Bongani Mthimkhulu
Olorato Mongale funeral: 'We will not rest until we find Bongani Mthimkhulu' - deputy police minister
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Daily Maverick
3 hours ago
- Daily Maverick
In this era of spyware, Parliament must codify safeguards in surveillance law
Considering the proliferation of sophisticated surveillance technologies such as spyware, South Africa has a unique opportunity to implement a meaningful surveillance safeguard that can serve as a model regionally and globally by fixing the flaws in the Rica Bill. It has been more than four years since the South African Parliament began the reform of the Regulation of Interception of Communications Act (Rica). In 2021, the Constitutional Court declared the law unconstitutional and directed additional constitutional safeguards for surveillance. The 36-month timeline set by the court has long past, and warrant applications are delayed or unprocessed, leaving South Africa vulnerable to internal and external threats. A major factor behind this delay is Parliament and the Justice Department's minimalist approach, which conflicts with the court's mandate to address fundamental constitutional problems in the Rica Bill. The original bill passed by Parliament failed to remedy all constitutional flaws, so President Cyril Ramaphosa refused to assent and referred it back to Parliament. As the DA's Werner Horn predicted in 2023, 'the idea of a future wholesale review was a way of delaying the process which was likely to take years'. Considering the proliferation of sophisticated surveillance technologies such as spyware, South Africa has a unique opportunity to implement a meaningful surveillance safeguard that can serve as a model regionally and globally by fixing the flaws in the Rica Bill. This article explains how South Africa can achieve it. Indefinite suspension of notification keeps surveillance secret and grants permanent impunity The first flaw in the Rica Bill is the weak notification system. The introduction of a mandatory notification to surveillance subjects within 90 days of warrant expiration is a positive step; however, the implementation will probably fail. It allows suspension under vague conditions, i.e. whenever a court finds notification 'has the potential to negatively impact national security' for any period the court deems appropriate. Without clear limitations, suspension will be granted in many more cases for much longer than necessary (as found by the European Court of Human Rights in Bulgaria's notification system). Such a broad notification suspension makes accountability and remedy virtually impossible. Consider the case of journalist Sam Sole, a director of the amaBhungane Centre for Investigative Journalism, who was the plaintiff of the 2021 Constitutional Court case. Like many other targets Sole suspected he was being monitored, but lacked proof. That evidence emerged by good fortune when official intercept extracts were included in documents in another case. Sole's case is far from rare. Right2Know reports case studies where journalists only found out about the surveillance on them 'through accident, coincidence, or via a confidential source — without which it would be impossible to get any recourse'. If surveillance evidence is used in a criminal case, the subject may challenge its legality, but such cases are rare in practice. The Rica Bill does little to change the status quo, leaving the situation where, in Jacques Pauw's words, journalists 'can't do anything' with '(their) phone and emails (being) monitored'. The prospect becomes even more concerning when we consider the persistent instability the intelligence community has faced since 1994. This organisational weakness has been a root cause of surveillance abuse, notably identified by the 2018 Presidential High-Level Review Panel and the 2009 Commission of Inquiry. Yet, while the president-led reforms have led to some positive changes, they remain incomplete. International human rights law requires that people be notified of surveillance without jeopardising government interest The access to remedy is a human right. International and regional bodies consistently stress that states must provide victims of illegal surveillance access to an effective remedy (e.g. UN General Assembly, Human Rights Council, Special Rapporteur on Freedom of Expression, Human Rights Committee [see, recommendations to South Africa ], and African Commission on Human and Peoples' Rights). The knowledge of secret surveillance is the first step in achieving a remedy. Suspension thus should be strictly limited when it is necessary and proportionate to a specific legitimate aim, and should be subject to oversight. Notably, the European Court of Human Rights (e.g. in 2024 and 2022), and the European Court of Justice repeatedly clarified that notification must be provided to the surveillance subjects as soon as it can be made without jeopardising the purpose of surveillance. However, the current Rica Bill stands in contrast. It is doubtful that, without a clear condition and upper limit on suspension, notification would be issued immediately after the threat abates. Another problem with the notification system under the Rica Bill is its silence