• The RICA Amendment Bill has been kicked back to the National Assembly by President Cyril Ramaphosa after nearly a year.
• The President is concerned that the amendments do little to protect the bill from Constitutional challenges.
• The Constitutional Court gave government a deadline of three years to amend the RICA Act following a case between various government bodies and the Amabhungane Centre for Investigative Journalism.

For nearly a year, the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill or simply the RICA Amendment Bill has been sitting on President Cyril Ramaphosa’s desk.

The bill was introduced to Parliament in August 2023 and it was practically speedrun through the parliamentary process for reasons we’ll get to in a bit. By 14th November, the amendment bill had been passed from the National Assembly to the National Council of Provinces and by 6th December it had been delivered to the President for assent.

However, Ramaphosa has now kicked the bill back to the National Assembly. According to The Presidency, there is concern that a number of constitutional matters in the Bill passed by Parliament require reconsideration. This is because the Bill still contains ways for government to worm its way around notifying individuals that they are being surveilled.

Specifically, the President is concerned that section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified that they were being watched. Additionally, section 25A(2)(b) is lacking in that government could conduct surveillance operations on a person without telling them using national security as a reason for withholding that information.

“The President also wishes to see the legislation provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained ex parte (in the interests of one side or party only),” the Presidency reports.

The reason these amendments moved so quickly through Parliament is down to the fact that it was on a deadline. In 2021 a Constitutional Court judgment between Amabhungane Centre for Investigative Journalism and Others versus the Minister of Justice and Correctional Services and Others put a timer on amending RICA.

In this matter, investigative journalist, Sam Sole, and a state prosecutor, Billy Downer discovered their communications were being intercepted without their knowledge.

This after their communications appeared in an unrelated legal matter. In 2021 the Court ruled that government had to amend RICA so that subjects of surveillance were notified within 90 days of the expiry of the interception order. This would allow surveillance subjects the ability to address any potential abuses of power.

But, the amendments presented by government seem to do little to address that problem given that surveillance could be kept secret under the guise of national security. This leaves the amended bill open to a constitutional challenge again, effectively making the amendments useless.

It should be highlighted that Parliament’s deadline to amend the bill was three years which means that time is nearly up. However, now that the bill has to be reconsidered there will need to be debates, public hearings and other processes that need to be followed before it can once again be sent to the President so it’s almost certain that the deadline will be missed.

With no threat of a deadline then, we will have to wait to see if government works as quickly as it did in 2023 to get the bill in front of the President. Of course, Ramaphosa then needs to sign the bill and given it took him nearly a year to consider these first amendments, we may be waiting a while.