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South AfricaCommunications surveillance in South Africa:The case of the Sunday Times newspaperDepartment of Journalism, Film and Television,University of JohannesburgJane Duncanwww.uj.ac.zaIntroductionThis article discusses the communications surveillanceof two investigative journalists from thebiggest weekend newspaper in South Africa, theSunday Times. The paper is owned by one of thefour largest press groups, Times Media Limited. Thejournalists, Stephan Hofstätter and Mzilikazi wa Afrika,had their communications intercepted by theCrime Intelligence Division of the South African PoliceService (SAPS), in order to disrupt their work asjournalists and uncover their sources. This story hasbeen chosen as a case study of just how corruptibleSouth Africa’s communications monitoring and interceptioncapacities are, in spite of the governmentclaiming that it offers all the necessary protectionsfor civil liberties.The revelations by former National SecurityAgency (NSA) contractor Edward Snowden – thatthe NSA was conducting mass surveillance of UScitizens, as well as political leaders such as GermanChancellor Angela Merkel – have created a seriousinternational controversy. Other countries have alsobeen exposed as conducting mass surveillance too,and many people in South African civil society andthe media have been concerned that the country’sauthorities may be doing the same. This reportexamines one case where clear proof emerged ofabuses, and what the case tells us about the stateof civil liberties in relation to communicationsnetworks.Policy and political backgroundSouth Africa is not a terrorist target, yet growingsocial protests mean that the temptation is therefor less principled members of the security apparatusto abuse the state’s surveillance capabilitiesto advantage the faction currently in control of theruling African National Congress (ANC) and disadvantagetheir perceived detractors. South Africahas some excellent investigative journalism teams,and the state could easily misuse its surveillancecapabilities to harass them and expose their confidentialsources of information, especially if theythreaten ruling interests.South Africa has a law that governs the surveillanceof domestic communications on both criminaljustice and national security matters, the Regulationof Interception of Communications and Provision ofCommunications Related Information Act (RICA).RICA forbids the interception of communicationswithout the permission of a designated judge, andsets out the conditions for the granting of interceptiondirections. According to the Act, interceptiondirections should be granted only if there are reasonablegrounds to believe that a criminal offencehas been or is being or probably will be committed. 1The Act also requires all South Africans to registertheir subscriber information management (SIM)cards with their mobile phone providers, so that thestate can track the activities of suspected criminalsor victims if they need to. 2In spite of the fact that RICA attempted to strikethe correct balance between the interests of justiceand national security on the one hand, and civilliberties on the other, the Act has insufficient guaranteesfor civil liberties online. It ignores many ofthe most basic protections set out in the recentlyreleased Application of Human Rights Principles toCommunications Surveillance, otherwise known asthe Necessary and Proportionate Principles. 3An added problem is that foreign signals intelligencegathering does not fall under RICA, whichmeans that this practice is unregulated by law. Thisis particularly worrying as the state’s bulk monitoringcapacity is held by the interception centre thatundertakes foreign signals intelligence; so the stateagency with the greatest capacity for mass surveillanceis also the one that is least regulated by law.In 2005, the state’s mass surveillance capacitywas misused to spy on perceived opponents ofthe then contender for the presidency, Jacob Zuma.Several politicians and activists have also alleged1 Section 5(a)(i), Regulation of Interception of Communicationsand Provision of Communications-Related Information Act, www.justice.gov.za/legislation/acts/2002-070.pdf2 Section 39, Regulation of Interception of Communications andProvision of Communications-Related Information Act. www.justice.gov.za/legislation/acts/2002-070.pdf3 en.necessaryandproportionate.org/textthat their communications are being surveilled, althoughit is difficult to say whether this is the case.Another weekly newspaper, the Mail & Guardian,has quoted sources inside the police and State SecurityAgency (SSA) alleging that security personneloften do not even bother obtaining directions tointercept communications. 