on what should be notified. To ensure access to remedy, the notification must include sufficient information so the surveillance subject could substantiate a claim to have the legality of the surveillance reviewed by a competent body. This, at a minimum, includes details such as who sought and conducted the surveillance, why and when it was done, and what information was obtained. In the case of Sole, while he (because of unique circumstances) learned of the interception, it was not enough for accountability. The government continues to insist that the application document justifying Sole's interception 'cannot be found', leaving Sole still 'left in the dark' as to whether the intrusion was legally valid. A concern that a robust notification system may deter agencies from using interception reflects a lack of understanding among agencies. The system does allow for notification to be suspended when necessary. Training is needed to ensure agencies understand that the notification framework is designed to strike a careful balance between government interests and transparency, and it should be implemented accordingly. Advanced surveillance technologies like spyware make the importance of notification even greater for accountability New tools like spyware make surveillance more intrusive and sophisticated. Spyware enables secret access to any data on a targeted device and even the alteration of data. International human rights experts are concerned that spyware may only be justified by necessity and proportionality principles in extremely limited situations. Spyware, like Pegasus by NSO Group, has been widely abused by governments worldwide to target journalists, human rights defenders, lawyers, and politicians. In South Africa, Ramaphosa's mobile phone was targeted in 2019 by Rwanda using spyware. One of the unique challenges posed by spyware is that of documenting its actual use. Some spyware can self-delete traces of itself on the target device. Moreover, many spyware operations are conducted by private vendors, adding another layer of opacity around who is conducting the surveillance. In fact, many accountability efforts related to Pegasus stem from leaked documents. This unique level of secrecy undermines the effectiveness of accountability mechanisms across the globe. For instance, in Ireland, individuals who believe they are subject to surveillance can appeal to a complaints referee to examine the legality of interception. However, individuals are less likely to realise they are being targeted by spyware. 'One-sided' warrant application process requires safeguards to prevent authorisations based on false claims The other major defect in the Rica Bill is the lack of solutions to ex parte — or one-sided — hearings. Under Rica's existing procedures, the government applies for a warrant in an ex parte hearing with only the judge and government representative present. While the exclusion of the surveillance subject from the process is necessary to achieve the goal of interception, this is a departure from traditional adversarial hearings where the judge can hear from advocates on either side of the issue. As a result, in the Constitutional Court's words, 'blatant mendacity may be the basis of an approach to (the judges)', like the journalists of The Sunday Times, who were subject to real-time interception based on 'unadulterated lies' that they were suspected ATM bombers; and the illegal surveillance over Saki Macozoma. Such misconduct is not unique to South Africa. In the United States, the FBI fabricated an email to carry out surveillance on Trump campaign advisor Carter Page, whom the FBI suspected of having ties to the Russian government. There are probably more cases that have not surfaced due to the 'complete secrecy' surrounding surveillance practices, which the Constitutional Court identifies as a root cause of abuse in surveillance. A public advocate system would help protect South African privacy rights One solution referenced by the court and supported by researchers and civil society is the introduction of a public advocate system, which is designed to bring an adversarial element to the hearing. A security-cleared lawyer would act in the interest of the excluded party (in this case, the individual subject to surveillance). While communication with the excluded parties is prohibited, public advocates typically have access to all information held by the government, including national security information, and they can submit claims, cross-examine evidence or witnesses, and challenge legal arguments. Such a system aligns with the principle confirmed by the European Court of Human Rights that 'measures affecting fundamental human rights must be subject to some form of adversarial proceedings', 'even when national security is at stake'. At least Canada, the UK, Australia, Sweden, the US, New Zealand, Denmark, Norway and Hong Kong have introduced public advocate systems since the 1980s and improved the systems, including in the context of surveillance authorisation. Notably, these countries have either maintained their public advocate programme or expanded their application. The European Court of Human Rights recognised the public advocate system as a method to address