Disputed ‘Surveillance Bill’ referred back to National Assembly

The President has conveyed his concern in writing to the Speaker of the National Assembly, Thoko Didiza, and has brought this referral to the attention of the relevant Ministers.

According to section 79(1) of the Constitution, the President must either assent to and sign a Bill referred to them by the National Assembly or, if they have reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.

The National Assembly has passed the Bill and referred it to the President for assent.

‘President Ramaphosa is, however, concerned that a number of constitutional matters in the Bill passed by Parliament require reconsideration so that this important statute achieves its intended purpose, without the risk of being set aside by the courts,’ the Presidency said

Having considered the Bill, as well as the 2021 Constitutional Court judgment in Amabhungane Centre for Investigative Journalism and Others v Minister of Justice and Correctional Services and Others, the Presidency said Ramaphosa has expressed his reservations about the constitutionality of the Bill for various reasons.

‘In the President’s view, the Bill remains unconstitutional insofar as decisions in terms of section 25A(2)(b) of the draft law may lead to a subject of surveillance never being notified of the surveillance.

‘The President also believes the legislation is deficient insofar as no review is possible of a decision in terms of section 25A(2)(b) to indefinitely suspend post­-surveillance notification obligations,’ the statement read.

The President also wishes to see the legislation provide adequate safeguards to address the fact that interception directions and notification suspension applications are sought and obtained ex parte (in the interests of one side or party only)

‘President Ramaphosa has requested the National Assembly to consider the Bill afresh so that its objectives can be realised speedily and without the risk of any constitutional challenge,’ the Presidency said.

• This statement first appeared here