Supplementary report on reforming communication surveillance in South Africa: Understanding the section 205 ‘loophole’
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.
The purpose of this supplementary report is to set out additional information about the implementation of RICA and the potential for the abuse of the State’s communications surveillance capabilities by law enforcement and intelligence agencies, with particular relevance to section 205 (“section 205”) of the Criminal Procedure Act of 1977 (“CPA”).
Of particular concern, is the extensive use of section 205 to obtain metadata from telecommunications service providers (“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 the concerns pertaining to section 205 metadata applications.