CLYDE WEATHERHEAD

IN THIS latest debate about the Government possibly illegally 'spying' on citizens, an argument has been advanced that if you are not involved in anything criminal or illegal you should have no problem with your communications via WhatsApp or any other electronic means being intercepted by state officials.

According to this argument, citizens should have no problem if the Sate, possibly without meeting the conditions for legal interception of communications (as required by the Interception of Communications Act, Chapter 15:08 of our laws [the ICA] and its amendment in Act No 13 of 2020), can capture and examine your communications via e-mail, WhatsApp, which is supposed to be encrypted, or other social media platforms or digital communications.

Interception must

be according to law

This argument completely disregards the law that requires that:

1) Only an authorised officer (defined in section 5 of the ICA) can lawfully carry out interception of your communications; and

2) Only where a warrant to carry out such interception is granted to 'the person named in the warrant' by a judge of the High Court according to section 8 of the ICA.

A judge may only issue a warrant where he is satisfied that:

I. It is necessary:

a. in the interests of national security; or

b. for the prevention or detection of any offence…has been, is being or is about to be committed, and

c. information obtained…is likely to assist in investigations concerning either a. or b. above, and

d. other investigative procedures:

I. have not been or are unlikely to be successful in obtaining the information sought; or

ii. are too dangerous to adopt in the circumstances; or

iii. having regard to the urgency of the case, are impracticable, and

e. it would be in the best interest of the administration of justice, and

f. the interception…is proportionate to what is sought to be achieved by such interception - section 2 (2) of the ICA.

All of these conditions must be met for an interception of your communications to be accepted.

So, if you are not involved in criminal activity, or in acts contrary to 'the interest of national security' including the protection of the State from threats of espionage, sabotage, any terrorist act or subversion as defined in section 5 (3) of the ICA, or are not involved in communications from within a prison or with anyone in a prison, you should never have your communications intercepted by the State.

Unless these conditions are met, any interception of a citizen's communications is illegal and contrary to the provisions of the ICA.

By section 22 of the ICA, the Minister of National Security must be informed of any interception carried out under a warrant issued under section 6 (2)(b).

By section 24 of the ICA, the minister shall present to Parliament every year a report of:

a. the number of warrants