WORKING DOCUMENT IMB 64

DRAFT 1

(As on 24/01/2002)REPUBLIC OF SOUTH AFRICA

INTERCEPTION AND MONITORING BILL

(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No. 22582 of 17 August 2001) (The English text is the official text of the Bill )

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 50 - 2001]

Workdoc3(ii)

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

___________ Words underlined with a solid line indicate insertions in existing enactments.

{ } Words in italic type and between { } brackets indicate possible options.

___________________________________________________________________

BILL

To regulate the interception of certain communications; to provide for the interception of postal articles and communications under certain circumstances; to prohibit the provision of certain telecommunication services which do not have the capacity to be intercepted; to regulate authorised telecommunications interception; and to provide for matters connected therewith.^[1]

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

ARRANGEMENT OF SECTIONS

Section

CHAPTER 1

INTRODUCTORY PROVISIONS

1. Definitions and interpretation

CHAPTER 2

INTERCEPTION OF COMMUNICATIONS

2. Prohibition of interception of communication and provision of archived or real-time call-related information

3. Interception of communication under interception direction and provision of archived or real-time call-related information under archived call-related direction, supplementary direction or real-time call-related direction

4. Interception of communication by party to communication

5. Interception of communication with consent of party to communication

6. Interception of indirect communication by, or on behalf of, postal service provider or telecommunication service provider

7. Interception of communication for purposes of installation or maintenance of equipment, facilities or devices

8. Interception of indirect communication in connection with carrying on of business

CHAPTER 3

APPLICATIONS AND REQUESTS

9. Application for interception direction

10. Application for archived call-related direction

11. Application for supplementary direction or real-time call-related direction

12. Application for amendment or extension of existing direction

13. Single application for interception direction and archived call-related direction or real-time call-related direction, or both

14. Oral application for interception direction

15. Application for decryption direction

16. Request for entry warrant

CHAPTER 4

DIRECTIONS AND ENTRY WARRANTS

17. Issue of interception direction

18. Issue of archived call-related direction

19. Issue of supplementary direction or real-time call-related direction

20. Amendment or extension of existing direction

21. Simultaneous issue of interception direction and archived call-related direction or real-time call-related direction, or both

22. Issue of oral interception direction

23. Issue of decryption direction

24. Issue of entry warrant

25. Reports to judge on progress

26. Cancellation of direction or oral interception direction

CHAPTER 5

EXECUTION OF DIRECTIONS AND ENTRY WARRANTS

27. Execution of direction

28. Execution of entry warrant

29. Assistance by postal service provider and telecommunication service provider

30. Assistance by decryption key holder

CHAPTER 6

INTERCEPTION CAPABILITY, INTERCEPTION CENTRES AND COSTS

31. Prohibition of certain telecommunication services

32. Interception centres

33. Remuneration payable to postal service provider, telecommunication service provider and decryption key holder

CHAPTER 7

DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER

34. Information to be obtained and kept by telecommunication service provider

35. Information to be obtained and kept in respect of cellular phone and SIM-card

36. Notification of change of address or other information

37. Loss, theft or destruction of cellular phone or SIM-card to be reported

38. Presumptions relating to failure to report

CHAPTER 8

PROHIBITIONS AND EXEMPTIONS

39. Prohibition on disclosure of information

40. Disclosure of information by law enforcement officer for performance of official duties

41. Listed equipment

42. Prohibition on manufacture, possession and advertising of listed equipment

43. Exemptions

CHAPTER 9

CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES

44. Use of information in criminal proceedings

45. Proof of certain facts by certificate

46. Unlawful acts in respect of telecommunication and other equipment

47. Offences and penalties

48. Forfeiture of listed equipment

49. Revoking of licence to provide telecommunication service

CHAPTER 10

GENERAL PROVISIONS

50. Availability of other procedures for obtaining archived and real-time call-related information

51. Supplementary directives regarding applications and requests

52. Amendment of section 205 of the Criminal Procedure Act, 1977

53. Amendment of section 11 of the Drugs and Drug Trafficking Act, 1992

54. Amendment of section 5 of the Intelligence Services Act, 1994

55. Amendment of section 3 of the Intelligence Services Control Act, 1994

56. Repeal of law and transitional arrangements

57. Short title and commencement

Schedule

CHAPTER 1

INTRODUCTORY PROVISIONS

Definitions and interpretation

1. (1) In this Act, unless the context otherwise indicates—

"Agency" means the Agency as defined in section 1 of the Intelligence Services Act;

"applicant" means^[2]—

(a) an officer referred to in section 33 of the South African Police Service Act, if the officer concerned obtained in writing the approval in advance of another officer in the Police Service with at least the rank of assistant‑commissioner, or a member of the Police Service occupying a post on at least the same level, and who has been authorised in writing by the National Commissioner of the Police Service to grant such approval;

(b) an officer as defined in section 1 of the Defence Act, if the officer concerned obtained in writing the approval in advance of another officer in the Defence Force with at least the rank of major‑general who must be authorised in writing by the Chief of the Defence Force to grant such approval;

(c) a member as defined in section 1 of the Intelligence Services Act, if the member concerned obtained in writing the approval in advance of another member of the Agency or the Service, as the case may be, holding a post of at least general manager;

(d) the head of the Directorate or an Investigating Director authorised in writing by the head of the Directorate; or

(e) the National Director;

"archived call-related direction" means a direction issued under section 18(1) and in which a telecommunication service provider is directed to provide archived call-related information in respect of a customer;

"archived call-related information" means any call-related information in the possession of a telecommunication service provider and which is stored by that telecommunication service provider for a period of at least 12 months from the date of the transmission of the indirect communication to which that call-related information relates;

"business" includes activities of any—

(a) department of state or administration in the national, provincial or local sphere of government;

(b) other functionary or institution exercising a public power or performing a public function in terms of any legislation; or

{(c) person or office holder on whom functions are conferred by or under any law;}

"call-related information" means any information relating to an indirect communication which is available to a telecommunication service provider and includes switching, dialling or signalling information that identifies the origin, destination, termination, duration and equipment identification of each indirect communication generated or received by a customer or user of any equipment, facility or service provided by such a telecommunication service provider and, where applicable, the location of the user within the telecommunications system;

"cellular phone" means any fixed or mobile cellular apparatus or terminal which is capable of connection to a cellular telecommunication system and which is used by a customer to transmit or receive indirect communications over such telecommunication system;

"communication" includes both a direct communication and an indirect communication;^[3]

''contents'', when used with respect to any communication, includes any information concerning the {identities of the parties to the communication, if available, and the existence,} substance, purport or meaning of that communication;^[4]

"customer" means any person {to whom a telecommunication service provider provides a telecommunication service / who has entered into a contract with a telecommunication service provider for the provision of a telecommunication service};

"decryption assistance" means to—

(a) allow access, to the extent possible, to encrypted information; or

(b) facilitate the putting of encrypted information into an intelligible form;

"decryption direction" means a direction issued under section 23(1) and in which a decryption key holder is directed to—

(a) disclose a decryption key; or

(b) provide decryption assistance in respect of encrypted information;

"decryption key" means any key, mathematical formula, code, password, algorithm or any other data which is used to—

(a) allow access to encrypted information; or

(b) facilitate the putting of encrypted information into an intelligible form;

"decryption key holder" means any person who is in possession of the decryption key of another person for purposes of subsequent decryption of encrypted information relating to indirect communications of such other person;

"Defence Act" means the Defence Act, 1957 (Act No. 44 of 1957);

"Defence Force" means the defence force referred to in section 199(2) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"direct communication" means—

(a) an oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or

{(b) an utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication;}^[5]

"direction" means any interception direction, archived call-related direction, supplementary direction, real-time call-related direction or decryption direction issued under this Act;

"Directorate" means the Directorate of Special Operations referred to in section 1 of the National Prosecuting Authority Act;

"encrypted information" means any electronic data which, without the decryption key to that data—

(a) cannot, or cannot readily, be accessed; or

(b) cannot, or cannot readily, be put into an intelligible form;

"entry warrant" means a warrant issued under section 24(1) and which authorises entry upon any premises for purposes of—

(a) intercepting a postal article or communication on the premises;

(b) installing or maintaining an interception device on the premises; or

"fixed date" means the date of commencement of this Act;

"Intelligence Services Act" means the Intelligence Services Act, 1994 (Act No. 38 of 1994);

"indirect communication" means the transfer of information, including a message or any part of a message, whether—

(a) in the form of—

(i) speech, music or other sounds;

(ii) data;

(iii) text;

(iv) visual images, whether animated or not; or

(v) signals; or

(b) in any other form or in any combination of forms,

that is transmitted in whole or in part by means of a postal service or a telecommunication system;

"intelligible form" means the form in which electronic data was before an encryption or similar process was applied to it;

"intercept" means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the—

(a) monitoring of any such communication by means of a monitoring device;

(b) viewing, examination or inspection of the contents of any indirect communication; and

(c) diversion of any indirect communication from its intended destination to any other destination,

and interception has a corresponding meaning;

"interception device" means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to intercept any communication, but does not include—

(a) any instrument, device, equipment or apparatus, or any component thereof—

(i) furnished to the customer by a telecommunication service provider in the ordinary course of his or her business and being used by the customer in the ordinary course of his or her business;