ex parte concerns, and human rights bodies have recommended that states consider including a public advocate system in the warrant application process. Governments explicitly confirmed its effectiveness. Public advocates have demonstrated impact on outcomes. Public advocates' arguments have led courts to negate warrant applications. Existing studies based on interviews with public advocates and government agencies confirm a positive trend, with public advocates increasingly successful in raising the standard for government evidence and warrant applications. The system can improve the quality of warrant applications and help reduce the burden on judges. Parliament should consider public advocate system now The Department of Justice disfavours the public advocate system without fully understanding its effectiveness because it is a new concept in South Africa. Its reluctance is evident in its lacklustre conclusion from preliminary research on the global landscape of the system. It only scratched the surface of some literature, failing to consider the latest rules, ignoring positive trends, and saying 'each country has a very different model of a public advocate, and that this role is not necessarily enabled by state surveillance legislation'. Given the emergence of spyware, the department should conduct more in-depth research into implementation models in other countries and carry out a detailed feasibility assessment of introducing the public advocate system within South African law, particularly in sensitive cases involving press freedom or source confidentiality. The department has failed to show an alternative solution. It argues that an automatic review mechanism would remedy the one-sided warrant hearing. Under this mechanism, all warrant decisions would be reviewed by another judge immediately after the original decision was made. However, such a system is simply less effective and incurs greater costs in both time and money compared with the public advocate system. As Professor Jane Duncan, who has written and worked extensively on public oversight of security agencies, has noted the review judge is likely to 'mirror the decisions', as review judges 'will still be making decisions based on the same one-sided secret evidence'. South Africa has the opportunity to implement a meaningful safeguard to be a model regionally and globally Parliament and the State Security Agency have justified concerns about the legislative gap and the resulting damage to state security. But South Africa is uniquely situated as a state that understands the damage a 'skewed notion of national security' can cause when it is 'weaponised and calculated to subvert the dignity of the majority of South Africans'. South Africa should not miss the present opportunity. The world is watching. Many countries, in Africa and beyond, are updating their surveillance laws. As the Constitutional Court stated, 'the right to privacy is singularly important in South Africa's constitutional democracy.' The world is waiting for South Africa to demonstrate its commitment to constitutional democracy — something that is urgently needed in the current global context. DM Hinako Sugiyama is a public interest lawyer licensed in both Japan and New York, USA, specialising in issues related to surveillance, human rights, and democracy. She currently supervises the work of the International Justice Clinic at the University of California, Irvine School of Law.
Daily Maverick
3 hours ago
- Daily Maverick
Inquest into deaths of Cradock Four reopened — almost 40 years after their murders
Almost 40 years after the anti-apartheid activists known as the 'Cradock Four' were murdered by Security Branch members, an inquest into their deaths has been reopened. A third judicial inquest into the deaths of the 'Cradock Four' began in the Eastern Cape Division of the High Court in Gqeberha on Monday. The lawyer for Joffel van der Westhuizen, the former commanding officer of the Eastern Province Command and one of those implicated in the killings, said the SA National Defence Force (SANDF) had refused to pay his legal costs. The lawyer argued that witnesses could not give evidence that implicated Van der Westhuizen, a former general, unless he had funded legal representation. Judge Thami Beshe ruled that, for the time being, witnesses may only testify about incriminating evidence available in public documents. While the three police officers who are implicated and still alive have received funding for their legal representatives, their advocates said they had received their funding late and needed time to fully prepare. The Cradock Four were anti-apartheid activists Fort Calata, Sicelo Mhlauli, Sparrow Mkonto and Matthew Goniwe. They were returning to Cradock from Gqeberha (then known as Port Elizabeth) on 27 June 1985 when they were arrested at a roadblock manned by the Security Branch, assaulted and murdered. There have been two previous inquests. The first, in 1987, concluded the men had been killed by 'unknown persons'. No one was prosecuted. The second, in 1993, presided over by former Eastern Cape Judge President Neville Zietsman, found the police were responsible for their deaths. Again, no individuals were named and no prosecutions followed. Now, Varney said, the families had little hope for justice. Advocate Tembeka Ngcukaitobi SC, representing the families and the Cradock community, said they sought closure, healing and reparations. Eight former police and Defence Force officials applied for amnesty to the Truth and Reconciliation Commission (TRC) for their roles in the Cradock Four killings: The 'masterminds': Hermanus Barend du Plessis, Nicolaas Jacobus Janse van Rensburg and Harold Snyman. Three of the killers on the scene: Johan Martin 'Sakkie' van Zyl, Eric Alexander Taylor and Gerhardus Johannes Lotz. Two others who played peripheral roles: Jacob Jan Hendrick (Jaap) van Jaarsveld and Eugene de Kock. All but Van Jaarsveld and De Kock were denied amnesty in 1999. Yet no further legal steps were taken. 