3.3.3.

The South African law has been undergoing considerable revision efforts
which may lead to a complete overhaul of the entire RICA if sentiments placed
on record in the High Court and Parliament are anything to go by;

3.3.4.

More importantly, and as recently as 16th September 2019, a South African
Court condemned and struck down or otherwise amended key provisions of
the RICA more particularly as follows:
3.3.4.1.

Where the Act did not provide for post – interception notice to data

subjects, the Court found such provisions to be inconsistent with the
South African Constitution by failing to provide adequate safeguards
against abuse and to prevent the possibility of data subjects never ever
being able to know that they had been the subjects of information
interception;[34]
3.3.4.2.

Where the Act provides for the appointment of a designated judge by

the Minister, the Court retained that power but with the qualification
that “however, the appointees should be nominated by the Chief
Justice and the Minister should be obliged to accept the
nominations.”[35]
3.3.4.3.

The Court declined to rule in favour of a prayer to introduce the

institution of a public advocate to act as a further safeguard in
applications for interception warrants as part of the adversarial system
of litigation. Whilst noting that such an institution may be a safeguard
given the ex parte nature of all applications for interception it was content
to declare the relevant provision as ultra vires the Constitution but
without prescribing the manner of curing the defect and left it to the
legislature to do so in within two years of its order; [36]
3.3.4.4.

The Court declined to outlaw the provisions regarding archiving and

storage of intercepted information and contented itself with ordering a
revision of the weak safety measures regarding the control, access to and
dissemination of such stored information in the following terms:
“(1)

RICA, especially sections 35 and 37, are inconsistent with the Constitution and

accordingly invalid to the extent that the statute, itself, fails to prescribe proper procedures

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