(ii) furnished by such customer for connection to the facilities of such telecommunication service and used in the ordinary course of his or her business;

(iii) being used by a telecommunication service provider in the ordinary course of his or her business; or

{(iv) being used by a law enforcement officer in the ordinary course of exercising of his or her powers or performing his or her duties, which powers or duties do not involve the interception of communications; or}^[6]

(b) a hearing aid or similar device being used to correct subnormal hearing to not better than normal,^[7]

and a reference to an interception device includes, where applicable, a reference to a monitoring device;

"interception direction" means a direction issued under section 17(1) and which authorises the interception of—

(a) a direct communication in the course of its occurrence; or

(b) an indirect communication in the course of its transmission by means of a postal service or telecommunication system, as the case may be,

at any place in the Republic;

"judge" means any judge of a High Court discharged from active service under section 3(2) of the Judges' Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of 2001), and any retired judge, who is designated by the Minister to perform the functions of a judge for purposes of this Act;

"law enforcement officer" means any—

(a) member of the Police Service;

(b) member, excluding a member of a visiting force, as defined in section 1 of the Defence Act;

(d) member of the Directorate; or

(e) other member of the prosecuting authority;

"listed equipment" means any equipment declared to be listed equipment under section 41(1), and includes any component of such equipment;

"Minister" means the Cabinet member responsible for the administration of justice;

"monitoring" includes to listen to or record communications by means of a monitoring device;

"monitoring device" means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to listen to or record any communication;

"National Director" means the National Director of Public Prosecutions contemplated in section 179(1)(a) of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

"National Prosecuting Authority Act" means the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

{"organised fashion", for purposes of paragraph (b)(ii) of the definition of "serious offence" includes the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics;}^[8]

"party to the communication" means, in the case of—

(a) a direct communication, any person participating in such direct communication or to whom such direct communication is directed; or

(b) an indirect communication—

(i) the sender or the recipient or intended recipient of such indirect communication; or

(ii) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients;^[9]

"Police Service" means the South African Police Service established by section 5(1) of the South African Police Service Act;

"postal article" means any postal article as defined in the Postal Services Act;

"postal service" means a postal service as defined in the Postal Services Act, and includes—

(a) any private postal service; and

(b) any service which is offered or provided as a service of which, or one of the main purposes of which, is to make available, or to facilitate, a means of transmission from one place to another place of postal articles containing indirect communications;

"Postal Services Act" means the Postal Services Act, 1998 (Act No. 124 of 1998);

"postal service provider" means any person who provides a postal service;

"premises" includes any land, building, structure, vehicle, ship, boat, vessel, aircraft or container;

"Prevention of Organised Crime Act" means the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);

"real-time call-related direction" means a direction issued under section 19(2) and in which a telecommunication service provider is directed to provide real-time call-related information in respect of a customer, on an ongoing basis, as it becomes available;

"real-time call-related information" means call-related information which is available to a telecommunication service provider—

(a) before, during or immediately after the transmission of an indirect communication; and

(b) in a manner that allows it to be associated with the indirect communication to which it relates;

"relevant Ministers" means the—

(a) Minister of Communications;

(b) Minister of Defence;

(d) Minister of Safety and Security;

"serious offence" means—

(a) any offence mentioned in the Schedule; or

(b) any offence that is allegedly being or has allegedly been or will probably be committed—

(i) by a person, group of persons or syndicate acting in the execution or furtherance of a common purpose or conspiracy;

(ii) {on an organised, planned or premeditated basis / in an organised fashion^[10]}; or

(iii) on a regular basis by the person or persons involved therein; or

(i) which may {damage or be detrimental to / cause harm to} the international {relations / obligations} or economy of the Republic;

(ii) for which a person who has attained the age of 21 years and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a period of ..... years or more without the option of a fine;^[11] or

(iii) which could result in {substantial} financial gain for the person, group of persons or syndicate committing the offence; or

(d) any specified offence as defined in section 1 of the National Prosecuting Authority Act; or

(e) any offence referred to in Chapter 2 or 4 of the Prevention of Organised Crime Act,

including any conspiracy or incitement to commit any of the above-mentioned offences;

"Service" means the Service as defined in section 1 of the Intelligence Services Act;

"SIM-card" means the Subscriber Identity Module which is an independent, electronically activated device designed for use in conjunction with a cellular phone to enable the user of the cellular phone to transmit and receive indirect communications by providing access to telecommunication systems and enabling such telecommunication systems to identify the particular Subscriber Identity Module and its installed information;

"South African Police Service Act" means the South African Police Service Act, 1995 (Act No. 68 of 1995);

"supplementary direction" means a direction issued under section 19(1) and in which a telecommunication service provider is directed to provide real-time call-related information in respect of a customer, on an ongoing basis, as it becomes available;

"system controller" means, in relation to a particular telecommunication system, a person with a right to control its operation or use;

"Telecommunications Act" means the Telecommunications Act, 1996 (Act No. 103 of 1996);

"telecommunication service" means any telecommunication service as defined in the Telecommunications Act;

"telecommunication service provider" means any person who provides a telecommunication service under and in accordance with a telecommunication service licence issued to such person under Chapter V of the Telecommunications Act, and includes any person who provides a local access telecommunication service, public pay-telephone service, value-added network service or private telecommunication network as defined in of the Telecommunications Act;

"telecommunication system" means a telecommunication system as defined in the Telecommunications Act

"trade partner" means any person who has entered into a contract with a telecommunication service provider or an agent of a telecommunication service provider for purposes of conducting a business in the selling or marketing of cellular products, services and value-added services of the telecommunication service provider concerned.

(2) A reference in this Act to the interception of a communication does not include a reference to the interception of any indirect communication which is {transmitted / broadcast} for general reception.

(3) For purposes of this Act—

(a) the interception of a communication takes place in the Republic if, and only if, the interception is effected by conduct within the Republic and the communication is either intercepted, in the case of—

(i) a direct communication, in the course of its occurrence; or

(ii) an indirect communication, in the course of its transmission by means of a postal service or telecommunication system, as the case may be; and

(b) the times while an indirect communication is being transmitted by means of a telecommunication system include any time when the telecommunication system by means of which such indirect communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.

CHAPTER 2

INTERCEPTION OF COMMUNICATIONS

Prohibition of interception of communication and provision of archived or real-time call-related information

2. (1) Subject to this Act, no person may intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept—

(a) any direct communication in the course of its occurrence; or

(b) any indirect communication in the course of its transmission by means of a postal service or telecommunication system, as the case may be,

by any means at any place in the Republic.

(2) Subject to this Act, no—

(a) telecommunication service provider or employee of a telecommunication service provider may provide or attempt to provide any archived or real-time call-related information; or

(b) person may authorise or procure any telecommunication service provider or employee of a telecommunication service provider to provide any archived or real-time call-related information.

Interception of communication under interception direction and provision of archived or real-time call-related information under archived call-related direction, supplementary direction or real-time call-related direction

3. Any—

(a) law enforcement officer {or other person} who executes an interception direction or assists with the execution thereof, may intercept any communication to which that interception direction relates; and

(b) telecommunication service provider or employee of a telecommunication service provider to whom an archived call-related direction, supplementary direction or real-time call-related direction is addressed, may provide any archived or real-time call-related information to which that archived call-related direction, supplementary direction or real-time call-related direction relates.

Interception of communication by party to communication

4. (1) Any person, including a law enforcement officer, may intercept any communication if he or she is a party to the communication.^[12]

{(2) A law enforcement officer may only intercept a communication in terms of subsection (1) if—

(a) he or she is satisfied that there are reasonable grounds to believe that—

(i) the interception of a communication of another party to the communication is necessary for a reason mentioned in section 9(1); and

(ii) because of the urgency of the need to intercept the communication, it is not reasonably practicable to make an application in terms of section 9(1) or 14(1) for the issuing of an interception direction or an oral interception direction; and

(b) the relevant officer or member referred to in paragraph (a), (b), (c) or (d) of the definition of "applicant" or the National Director, as the case may be, has given the law enforcement officer concerned prior approval in writing for such interception. ^[13]

(3) A person, other than a law enforcement officer, may only intercept a communication in terms of subsection (1) if the communication is not intercepted for purposes of committing a {serious} offence.}^[14]

Interception of communication with consent of party to communication

5. (1) Any person, including a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent to such interception^[15].