4 These incidents and allegationsarise from the fact that there are systemicweaknesses in the country’s communications surveillanceregime, which predispose it to abuse.The Sunday Times caseHofstätter and wa Afrika are part of an award-winninginvestigative journalism team at the SundayTimes. They have been responsible for some ofthe most important stories exposing governmentcorruption and malfeasance, and as a result haveearned the ire of some government officials whowould prefer to keep their dark secrets just that.The journalists were responsible for a story thatsaw South Africa’s top cop, National Police CommissionerBheki Cele, being fired by the president in2012 for dishonesty, unlawfulness and mismanagementin concluding a lease deal for offices for SAPSin the capital city of Pretoria and in Durban. The dealwas concluded with businessman Roux Shabangu,who was close to President Jacob Zuma. Their storiesexposed how Cele had broken treasury rules toadvantage an associate of Zuma’s financially.The team also investigated allegations of corruptionagainst Cele when he was the member of theexecutive council (MEC) responsible for transport,safety and security in the KwaZulu-Natal province ofSouth Africa. Moreover, they published damning exposésof the serious and violent crimes unit of SAPSin the township of Cato Manor, which they claimedturned rogue by operating a “death squad” and killingsuspects. The police members alleged to havebeen involved still have to stand trial.As they deal with extremely sensitive stories,Hofstätter and wa Afrika must do their utmost toprotect their sources, including those located insidethe police. In an attempt to do just that, they carrytwo phones: one with a SIM card that has been registeredin terms of RICA and one with a card that hasbeen registered by someone other than themselves.“Pre-RICA’d” SIM cards – SIM cards that are registeredbefore they are bought – can be bought fairlyeasily in South Africa, and cannot be traced back totheir users as they are not registered in their names.They use the first for non-sensitive communications4 Swart, H. (2011, October 14). Secret state: How the governmentspies on you. Mail & Guardian. mg.co.za/article/2011-10-14-secretstateand the second for sensitive communications withconfidential sources, assuming that communicationsusing pre-RICA’d SIM cards will be impossibleto trace back to their sources.Wa Afrika had a sinister run-in with the authoritiesin 2010, when his communications wereintercepted by the police on the pretext that hewas suspected of gun running. The journalist hadtravelled in and out of the country several times onstories, and the police used this as “evidence” thathe may well have been involved in crime. The existenceof the interception direction was confirmedby the Inspector General of Intelligence, who alsoconfirmed that the direction was lawful. 5 The vagueand speculative grounds for the issuing of interceptiondirections worked to the police’s advantage,and they used this to pursue an investigation of anon-existent crime.However, according to Hofstätter and wa Afrika,later in 2010, the police managed to obtain theirpre-RICA’d numbers, and slipped them into a largerapplication for an interception direction for thedesignated judge, Joshua Khumalo, to approve. Thepolice claimed that the numbers were of suspectedmembers of a criminal syndicate, and the journalists’numbers were included under fictitious names.Oddly enough, the Police Commissioner’s numberwas also included in the application, althoughCele’s number was subsequently cancelled.Apparently the police obtained these numbersfrom one of their sources, who had decided to betraythe journalists in return for a promotion. 6 Thejournalists learned these details from other sources.The bugging of their phones was confirmed bya Pietermaritzburg magistrate, who stated that theKwaZulu-Natal provincial crime intelligence chiefhad sent him as an emissary to apologise for thebugging. However, the chief has refused to be drawninto a discussion with the journalists directly. 7The Sunday Times has taken this case to court,and two officers are being charged with havingviolated RICA. The sanctions for having done soare stiff: any person intercepting communicationsunlawfully could be imprisoned for up to 10 yearsor fined up to ZAR 2 million (approximately USD200,000). The journalists claim that they have notbeen involved in any crimes, and as a result there isno valid reason for the police to investigate them. 85 Discussion with Stephan Hofstätter and Mzilikazi wa Afrika,Rosebank, 20 March 2014.6 Discussion with Stephan Hofstätter and Mzilikazi wa Afrika,Rosebank, 20 March 2014.7 Affidavit by Stephan Hofstätter, 24 March 2012.8 Affidavit by Stephan Hofstätter, 24 March 2012.224 / Global Information Society Watch south africa / 225