AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others

1. Case Citation and Basic Information

Case Name: AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others

Citation: [2021] ZACC 3; 2021 (4) BCLR 349 (CC); 2021 (3) SA 246 (CC)

Court: Constitutional Court of South Africa

Date of Decision: 4 February 2021 (heard 25 February 2020)

Bench: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ. Majority judgment by Madlanga J (Khampepe J, Majiedt J, Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ concurring); Jafta J dissenting (Mogoeng CJ concurring in the dissent).

2. Introduction

On 4 February 2021, the Constitutional Court of South Africa delivered a landmark ruling on the constitutionality of state surveillance under the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”).¹ The case arose after investigative journalist Sam Sole discovered, through court papers filed in unrelated litigation, that his confidential communications with a state prosecutor had been intercepted years earlier without his knowledge.² In a majority judgment authored by Madlanga J, with Jafta J dissenting (Mogoeng CJ concurring in the dissent), the Court held that RICA was unconstitutional in five distinct respects for failing to safeguard the right to privacy, and separately declared the state’s bulk surveillance programme unlawful for lacking any legislative basis at all.³ The decision has been described as one of the most consequential privacy rulings to emerge from an African court, prompting subsequent legislative reform.⁴

3. Facts of the Case

The first applicant, AmaBhungane Centre for Investigative Journalism NPC, is a non-profit investigative journalism organisation. The second applicant, Stephen Patrick Sole, is a journalist and its managing partner.⁵ In 2008, Mr Sole suspected that his communications were being monitored and intercepted by state authorities.⁶ In 2009, he sought full disclosure of the details of this alleged surveillance from the Office of the Inspector-General of Intelligence. His efforts were unsuccessful: he was informed that the National Intelligence Agency and the police’s crime intelligence division had been found not guilty of any wrongdoing, and that RICA in any event prohibited disclosure of surveillance-related information. Mr Sole was consequently left uncertain as to whether his communications had in fact been intercepted, or on what basis.⁷

In 2015, during unrelated court proceedings to which Mr Sole was not a party, transcripts of telephone conversations between him and Billy Downer, a state prosecutor, were attached to a court affidavit. This confirmed that his communications had indeed been intercepted in 2008.⁸ Following this discovery, Mr Sole approached the State Security Agency for further details. In 2016, he was provided with two extensions of an initial interception direction, but neither the extensions nor the accompanying transcripts disclosed the basis on which the original interception had been authorised. The State Security Agency indicated that these were the only records it held. Mr Sole therefore remained unable to establish the reason for, or the lawfulness of, the interception of his communications.⁹

On this basis, the applicants approached the High Court of South Africa, Gauteng Division, Pretoria, contending that RICA is unconstitutional to the extent that it fails to provide adequate safeguards for the right to privacy. It was common cause before the High Court that state surveillance under RICA does limit the right to privacy; the dispute therefore turned on whether this limitation could be justified under section 36(1) of the Constitution. The High Court held that it could not, declared RICA invalid to the extent of the inconsistency, and suspended that declaration for two years pending legislative correction, granting interim relief by reading-in additional provisions.¹⁰

4. Legal Issues

Two principal questions arose for determination.

Issue 1: Whether the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) unreasonably and unjustifiably fails to protect the right to privacy, and is therefore unconstitutional to the extent of that failure — considered particularly against the interplay between the right to privacy under section 14 of the Constitution and the rights protected under sections 16(1) (freedom of expression), 34 (access to courts), and 35(5) (fair trial rights).¹¹

Issue 2: Whether there is a legal basis for the state to conduct bulk surveillance, given that the High Court had held the state’s practice of bulk interception of communications to be unauthorised by law — including the subsidiary question of whether the Minister of State Security’s appeal on this point was properly before the Court at all.¹²

5. Arguments Presented

5.1 Applicants’ Arguments

The applicants raised five discrete grounds of challenge. First, RICA fails to provide for a surveillance subject ever to be notified, even after the fact, that they were monitored (the “notification issue”).¹³ Second, RICA fails to secure the independence of the designated Judge — who is selected by the Minister of Justice alone, through an opaque process, with no role for the Judicial Service Commission or Chief Justice, and subject to indefinite reappointment — and further lacks any adversarial mechanism to protect the surveillance subject during ex parte applications (the “independence” and “ex parte” issues).¹⁴ Third, RICA lacks adequate safeguards over how intercepted data is subsequently managed, copied, shared, or destroyed (the “management of information issue”).¹⁵ Fourth, RICA fails to provide special protection where the surveillance subject is a practising lawyer or journalist, risking breaches of legal privilege and source confidentiality.¹⁶ Finally, the applicants contended that the state’s bulk interception of communications is not authorised by RICA — or any other law — at all.¹⁷

