CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 278/19

In the matter between:


PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA Applicant

and

SPEAKER OF THE NATIONAL ASSEMBLY First Respondent

BESS NKABINDE N.O. Second Respondent

AMABHUNGANE CENTRE FOR INVESTIGATIVE
JOURNALISM NPC Third Respondent

STEPHEN PATRICK SOLE Fourth Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fifth Respondent

MINISTER IN THE PRESIDENCY:
STATE SECURITY Sixth Respondent

MINISTER OF COMMUNICATIONS
AND DIGITAL TECHNOLOGIES Seventh Respondent

MINISTER OF DEFENCE AND
MILITARY VETERANS Eighth Respondent

MINISTER OF POLICE Ninth Respondent

OFFICE OF THE INSPECTOR-GENERAL
OF INTELLIGENCE Tenth Respondent

OFFICE FOR INTERCEPTION CENTRES Eleventh Respondent

NATIONAL COMMUNICATIONS CENTRE Twelfth Respondent

JOINT STANDING COMMITTEE
ON INTELLIGENCE Thirteenth Respondent

STATE SECURITY AGENCY Fourteenth Respondent



Neutral citation: President of the Republic of South Africa v Speaker of the National
Assembly and Others [2025] ZACC 12

Coram: Maya CJ, Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Majiedt J, Mhlantla J, Opperman AJ, Rogers J, Theron J and
Tshiqi J

Judgment: Madlanga ADCJ (unanimous)

Decided on: 25 July 2025




ORDER



On application for direct access for supplementary just and equitable relief , the
following order is made:
1. Pending the coming into effect of legislation that cures the defects causing
the constitutional invalidity identified in AmaBhungane Centre for
Investigative Journalism NPC v Minister of Justice and Correctional
Services [2021] ZACC 3:
(a) Section 1 of the Reg ulation of Interception of Communications
and Provision of Communication -Related Information Act 70 of
2002 (RICA) shall be deemed to include the following definition
of “designated Judge”—
“designated Judge” means any one of three Judges of the
High Court who is retired or discharged from active service under
section 3(2) of the Judges’ Remuneration and Conditions of

Employment Act 47 of 2001, who is nominated by t he
Chief Justice, and upon which nomination is, and must be,
appointed by the Minister, for a non-renewable term of 24 months,
to perform the functions of a designated Judge for purposes of this
Act.”
(b) RICA shall be deemed to include the following additional sections:
“Section 23A Disclosure that the person in respect of whom a
direction, extension of a direction or entry warrant is sought is
a journalist or practising lawyer
(1) Where the person in respect of whom a direction, extension
of a direction or entry warrant is sought in terms of
sections 16, 17, 18, 20, 21, 22 or 23, whichever is
applicable, is a journalist or practising lawyer, the
application must disclose to the desi gnated Judge the fact
that the intended subject of the direction, extension of a
direction or entry warrant is a journalist or practising
lawyer.
(2) The designated Judge must grant the direction, extension of
a direction or entry warrant referred to in subse ction (1)
only if satisfied that it is necessary to do so, notwithstanding
the fact that the subject is a journalist or practising lawyer.
(3) If the designated Judge issues the direction, extension of a
direction or entry warrant, she or he may do so subject to
such conditions as may be necessary, in the case of a
journalist, to protect the confidentiality of their sources, or,
in the case of a practising lawyer, to protect the legal
professional privilege enjoyed by their clients.”
“Section 25A Post-surveillance notification
(1) Within 90 days of the date of expiry of a direction or
extension thereof issued in terms of sections 16, 17, 18, 20,
21 or 23, whichever is applicable, the applicant that

4

obtained the direction or, if not available, any other law
enforcement officer within the law enforcement agency
concerned must notify in writing the person who was the
subject of the direction and, within 15 days of doing so,
certify in writing to the designated Judge, Judge of a
High Court, Regional Court Magistrate or Magistrate that
the person has been so notified.
(2) If the notific ation referred to in subsection (1) cannot be
given without jeopardising the purpose of th e surveillance,
the designated Judge, Judge of a High Court,
Regional Court Magistrate or M agistrate may, upon
application by a law enforcement officer, direct that the
giving of notification in that subsection be withheld for a
period which shall not exceed 90 days at a time or two years
in aggregate.”
2. In the event that the legislation envis aged in paragraph 1 does not come
into effect, the orders in paragraphs 1(a) and (b) will continue to apply.



