Throwing the rule book at the Gupta spying saga
27 June 2017
The recent revelations in the leaked #GuptaEmails suggest that the prominent Gupta family spied on various individuals including former Finance Minister, Trevor Manuel; his wife and Absa Bank Chief Executive Officer, Maria Ramos; EFF leader, Julius Malema and FirstRand bosses, Laurie Dippenaar and GT Ferreira, and had access to their travelling movements. While the motives for the spying on Manuel and Malema remain unclear, reports suggest that the spying on the rest is due to the Gupta interests in purchasing a South African bank. Should this be the case, then a number of laws appear to have been transgressed.
The extent of the surveillance detailed in news reports suggests that the Gupta business network operated in the same vein as a spy agency. The National Strategic Intelligence Act (Intelligence Act), established in terms of the Constitution, defines the functions of the members of the national intelligence structures. It makes it apparent that domestic intelligence should only be gathered in order to identify potential threats to the security of the Republic or its people. The Intelligence Act further recognises that bodies such as the South African Police Service (SAPS) and the National Defence Force (SANDF) may gather intelligence, but the same law makes it clear that such intelligence must be gathered within certain parameters. The SANDF shall only gather military-related intelligence, while SAPS can only gather intelligence pursuant to the prevention, combating and investigation of crime. Importantly, the Intelligence Act underscores the fact that intelligence within South Africa cannot be gathered in a covert manner, other than bodies that are expressly empowered to do so, for a specific purpose, in accordance with strict constitutional perimeters. There is no allowance for the use of state intelligence resources in the furtherance of private interests.
The Constitution protects the right to privacy, including the right not to have the privacy of one’s communications infringed. It is trite law that personal information can only be obtained by a third party who is not ordinarily permitted to access such information, if a court order has been granted to allow access to such information. According to news reports, there is no suggestion that court orders were granted, or even sought, before the surveillance began. The Protection of Personal Information (POPI) Act regulates the collection, storage, usage, as well as the dissemination of personal information. The POPI Act further places an obligation on organisations to make known to individuals that personal information has been accessed or acquired by an unauthorised person in the instance that security measures have been breached. Before the news reports in the #GuptaEmails - did Trevor Manuel, Maria Ramos, Julius Malema, Laurie Dippenaar and GT Ferreira know that their personal information had been accessed unlawfully? The POPI Act sanctions the infringement of its provisions. Such sanctions include a year’s imprisonment, or a fine of up to R10 million.
Apart from laying a civil claim for damages based on the infringement of the right to privacy and the emotional distress accompanying such invasion, Parliament’s Joint Standing Committee on Intelligence can be briefed (JSCI). The JSCI exercises an oversight function over the intelligence services, including the intelligence division of the SAPS, and is tasked with sanctioning the officials who may have used state resources to fulfil the unlawful request by the Gupta family.
The Inspector-General for Intelligence (IGI) established by the Constitution is mandated to provide civilian oversight of the intelligence services. In order to strengthen the independence of the Office of the IGI, the IGI is not a member of the intelligence services but rather reports directly to the JSCI. In this instance, the IGI will be compelled to investigate the alleged abuse of power should any of the intelligence services be found to have spied on the private individuals using state resources to benefit the business interests of the Gupta family.
Ultimately, the Constitution and its laws strongly protect the right to privacy for individuals. This enables South Africans across the spectrum to exercise control over their personal information and to conduct their personal matters free from unwanted and unwarranted intrusion. The rule book must be thrown at individuals responsible for the spying, and the law must be allowed to run its full course. In the same vein, intelligence services have a vital role to play in the maintenance of national security - within narrowly prescribed powers and functions - from which, any deviation is unacceptable.
By Ms Phephelaphi Dube: Director, Centre for Constitutional Rights