'At first,' said Varney, 'the families thought such inaction was the product of a toxic mix of idleness, indifference, incapacity or incompetence on the part of the police and prosecutors. While these factors may have played a role, they now know that something more sinister was at play and that political forces intervened to block their cases from proceeding.' He said the former Director of Public Prosecutions, advocate Vusi Pikoli, admitted during legal proceedings brought by Thembi Simelane in 2015 for the 1983 abduction and murder of her sister Nokuthula, that political interference had closed down their investigations of TRC cases. 'It is apparent that the Cradock Four case received little or no attention post the winding up of the TRC. Indeed, the investigation docket went missing from the NPA's [National Prosecuting Authority's] offices between 2013 and 2019. This required the docket to be reconstructed. 'Typically, missing dockets are an indication of a cover-up or an attempt to sabotage the investigation. Since it was apparent that no investigation was launched into its disappearance, Fort Calata's son Lukhanyo was forced to open a case of theft in 2020. That investigation was closed in August 2021 without providing any answers,' said Varney. All six members of the police hit squad who murdered the Cradock Four have died. State 'dragged its feet' Varney told the court that the State had 'systematically and deliberately dragged its feet, or blocked justice in this case and the other TRC cases'. On 20 January, 25 families and the Foundation for Human Rights launched a legal application seeking a declaration of their rights, constitutional damages and an order compelling President Cyril Ramaphosa to establish a commission of inquiry into the suppression of TRC cases. The President has since established such a commission. Varney said that since the families launched their application in 2021 to compel the NPA and SAPS to complete investigations, several more individuals implicated in the case had died: Eric Winter, former Cradock Special Branch commander, died on 18 August 2021; FW de Klerk, former State President, died on 11 November 2021; Johannes Velde van der Merwe, former police commissioner, died on 27 August 2022; Adriaan Vlok, former minister of law and order, died on 8 January 2023; Lukas Daniel 'Niel' Barnard, former National Intelligence Service director, died on 13 January 2025; and Hermanus Barend du Plessis, former head of the Security Branch for Black Affairs in Port Elizabeth, died on 16 May 2023. Ngcukaitobi said he hoped the inquest would make a difference to the families and the communities' quest for justice. 'There is a possibility that the truth can be told,' he said, adding that this should lay the foundation for reparations to be made to the families. He said Mbulelo Goniwe would testify. 'He was a comrade of the Cradock Four and survived the assassination by the mercy of God,' said Ngcukaitobi. 'Perhaps to remind the country not to forget the story of apartheid and its brutality.' He said the four men were not only leaders of a generation of activists but also teachers, organisers, fathers and husbands. 'One should not analyse this as a political fight with little emphasis on the personal side of the loss,' he said. 'We will ask for recommendations by the judge for reparations,' he said, adding that these should be broad, as the deaths of the four men were a traumatic event for the entire community. He said Deputy Defence Minister Bantu Holomisa, the former chairperson of the Military Council in the Transkei, would also testify. Counsel for some of the former police officers, Jaap Cilliers SC, said this was an emotional inquest and his clients would cooperate as 'fully as possible'. Poor health Referring to the former military commander Van der Westhuizen, Varney said: 'His legal representative has disclosed that he is in poor health. An attempt to take his evidence on commission has been stymied because the SANDF refuses to pay his legal costs.' Van der Westhuizen's attorney Ryan Roos said the SANDF believed his client acted outside the scope of his official duties and therefore refused to fund his legal defence. Although the Eastern Cape Division of the High Court directed that the SANDF decision be reviewed urgently, the Gauteng Division of the High Court dismissed the review as not urgent, meaning it will take months to be heard. Van der Westhuizen's counsel, advocate Marius van Zyl, said his client would deny authorising the killing of the Cradock Four. According to Varney's opening address, on 7 June 1985, Major-General J Frederick Johannes van Rensburg of the State Security Council phoned Van der Westhuizen to discuss Matthew Goniwe. 