JUDGMENT




MADLANGA ADCJ ( Maya CJ, Dambuza AJ, Goosen AJ, Kollapen J, Majiedt J,
Mhlantla J, Opperman AJ, Rogers J, Theron J and Tshiqi J concurring):


[1] This is an application for supplementary just and equit able relief in terms of
section 172(1)(b) of the Consti tution.1 We are determining it without an oral hearing.

1 Section 172(1)(b) of the Constitution provides:
“When deciding a constitutional matter within its power, a court—
. . .

MADLANGA ADCJ
5

The relief is sought in the context of a period of suspension of constitutional invalidity
which expired without corrective legislation having been passed. An interim remedy
that was ordered to operate during the period of suspension expired simultaneously with
the expiry of the period of suspension. The applicant, the President of the Republic of
South Africa, is yet to decide finally whether to give his assent to the Bill 2 in terms of
which Parliament seeks to address the constitutional defect. He is yet to decide whether
to sign the Bill as is or after amendment. What is pending is Parliament’s response to
the President’s query raised in a referral of the Bill back to Parliament in terms of
section 79(1) of the Constitution. 3 Crucially, in this application the President is not
seeking a revival of the expired period of suspension. He only seeks supplementary just
and equitable relief in terms of section 172(1)(b). So, at issue is whether that relief
should be granted.

[2] Here is how all this arose. On 4 February 2021 this Court confirmed a
declaration made by the High Court of South Africa , Gauteng Division, Pr etoria that
the Regulation of Interception of Communications and Provision of Communication -
Related Information Act4 (RICA) was constitutionally invalid to the extent that it fails
to—
(a) provide for safeguards to ensure that a Judge designated in terms of
section 1 to authorise interceptions of communications , issue warrants
and perform any other ancillary or incidental functions is sufficiently
independent;

(b) may make an order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity, and
(ii) an order suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct the defect.”

conditions, to allow the competent authority to correct the defect.”
2 Regulation of Interception of Communications and Provision of Communication -Related Information
Amendment Bill.
3 Section 79(1) of the Constitution provides:
“The President must either assent to and sign a Bill in terms of this Chapter or, i f the President
has reservations about the constitutionality of the Bill, refer it back to the National Assembly
for reconsideration.”
4 70 of 2002.

MADLANGA ADCJ
6

(b) provide for notifying the subject of surveillance under RICA of the fact
of their surveillance as soon as notification can be given without
jeopardising the purpose of surveillance after surveillance has been
terminated;
(c) adequately provide safeguards to address the fact that directions for the
interception of communications are sought and obtained ex parte;
(d) adequately prescribe procedures to ensure that data obtained pursuant to
the interception of communications is managed lawfully and not used or
interfered with unlawfully, including prescribing procedures to be
followed for examining, copying, sharing, sorting through, using, storing
or destroying the data; and
(e) provide adequate safeguards where the subject of surveillance is a
practising lawyer or journalist.

[3] This was in AmaBhungane.5 The Court ordered that the declaration of
constitutional invalidity would take effect from the date of the judgment, but that it be
suspended for 36 months to afford Parliament an opportunity to cure the defects causing
the invalidity. It also granted an interim remedy that was to apply during the period of
suspension. In this regard the order decreed that during the period of suspension, RICA
shall be deemed to include the following additional sections:

“Section 23A Disclosure that the person in respect of whom a direction, extension
of a direction or entry warrant is sought is a journalist or practising lawyer
(1) Where the person in respect of whom a direction, extension of a direction or
entry warrant is sought in terms of sections 16, 17, 18, 20, 21, 22 or 23,
whichever is applicable, is a journalist or practising lawyer, the application
must disclose to the designated Judge the fact that the intended subject of the
direction, extension of a direction or entry warrant is a journalist or practising
lawyer.

lawyer.

