role in shaping the revised version of the legislation. Submissions and hearings during the amendment process could influence the outcome and ensure that the final law reflects both constitutional requirements and the public interest. Ultimately, this moment serves as a reminder that surveillance laws, while vital for security, must always be rooted in transparency, legality and respect for fundamental freedoms.