(1) The Department of Justice and Constitutional Development (the Department) is in the process of conducting an extensive review of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act 70 of 2002 (RICA Act) for its comprehensive reform, which considers, among others, its implementation and effectiveness across the various sectors it traverses, which include interception and surveillance law, criminal law, SIM card regulation, communications law, privacy rights and related law.
The purpose of this reform project is to review, reform and amend aspects of RICA to enhance its effectiveness, to address legislative gaps and to respond to operational challenges identified by the primary users of RICA.
The reform effort began in the processing of the RICA Amendment Bill, 2023 (Bill), in Parliament last year, and continued through the structures established for the processing of the Bill. As part of the processing of the Bill, the JCPS Cluster required the formation of a Task Team, comprising key departments, to discuss the Bill and agree on key positions.
Regarding the metrics the Department is measuring, as part of the RICA reform, this is based on research on major thematic areas obtained from key stakeholders. This research was based consultation with internal stakeholders (comments received and multiple engagements with the RICA Task Team), external stakeholders (public comments received on RICA and the Bill) and as identified by the Department as part of its own research and global review of RICA. Some of these include SIM card regulation, judicial oversight mechanisms, bulk surveillance, listed equipment and process flows for listed equipment exemption applications.
The Department considered, among others, the comments of stakeholders, based on their operational experience; the existing domestic legislative framework for each of the varying areas of law implicated by RICA; comparative foreign law and international law on similar legislation and its challenges and solutions; domestic news articles and reports on the operational and legislative challenges and proposed solutions for RICA; and reviews of similar legislation in other countries.
The Department’s assessment of the effectiveness of the legislation is that from the comments received, extensive research conducted, multiple engagements with various stakeholders and close analysis, RICA is, for the most part, workable and effective legislation but there are parts that require review.
RICA is complex, difficult and policy-laden legislation. Its complexity stems from the fact that it brings together three substantive and weighty regulatory and policy considerations under one banner in interconnected, but separately managed, processes. An added layer of complexity is that this necessarily invokes consideration of privacy rights. In approaching a review of legislation of this complex nature, we must balance the duty of the state to respect the right to privacy and its obligation to protect national security and prevent crime. For this reason, benchmarking RICA is critical.
RICA is one statute which is part of the broader justice and crime prevention machine, with links to privacy and data protection and SIM card regulation. It cannot be assessed or critiqued as a standalone solution to crime prevention and protection of national security. It is, and must be seen, as one part of the overarching solution to fight crime and protect national security.
Some of these proposed solutions include tightening SIM card regulation processes throughout the SIM card value chain, introducing stricter controls for the issuance and delivery of SIM cards, strengthening and capacitating existing structures which facilitate the lawful interception of communication, and looking to international law and comparative foreign law for solutions which can be used in the South African context. Key to these proposed solutions is their viability in the current technological landscape, bearing in mind the socio-economic and legal impact of the solutions on the end-user and on those in the value chain.
(2) The National Prosecuting Authority (NPA) is mandated to prosecute offences as provided in Chapter 9 of the (Rica Act) after the South African Police Service (SAPS) has investigated such allegations.
From the available statistics as provided in response to the Parliamentary Question number 935 of the Internal Question Paper: National Assembly no 11-2024, it is evident that over the past 7 years, 86 prosecutions of various offences contained in the RICA Act have led to the successful prosecution and conviction of 69 accused.
The NPA does, not measure or record statistics of cases that were successfully prosecuted with the implementation of the provisions of the RICA Act, that enables certain evidence obtained by means of the RICA Act, to be used in criminal proceedings in order to prove the commission of various common and statutory offences.
The NPA can however confirm that we receive applications in terms of Section 47(2), read with Sections 1, 5 and 47(1), of the RICA Act, to authorise the use of information regarding the commission of any criminal offence, obtained by means of any interception or the provision of any real-time or archived communication-related information obtained in terms of the said Act, or any similar Act in another country, as evidence in criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, No 121 of 1998.
Such applications are therefore evident that the NPA does make use of the provisions of the RICA Act, to enable certain evidence obtained by means of the RICA Act, to be used in criminal proceedings to prove the commission of various common and statutory offences.