5 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services [2021]
ZACC 3; 2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC).

MADLANGA ADCJ
7

(2) The designated Judge must grant the direction, extension of a direction or entry
warrant referred to in subsection (1) only if satisfied that it is necessary to do
so, notwithstanding the fact that the subject is a journalist or practising lawyer.
(3) If the designated Judge issues the direction, extension of a direction or entry
warrant, she or he may do so subject to such conditions as may be necessary,
in the case of a journalist, to protect the confidentiality of her or his sources,
or, in the case of a practising lawyer, to protect the legal professional privilege
enjoyed by her or his clients.
Section 25A Post-surveillance notification
(1) Within 90 days of the date of expiry of a direction or extension thereof issued
in terms of sections 16, 17, 18, 20, 21 or 23, whichever is applicable, the
applicant that obtained the direction or, if not available, any other law
enforcement officer within the law enforcement agency concerned must notify
in writing the person who was the subject of the direction and, within 15 days
of doing so, certify in writing to the designated Judge, Judge of a High Court,
Regional Court Magistrate or Magistrate that the person has been so notified.
(2) If the notific ation referred to in subsection (1) cannot be given without
jeopardising the purpose of the surveillance, the designated Judge, Judge of a
High Court, Regional Court Magistrate or Magistrate may, upon application
by a law enforcement officer, direct that the giving of notification in tha t
subsection be withheld for a period which shall not exceed 90 days at a time or
two years in aggregate.”

[4] The directions referred to in the sections added by the Court are directions issued
under RICA by a designated Judge for the surveillance of individuals or interceptions
of communications for purposes of law enforcement and national security.

[5] The 36-month period of suspension was due to end on 3 February 2024.6

[5] The 36-month period of suspension was due to end on 3 February 2024.6

[6] After what appears (and I use “appears” advisedly) to have been a thoroughgoing
process, Parliament passed the Bill on 6 December 2023 . This was just under two

6 I say this despite the fact that the President and the Minister of Police say, respectively, that the expiry date was
4 February 2024 and 5 February 2024.

MADLANGA ADCJ
8

months before the date of expiry of the period of suspension. The Bill was immediately
forwarded to the President for signature and promulgation.

[7] Although aware of the impending expi ry of the period of suspension, the
President says that he was unaware that the interim remedy was linked to the period of
suspension. He thought that the interim remedy was to endure until the Bill had been
passed into law. That is what his legal advisors told him. In the event, the date of expiry
of the period of suspension passed without the President having signed the Bill. On
30 August 2024 the Director -General of the Department of Justice and Constitutional
Development wrote a letter to the Direct or-General in the Presidency expressing
concern that the Bill was yet to be signed. He also drew attention to the fact that the
term of the designated Judge was to expire on 10 September 2024. The
Director-General also said:

“Without the new RICA Act, the designated Judge is already constrained in performing
her functions as they are not grounded on any legislation. Any function that she may
perform at this juncture may lead to an illegality which does not augur well for national
security. It is theref ore my humble request that you please advise the President to
consider signing the RICA Bill into law urgently.”

[8] It is through this letter that t he President’s legal advisors became aware of the
fact that the interim remedy had lapsed when the period of suspension expired. The
President explains that, for a variety of reasons, it took him a long time to take a decision
on whether to sign the Bill into law. First, his legal advisors have to do research on
each Bill that lands on his table. There is a la rge number of such Bills. After the
research, the advisors then advise the President on the course to take with regard to each
Bill. What exacerbated the situation around the time the President received the Bill in

Bill. What exacerbated the situation around the time the President received the Bill in
issue here is that, since its term was to come to an end leading up to the 2024 elections,
Parliament pushed for the enactment of all Bills that were close to fruition on its side
by finalising them and forwarding them to the President for signature. That resulted in
an unusually high number o f bills requiring the President’s assent. In turn, that meant

MADLANGA ADCJ
9

that the President’s advisors had a huge number of bills in respect of which to conduct
research.