5.2 Respondents’ Arguments

The Minister of State Security defended the designated-Judge appointment process, arguing that the Constitution is silent on how such judges must be appointed and that judges are presumptively independent regardless of the appointment mechanism.¹⁸ On bulk surveillance, she argued that section 2 of the National Strategic Intelligence Act empowers the state to “gather, correlate, evaluate and analyse” intelligence, which she contended authorises the practice, and that RICA already provides sufficient safeguards against abuse.¹⁹ The third amicus, Privacy International, countered that bulk surveillance involves the untargeted interception of virtually all internet traffic without warrant, suspicion, or statutory limit — amounting to an extreme, unregulated violation of the right to privacy.²⁰

6. Court’s Reasoning and Analysis

On the notification issue, the Court reasoned that RICA’s blanket prohibition on ever disclosing an interception direction — even after surveillance has ended — creates “a sense of impunity”, since a subject who is never told can never challenge an unlawful interception or seek redress under section 38 of the Constitution.²¹ Sections 42(1) and 51 of RICA criminalise disclosure entirely, meaning most subjects never learn of surveillance at all; the Court held this indefinite secrecy overbroad once the risk of jeopardising an investigation had passed, since post-surveillance notification would not undermine the purpose of surveillance but would meaningfully deter abuse.²²

On the independence of the designated Judge, the Court adopted the Canadian Supreme Court’s definition of independence in R v Valente — a “status or relationship… that rests on objective conditions or guarantees”, not merely a state of mind.²³ Applying its own precedents in McBride and Glenister II, the Court held that independence turns on factors such as method of appointment, term security, and public perception of autonomy.²⁴ Measured against this standard, the designated Judge — appointed solely by the Minister of Justice, without JSC or Chief Justice involvement, for indefinite renewable terms — lacked the structural safeguards that ordinary judicial appointments enjoy under section 174(3) of the Constitution, drawing on the Court’s reasoning in Justice Alliance regarding non-renewability and public confidence.²⁵

On the ex parte issue, the Court found that because interception directions are granted solely on the state’s uncontested version of events, the designated Judge has no realistic means of testing the information’s accuracy — a structural flaw the Court illustrated by reference to a documented case of surveillance authorised on false information.²⁶

On bulk surveillance, the Court rejected the Minister of State Security’s argument that section 2 of the National Strategic Intelligence Act’s broad reference to “gather, correlate, evaluate and analyse” intelligence implicitly authorised bulk surveillance. The Court reasoned that a provision so imprecise — with no stipulation of manner, duration, or safeguards — could not be read to authorise so significant an intrusion into privacy, especially applying the interpretive presumption that ambiguous legislation should not be construed to permit rights violations.²⁷ It concluded plainly: the practice is “unlawful and invalid, as there is no law that authorises it.”²⁸

7. Judgment and Ratio Decidendi

The Constitutional Court dismissed the appeals by the Minister of State Security and the Minister of Police, and confirmed the High Court’s declaration of unconstitutionality — but only to the extent that RICA fails to: (a) ensure the designated Judge’s independence; (b) provide for post-surveillance notification; (c) safeguard against the risks of an ex parte authorisation process; (d) prescribe lawful procedures for managing intercepted data; and (e) provide special protection where the surveillance subject is a lawyer or journalist.²⁹ Separately, the Court confirmed that the state’s bulk surveillance activities are unlawful and invalid, since no legislation authorises them.³⁰

Exercising its remedial discretion under section 172(1)(b) of the Constitution, the Court declined to give the declaration retrospective effect — consistent with the general principle that invalidity should not unsettle finalised matters³¹ — and suspended the declaration for 36 months to allow Parliament to cure the defects, during which interim reading-in provisions apply.³²

Ratio decidendi: Legislation authorising the interception of private communications must contain adequate safeguards — an independent authorising judicial officer, some adversarial protection despite necessary secrecy, and post-surveillance notification — to justifiably limit the right to privacy under section 36(1) of the Constitution; and any surveillance power, including bulk surveillance, must be grounded in clear statutory authority to be lawful at all.

