Analysis

AmaBhungane et al v Minister of Justice and Correctional Services et al

By Adv Vuyani Ngalwana SC via @https://www.anchoredinlaw.net

AmaBhungane Centre for Investigative Journalism NPC et al v Minister of Justice and Correctional Services et al (North Gauteng High Court, Pretoria. Case Number 25978/2017) 16 September 2019)

IN what can fairly be described as a ground-breaking and far-reaching judgment, both for state security on the one hand, and freedom of the media on the other, one Judge sitting as the Pretoria High Court has declared as unconstitutional a raft of provisions of the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) and afforded Parliament two years within which to remedy the constitutional invalidity.

Until the constitutional invalidity, as declared by the Judge, in those myriad provisions of RICA has been remedied by Parliament, the Judge has, at the instance effectively of the media, directed how various provisions of RICA will read, including adding a new provision, section 16A, which is intended specifically for the protection of journalists and practising legal practitioners.

In terms of the South African Constitution, the declaration of constitutional invalidity as declared by the Judge will take effect only if the Constitutional Court confirms it. But in terms of the order of the Judge, it appears that the provisions read into RICA by the Judge take immediate effect, including the new provision that relates to journalists and practising lawyers. The provision which relates to the definition of “designated judge” takes effect six months after the date of the order by the Judge.

To be clear, Amabhungane did not seek an order that notice of surveillance by the state be given before the surveillance. The order that was sought was that notice be given after surveillance. See paras 86 & 87 of AmaBhungane Heads of Argument below.

Together with the Full Judgment, all sets of pleadings and written Heads of Argument by all parties are provided. Annexures to affidavits have not been provided.

Read the Full Judgment Judgment in AmaBhungane et al v Min of Justice et al – 16 September 2019:

Related documents: Written Arguments

AmaBhungane Heads of Argument

Amicus Heads of Argument

State Security – Court Address

State Security Heads of Argument

Justice, Defence & Police Heads of Argument

Pleadings

Notice of Motion

Founding Affidavit – Sam Sole

Answering Affidavit – SAPS Crime Intelligence

Answering Affidavit – Dep Min of Justice

Answering Affidavit – Chief of Staff SANDF

Answering Affidavit – DG State Security Agency

Replying Affidavit – Sam Sole

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