[9] The President himself says that he had a number of engagements that he could
not get out of, including international travel and paying particular attention to the crisis
that involved the widely publicised deaths of children as a result of ingesting foods
purchased from “spaza shops”. All of this meant that it was only during October 2024
that the President was able to apply his mind to the memorandum of advice that had
since been received from his legal advisors. Based on the advice, he concluded that the
Bill was unconstitutional as it did not adequately address the defects identified by this
Court in AmaBhungane. According to the President, this was so particularly in relation
to post -surveillance notification. In November 2024 the President advised the first
respondent, the Speaker of the Nationa l Assembly, in terms of section 79(1) of the
Constitution, of his decision.

[10] Still in November 2024 , the State Attorney was instructed to brief counsel to
prepare an application that would seek supplementary just and equitable relief in view
of the fact that, with an expired term of the designated Judg e, RICA had become
inoperable. Indeed, a large number of requests for directions and warrants remain
unissued as a result of the fact that there is no designated Judge.

[11] After further delays from November 2024, this application was only brought on
13 December 2024.

[12] The application is unopposed. Pursuant to this Court’s directions of
14 January 2025, the sixth respondent, the Minister in the Presidency: State Security,
and the ninth respondent, the Minister of Police, filed written submissions. Both
Ministers support the President’s request for supplementary just and equitable relief.
They submit briefly that if the relief is granted, it will ensure RICA’s operability.

MADLANGA ADCJ
10

[13] Both Ministers apply for condonation of the late filing of their written
submissions. Condonation is not opposed, the delay in filing the written submissions is
minimal, the explanation for the delay is adequate and there is no prejudice to the
President. Condonation is granted.

[14] The President is well aware of the fact that our jurisprudence does not admit of
the extension of a period of suspension of a declaration of constitutional invalidity
which has already lapsed.7 So, he is not asking for that. What he is asking for, instead,
is supplementary just and equit able relief in terms of section 172(1)(b) of the
Constitution, which is to apply pending the coming into effect of the amended RICA.
As it held in Ex parte Minister of Home Affairs, this Court does have the power to grant
such relief.8

[15] Effectively, what the President is asking for is a variation of the AmaBhungane
order. Such a variation engages this Court’s jurisdiction.9 Indeed, that much is plain as
the applicant founds the relief sought on a constitutional provision, section 172(1)(b) of
the Constitution.10

[16] In terms of sections 16, 17, 18, 20, 21 or 23 of RICA , directions for the
interception of communications are issued by a designated Judge. A s indicated, the
term of the then designated Judge has expired and, as a result of the declaration of
constitutional invalidity which affected the appointment of a designated Judge, no other

7 See Ex parte Minister of Home Affai rs; In re Lawyers for Human Rights v Minister of Home Affairs [2023]
ZACC 34; 2024 (1) BCLR 70 (CC); 2024 (2) SA 58 (CC) (Ex parte Minister of Home Affairs ) and Ex parte
Minister of Social Development [2006] ZACC 3; 2006 (4) SA 309 (CC); 2006 (5) BCLR 604 (CC) at para 38.
8 Ex parte Minister of Home Affairs id at para 40 reads:
“Read in its own terms and properly understood, the judicial decree in para 4 continues to

“Read in its own terms and properly understood, the judicial decree in para 4 continues to
operate despite the lapsing of section 34(1)(b) and (d). This Court has the power, through
section 172(1)(b), to order supplementary just and equitable relief to provide certainty on the
current status and effect of section 34(1)(b) and (d). As stated, this Court cannot revive statutory
provisions after the lapsi ng of th e period of suspension. But there is nothing in our law that
precludes us from ordering amplified just and equitable relief to supplement the 2017 order .”
9 See Zondi v MEC, Traditional and Local Governme nt Affairs [2005] ZACC 18; 2006 (3) SA 1 (CC); 2006 (3)
BCLR 423 (CC) at para 37.
10 Also see the quotation from Ex parte Minister of Home Affairs above n 8.

