A number of Constitutional Court judges on Tuesday observed that surveillance legislation does not have an empowering provision for the appointment of a designated judge to authorise interception orders.

Another judge noted there was no requirement in the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica) for an applicant seeking an interception order to make it under oath.

This could lead to the applicant not telling the truth to the judge, and not being held liable for the lies because the application was not made under oath, the judge observed.

These observations were made in the court application by the amaBhungane Centre for Investigative Journalism and journalist Sam Sole, who want the court to confirm an order made by the high court in Pretoria in September 2019.

The high court ordered that Rica was unconstitutional to the extent that it failed to contain adequate safeguards to protect the rights to privacy, access to courts, freedom of expression and the media, and legal privilege.

Rica is the law which permits the interception of people's communications by authorised state officials, including police and state security.

Though the high court can declare a portion of the act unconstitutional, only the Constitutional Court can confirm the constitutional invalidity.

The issue of the lack of an empowering provision in the appointment of the designated judge was first raised by Justice Chris Jafta, who asked Steven Budlender SC, counsel for amaBhungane and Sole, whether there was any section in the act empowering the justice minister to appoint the judge.

There is no provision in the act which empowers the minister to appoint the designated judge.

“Designated judge” is contained in the definitions section of the act and refers to any judge of a high court discharged from active duty who is designated by the minister to perform the purposes of the designated judge for the purpose of the act.

When asked by chief justice Mogoeng Mogoeng where the minister of justice got the power to appoint the designated judge, the minister’s advocate, Dikeledi Chabedi, argued that the definition section in the act only implied the minister had the power to appoint the judge.

When asked the same question, Kennedy Tsatsawane SC, counsel for the state security minister, said the concession was correctly made by Chabedi. He said there was no empowering provision in the act.

Mogoeng asked Tsatsawane what should happen to the surveillance regime if the court found there was no power in the act to appoint the judge.

“This means the court will have to craft a just and equitable order that will address the lacuna,” Tsatsawane said.

Judge Stevan Majiedt pointed out to counsel for the minister of police, Simon Phaswane, that there was no requirement in the act to make an interception application under oath.

“We accept that. It is a little bit of draconian legislation,” Phaswane said.

However, Majiedt’s concern was that the applicants for an interception order could go to a judge and not tell the truth.

“There is no possibility of a perjury charge because there was no affidavit under oath,” Majiedt said.

Mogeng asked whether the executive should go back to the drawing board and start Rica again.

Phaswane said the justice minister had admitted there was work under way to overhaul the legislation.

The court reserved judgment.