{(2) A law enforcement officer may only intercept a communication in terms of subsection (1) if—

(a) he or she is satisfied that there are reasonable grounds to believe that—

(i) the party who has given consent as contemplated in subsection (1) is likely to receive a communication from another person and that the interception of that communication is necessary for a reason mentioned in section 9(1); and

(b) the relevant officer or member referred to in paragraph (a), (b), (c) or (d) of the definition of "applicant" or the National Director, as the case may be—

(i) is satisfied that the consent is voluntary; and

(ii) has given the law enforcement officer concerned prior approval in writing for such interception.^[17]

Interception of indirect communication by, or on behalf of, postal service provider or telecommunication service provider

6. (1) Any telecommunication service provider or any employee of such a telecommunication service provider may intercept any indirect communication where such interception—

(a) results from, or is incidental to, an action taken by a law enforcement officer in the lawful performance of his or her duties, for purposes of—

(i) discovering whether an interception device is being used at, or in relation to, a particular place; or

(ii) determining the location of an interception device;^[19] or

(b) is effected for purposes relating to the provision or operation of that telecommunication service.^[20]

(2) Any person may intercept any indirect communication if the interception—

(a) is effected by, or on behalf of, a postal service provider or a telecommunication service provider; and

(b) takes place for purposes relating to the provision or operation of the postal service or telecommunication service or with the enforcement, in relation to that service, of any enactment relating to the use of a postal service or telecommunication service.^[21]

Interception of communication for purposes of installation or maintenance of equipment, facilities or devices

7. Any person^[22] who is lawfully engaged in duties relating to—

(a) the installation or connection of any equipment, facility or device used, or intended to be used, in connection with a telecommunication service;

(b) the operation or maintenance of a telecommunication system; or

(c) the installation, connection or maintenance of any interception device used, or intended to be used, for the interception of a communication under an interception direction,

may, in the ordinary course of the performance of that duties, intercept a communication where it is reasonably necessary for that person to intercept the communication in order to perform those duties effectively.^[23]

Interception of indirect communication in connection with carrying on of business

8. (1) Any person may, in the course of the carrying on of any business, intercept any indirect communication—

(a) by means of which a transaction is entered into in the course of that business;

(b) which otherwise relates to that business; or

in the course of its transmission over a telecommunication system, if such interception is effected by, or with the express or implied consent of, the system controller.

(2) A person may only intercept an indirect communication in terms of subsection (1)—

(a) for purposes of—

(i) monitoring or keeping a record of indirect communications—

(aa) in order to establish the existence of facts;

(bb) in the interests of the public health or safety or national security of the Republic;

(cc) for purposes of preventing the commission of a serious offence;

{(dd) for purposes of investigating or detecting the unauthorised use of that or any other telecommunication system; or

(ee) where that is undertaken in order to secure, or as an inherent part of, the effective operation of the system;

(ii) monitoring indirect communications—

(aa) for purposes of determining whether they are communications relevant to the business of the system controller as contemplated in subsection (1)(a) or (b); or

(bb) made to a confidential voice-telephony counseling or support service which is free of charge, other than the cost, if any, of making a telephone call, and operated in such a way that users thereof may remain anonymous if they so choose;}

(b) if the interception concerned is effected solely for purposes of monitoring or keeping a record of indirect communications relevant to the business of the system controller;

(d) if the system controller has made all reasonable efforts to inform every person who may use the telecommunication system concerned that indirect communications transmitted by means thereof may be intercepted; and

(e) if the indirect communication is intercepted for purposes of—

(i) paragraph (a)(i)(bb), the person by or on whose behalf the interception is effected is an officer or member referred to in paragraph (b) or (c) of the definition of "applicant";

(ii) paragraph (a)(i)(cc), the person by or on whose behalf the interception is effected is an officer or member referred to in paragraph (a) or (d) of the definition of "applicant"; or

{(iii) paragraph (a)(ii), the indirect communication is one which has been or is intended to be received by a person using the telecommunication system in question.}

CHAPTER 3

APPLICATIONS AND REQUESTS

Application for interception direction

9. (1) An applicant may apply to a judge for the issue of an interception direction if he or she is satisfied that there are reasonable grounds to believe that—

(a) a serious offence has been or is being or will {probably / possibly} be committed and cannot be investigated in another appropriate manner;

(b) the gathering of information concerning an actual threat to the public health or safety, national security or compelling national {economic} interests of the Republic is necessary;

(c) the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary and cannot be obtained in another appropriate manner;

(d) the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism, is in—

(i) accordance with an international mutual assistance agreement; or

(ii) the interests of the Republic's international relations or obligations,

and that the offence cannot be investigated, or the information cannot be obtained, in another appropriate manner; or

(e) the gathering of 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 is necessary and

cannot be obtained in another appropriate manner.

(2) An application for a reason mentioned in—

(a) subsection (1)(a) or (d), must be made by an applicant referred to in paragraph (a) or (d) of the definition of "applicant";

(b) subsection (1) (b), (c) or (d), must be made by an applicant referred to in paragraph (b) or (c) of the definition of "applicant"; and

(c) subsection (1)(e), must be made by the National Director.

(3) Subject to section 14, an application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer who will execute the interception direction;

(ii) person or customer, if known, whose communication is required to be intercepted; and

(iii) postal service provider or telecommunication service provider to whom the direction must be addressed, if applicable;

(b) indicate the specific matter referred to in subsection (1) in respect of which the application is made;

(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application, including a description of the—

(i) nature and location of the facilities from which, or the place at which, the communication is to be intercepted, if known; and

(ii) type of communication which is required to be intercepted, and the basis for believing that evidence relating to the matter in respect of which the application is made will be obtained through the interception;

(d) indicate whether other investigative procedures have been applied and have failed to produce the required evidence or must indicate the reason why other investigative procedures reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence;

(e) indicate the period for which the interception direction is required to be issued;

(f) indicate whether any previous application has been made for the issue of an interception direction in respect of the same person or customer, facility or place specified in the application and, if such previous application exists, must indicate the current status of that application; and

(g) comply with any supplementary directives relating to applications for interception directions issued under section 51.

Application for archived call-related direction

10. (1) If, in a specific case, only archived call-related information without the actual interception of an indirect communication is required, an applicant may apply to a judge of a High Court {, a regional court magistrate or a magistrate} for the issue of an archived call-related direction.

(2) Section 9(1) and (2) apply with the necessary changes in respect of an application referred to in subsection (1).

(3) An application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant;

(ii) customer, if known, in respect of whom the archived call-related information is required; and

(iii) telecommunication service provider to whom the direction must be addressed;

(b) indicate the specific matter referred to in section 9(1) in respect of which the application is made;

(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application, including a description of the type of archived call-related information that is required, and the basis for believing that evidence relating to the matter in respect of which the application is made will be obtained through the provision of the archived call-related information;

(d) indicate whether the archived call-related information must be—

(i) routed to a designated interception centre specified in the application; or

(ii) provided to the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director, whichever is applicable, and, if known, the identity of the law enforcement officer to whom the archived call-related information must be provided;

(e) indicate whether other investigative procedures have been applied and have failed to produce the required evidence or must indicate the reason why other investigative procedures reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence;

(f) indicate the period for which, and the manner in which, the archived call-related information is required to be provided;

(g) indicate whether any previous application has been made for the issue of an archived call-related direction in respect of the same customer or archived call-related information specified in the application and, if such previous application exists, must indicate the current status of that application; and

(h) comply with any supplementary directives relating to applications for archived call-related directions issued under section 51.

Application for supplementary direction or real-time call-related direction

11. (1) (a) If an interception direction has been issued, the applicant who made the application in respect of the interception direction concerned or, if he or she is not available, any other applicant who would have been entitled to make that application, may apply to a judge for the issue of a supplementary direction.

(b) An application referred to in paragraph (a) must be in writing and must—

(i) contain, with the necessary changes, the information referred to in section 10(3)(a), (c), (d), (e), (f) and (g);

(ii) contain an affidavit setting forth the results obtained from the interception direction concerned

from the date of its issuance up to the date on which that request is made, or a reasonable explanation of the failure to obtain such results;

(iii) contain proof that an interception direction has been issued; and

(iv) comply with any supplementary directives relating to applications for supplementary directions issued under section 51.

(2) (a) If no interception direction has been issued, an applicant may, if in a specific case only real-time call-related information on an ongoing basis without the actual interception of an indirect communication is required, apply to a judge for the issue of a real-time call-related direction.

(b) Section 9(1) and (2) apply with the necessary changes in respect of an application referred to in paragraph (a).

(i) contain, with the necessary changes, the information referred to in section 10(3)(a), (b), (c), (d), (e), (f) and (g); and

(ii) comply with any supplementary directives relating to applications for real-time call-related directions issued under section 51.

Application for amendment or extension of existing direction

12. (1) The applicant who made the application in respect of an existing direction or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any time before the expiry of the period for which that direction has been issued, apply to a judge for an amendment thereof or the extension of the period for which the direction concerned has been issued.

(2) An application referred to in subsection (1) must be in writing and must—

(a) contain full particulars of the reasons and circumstances alleged by the applicant in support of his or her application;

(b) in the case of an application for the—

(i) amendment of an existing direction, indicate the amendment which is required; or

(ii) extension the period for which an existing direction has been issued, indicate the period for which the extension is required;

(c) contain an affidavit setting forth the results obtained from the direction concerned from the date of its issuance up to the date on which that application is made, or a reasonable explanation of the failure to obtain such results; and

(d) comply with any supplementary directives relating to applications for the amendment or extension of directions issued under section 51.

Single application for interception direction and archived call-related direction or real-time call-related direction, or both

13. (1) If, in a specific case, the interception of a communication and the provision of call-related information, whether archived or real-time or both, are required, an applicant may, in a single application, apply to a judge for the simultaneous issue of—

(a) an interception direction; and

(b) an archived call-related direction or a real-time call-related direction; or

(2) Sections 9, 10 and 11(2) apply with the necessary changes in respect of an application referred to in subsection (1).

