The Constitutional Court has ruled in favour of President Cyril Ramaphosa’s urgent application to allow for government spying operations to continue, despite the current surveillance law still being deemed unconstitutional.
At the centre of the matter is the Regulation of Interception of Communications and Provision of Communication-Related Information Act, commonly known as RICA.
The law governs how South Africa’s intelligence and law enforcement agencies can legally intercept private communications such as phone calls, emails and messages.
It also outlines the role of judges who authorise such surveillance.
Surveillance powers
In a unanimous ruling handed down on Friday, July 25, the Constitutional Court granted Ramaphosa’s request for just and equitable relief to keep surveillance powers functioning.
This comes after the law was rendered inoperable earlier this year when court-ordered interim provisions expired in February.
Ramaphosa approached the court after realising that, due to the lapse, no designated judge could be lawfully appointed to authorise spying operations.
This left South Africa’s intelligence agencies unable to conduct legal surveillance on suspected criminals or threats to national security.
The surveillance paralysis came to light while Ramaphosa was still reviewing the RICA Amendment Bill. This bill was passed by Parliament in December 2023.
Upon receiving legal advice in October 2024, he declined to sign the Bill and returned it to Parliament. He stated that it did not adequately address constitutional flaws previously identified by the court in the AmaBhungane case.
Three designated judges to be appointed
In its ruling, the court said it “would not allow RICA to remain inoperable”. It granted the president’s request under section 172(1)(b) of the constitution.
The interim relief allows Chief Justice Mandisa Maya to nominate three judges to serve as designated judges. They will now be empowered to grant surveillance directives.
The court also ordered the Minister of Justice and Constitutional Development to officially appoint the nominated judges immediately.
It also reinstated the interim measures from its 2021 AmaBhungane ruling. The ruling had previously ensured the law could function until Parliament amended it properly.
The AmaBhungane case, brought by investigative journalists, had exposed RICA’s constitutional flaws. Particularly the lack of transparency and safeguards for whistle-blowers. Also the failure to notify people who had been spied on after surveillance ended.
In recent months, Parliament’s Justice Committee heard submissions from the State Security Agency (SSA). The agency argued for powers to delay or avoid notifying targets of surveillance indefinitely.
SSA warned that revealing surveillance — even two years later — could damage intelligence operations and international cooperation.
Interception laws under scrutiny
They also cited a 2008 case in which Business Day Financial Mail was successfully interdicted from publishing classified information. This defended the need for strict secrecy.
Opposition parties and civil society groups have not taken kindly to SSA’s approach.
The African Transformation Movement (ATM), while supporting strong intelligence laws, told Sunday World on the sidelines of the hearings that any interception must be “based on clear and tangible justifications” and not be “exploited to silence dissent”.
Parliament is yet to finalise the revised RICA Bill. Until then, President Cyril Ramaphosa’s court victory ensures the country’s surveillance machinery remains legally alive. But also under intense political scrutiny.