'The two officers apparently decided that Goniwe and two others (Fort Calata and Mbulelo Goniwe) should be 'permanently removed from society as a matter of urgency,' said Varney. 'As a result of this discussion, Colonel Lourens du Plessis sent a 'Signal Message Form' dated June 7, 1985 — addressed to the State Security Council and detailing the earlier telephone discussion (the signal). It was marked 'urgent' and 'top secret'.' The form read: 'Personal for General Van Rensburg. 1 Telephone conversation Gen Van Rensburg/Brig Van der Westhuizen of 7 June '85 refers 2 Names as follows Matthew Goniwe Mbulelo Goniwe (brother or nephew of above) Fort Calata 3 It is proposed that the above-mentioned persons, as a matter of urgency, be permanently removed from society. 4 Wide reaction can be expected locally as well as nationally as a result of the importance of these persons, especially the first mentioned, for the enemy.' Varney said, 'This inquest is probably the very last chance that the families will get to reach a semblance of closure. They deserve nothing less than a full and comprehensive accounting of the past.' DM
IOL News
5 hours ago
- IOL News
'Makeshift flamethrower' attacker facing US federal hate charges
Mohamed Sabry Soliman allegedly used incendiary devices to torch protesters rallying in support of Israeli hostages, injuring at least eight people in the US state of Colorado Image: AFP PHOTO / HANDOUT / BOULDER COUNTY SHERIFF'S OFFICE / BOLDER POLICE DEPARTMENT The man suspected of a Molotov cocktail attack on Jewish protesters in Colorado was facing federal hate crime charges on Monday, with the government saying he was in the United States illegally. Mohamed Sabry Soliman is alleged to have thrown Molotov cocktails and sprayed burning gasoline in Boulder on Sunday at a gathering in support of Israeli hostages held by the Hamas armed group. Eight people were hurt in the attack -- four men and four women -- with the oldest reportedly being 88 years old. FBI agent Mark Michalek said the suspect used "a makeshift flamethrower" and "was heard to yell: 'Free Palestine,'" during the incident. An FBI affidavit said Soliman had been planning the assault for a year. "He stated that he wanted to kill all Zionist people and wished they were all dead," the affidavit says. "He hated this group and needed to stop them from taking over 'our land,' which he explained to be Palestine." Agents said they had found at least 14 unused Molotov cocktails and a backpack weed sprayer containing gasoline. US Homeland Security officials said he was in the country illegally, having overstayed a tourist visa, but that he had applied for asylum in September 2022. President Donald Trump lashed out at his predecessor, Joe Biden, over the incident. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Advertisement Next Stay Close ✕ "Yesterday's horrific attack in Boulder, Colorado, WILL NOT BE TOLERATED in the United States of America," Trump said on his Truth Social network, describing it as a "terrible tragedy." He blamed "Biden's ridiculous Open Border Policy" for allowing Soliman into the country. "This is yet another example of why we must keep our Borders SECURE, and deport Illegal, Anti-American Radicals from our Homeland," he wrote. The attack occurred on Sunday afternoon during a regular demonstration in support of hostages taken in the assault on Israel by Hamas gunmen on October 7, 2023. In one video that purportedly shows the attack, a shirtless man holding bottles in his hands is seen pacing as the grass in front of him burns. He can be heard screaming "End Zionists!" and "They are killers!" towards several people in red T-shirts as they tend to a person lying on the ground. Other images showed billowing black smoke. In another video, a police officer rushes to arrest the same man, who is lying on the grass. Several people are milling around nearby. Boulder Police Chief Steve Redfearn told reporters that "at least one victim was very seriously injured, probably safe to say critical condition." The suspect was also injured before being taken into custody, Redfearn said. Boulder resident Alexis Cendon said he felt "very, very scared" after hearing about the attack near his workplace. Sunday's attack occurred during the Jewish holiday of Shavuot. It comes almost two weeks after the fatal shooting of two Israeli embassy staffers outside a Jewish museum in Washington, where a 31-year-old suspect, who shouted "Free Palestine," was arrested. Mohammad Soliman just lit a bunch of elderly Jews on fire in Colorado while shouting "Free Palestine" Police: "Too early for a motive" — End Wokeness (@EndWokeness) June 1, 2025 Israel's top diplomat Gideon Saar condemned Sunday's "terrible antisemitic terror attack targeting Jews in Boulder." Israeli Ambassador to the United Nations Danny Danon also voiced outrage. "Terrorism against Jews does not stop at the Gaza border -- it is already burning the streets of America," he said in a statement.