8. Critical Analysis

8.1 Significance of the Decision

AmaBhungane is the first ruling by an African apex court to strike down bulk surveillance for want of legal authorisation, and it meaningfully strengthened protection for journalists’ source confidentiality by requiring designated judges to be alerted when a surveillance subject is a journalist or lawyer.³³ Its adoption of a substantive, comparative test for judicial independence — drawing on Canadian jurisprudence — also gave South African law a clearer standard against which future oversight bodies can be measured.³⁴

8.2 Implications and Impact

The judgment forced legislative reform: Parliament passed the RICA Amendment Bill in December 2023, shortly before the 36-month deadline.³⁵ However, President Ramaphosa referred the Bill back to Parliament in November 2024, citing constitutional concerns — including that it still permitted a surveillance subject to never be notified in certain circumstances.³⁶ Critically, the interim safeguards read into RICA by the Court lapsed on 4 February 2024 before a compliant amendment was finalised, leaving RICA without a validly appointed designated judge and, per commentary, effectively inoperative. This forced the President to approach the Constitutional Court again for interim relief to keep the interception regime functional, an application brought in December 2024 and decided on 25 July 2025.³⁷

8.3 Critical Evaluation

The Court’s proportionality reasoning was rigorous, and its emphasis on protecting journalists reflects a strong commitment to press freedom. However, the remedy’s reliance on a fixed legislative timeline proved unrealistic in practice — the defect persisted well beyond 36 months, exposing a structural weakness in suspended declarations of invalidity as a remedy for pressing rights violations. The Court also declined to adopt the applicants’ proposed “public advocate” model — independent, security-cleared counsel to represent surveillance subjects in ex parte hearings — leaving the adversarial gap only partially closed.³⁸ A more detailed interim regime imposed directly by the Court, rather than left entirely to Parliament, may have avoided the operational gap that ultimately materialised.

9. Conclusion

AmaBhungane stands as a landmark affirmation that the right to privacy imposes real, enforceable limits on state surveillance power. The Constitutional Court held that RICA’s failure to provide for judicial independence, post-surveillance notification, adversarial safeguards, lawful data management, and special protection for journalists and lawyers rendered it unconstitutional, while separately confirming that bulk surveillance conducted without legislative authority is unlawful outright.³⁹ The key takeaway is that secrecy in surveillance law cannot be absolute: even where pre-interception disclosure is properly withheld to protect an investigation, the state must eventually account to the individual whose privacy it has intruded upon.⁴⁰

The decision’s lasting impact, however, is still unfolding. Rather than closing the matter, the judgment initiated a prolonged legislative struggle — RICA’s court-ordered safeguards lapsed before Parliament could finalise compliant amendments, and the President’s own constitutional concerns sent the reform Bill back for further revision, ultimately requiring the Constitutional Court’s renewed intervention in 2025 to keep the interception regime operable.⁴¹ AmaBhungane therefore remains not only a foundational privacy judgment, but a live illustration of how difficult it can be to translate constitutional victory into durable legislative reality.

Reference(S):

Primary Sources

Table of Cases

• AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others [2021] ZACC 3; 2021 (4) BCLR 349 (CC); 2021 (3) SA 246 (CC)
• Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC)
• Justice Alliance of South Africa v President of the Republic of South Africa [2011] ZACC 23; 2011 (5) SA 388 (CC)
• McBride v Minister of Police [2016] ZACC 30; 2016 (2) SACR 585 (CC)
• President of the Republic of South Africa v Speaker of the National Assembly [2025] ZACC 12
• R v Valente (1985) 24 DLR (4th) 161 (SCC)
• S v Bhulwana; S v Gwadiso [1995] ZACC 11; 1996 (1) SA 388 (CC)

Table of Legislation

• Constitution of the Republic of South Africa, 1996
• National Strategic Intelligence Act 39 of 1994
• Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002

Secondary Sources

• FW de Klerk Foundation, ‘President of the Republic of South Africa v Speaker of the National Assembly [2025] ZACC 12’ (FW de Klerk Foundation, 2025)
• Hunter M, ‘South Africa’s Surveillance Law Is Changing But Citizens’ Privacy Is Still at Risk’ (The Conversation, 10 October 2023)
• Milo D, ‘AmaBhungane Centre for Investigative Journalism v Minister of Justice: Big Brother Can No Longer Watch Us With Impunity’ (Inforrm’s Blog, 10 February 2021)
• Parliamentary Monitoring Group, ‘Judicial Matters A/B: RICA Bill and NPA Amendment Bill Briefing’ (PMG, 2024)
• Parliament of South Africa, ‘Media Statement: Justice Committee Will Request Clarity from Presidency on RICA Reservations’ (Parliament of South Africa, 5 March 2025)
• The Presidency, ‘President Ramaphosa Refers RICA Amendment Bill to National Assembly’ (The Presidency, 21 November 2024)