Oral application for interception direction

14. (1) An applicant may make an oral application to a judge for the issue of an interception direction if he or she is satisfied that there are reasonable grounds to believe that—

(a) the immediate interception of a communication is necessary as a result of the—

(i) urgency of the case; or

(ii) existence of any other exceptional circumstances; and

(b) it is not reasonably practicable, having regard to the urgency of the case or such exceptional circumstances, to make a written application for an interception direction as required by section 9(3).

(2) Section 9(1) and (2) applies with the necessary changes in respect of an oral application referred to in subsection (1).

(3) An oral application referred to in subsection (1) must—

(a) contain the information referred to in section 9(3);

(b) indicate the particulars of the urgency of the case or the other exceptional circumstances which, in the opinion of the applicant, justify the making of an oral application; and

Application for decryption direction

15. (1) The applicant who made the application for an interception direction or, if he or she is not available, any other applicant who would have been entitled to make that application, may apply to a judge for the issue of a decryption direction if the applicant is satisfied that there are reasonable grounds to believe that—

(a) any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of encrypted information;

(b) a decryption key holder is in possession of the encrypted information and the decryption key thereto;

(c) the purpose for which the interception direction concerned was issued would be defeated, in whole or in part, if the decryption direction was not issued; and

(d) it is not reasonably practicable for the law enforcement officer {or other person} who executes the interception direction concerned or assists with the execution thereof, to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction.

(2) An application referred to in subsection (1) must be in writing and must—

(a) indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer {or other person} to whom the decryption key must be disclosed or the decryption assistance must be provided;

(ii) customer, if known, in respect of whom the decryption of encrypted information is required; and

(iii) decryption key holder to whom the decryption direction must be addressed;

(b) describe the encrypted information which is required to be decrypted;

(i) decryption key which must be disclosed; or

(ii) decryption assistance which must be provided, and the form and manner in which it must be provided;

{(d) indicate whether other decryption procedures have been applied and have failed to decrypt the

encrypted information or must indicate the reason why other decryption procedures reasonably appear to be unlikely to succeed if applied;}

(e) indicate the period for which the decryption direction is required to be issued;

(f) indicate whether any previous application has been made for the issue of a decryption direction in respect of the same customer or encrypted information specified in the application and, if such previous application exists, must indicate the current status of that application;

(g) contain an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that application is made, or a reasonable explanation of the failure to obtain such results;

(h) contain proof that an interception direction has been issued; and

(i) comply with any supplementary directives relating to applications for decryption directions issued under section 51.

Request for entry warrant

16. (1) An applicant who—

(a) makes an application referred to in section 9(1) may in his or her application, include a request for the issue of an entry warrant; or

(b) made an application referred to in section 9(1) or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any time after the interception direction in respect of which such an application was made has been issued, make a request to a judge for the issue of an entry warrant,

if he or she is satisfied that—

(i) the entry of the premises concerned is necessary for any of the purposes referred to in the definition of "entry warrant"; or

(ii) there are reasonable grounds to believe that it would be impracticable to intercept a communication under the interception direction concerned otherwise than by the use of an interception device installed on the premises..

(2) A request referred to in subsection (1) must be in writing and must—

(a) indicate—

(i) if known, the identity of the law enforcement officer who will execute the entry warrant;

(ii) the premises in respect of which the entry warrant is required to be issued;

(iii) the specific purpose, referred to in the definition of "entry warrant", for which the entry warrant is required; and

(iv) the period for which the entry warrant is required to be issued;

(b) if the application is made after an interception direction has been issued, also—

(i) indicate the identity of the applicant;

(ii) contain an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that request is made, or a reasonable explanation of the failure to obtain such results; and

(iii) contain proof than an interception direction has been issued;

(c) indicate whether any previous request has been made for the issue of an entry warrant for the same purpose or in respect of the same premises specified in the request and, if such previous request exists, must indicate the current status of that request; and

(d) comply with any supplementary directives relating to requests for entry warrants issued under section 51.

CHAPTER 4

DIRECTIONS AND ENTRY WARRANTS

Issue of interception direction

17. (1) Notwithstanding section 2(1) or anything to the contrary in any other law contained, a judge may, upon an application made to him or her in terms of section 9(1), issue an interception direction.

(2) An interception direction may only be issued if the judge concerned is satisfied, on the facts alleged in an application concerned that—

(a) there are reasonable grounds to believe that—

(i) a serious offence has been or is being or will {probably / possibly} be committed; or

(ii) the gathering of information concerning an actual threat to the public health or safety, national security or compelling national {economic} interests of the Republic is necessary; or

(iii) the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary; or

(iv) the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism, is in—

(aa) accordance with an international mutual assistance agreement; or

(bb) the interests of the Republic's international relations or obligations; or

(v) the gathering of 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 is necessary;

(b) there are reasonable grounds to believe that the—

(i) interception of particular communications concerning the relevant matter referred to in paragraph (a) will be obtained by means of such an interception direction; and

(ii) facilities from which, or the place where, the communications to be intercepted are being used, or are about to be used, in connection with the relevant matter referred to in paragraph (a) are commonly used by the person or customer in respect of whom the application for the issue of an interception direction is made; and

(c) other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot be investigated, or the information therefore cannot be obtained, in another appropriate manner.

(3) An interception direction must be in writing and—

(a) must indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer {or other person} who is authorised to execute the interception direction;^[24]

(ii) person or customer, if known, whose communication is authorised to be intercepted; and

(iii) postal service provider or telecommunication service provider to whom the interception direction is addressed, if applicable;

(b) must, if known, specify the nature and location of the communication facilities, or the place, in respect of which the interception direction has been issued;

(c) must describe the type of communication which is authorised to be intercepted {and the reason mentioned in subsection (2)(a) to which it relates};

(d) may specify conditions or restrictions relating to interceptions authorised therein; and

(e) may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein.

(4) (a) An application referred to in subsection (1) must be considered and an interception direction issued without any notice to the person or customer to whom the application applies and without hearing such person or customer.

(b) A judge considering an application referred to in subsection (1) may require the applicant to furnish, in support of his or her application, such further evidence, and in the manner, as the judge deems necessary.

Issue of archived call-related direction^[25]

18. (1) A judge of a High Court{, a regional court magistrate or a magistrate} may, upon an application made to him or her in terms of section 10(1), issue an archived call-related direction.

(2) (a) An archived call-related direction may only be issued if the judge{, regional court magistrate or magistrate} concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of archived call-related information is necessary for a reason mentioned in section 17(2)(a).

(b) Section 17(4) applies with the necessary changes in respect of the issuing of an archived call-related direction.

(3) An archived call-related direction must be in writing and—

(a) must indicate the identity of the—

(i) applicant;

(ii) customer, if known, in respect of whom the provision of archived call-related information is authorised; and

(iii) telecommunication service provider to whom the archived call-related direction is addressed;

(b) must describe the type of archived call-related information which is authorised to be provided {and the reason mentioned in section 17(2)(a) to which it relates};

(i) routed to an interception centre and, if so, must specify the designated interception centre; or

(d) must specify the period for which, and the form in which, the provision of the archived call-related information is authorised; and

(e) may specify conditions or restrictions relating to the provision of archived call-related information authorised therein.

Supplementary direction or real-time call-related direction^[26]

19. (1) (a) A judge may, upon an application made to him or her in terms of section 11(1), issue a supplementary direction.

(b) A supplementary direction may only be issued if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of real-time call-related information is necessary for a reason mentioned in section 17(2)(a).

(c) Sections 17(3)(e) and (4) and 18(3)(a), (b), (c) and (e) apply with the necessary changes in respect of the issuing of a supplementary direction: Provided that a supplementary direction expires when the period or extended period for which the interception direction concerned has been issued, lapses.

(2) (a) A judge may, upon an application made to him or her in terms of section 11(2), issue a real-time call-related direction.

(b) A real-time call-related direction may only be issued if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that the gathering of real-time call-related information is necessary for a reason mentioned in section 17(2)(a).

(c) Sections 17(3)(e) and (4) and 18(3)(a), (b), (c) and (e) apply with the necessary changes in respect of the issuing of a real-time call-related direction.

Amendment or extension of existing direction

20. (1) A judge may, upon an application made to him or her in terms of section 12(1)—

(a) amend an existing direction; or

(b) extend the period for which an existing direction has been issued.

(2) The period for which an existing direction has been issued may only be extended—

(a) if the judge concerned is satisfied, on the facts alleged in the application concerned, that the direction concerned continues to be necessary for a reason mentioned in section 17(2)(a); and

(b) for a further period not exceeding three months at a time.

(3) Sections 17(4) and 25 applies with the necessary changes in respect of the amendment of an existing direction or the extension of the period for which an existing direction has been issued.

Simultaneous issue of interception direction and archived call-related direction or real-time call-related direction, or both

21. (1) A judge may, upon an application made to him or her in terms of section 13(1), simultaneously issue—

(a) an interception direction; and

(b) an archived call-related direction or a real-time call-related direction; or

(2) Section 17, 18 and 19(2) apply with the necessary changes in respect of the issue of the relevant directions under subsection (1).

Oral interception direction^[27]

22. (1) A judge may, upon an oral application made to him or her in terms of section 14(1), issue an oral interception direction.

