Interception and Monitoring Bill: briefing by the NIA (Closed)

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
26 September 2001
INTERCEPTION AND MONITORING BILL: BRIEFING BY THE NIA (CLOSED)

Chairperson: Adv J H de Lange

SUMMARY
This meeting was a supplementary briefing in which the National Intelligence Agency came before the Committee to answer a number of questions which had been raised in the course of the initial discussions. The meeting was technical in nature and, as a result of the sensitivity of the information disclosed, the meeting was closed to the public. The NIA felt that the information being disclosed would best not be known or disclosed to the general public.

The NIA discussed various technical aspects of information interception, including the different ways in which it could be done. They outlined the legal and practical procedure followed when installing wiretaps or intercepting any other information. In addition to this the NIA detailed the calculation of the costs associated with tapping a phone, with the grand total being payable to Telkom.

Appendix

SOUTH AFRICAN POLICE SERVICE
STATISTICS ON INTERCEPTION AND MONITORING

The Committee has requested statistics on the number of applications on interception and monitoring, as well as an indication for which offences such applications are made.

The statistics are as follows:

1 January 1999 - 31 December 1999
115 New applications
46 Renewals

1 January 2000 - 31 December 2000
110 New applications
42 Renewals

1 January 2001 -30 August 2001
72 New applications
31 Renewals

There are two categories of offences derived from the definition of "serious offence" in the
Act, namely:
(a) Offences in terms of Schedule 1 of the Criminal Procedure Act, 1977, which are
committed regularly, or over a period of time, or in an organized fashion;

(b) Drug offences, with reference to the Drugs and Drug Trafficking Act..

An exposition is given for the years 2000, and 2001, to date.
1 January 2000 until 31 December 2000:

Applications for drug offences: 54

Applications for Schedule 1 offences committed over a lengthy period of time, in an organized fashion, and on a regular basis: 90

These applications were in respect of:

Intimidation.
Illegal possession of explosives.
Conspiracy to murder.
Corruption.
Defeating the ends of justice.
Armed robbery.
Fraud.
Theft.
Illegal trade in gold and diamonds.
Robbery on vehicles.
Housebreaking and theft.
Firearms offences.
Stock Theft.
Kidnapping.
Arson.
Public Violence.

The exposition for the year 1 January 2001 - 31 August 2001 is as follows:

Applications for drug related offences: 38

Applications in respect of Schedule 1 offences committee over a lengthy period of time, in an organized fashion, on a regular basis: 45

These applications were in respect of the following offences:

Armed robbery
Conspiracy to murder.
Statutory offences of which violence is an element.
Offences relating to coinage.
Theft.
Transito robbery(heists).
Defeating the ends of justice.
Offences relating to firearms.
Fraud.
Illegal trade in/possession of diamonds and gold.
Protection of Information.
Receipt of Stolen Goods.
Kidnapping.
Extortion.
Arson.
Child pornography.
Taxi violence.
Corruption.
Sedition.

I am of the opinion that the definition of "serious offence", as proposed by myself in the Committee, is strongly supported by the above

In respect of the definition of "serious offence", some guidance could be gained from Schedule 2 of the Criminal Law Amendment Act, 1 Os of 1997, which, in section 51 provides for minimum sentences in respect of certain offences. The Schedule might, however, need to be adjusted and supplemented.

Schedule 2

(Section 51)

PART I

Murder, when-
(a) it was planned or premeditated;

(b) the victim was-
(i) a law enforcement officer performing his or her functions as such, whether on duty or not; or
(ii) a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), at criminal proceedings in any court;

(c) the death of the victim was caused by the accused in committing or attempting to commit or after having committed or attempted to commit one of the following offences:
(i) Rape; or
(ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977); or

[Sub-para. (ii) substituted by s.37 of Act 62 of 2000.]

(d) the offence was committed by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy.

Rape-
(a) when committed-
(i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;
(ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy;
(iii) by a person who has been convicted of two or more offences of rape, but has not yet been sentenced in respect of such convictions; or
(iv) by a person, knowing that he has the acquired immune deficiency syndrome or the human immunodeficiency virus;

(b) where the victim-
(i) is a girl under the age of 16 years;
(ii) is a physically disabled woman who, due to her physical disability, is rendered particularly vulnerable; or
(iii) is a mentally ill woman as contemplated in section 1 of the Mental Health
Act, 1973 (Act 18 of 1973); or

(c) involving the infliction of grievous bodily harm.

PART II

Murder in circumstances other than those referred to in Part I.

Robbery-
(a) when there are aggravating circumstances; or
(b) involving the taking of a motor vehicle.

Any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992), if it is proved that-
(a) the value of the dependence-producing substance in question is more than R50 000,00;
(b) the value of the dependence-producing substance in question is more than R10 000,00 and that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or
(c) the offence was committed by any law enforcement officer.

Any offence relating to-
(a) the dealing in or smuggling of ammunition, firearms, explosives or armament;
or
(b) the possession of an automatic or semi-automatic firearm, explosives or armament.

Any offence relating to exchange control, corruption, extortion, fraud, forgery, uttering or theft-
(a) involving amounts of more than R500 000,00;
(b) involving amounts of more than R100 000,00, if it is proved that the offence was committed by a person, group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy; or
(c) if it is proved that the offence was committed by any law enforcement officer-
(i) involving amounts of more than R10 000,00; or
(ii) as a member of a group of persons, syndicate or any enterprise acting in the execution or furtherance of a common purpose or conspiracy.

PART III

Rape in circumstances other than those referred to in Part I.

Indecent assault on a child under the age of 16 years, involving the infliction of bodily harm.

Assault with intent to do grievous bodily harm on a child under the age of 16 years.

Any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 (Act 75 of 1969), on account of being in possession of more than 1000 rounds of ammunition intended for firing in an arm contemplated in section 39 (2) (a) (i) of that Act.

PART IV

Any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act 51 of 1977), other than an offence referred to in Part I, II or III of this Schedule, if the accused had with him or her at the time a firearm, which was intended for use as such, in the commission of such offence.