Qulin Jansen
Unique number: 814487
Introduction to research methodology
Assignment 2
Due date: 16 September 2022
, Question 1: Highlight the facts of the case, the legal question, the reasons for
concluding, and the findings of the case.
Facts of the case:
Sam Sole, a South African journalist, first addressed the Inspector-General of
Intelligence in 2009 to query whether or not he was being watched after becoming
convinced in 2008 that his interactions were being monitored and intercepted. He
was informed by the Inspector-General that he "had found the National Intelligence
Agency (NIA) and the crime intelligence division of the police not to be guilty of any
wrongdoing," which did not specifically address whether Sole's communications
were being monitored but rather that the state agencies had not engaged in
wrongdoing. In 2015, transcripts of a conversation between Sole and a state
prosecutor were included in an affidavit in a court case that did not include Sole. This
evidence showed that Sole's suspicions had been correct. His interactions had
indeed been genuinely intercepted in the year 2008. Sole got in touch with the State
Security Agency to get more information on the interception, but he never learned
why or whether the original authorization was legal despite receiving information on
two renewals of the interception authorizations. He was left uninformed.
There could be no arguments raised in opposition to the state agency's request
because all requests were made through an ex parte ("for one party") application to
a "designated judge," a judge nominated to this role by the Minister of Justice.
AmaBhungane argued in the High Court that RICA did not include any system of
notification, not even post-surveillance, to let the subject of surveillance know they
had been watched. As a result, a subject would typically not be made aware of the
surveillance and could not challenge the legality of such action. Additionally,
according to amaBhungane, RICA fails to guarantee the judge's independence
because the designated judge is appointed unilaterally by the Minister of Justice with
no term limits, and the case is heard ex parte. As AmaBhungane emphasized the
risks associated with RICA not establishing clear guidelines for the kinds of data that
might be gathered and maintained, as well as the lack of particular protections for
situations in which a journalist or attorney would be singled out for surveillance.
AmaBhungane further argued that RICA had not approved the "National
Communication Center's" practice of bulk interception, which was illegal.
Legal question:
According to my findings on the Saflii Southern African Legal Information Institute
website, there are three legal issues. The first is. Does the Code impose a duty on
Members of the Executive to disclose private internal party-political funding,
according to the Constitutional Court? The second is. Is amaBhungane's
constitutional challenge triggered if there is a partial duty to disclose, or is it
inapplicable given the nature of the condition upon which the challenge is founded?
And the third and final question is, is the Code, as interpreted by the Constitutional
Court, unconstitutional if amaBhungane is not unsuitable and the constitutional
challenge is properly before us?
Unique number: 814487
Introduction to research methodology
Assignment 2
Due date: 16 September 2022
, Question 1: Highlight the facts of the case, the legal question, the reasons for
concluding, and the findings of the case.
Facts of the case:
Sam Sole, a South African journalist, first addressed the Inspector-General of
Intelligence in 2009 to query whether or not he was being watched after becoming
convinced in 2008 that his interactions were being monitored and intercepted. He
was informed by the Inspector-General that he "had found the National Intelligence
Agency (NIA) and the crime intelligence division of the police not to be guilty of any
wrongdoing," which did not specifically address whether Sole's communications
were being monitored but rather that the state agencies had not engaged in
wrongdoing. In 2015, transcripts of a conversation between Sole and a state
prosecutor were included in an affidavit in a court case that did not include Sole. This
evidence showed that Sole's suspicions had been correct. His interactions had
indeed been genuinely intercepted in the year 2008. Sole got in touch with the State
Security Agency to get more information on the interception, but he never learned
why or whether the original authorization was legal despite receiving information on
two renewals of the interception authorizations. He was left uninformed.
There could be no arguments raised in opposition to the state agency's request
because all requests were made through an ex parte ("for one party") application to
a "designated judge," a judge nominated to this role by the Minister of Justice.
AmaBhungane argued in the High Court that RICA did not include any system of
notification, not even post-surveillance, to let the subject of surveillance know they
had been watched. As a result, a subject would typically not be made aware of the
surveillance and could not challenge the legality of such action. Additionally,
according to amaBhungane, RICA fails to guarantee the judge's independence
because the designated judge is appointed unilaterally by the Minister of Justice with
no term limits, and the case is heard ex parte. As AmaBhungane emphasized the
risks associated with RICA not establishing clear guidelines for the kinds of data that
might be gathered and maintained, as well as the lack of particular protections for
situations in which a journalist or attorney would be singled out for surveillance.
AmaBhungane further argued that RICA had not approved the "National
Communication Center's" practice of bulk interception, which was illegal.
Legal question:
According to my findings on the Saflii Southern African Legal Information Institute
website, there are three legal issues. The first is. Does the Code impose a duty on
Members of the Executive to disclose private internal party-political funding,
according to the Constitutional Court? The second is. Is amaBhungane's
constitutional challenge triggered if there is a partial duty to disclose, or is it
inapplicable given the nature of the condition upon which the challenge is founded?
And the third and final question is, is the Code, as interpreted by the Constitutional
Court, unconstitutional if amaBhungane is not unsuitable and the constitutional
challenge is properly before us?