(2) An oral interception direction may only be issued—

(a) if the judge concerned is satisfied, on the facts alleged in the oral application concerned, that—

(i) there are reasonable grounds to believe that an interception direction could be issued;

(ii) an interception direction is immediately necessary for a reason mentioned in section 17(2)(a); and

(iii) the urgency of the case is such that if the procedure relating to an application for, and the issuing of, an interception direction, as prescribed in sections 9 and 17, is to be followed, it could cause an unnecessary delay in the issuing of such an interception direction; or

(iv) any other exceptional circumstances exist which justify the issuing of an oral interception direction; and

(b) on condition that the applicant concerned must submit a written application to the judge concerned within {24 / 48} hours after the issuing of the oral interception direction.

(3) Section 17(2), (3) and (4) applies with the necessary changes in respect of the issuing of an oral interception direction.

(4) A judge who issues an oral interception direction must personally {and in writing} inform the applicant and, if applicable, the postal service provider or telecommunication service provider to whom it is addressed, of the issuing of such an oral interception direction {, including—

(a) the contents thereof; and

(b) the period for which it has been issued}.

(5) The judge who issues an oral interception direction must, subject to section 26, confirm that oral interception direction in writing within 24 hours after the receipt of the written application referred to in subsection (2)(b).^[28]

Issue of decryption direction

23. (1) A judge may, upon an application made to him or her in terms of section 15(1), issue a decryption direction.

(2) A decryption direction may only be issued—

(a) if the judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that—

(i) any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of encrypted information;

(ii) the decryption key holder specified in the application is in possession of the encrypted information and the decryption key thereto;

(iii) the purpose for which the interception direction concerned was issued would be defeated, in whole or in part, if the decryption direction was not issued; and

(iv) it is not reasonably practicable for the law enforcement officer {or other person} who executes the interception direction concerned or assists with the execution thereof, to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction; and

(b) after the judge concerned has considered—

(i) the extent and nature of any other encrypted information, in addition to the encrypted information in respect of which the decryption direction is to be issued, to which the decryption key concerned is also a decryption key; and

(ii) any adverse effect that the issuing of the decryption direction might have on the business carried on by the decryption key holder to whom the decryption direction is addressed.

(3) A decryption direction must be in writing and—

(a) must indicate the identity of the—

(i) applicant and, if known, the identity of the law enforcement officer to whom the decryption key must be disclosed or the decryption assistance must be provided;

(ii) customer, if known, in respect of whom the decryption of encrypted information is authorised; and

(iii) decryption key holder to whom the decryption direction is addressed;

(b) must describe the encrypted information which is required to be decrypted;

(i) decryption key which must be disclosed; or

(ii) decryption assistance which must be provided, and the form and manner in which it must be provided; and

(d) may specify conditions or restrictions relating to decryption authorised therein.

(4) Section 17(3)(e) and (4) apply with the necessary changes in respect of the issuing of a decryption direction: Provided that a decryption direction expires when the period or extended period for which the interception direction concerned has been issued, lapses.

Entry warrant

24. (1) A judge may, upon a request made to him or her in terms of section 16(1), issue an entry warrant.

(2) An entry warrant may only be issued if the judge concerned is satisfied, on the facts alleged in the request concerned, that—

(a) the entry of the premises concerned is necessary for any of the purposes referred to in the definition of "entry warrant"; or

(b) there are reasonable grounds to believe that it would be impracticable to intercept a communication under the interception direction concerned otherwise than by the use of an interception device installed on the premises.

(3) An entry warrant must be in writing and—

(a) must indicate—

(i) if known, the identity of the law enforcement officer {or other person} who will execute the entry warrant;

(ii) the premises in respect of which the entry warrant has been issued; and

(iii) the specific purpose, referred to in the definition of "entry warrant", for which the entry warrant has been issued; and

(b) may contain conditions or restrictions relating to the entry upon the premises concerned as the judge deems necessary.

(4) An entry warrant may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: Provided that an entry warrant expires when—

(i) the period or extended period for which the interception direction concerned has been issued, lapses;

(ii) it is executed; or

(iii) it is cancelled by the judge who issued it or, if he or she is not available, by any other judge,

whichever occurs first.

(5) Section 17(4) applies with the necessary changes in respect of the issuing of an entry warrant.

Reports to judge on progress

25. The judge who issued a direction may—

(a) at the issuing thereof; or

(b) at any stage after the issuing thereof, but before the expiry of the period for which it has been issued,

in writing require the applicant who made the application in respect of the direction concerned, or the law enforcement officer who executes that direction, to report to him or her, at such intervals as he or she may determine, on—

(i) the progress that has been made towards achieving the objectives of the direction concerned; and

(ii) any other matter which the judge deems necessary.

Cancellation of direction or oral interception direction

26. (1) A judge may cancel an existing direction if—

(a) the applicant concerned or the law enforcement officer who executes the direction concerned, fails to submit a report in terms of section 25, if applicable; or

(b) he or she, upon receipt of a report submitted in terms of section 25, is satisfied that the—

(i) objectives of the direction concerned have been achieved; or

(ii) reason for which the direction concerned was issued, has ceased to exist.

(2) The judge who issued an oral interception direction must cancel that oral interception direction if—

(a) the applicant concerned fails to comply with section 22(2)(b); or

(b) the judge, upon receipt of a written application contemplated in section 22(2)(b), is satisfied, on the facts alleged in that application, that an oral interception direction should not have been issued.

(3) If a judge cancels a direction or an oral interception direction in terms of subsection (1) or (2), as the case may be, he or she must forthwith inform—

(a) the applicant concerned or the law enforcement officer who executes the direction or oral interception direction concerned; and

(b) if applicable, the postal service provider, telecommunication service provider or decryption key holder concerned,

of the cancellation.

(4) If an oral interception direction is cancelled in terms of subsection (2), the contents of any communication intercepted under that oral interception direction must be regarded as having been obtained in contravention of this Act.

CHAPTER 5

EXECUTION OF DIRECTIONS AND ENTRY WARRANTS

Execution of direction

27. (1) If a direction has been issued under this Act, any law enforcement officer {[, or any other person]} may execute that direction or assist with the execution thereof, if the law enforcement officer {[or person]} concerned has been authorised by the applicant who made the application for the issue of the direction concerned to execute that direction or to assist with the execution thereof.

(2) A law enforcement officer {[or other person]} who executes a direction or assists with the execution thereof may—

(a) intercept any—

(i) direct communication in the course of its occurrence; or

(ii) indirect communication in the course of its transmission by means of a postal service or telecommunication system, as the case may be,

to which the direction applies;

(b) return a postal article that was taken into possession in terms of paragraph (a) or cause it to be returned to the postal service provider concerned if such postal article, in the opinion of the applicant concerned may be returned without prejudice to the public health or safety, national security or compelling national {economic} interests of the Republic, as the case may be;

(c) on the instructions of the applicant concerned dispose of the postal article that was taken into possession in terms of paragraph (a), in such manner as the public health or safety, national security or compelling national {economic} interests of the Republic, as the case may be, requires, if that applicant is of the opinion that the postal article concerned cannot be returned in terms of paragraph (b) without prejudice to the public health or safety, national security or compelling national {economic} interests of the Republic, as the case may be.

(3) The applicant concerned may authorise such number of law enforcement officers {[or other persons]} to assist with the execution of the direction as he or she deems necessary.

Execution of entry warrant^[29]

28. (1) If an entry warrant has been issued, any law enforcement officer {[or other person]} who executes the interception direction in respect of which that entry warrant has been issued or assists with the execution thereof may, at any time during which the entry warrant is of force, without prior notice enter the premises specified in the entry warrant for purposes of—

(a) intercepting a postal article or communication on the premises;

(b) installing or maintaining an interception device on the premises; or

(c) removing an interception device from such premises at any time before, or immediately after, the expiry of the interception direction concerned,

as specified in the entry warrant.

(2) The entry of any premises under an entry warrant must be conducted with strict regard to decency and order, including the protection of a person’s right to—

(a) respect for his or her dignity;

(b) freedom and security; and

(3) (a) A law enforcement officer {or other person} who executes an entry warrant must, at the commencement of such execution, identify himself or herself to the person in control of the premises and hand to such person a copy of the warrant: Provided that if no such person is present, he or she must affix a copy of the warrant to the premises at a prominent and visible place.

(b) Paragraph (a) does not apply where the law enforcement officer {or person} concerned is on reasonable grounds of the opinion that the object of the entry would be defeated if the provisions of paragraph (a) are first complied with.

(4) Subject to subsections (2), (5), (6), (7) and (8), any law enforcement officer {or other person} may, without an entry warrant, enter any premises for the purposes referred to in subsection (1) if the law enforcement officer {or person} concerned, on reasonable grounds believes that—

(a) an entry warrant will be issued to him or her if he or she were to apply for such warrant; and

(b) the delay in obtaining an entry warrant would defeat the object of the entry.

(5) The entry of any premises under an entry warrant must be executed by day unless the execution thereof by night is justifiable and necessary.

(6) (a) A law enforcement officer {or other person} who may lawfully enter any premises under an entry warrant may use such force as may be necessary to overcome any resistance against such entry of the premises, including the breaking of any door or window of such premises: Provided that such law enforcement officer {or person} must first audibly demand admission to the premises and notify the purpose for which he or she seeks to enter such premises.

