The section 205 loophole: Supplementary report on reforming communication surveillance in South Africa
Author: Heidi Swart
This is a supplementary report to Reforming Communication Surveillance in South Africa: Recommendations in the wake of the AmaBhungane judgment and beyond, published in May 2023. It focuses on the surveillance loophole created by section 205 of the Criminal Procedure Act of 1977 (“CPA”).
Of particular concern, is the extensive use of this provision to obtain metadata from telecommunications service providers outside of the protections envisaged by RICA, and the abuse of weaker safeguards in the section 205 process to obtain metadata illegally. The Constitutional Court did not address the section 205 process in the AmaBhungane judgment, as the matter was not before the Court. However, it is vital that the current reform process in the wake of the AmaBhungane judgment addresses these concerns.