Endnote(S):

1. AmaBhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others; Minister of Police v AmaBhungane Centre for Investigative Journalism NPC and Others [2021] ZACC 3; 2021 (4) BCLR 349 (CC); 2021 (3) SA 246 (CC) (‘AmaBhungane’) paras 1–2.
2. AmaBhungane (n 1) paras 13–14.
3. AmaBhungane (n 1) paras 3–4, 135; Order paras 6, 7.
4. Dario Milo, ‘AmaBhungane Centre for Investigative Journalism v Minister of Justice: Big Brother Can No Longer Watch Us With Impunity’ (Inforrm’s Blog, 10 February 2021); Parliamentary Monitoring Group, ‘Judicial Matters A/B: RICA Bill and NPA Amendment Bill Briefing’ (PMG, 2024).
5. AmaBhungane (n 1) Case CCT 278/19, parties.
6. AmaBhungane (n 1) para 13.
7. ibid.
8. AmaBhungane (n 1) para 14.
9. ibid.
10. AmaBhungane (n 1) para 15.
11. AmaBhungane (n 1) para 3.
12. AmaBhungane (n 1) para 4.
13. AmaBhungane (n 1) para 16.
14. AmaBhungane (n 1) para 17.
15. AmaBhungane (n 1) para 18.
16. AmaBhungane (n 1) paras 19–21.
17. AmaBhungane (n 1) para 22.
18. AmaBhungane (n 1) para 81.
19. AmaBhungane (n 1) para 128.
20. AmaBhungane (n 1) para 129.
21. AmaBhungane (n 1) paras 41, 44; Constitution of the Republic of South Africa, 1996, s 38.
22. AmaBhungane (n 1) paras 43–45; RICA, ss 42(1), 51.
23. AmaBhungane (n 1) para 85, citing R v Valente (1985) 24 DLR (4th) 161 (SCC).
24. AmaBhungane (n 1) paras 86–87, citing McBride v Minister of Police [2016] ZACC 30 and Glenister v President of the Republic of South Africa [2011] ZACC 6 (‘Glenister II’).
25. AmaBhungane (n 1) paras 90–92, citing Justice Alliance of South Africa v President of the Republic of South Africa [2011] ZACC 23; Constitution, s 174(3).
26. AmaBhungane (n 1) paras 95–97.
27. AmaBhungane (n 1) paras 133–134.
28. AmaBhungane (n 1) para 135.
29. AmaBhungane (n 1) Order para 6(a)–(e).
30. AmaBhungane (n 1) para 135; Order para 6 (High Court order, confirmed).
31. AmaBhungane (n 1) para 137, citing S v Bhulwana; S v Gwadiso [1995] ZACC 11; Constitution, s 172(1)(b).
32. AmaBhungane (n 1) para 139; Order para 7.
33. AmaBhungane (n 1) Order para 6(e); paras 115–119.
34. AmaBhungane (n 1) para 85, citing R v Valente (1985) 24 DLR (4th) 161 (SCC).
35. Parliamentary Monitoring Group, ‘Judicial Matters A/B: RICA Bill and NPA Amendment Bill Briefing’ (PMG, 2024).
36. The Presidency, ‘President Ramaphosa Refers RICA Amendment Bill to National Assembly’ (21 November 2024).
37. FW de Klerk Foundation, ‘President of the Republic of South Africa v Speaker of the National Assembly [2025] ZACC 12’ (2025); Parliament of South Africa, ‘Media Statement: Justice Committee Will Request Clarity from Presidency on RICA Reservations’ (5 March 2025).
38. Murray Hunter, ‘South Africa’s Surveillance Law Is Changing But Citizens’ Privacy Is Still at Risk’ (The Conversation, 10 October 2023).
39. AmaBhungane (n 1) Order paras 6, and para 135.
40. AmaBhungane (n 1) paras 43–45.
41. FW de Klerk Foundation, ‘President of the Republic of South Africa v Speaker of the National Assembly [2025] ZACC 12’ (2025).