(b) The proviso to paragraph (a) does not apply where the law enforcement officer {or person} concerned is on reasonable grounds of the opinion that the object of the entry would be defeated if the provisions of the said proviso are first complied with.

(7) If, during the execution of an entry warrant, a person claims that any postal article found on or in the premises contains privileged information and refuses the inspection or removal of such postal article, the law enforcement officer {or other person} who executes the entry warrant may request a judge to cause that postal article to be seized and removed for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

(8) The law enforcement officer {or other person} referred to in subsection (4) must identify himself or herself at the request of the owner or the person in control of the premises.

Assistance by postal service provider and telecommunication service provider

29. (1) If an interception direction or a copy thereof is handed to the postal service provider or telecommunication service provider to whom the interception direction is addressed by the law enforcement officer {[or other person]} who executes that interception direction or assists with the execution thereof, the—

(a) postal service provider concerned must as soon as possible intercept the postal article to which the interception direction applies and hand it to the law enforcement officer {[or other person]} concerned; or

(b) telecommunication service provider concerned must as soon as possible—

(i) make available the necessary assistance and, subject to section 43(6)(b), the necessary facilities and devices to enable the law enforcement officer {[or other person]} concerned, to effect the necessary connections in order to intercept any communications to which the interception direction applies; or

(ii) route the duplicate signals of communications to which that interception direction applies to the designated interception centre concerned^[30].

(2) If an archived call-related direction or a real-time call-related direction or a supplementary direction or a copy thereof is handed to the telecommunication service provider to whom the archived call-related direction or real-time call-related direction or supplementary direction is addressed by the law enforcement officer {or other person} who executes that archived call-related direction or real-time call-related direction or supplementary direction or assists with the execution thereof, the telecommunication service provider concerned must as soon as possible—

(a) route the—

(i) archived call-related information specified in the archived call-related direction concerned; or

(ii) real-time call-related information specified in the real-time call-related direction or supplementary direction concerned,

to the designated interception centre concerned; or

(b) provide the—

(i) archived call-related information specified in the archived call-related direction; or

(ii) real-time call-related information specified in the real-time call-related direction or supplementary direction concerned,

to the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director, whichever is applicable, in the form as specified in that archived call-related direction or real-time call-related direction or supplementary direction.^[31]

Assistance by decryption key holder

30. (1) If a decryption direction or a copy thereof is handed to the decryption key holder to whom the decryption direction is addressed by the law enforcement officer {or other person} who executes that decryption direction or assists with the execution thereof, the decryption key holder concerned must as soon as {practically} possible—

(a) disclose the decryption key; or

(b) provide the decryption assistance,

specified in the decryption direction concerned, to the law enforcement officer {or other person} concerned.

(2) In complying with a decryption direction, a decryption key holder—

(a) must only disclose such decryption key or provide such decryption assistance which is necessary to obtain access to the encrypted information specified in that decryption direction or to put that encrypted information in an intelligible form;

(b) may only disclose the decryption key or provide the decryption assistance to the law enforcement officer {or other person} who executes that decryption direction or assists with the execution thereof; and

(c) may not disclose any other information, which is not specified in that decryption direction, relating to the customer in respect of whose encrypted information the decryption key has been disclosed or the decryption assistance has been provided.

(3) A decryption key holder to whom a decryption direction is addressed and who is in possession of both the encrypted information and the decryption key thereto—

(a) may use any decryption key in his or her possession to provide decryption assistance; and

(b) must, in providing such decryption assistance, make a disclosure of the encrypted information in an intelligible form.

(4) A decryption key holder who, in terms of a decryption direction, is required to provide decryption assistance in respect of any encrypted information, will be regarded as having complied with that requirement if he or she—

(a) in stead of providing such decryption assistance, discloses any decryption key to the encrypted information that is in his or her possession; and

(b) makes such a disclosure, in accordance with the decryption direction concerned, to the law enforcement officer {or other person} to whom, and by the time by which, he or she was required to provide the decryption assistance.

(5) If a decryption key holder to whom a decryption direction is addressed, is—

(a) not in possession of the encrypted information; or

(b) incapable, without the use of a decryption key that is not in his or her possession, to provide decryption assistance,

the decryption key holder will be required, in accordance with the decryption direction concerned, to disclose any decryption key to the encrypted information that is in his or her possession.

(6) If a decryption key holder to whom a decryption direction is addressed, is in possession of different decryption keys, or combinations of decryption keys, to the encrypted information—

(a) it will not be necessary, for purposes of complying with the decryption direction concerned, for the decryption key holder to disclose any decryption keys in addition to those the disclosure of which, alone, is sufficient to enable the law enforcement officer {or other person} to whom they are disclosed to obtain access to the encrypted information and to put it into an intelligible form; or

(b) the decryption key holder may select which of the decryption keys, or combination of decryption keys, to disclose for purposes of complying with the decryption direction concerned.

(7) If a decryption direction is addressed to a decryption key holder who—

(a) has been in possession of the decryption key to the encrypted information, but is no longer in possession thereof;

(b) if he or she had continued to have the decryption key in his or her possession, he or she would have been required by virtue of the decryption direction to disclose it; and

(c) is in possession of any information that would facilitate the obtaining or discovery of the decryption key or the provision of decryption assistance,

he or she will be required, in accordance with the decryption direction, to disclose all such information as is in his or her possession to the law enforcement officer {or other person} who executes the decryption direction or assists with the execution thereof.

(8) A law enforcement officer {or other person} to whom a decryption key has been disclosed under this section—

(a) may use the decryption key only in respect of the encrypted information, and in the manner and for the purposes, specified in the decryption direction concerned; and

(b) must, on or before the expiry of the period for which the decryption direction concerned has been issued, destroy all records of the disclosed decryption key.

CHAPTER 6

INTERCEPTION CAPABILITY, INTERCEPTION CENTRES AND COSTS

Interception capability of telecommunication services

31. (1) Notwithstanding any other law, no telecommunication service provider may provide any telecommunication service which does not have the capability to be intercepted: Provided that a telecommunication service provider is only responsible for decrypting any indirect communication encrypted by a customer if the facility for encryption was provided by the telecommunication service provider concerned.

(2) The Minister of Communications, after consultation with the Ministers referred to in paragraphs (b), (c) and (d) of the definition of "relevant Ministers" and a telecommunication service provider or category of telecommunication service providers concerned, must, within three months after the issuing of a telecommunication service licence under the Telecommunications Act, to such a telecommunication service provider or category of telecommunication service providers—

(a) issue a directive in respect of that telecommunication service provider or category of telecommunication service providers, determining the—

(i) manner in which effect is to be given to subsection (1) by the telecommunication service provider or category of telecommunication service providers concerned; and

(ii) facilities and devices to be acquired by the telecommunication service provider or category of telecommunication service providers to enable the interception of indirect communications in terms of this Act; and

(b) determine a period, which may not be less than three months from the date on which a directive referred to in paragraph (a) is issued, for compliance with such a directive, and if such a period is determined, it must be mentioned in the directive concerned.

(3) A directive referred to in subsection (2)(a) may prescribe—

(a) the security, technical and functional requirements of the facilities and devices to be acquired in terms of subsection (2)(a)(ii);

(b) the capacity needed for interception purposes;

(c) the systems to be used;

(d) the connectivity with interception centres referred to in section 32;

(e) the manner of routing duplicate signals of communications to designated interception centres in terms of section 29(1)(b)(ii);

(f) the manner of routing archived or real-time call-related information to designated interception centres in terms of section 29(2); or

(g) any other matter which the Minister of Communications deems necessary or expedient.

(4) A telecommunication service provider must, subject to section 43(1), at own cost acquire the facilities and devices determined in a directive referred to in subsection (2)(a).

(5) The investment, technical, maintenance and operating costs in enabling a telecommunication service to be intercepted, must be carried by the telecommunication service provider providing such a service.

(6) A directive issued under subsection (2)(a) may in like manner be amended or withdrawn.

(7) The Minister of Communications must, within three months after the fixed date and after consultation with the Ministers referred to in paragraphs (b), (c) and (d) of the definition of "relevant Ministers" and a telecommunication service provider or category of telecommunication service providers to whom a telecommunication service licence has been issued under the Telecommunications Act, prior to the fixed date, issue a directive contemplated in subsection (2)(a) in respect of such a telecommunication service provider or category of telecommunication service providers.

Interception centres

32. (1) (a) The Police Service, the Defence Force, the Agency, the Service, the Directorate and the National Director must, at State expense, establish, equip, operate and maintain interception centres for the authorised interception of communications in terms of this Act.

(b) An agreement on the sharing of an interception centre referred to in paragraph (a), including the cost thereof, may be concluded.

(2) The National Commissioner of the Police Service, the Chief of the Defence Force, the Directors-General of the Agency and Service, the head of the Directorate and the National Director, respectively, {must / may} designate specific interception centres established in terms of subsection (1) for purposes of giving effect to section 29.

Remuneration payable to postal service provider, telecommunication service provider and decryption key holder^[32]

33. (1) (a) The Minister, after consultation with the Ministers of Communications and Finance and, if applicable, the postal service providers or telecommunication service providers concerned, must by notice in the Gazette prescribe—

(i) the forms of assistance in the execution of a direction for which a postal service provider, telecommunication service provider or decryption key holder must be remunerated; and

(ii) the tariffs of remuneration payable to a postal service provider, telecommunication service provider or decryption key holder for providing such prescribed forms of assistance.

