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The only reason why they were placed undersurveillance must be that they were being harassedfor their investigations into the police, and that thepolice wanted to uncover their sources so that theycould plug the leaks. In fact, in an affidavit for thecase, one of the police officers on trial, Brian Padayachee,stated that he was given an instruction by ahigher-ranking officer to undertake a covert investigationinto the activities of certain journalists that,it was claimed, posed a threat to the organisation.This investigation included the interception andmonitoring of their calls. 9 Apparently, the ultimateinstruction came from Cele, who was concernedthat the journalists were attempting to infiltrate thepolice with an intention of tarnishing the image ofthe police; but, in a bizarre twist, this very directionthat he had given the instruction for was usedagainst him to place him under surveillance.These incidents showed just how easy it is to interceptjournalists’ communications, or indeed thecommunications of any citizen who asks inconvenientquestions about those in authority. There hasbeen growing evidence of South Africa’s securitycluster – consisting of the police, the intelligenceservices and the military – becoming increasinglypowerful and unaccountable. Unless the state’ssurveillance capacities are regulated properly,then abuses for political reasons are likely to continue.As Hofstätter noted, “…there is a completefree-for-all for the intelligence services to interceptwhatever they want. They just come up with spuriousgrounds. There is a time-honoured practiceto circumvent RICA, and all they do is just slip thenumbers in.” 10Analysis and conclusionThe Sunday Times case reveals several systemicweaknesses in the regulation of communicationsinterception in South Africa. One of the most seriousweaknesses is that no one is even informedthat their communications have been intercepted,even after the investigation is complete. This meansthat the authorities are given a power that is, to allintents and purposes, hidden from the public eye.This violates the requirement in the Necessary andProportionate Principles that individuals should benotified of a decision authorising communicationssurveillance with enough time and information toenable them to appeal the decision, and shouldhave access to the materials presented in support9 Affidavit by Brian Padayachee, 14 March 2012.10 Discussion with Stephan Hofstätter and Mzilikazi wa Afrika,Rosebank, 20 March 2014.of the application for authorisation. 11 Needless tosay, this principle should apply only if there is norisk to the purpose of surveillance, in which casepost facto notification is appropriate.In the United States’ system, in order to protectthe rights of the people under surveillance incriminal matters, within 90 days of the terminationof the court order the judge must ensure that theperson whose communications were intercepted isinformed about the order. 12 The fact that a similarprovision does not exist in RICA lays it wide open toabuse, as the authorities can rest assured that theirabuses will most probably never come to light. Theonly reason why the Sunday Times learned of theabuse was because they have extensive contactswithin the police; sources of information that wouldgenerally not be available to ordinary citizens. 13Another problem this case highlights is thespeculative nature of the grounds for issuing interceptiondirections using RICA. Privacy Internationalhas argued that the grounds are too vague, and thatthe higher standard of “probable cause” or a similarlevel of finding is generally required for a judge toissue an interception direction. 14 Directions may alsobe issued in relation to serious offences that may becommitted in future, which may not be constitutionalas it allows law enforcement officers to speculateon future acts that have not yet occurred. 15Furthermore, the granting of directions is an inherentlyone-sided process, which means that thejudge has to take the information that is given tohim on trust. No ombudsman is present to representusers’ interests; as a result, the process lacksan adversarial component, which also predisposesit to abuse.The level of information provided by thedesignated judge that is eventually released is inadequate.The annual report provides bare detailsabout the number of applications for interceptiondirections, the state agency that made the applicationsand the number that were granted or refused.11 International Principles on the Application of Human Rights toCommunications Surveillance. en.necessaryandproportionate.org/text12 US Code § 2518 - Procedure for interception of wire, oral, orelectronic communications. www.law.cornell.edu/uscode/text/18/251813 Discussion with Stephan Hofstätter and Mzilikazi wa Afrika,Rosebank, 20 May 2014.14 Privacy International. (2001). Submission to the ParliamentaryCommittee on Justice and Constitutional Development, 14 August.15 Bawa, N. (2006). The Regulation of Interception ofCommunications and Provision of Communications RelatedInformation Act. In L. Thornton, Y. Carrim, P. Mthsaulana, &P. Reburn (Eds.), Telecommunications Law in South Africa.www.wits.ac.za/academic/clm/link/publications/22988/telecommunications_law_in_south_africa.htmlThe judge may also include some general commentson trends. No information is available in these reportson the number of interceptions that actuallyresult in arrests and convictions. For instance, insufficientinformation was provided to understand whythere was a huge 231% increase in the number ofinterception directions granted by the designatedjudge to Crime Intelligence between 2009 and 2010,the year that Hofstätter and wa Afrika’s communicationswere intercepted. 16Furthermore, other democracies have establishedindependent commissions to oversee allmonitoring and interception activities. Such commissionsundertake full and public reportingprocesses, with the most sensitive areas beingremoved. Yet in South Africa, the parliamentaryreports are written by the very judge who took thedecisions, which is not healthy as the judge is unlikelyto reflect adequately on the weaknesses ofhis or her own decisions.South Africa’s Act also does not recognise theright of journalists to protect their sources of information,either in the form of express provisions inthe Act or in the form of a protocol that law enforcementor intelligence officials are required to adhereto in investigating journalists.All these problems make for an Act that is nothuman rights-compliant, and is likely to continuebeing abused unless safeguards are introduced.16 Khumalo, J. A. M. (2010). Statistical briefing by designated judgefor the period 1 April 2009 to 31 April 2010, p. 3-4.Action stepsIn 2014, the Department of State Security will launcha review of intelligence policy, to assess the strengthsand weaknesses of all national security-related policies.The Department of Communications has alsolaunched a review of ICT policy and legislation. Civilsociety needs to present researched alternatives tothe existing communications surveillance regimesthat enhance respect for basic rights and freedoms.Particular emphasis should be placed on ensuringthat the regime conforms to the Necessary and ProportionatePrinciples and that these principles aredomesticated in South African surveillance policyand practice.These advocacy efforts should focus particularlyon the following areas:• Strengthening the grounds for the issuing of interceptiondirections in RICA.• Increasing transparency in reporting levels oncommunications surveillance practices.• Ensuring that a user-notification provision is insertedinto RICA.• Ensuring independent oversight over the processof issuing interception directions.• Implementing a protocol with respect to thesurveillance of journalists’ communications,setting out the circumstances in which such interceptionscan take place, and the procedures.• Including a provision in RICA for an ombudsmanto represent users and the public interestwhen applications for interception directionsare made.226 / Global Information Society Watch south africa / 227