Parliament hears of disturbing, ‘unlawful interception of communication’
Justice Bess Nkabinde is worried about incessant interception of communication of private and public officials
Justice Bess Nkabinde has expressed “great concern” about the unlawful interception of communication of private and public officials by intelligence services.
“It is indeed a matter of great concern that there seems to be unceasing unlawful interception of communication of private and public officials,” said Nkabinde, the designated judge to authorise interception orders, as per the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica).
“These matters are, in the light of the constitutional imperatives and the rule of law, most disturbing and cannot be left unchecked by the relevant ministry or department of the agency implicated,” she said.
This was revealed in a report Nkabinde submitted to parliament earlier this year, which covers the work of her office between November 2018 and February 2021. It was included in parliament's joint standing committee on intelligence’s annual report, which was published at the weekend.
Lying under oath is a criminal offence. Appropriate steps need to be taken against officers with such proclivity and whose conduct results in the violation of the privacy rights of others.Justice Bess Nkabinde
Nkabinde revealed how agencies sometimes bypassed her office and unlawfully intercepted communication. Among the cases she mentioned was that of former state security minister Ayanda Dlodlo, who complained that her private communication had been unlawfully intercepted. She said her office had not issued any lawful interception direction in relation to the minister.
Nkabinde was scathing, however, regarding the unlawful interception of News24 journalists’ communication.
She revealed that she was copied in a letter addressed to crime intelligence boss Yolisa Mokgabudi by Willem de Klerk Attorneys and subsequently by a News24 investigative journalist regarding the alleged surveillance of the news outlet’s journalists, specifically News24 editor-in-chief Adriaan Basson, by the crime intelligence division of the SAPS, in that their communications were intercepted with the use of the so-called “grabber device”.
“I undertook to respond after verifying with the staff in my office whether any lawful direction permitting any such interception had been issued. The office checked and responded in the negative,” she said.
Nkabinde said the journalist later sent a message to her mobile number alerting her to “the possibility that her colleague’s number could have been slipped into legitimate applications and could have been included among legitimate numbers, a trick used sometimes”.
“This emboldens the Constitutional Court’s remarks about the mendacity of some of the applicants seeking interception directions from the interception judge,” she said.
Nkabinde said it needed to be stressed that no interception was conducted unlawfully by her office, unless undetected underhanded methods were used to hide information, using other people’s numbers.
She said her office conducted a thorough check of information before directions were issued.
If the interception had been done lawfully, it was rare the number could pass the judge’s table unnoticed. Those numbers were checked thoroughly before the direction was issued, bearing in mind the intrusive nature of interception methods, said Nkabinde.
The challenge was with Rica itself, she added.
“Where information is sought regarding ownership of the cellphone number, we are often told that the number belongs, for instance, to A, but it is being used by B for criminal activities, or we find a rare combination of the owner’s details, which make no sense at all.
“In some instances, the service provider does not change the details if the number is being used by a new user. It may be helpful to take these considerations into account during the review process.”
Nkabinde said there were many instances where she declined to grant directions, for example, when numbers did not tally.
“I would direct queries to the relevant agency to explain or rectify whatever errors might have been detected. It follows that the issues raised by the journalist and attorney De Klerk are not far-fetched,” she said.
“Lying under oath is a criminal offence. Appropriate steps need to be taken against officers with such proclivity and whose conduct results in the violation of the privacy rights of others,” said Nkabinde.
A report submitted to the judge by Mokgabudi in March revealed that:
The Office of the Interception Centre [OIC] system was outdated, regularly collapsed, resulting in the loss of interception communication products;
That interception at OIC was limited to voice and SMS data meant about 99% of the target’s communication was lost;
Inability of the OIC to intercept other forms of communication, such as WhatsApp, including WhatsApp voice calls, Skype, emails, Facebook and other social media platforms;
Inability of the OIC systems to provide images, GIS and GPS; and
Lack of decentralised connectivity [provincial OICs] affected the implementation of directions, especially hot monitoring.
Nkabinde noted that the loss of intercepted communication and targets’ communication supported a view that there were no safeguards in place to minimise intrusions into the privacy of targeted individuals.
She revealed that the State Security Agency (SSA) and Financial Intelligence Centre did not submit reports to her office. She described this as “regrettable”, saying the agencies’ reports were important as they provided a complete picture of the efficacy, including the inadequacies of the Rica process.
In February, the ConCourt declared parts of Rica unconstitutional, but the declaration was suspended for 36 months to enable parliament to rectify the defects.
It said the law fell short insofar as it did not provide “adequate” safeguards to render it lawful.