(b) A notice issued under paragraph (a) may at any time in like manner be amended or withdrawn.

(c) The first notice to be issued under paragraph (a) must be published in the Gazette within three months after the fixed date.

(2) The forms of assistance referred to in subsection (1)(a)(i) must include, in the case of—

(a) a telecommunication service provider, the—

(i) making available of a facility, device or telecommunications system;

(ii) provision or routing of archived or real-time call-related information; and

(iii) routing of duplicate signals; and

(b) a decryption key holder, the—

(i) disclosure of a decryption key; and

(ii) provision of decryption assistance.

(3) The remuneration payable to a postal service provider, telecommunication service provider or decryption key holder in terms of this section will only be in respect of direct costs incurred in respect of personnel and administration which are required for purposes of providing any of the forms of assistance contemplated in subsection (1)(a)(i) {[and the lease of telecommunications systems, where applicable,]} and may not, in the case of a telecommunication service provider, include the costs of acquiring the facilities and devices referred to in section 31(2)(a).

(4) Any notice issued under subsection (1) must, before publication thereof in the Gazette, be submitted to Parliament.

CHAPTER 7

DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER

Information to be obtained and kept by telecommunication service provider

34. (1) Before a telecommunication service provider, other than a telecommunication service provider who provides a mobile cellular telecommunication service, enters into a contract with any person for the provision of a telecommunication service to that person, he or she—

(a) must obtain from such person—

(i) in the case of a natural person, at least his or her full names, residential, business or postal address and identity number; or

(ii) in the case of a corporation or any other organisation, at least its business name and address and, if registered as such in terms of any law, its registration number; and

(b) may obtain from such person any other information which the telecommunication service provider deems necessary for purposes of this Act.

(2) A telecommunication service provider referred to in subsection (1) must ensure that proper records are kept of—

(a) the information referred to in subsection (1) and, where applicable, any change in such information which is brought to his or her attention in terms of section 36(1); and

(b) if applicable, the number allocated to the person concerned.

(3) A telecommunication service provider referred to in subsection (1) must provide the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director with such information regarding a customer, as may be required in writing by an officer or member referred to in paragraph (a), (b), (c) or (d) of the definition of "applicant", the National Director or a law enforcement officer {or other person} who executes a direction or assists with the execution thereof, to perform the functions and exercise the powers authorised by law.

(4) The obligation in terms of subsection (3) includes the provision of the information referred to in subsection (1).

Information to be obtained and kept in respect of cellular phone and SIM-card

35. (1) Before a telecommunication service provider, who provides a mobile cellular telecommunication service, supplies a cellular phone or SIM-card to any—

(a) trade partner for purposes of the sale thereof, or the provision thereof in any other manner, to any person; or

(b) person for purposes of the donation thereof or the awarding thereof as a prize or reward,^[33] or the provision thereof in any other manner, to any other person,

he or she—

(i) must obtain from such trade partner or person at least—

(aa) his or her full names, residential, business or postal address and identity number; or

(bb) its business name and address and, if registered as such in terms of any law, its registration number,

whichever is applicable; and

(ii) may obtain from such trade partner or person any other information which the telecommunication service provider deems necessary for purposes of this Act.

(2) Before a telecommunication service provider referred to in subsection (1) or a trade partner sells, or in any other manner provides, a cellular phone or SIM-card to any person, other than a person referred to in subsection (1)(b), he or she—

(a) must obtain from such person at least—

(i) his or her full names, residential, business or postal address and identity number; or

(ii) its business name and address and, if registered as such in terms of any law, its registration number,

whichever is applicable; and

(b) may obtain from such person any other information which the telecommunication service provider or trade partner deems necessary for purposes of this Act.

(3) Before a person referred to in subsection (1)(b) donates or awards as a prize or reward, or in any other manner provides, a cellular phone or SIM-card to any other person, he or she must obtain from such other person the information referred to in subsection (2)(a).^[34]

(4) A trade partner or person referred to in subsection (1)(b) must within 14 days after he or she has sold, donated or awarded as a prize or reward, or in any other manner provided, a cellular phone or SIM-card to any person as contemplated in subsections (2) and (3), in writing submit—

(a) the information obtained in accordance with subsection (2) or (3); and

(b) the specific particulars of the cellular phone or SIM-card so sold, donated, awarded or provided,

to the telecommunication service provider concerned.^[35]

(5) A telecommunication service provider referred to in subsection (1) must ensure that proper records are kept of—

(a) the information which he or she has obtained in accordance with subsection (1) or (2) or which has been submitted to him or her in terms of subsection (4) and, where applicable, any change in such information which is brought to his or her attention in terms of section 36(1); and

(b) the number allocated to the person.

(6) A telecommunication service provider referred to in subsection (1) must provide the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director with such information regarding a customer, as may be required in writing by an officer or member referred to in paragraph (a), (b), (c) or (d) of the definition of "applicant", the National Director or a law enforcement officer {or other person} who executes a direction or assists with the execution thereof, to perform the functions and exercise the powers authorised by law.

(7) The obligation in terms of subsection (6) includes the provision of the information referred to in subsection (1), (2) or (3), whichever is applicable.

Notification of change of address or other information^[36]

36. (1) A customer must, within 30 days after a change with regard to any information obtained from him or her in terms of section 34 or 35, as the case may be, has occurred, notify the telecommunication service provider who provides the telecommunication service to him or her, in writing of such change.

(2) A telecommunication service provider who receives a notice contemplated in subsection (1) must—

(a) amend the records which are kept in terms of section 34(2) in respect of the customer concerned accordingly; and

(b) within 30 days after receipt of that notice, in writing acknowledge receipt thereof.

Loss, theft or destruction of cellular phone or SIM-card to be reported

37. (1) Whenever a cellular phone or SIM-card is lost, stolen or destroyed, the owner of that cellular phone or SIM-card, or any other person who was in possession, or had control, thereof when it was so lost, stolen or destroyed, must within 24 hours after having reasonably become aware of the loss, theft or destruction of the cellular phone or SIM-card, report such loss, theft or destruction in person or through a person authorized thereto by him or her, to a police official at the police station nearest to the place where it occurred.

(2) A police official who receives a report contemplated in subsection (1), must immediately provide the person who makes the report with written proof that the report has been made or, in the case of a telephonic report, with the official reference number of the report.

Presumptions relating to failure to report

38. (1) Whenever a person is charged with an offence in terms of this Act of failing to report the loss, theft or destruction of a cellular phone or SIM-card and it is proved that such person was, at the time, the owner or authorised possessor of the cellular phone or SIM-card alleged to have been lost, stolen or destroyed, proof that the person has failed to produce such cellular phone or SIM-card within seven days of the request by a police official to do so, will, in the absence of evidence to the contrary which raises reasonable doubt, be sufficient evidence that the cellular phone or SIM-card has been lost, stolen or destroyed.

(2) Whenever a person is charged with an offence in terms of this Act of failing to furnish information or particulars on request of a police official and it is proved that such person was, at the time, the owner or authorised possessor of the cellular phone or SIM-card alleged to have been lost, stolen or destroyed, proof that the person has failed to produce such information or particulars within seven days of the request of a police official to do so, will, in the absence of evidence to the contrary which raises reasonable doubt, be sufficient evidence that the person has failed to furnish such information or particulars.

CHAPTER 8

PROHIBITIONS AND EXEMPTIONS

Prohibition on disclosure of information

39. (1) No person may disclose any information which he or she obtained in the exercising of his or her powers or the performance of his or her duties in terms of this Act, except—

(a) to any other person who of necessity requires it for the performance of his or her functions in terms of this Act;

(b) if he or she is a person who of necessity supplies it in the performance of his or her functions in terms of this Act;

(c) information which is required in terms of any law or as evidence in any court of law; or

(d) to any competent authority which requires it for the institution, or an investigation with a view to the institution, of any criminal prosecution.

(2) No—

(a) postal service provider, telecommunication service provider or decryption key holder may disclose any information which he or she obtained in the exercising of his or her powers or the performance of his or her duties in terms of this Act; or

(b) employee of a postal service provider, telecommunication service provider or decryption key holder may disclose any information which he or she obtained in the course of his or her employment and which is connected with the exercising of any power or the performance of any duty in terms of this Act, whether that employee is involved in the exercising of that power or the performance of that duty or not,

except for the purposes mentioned in subsection (1).

(3) No otherwise privileged communication intercepted, or archived or real-time call-related information obtained, under, or in contravention of, this Act shall loose its privileged character.

Disclosure of information by law enforcement officer for performance of official duties

40. (1) Notwithstanding section 39, any law enforcement officer {or other person} who executes a direction or assists with the execution thereof and who has obtained knowledge of—

(a) the contents of any communication intercepted under that direction, or evidence derived therefrom; or

(b) archived or real-time call-related information provided under that direction,

may—

(i) disclose such contents or evidence or archived or real-time call-related information to another law enforcement officer, to the extent that such disclosure is appropriate to the proper performance of the official duties of the law enforcement officer making or receiving the disclosure; or

(ii) use such contents or evidence or archived or real-time call-related information to the extent that such use is appropriate to the proper performance of his or her official duties.