MADLANGA ADCJ
11

designated Judge was appointed. The effect is that no interception directions can be, or
are being, issued. So, what RICA seeks to achieve has come to a standstill. Put
differently, RICA has been rendered inoperable. About the importance of RICA, here
is what this Court held in AmaBhungane:

“[L]et me render a collection of the purposes for which interception directions may be
issued. They may be issued if there are reaso nable grounds to believe that: ‘a serious
offence has been or is bein g or will probably be committed’ ; it is necessary to gather
information concerning an actual threat to the public health or safety, national security
or compelli ng national economic interests; it is necessary to gather information
concerning a potential threat to the public health or safety or national security; the
rendering of assistance to a foreign country in connection with or in the form of
interception of communications is in accordance with an international mutual
assistance agreement or is in the interests of South Africa’s internat ional relations or
obligations; or, lastly, it is necessary to gather information concerning property which
is or could probably be an instrumentality of a serious offence or is or could probably
be the proceeds of unlawful activities. So, the dislocation of our surveillance syst em
would have a grave impact on matters that are important to the country and its
people.”11

[17] That being the case, it is axiomatic that we cannot allow RICA to continue being
inoperable. A just and equitable interim remedy must be granted in terms of
section 172(1)(b) of the Constitution . In my view, RICA will become immediately
operable if an interim remedy addressing the unconstitutionality of the appointment of
a designated Judge is put in plac e. The President is not conte nt with only that interim
remedy and seeks, instead, additional relief. 12 I do not see the need for this additional

11 AmaBhungane above n 5 at para 138.
12 The additional relief requested by the President is as listed below.
1. Applications in terms of sections 16, 17, 18, 20, 21, 22 or 23 of RICA to a designated Judge
shall be heard by a panel consisting of three designated Judges appointed in accordance with
the definition of a designated Judge.
2. RICA shall be deemed to include the following sections:
“Section 37A Management of data
(1) The procedures to be followed for the processing, examining, copying,
sharing, disclosing, sorting through, using, storing or destroying of any data
obtained pursuant to, and resulting from the interception of communications

MADLANGA ADCJ
12

relief. The real reason the President has approached this Court is to get it to address the
problem of the inoperability of RICA. With the grant of just and equitable r elief that
will render RICA operable, the other relief is not necessary at this stage. This sh ould
not be understood to mean that under no circumstances will this Court grant additional
supplementary relief that is not necessary. That is something to be determined in
accordance with the facts and circumstances of each case in the Court’s exercise of its
remedial power under section 172(1)(b). In the present case, I do not find the
circumstances to warrant the grant of the additional relief.

[18] What I see as just and equitable relief is the extension of the interim remedy that
was granted in AmaBhungane. In addition, it is necessary to address the issue of the
appointment of a designated Judge. I believe that the unconstitutionality , which arose

in terms of this Act and section 205 of the Criminal Procedure Act 1977, must
be in the prescribed manner and on the prescribed conditions.
(2) The development of procedures in terms of subsection (1) must take into
account the principles for the safeguarding of data, including—
(a) accountability, together with conditions for lawful processing,
examining, copying, sharing, disclosing, sorting through, using,
storing or destroying;
(b) processing limitations, i ncluding processing in a lawful and
reasonable mann er and not processing more data than what is
required in respect of the purpose;
(c) purpose–specific processing of data, including processing for a
lawful purpose which is explicit, not retaining data for longer than is
necessary in connection with the purpose for whic h it was obtained
and reviewing compliance with destruction instructions;
(d) limitation of the use of data for lawful purpose, including restricting
access to data on certain conditions, conditions for sharing and

access to data on certain conditions, conditions for sharing and
disclosing data and limitations on the copying of data including the
keeping of relevant records;
(e) openness and transparency;
(f) conditions for the storage of data, including the type of data stored
and the manner of storage;
(g) securing safeguards, inclu ding controlled access to data, processes
to pr event unlawful modification and unauthorised disclos ure,
procedures to identify any foreseeable internal and e xternal risks,
and policies and procedures to safeguard information; and
(h) participation of the data subject, though post –surveillance
notification.”
“Section 62D Regulations
The Minister may make regulations necessary to give effect to section 37A of the Act.”

MADLANGA ADCJ
13

from the fact that appointments were made by the Minister responsible for the
administration of RICA (namely the Minister of Justice and Constitutional
Development) and that their periods of appointment could be extended by the Minister
for any number of times, can be adequately addressed by interposing the participation
of the Chief Justice in the appointment p rocess. The idea is for the Chief Justice to
nominate a Judge who is to be appointed as a designated Judge. And the Minister must
appoint the nominee.

