Rica needs urgent reform

The Regulation of Interception of Communications & Provision of Communication-Related Information Act (Rica) is supposed to protect South Africans’ security and privacy, but it has been plagued with flaws and abuses since inception.

Recent revelations of failings are the latest in a long line of problems with Rica and the justice department as the responsible implementation agent. The legislation has been dogged by unanswered critique, and the volume thereof is rising steadily.

On paper, every SIM card used in SA must be registered to the individual using it, with their identity and address details. That is supposed to enable police to track and intercept criminal activities, as well as to prevent fraud and money laundering.

But multiple media outlets, including this newspaper, have exposed the widespread availability of noncompliant SIM cards, colloquially known as non- or pre-Rica’ed SIMs, that can be bought without identification. These SIM cards are used by both criminals and ordinary citizens who want to avoid surveillance or simply do not have the necessary documents to register.

The justice department has failed to monitor and regulate the compliance of SIM card sellers, as well as mobile network operators who are supposed to verify and store the registration data. The result is a huge gap between the official number of registered SIM cards and the actual number of SIM cards in the country.

The Sunday Times has reported that billions of rand were wired through mobile money transfer using 57,000 unregistered SIMs in SA in 2020 and 2021, to recipients in Kenya, Somalia, Nigeria and Bangladesh. This has put SA on the “greylist” of the Financial Action Task Force, an intergovernmental organisation that combats money laundering and terrorist financing, for not meeting international standards.

In addition, Rica has been slammed for violating the constitutional rights of South Africans to privacy and freedom of expression because law enforcement agencies stand a better chance of securing convictions by forensic analysis of mobile data use than who a SIM is registered to.

Put differently: Rica is most effective for “interception”. That is precisely what the Constitutional Court found was problematic in the act, it opened the door for mass surveillance and interception of privileged communications, such as those between journalists and sources, without adequate safeguards and oversight.

After that ruling in 2021, the government had an opportunity to introduce real reform to the Rica bill. It took the best part of the three-year window it was given to introduce an amendment bill, but the proposed amendments that have been released for public comment do not go far enough.

The system has failed. It has created a situation of insecurity, and infringed on the rights and freedoms of South Africans who have been exposed to unjustified surveillance and interception.

The government must either do a proper job of fixing it or scrap the requirement and stop wasting everyone’s time.