[19] As alluded to in the President’s affidavit, there has since been an accumulation
of applications brought in terms of sections 16, 17, 18, 20, 21, 22 and 23 of RICA for
directions or entry warrants that require a nod by the designated Judge. The President
asked that three designated Judges be appointed to consider applications for directions
jointly. While I agree that provision must be made for the appointment of three
designated Judges, I take the view that an application should be considered and decided
by a single designated Judge. That will be beneficial in working through the backlog.
Even when there is no longer a backlog, the designated Judges will each not bear a
heavy load and the process will go much quicker.

[20] The President did not ask for costs and it is fitting in this matter that there be no
award of costs.

[21] The following order is made:
1. Pending the coming into effect of legislation that cures the defects causing
the constitutional invalidity identified in AmaBhungane Centre for
Investigative Journalism NPC v Minister of Justice and Correctional
Services [2021] ZACC 3:
(a) Section 1 of the Regulation of Interception of Communications
and Provision of Communication -Related Information Act 70 of
2002 (RICA) shall be deemed to include the following definition
of “designated Judge”—

MADLANGA ADCJ
14

“designated Judge” means any one of three Judges of the
High Court who is retired or discharged from active service under
section 3(2) of the Judges’ Remuneration and Conditions of
Employment Act 47 of 2001, who is nominated by the
Chief Justice, and upon which nomination is, and must be,
appointed by the Minister, for a non-renewable term of 24 months,
to perform the functions of a designated Judge for purposes of this
Act.”
(b) RICA shall be deemed to include the following additional sections:
“Section 23A Disclosure that the person in respect of whom a
direction, extension of a direction or entry warrant is sought is
a journalist or practising lawyer
(1) Where the person in respect of whom a direction, extension
of a direction or entry warrant is sought in terms of
sections 16, 17, 18, 20, 21, 22 or 23, whichever is
applicable, is a journalist or practising lawyer, the
application must disclose to the designated Judge the fact
that the intended subject of the direction, extension of a
direction or entry warrant is a journalist or practising
lawyer.
(2) The designated Judge must grant the direction, extension of
a direction or entry warrant referred to in subsection (1)
only if satisfied that it is necessary to do so, notwithstanding
the fact that the subject is a journalist or practising lawyer.
(3) If the designated Judge issues the direction, extension of a
direction or entry warrant, she or he may do so subject to
such conditions as may be necessary, in the case of a
journalist, to protect the confidentiality of their sources, or,
in the case of a practi sing lawyer, to protect the legal
professional privilege enjoyed by their clients.”

MADLANGA ADCJ
15

“Section 25A Post-surveillance notification
(1) Within 90 days of the date of expiry of a direction or
extension thereof issued in terms of sections 16, 17, 18, 20,
21 or 2 3, whichever is applicable, the applicant that
obtained the direction or, if not available, any other law
enforcement officer within the law enforcement agency
concerned must notify in writing the person who was the
subject of the direction and, within 15 days of doing so,
certify in writing to the designated Judge, Judge of a
High Court, Regional Court Magistrate or Magistrate that
the person has been so notified.
(2) If the notification referred to in subsection (1) cannot be
given without jeopardising the purpose of the surveillance,
the designated Judge, Judge of a High Court,
Regional Court Magistrate or M agistrate may, upon
application by a law enforcement officer, direct that the
giving of notification in that subsection be withheld for a
period which shall not exceed 90 days at a time or two years
in aggregate.”
2. In the event that the leg islation envisaged in paragraph 1 does not come
into effect, the orders in paragraphs 1(a) and (b) will continue to apply.

For the Applicant:



For the Sixth Respondent:


For the Ninth Respondent:


G Marcus SC and K Perumalsamy
instructed by Office of the State
Attorney, Pretoria

F J Nalane SC and N Seme instructed by
Office of the State Attorney, Pretoria

M S Phaswane and M Moropa
instructed by Office of the State
Attorney, Pretoria