(2) If a law enforcement officer {or other person} who executes an interception direction or assists with the execution thereof, while intercepting a communications under that interception direction, intercepts a communication relating to an offense other than the offence specified in the interception direction concerned, he or she may disclose or use the contents thereof, and evidence derived therefrom, as provided in subsection (1).

Listed equipment

41. (1) (a) The Minister must, by notice in the Gazette, declare any electronic, electro-magnetic, acoustic, mechanical or other instrument, device or equipment, the design of which renders it primarily useful for purposes of the surreptitious interception of communications, under the conditions or circumstances specified in the notice, to be listed equipment.

(b) A notice issued under paragraph (a) may at any time in like manner be amended or withdrawn.

(c) The first notice to be issued under paragraph (a) must be published in the Gazette within four months after the fixed date.

(2) (a) Before the Minister exercises the powers conferred upon him or her by subsection (1), he or she must—

(i) consult the relevant Ministers; and

(ii) cause to be published in the Gazette a draft of the proposed notice, together with a notice inviting all interested parties to submit to him or her in writing and within a specified period, comments and representations in connection with the proposed notice.

(b) A period of not less than two months must elapse between the publication of the draft notice and the notice under subsection (1).

(3) Subsection (2) does not apply —

(a) if the Minister, in pursuance of comments and representations received in terms of subsection (2)(a)(ii), decides to publish a notice referred to in subsection (1) in an amended form; and

(b) to any declaration in terms of subsection (1) in respect of which the Minister is of the opinion that the public interest requires that it be made without delay.

(4) Any notice issued under subsection (1) must, before publication thereof in the Gazette, be submitted to Parliament.

Prohibition on manufacture, possession and advertising of listed equipment

42. (1) Subject to subsection (2) and section 43, no person may manufacture, assemble, possess, sell, purchase or advertise any listed equipment.

(2) Subsection (1) does not apply to—

(a) any law enforcement officer or the National Director who possesses listed equipment for purposes of using it in the execution of an interception direction or in assisting with the execution thereof;

(b) any person who possesses listed equipment for purposes of using it in the execution of an interception direction or in assisting with the execution thereof, if such possession has been authorised by the applicant who made the application in terms of section 9(1) for the issue of the interception direction concerned;

(c) a telecommunication service provider or an agent or employee of, or a person under contract with, a telecommunication service provider who, in the normal course of the carrying on of the business of that telecommunication service provider, manufactures, assembles, possesses or sells any listed equipment;

(d) an agent or employee of, or a person under contract with, the State who, in the normal course of the activities of the State, manufactures, assembles, possesses or sells any listed equipment;

(e) any person who manufactures, assembles, possesses, sells, purchases or advertises listed equipment under the authority of a certificate of exemption issued to him or her by the Minister under section 43; or

(f) any person who advertises any listed equipment for sale, if the advertisement is sent solely to—

(i) a telecommunication service provider;

(ii) an officer or member referred to in paragraph (a) (b), (c) or (d) of the definition of "applicant" or the National Director; or

(iii) any other person,

who is duly authorized under this Act to use such listed equipment.

Exemptions

43. (1) The Minister may, upon application and after consultation with the relevant Ministers, exempt any—

(a) telecommunication service provider from complying with section 31(4); or

(b) person from section 42(1),

for such period and on such conditions as the Minister determines.

(2) The period for which exemption may be granted under subsection (1) may commence on a date earlier than the date on which exemption is granted, but not earlier than the date on which application for such exemption was made to the Minister.

(3) An exemption under subsection (1) must be granted by issuing to the telecommunication service provider or person concerned a certificate of exemption in which his or her name and the scope, period and conditions of the exemption are specified.

(4) A certificate of exemption contemplated in subsection (3) may at any time in like manner be amended or withdrawn by the Minister.

(5) An exemption under subsection (1) lapses upon—

(a) termination of the period for which it was granted; or

(b) withdrawal of the relevant certificate under subsection (4).

(6) If exemption has been granted to a telecommunication service provider under subsection (1)(a)—

(a) that telecommunication service provider will be subject to all the other applicable provisions of this Act; and

(b) the Police Service, the Defence Force, the Agency, the Service, the Directorate or the National Director, whichever made the application for the issue of the direction which is addressed to such telecommunication service provider, must make available the necessary facilities and devices to execute that direction.

CHAPTER 9

CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES

Use of information in criminal proceedings^[37]

44. (1) The use of any information obtained by the application of this Act, or any similar Act in another country, as evidence in any criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, is subject to the decision of the National Director, the head of the Directorate, the Director of Public Prosecutions or an Investigating Director contemplated in the National Prosecuting Authority Act.

(2) Information regarding the commission of any criminal offence, obtained by means of any interception, or the provision of any archived or real-time call-related information, under this Act, or any similar Act in another country, may be admissible as evidence in criminal proceedings.

Proof of certain facts by certificate

45. Whenever in any criminal proceedings or civil proceedings in terms of Chapter 5 or 6 of the Prevention of Organised Crime Act, the question arises whether a judge, regional magistrate or magistrate has issued a direction under this Act, a certificate signed by a judge, regional magistrate or magistrate in which he or she–

(a) alleges that he or she has received and considered an application made to him or her in terms of this Act;

(b) alleges that he or she has issued a direction under this Act; and

shall, upon its mere production at such proceedings, be prima facie proof that the judge, regional magistrate or magistrate concerned received and considered such application, issued such direction and of the contents thereof.

Unlawful acts in respect of telecommunication and other equipment

46. (1) No person may, without just cause shown—

(a) modify, tamper with, alter or reconfigure, or allow any other person to modify, tamper with, alter or reconfigure, any telecommunication equipment, including a cellular phone and a SIM-card, or any part thereof; or

(b) reverse engineer, decompile or disassemble, or allow any other person to reverse engineer, decompile or disassemble, the software installed on any telecommunication equipment, including a cellular phone and a SIM-card, by the manufacturer thereof,

{of which he or she is not the lawful owner or possessor} for purposes of circumventing the provisions of this Act.

(2) No person may, without just cause, tamper, or allow any other person to tamper, with any interception or monitoring equipment, device or apparatus installed or utilised in terms of this Act.

Offences and penalties^[38]

47. (1) (a) Any person who—

(a) contravenes or fails to comply with section 2(1) or (2)(b), 30(8), 36(1) , 37, 39(1), 42(1) or 46;

(b) in any application or request made in terms of this Act, furnishes information or makes a statement, knowing such information or statement to be false, incorrect or misleading or not believing it to be correct;

(c) acts contrary to the authority of any direction issued under this Act or proceeds to act under any such direction knowing that it has expired;

(d) acts contrary to the authority of an entry warrant issued under this Act or, without being authorised thereto under an entry warrant, enters any premises for a purpose referred to in the definition of "entry warrant";

(e) with the intent to deceive, forges, alters or tampers with any direction or entry warrant issued under this Act;

(f) furnishes particulars or information in a report referred to in section 37(1), knowing such particulars or information to be false, incorrect or misleading or not believing it to be correct;

(g) while in lawful possession of a cellular phone or SIM-card, loses such a cellular phone or SIM-card, or is otherwise dispossessed thereof or from whom it is stolen owing to that person’s failure to take reasonable steps to prevent the loss or theft thereof while it was on his or her person or under his or her direct control; or

(h) obstructs or hinders a law enforcement officer {or any other person} who executes any direction or entry warrant issued under this Act or assists with the execution thereof, in the exercising of his or her powers under that direction or entry warrant,

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding ..... years.

(2) (a) Any postal service provider or employee of a postal service provider who—

(i) contravenes or fails to comply with section 2(1)(b), 39(2);

(ii) contravenes or fails to comply with section 29(1)(a); or

(iii) performs an act contemplated in subsection (1)(c), (e) or (h),

is guilty of an offence.

(b) Any postal service provider or employee of a postal service provider who is convicted of an offence referred to in paragraph (a) is liable, in the case of—

(i) the postal service provider who is a—

(aa) natural person, to a fine or to imprisonment for a period not exceeding ..... years; or

(bb) juristic person, to a fine not exceeding R.....;

(ii) an employee, to a fine or to imprisonment for a period not exceeding ..... years.

(3) (a) Any telecommunication service provider or employee of a telecommunication service provider who—

(i) contravenes or fails to comply with section 29(1)(b) or (2), 31(1), 34(3) or 35(6);

(ii) contravenes or fails to comply with section 31(2);

(iii) contravenes or fails to comply with section 2(1) or (2)(a), 34(1) or (2), 35(1), (2) or (5) or 36(2);

(iv) makes any entry in the records to be kept under section 34(2) or 35(5), knowing such entry to be false, incorrect or misleading or not believing it to be correct; or

(v) performs an act contemplated in subsection (1)(c), (e) or (h),

is guilty of an offence.

(b) Any telecommunication service provider or employee of a telecommunication service provider who is convicted of an offence referred to in paragraph (a) is liable, in the case of—

(i) the telecommunication service provider who is a—

(aa) natural person, to a fine or to imprisonment for a period not exceeding ..... years; or

(bb) juristic person, to a fine not exceeding R.....;

(ii) an employee, to a fine or to imprisonment for a period not exceeding ..... years.

(4) Any trade partner or any employee of a trade partner who contravenes or fails to comply with section 35(2) or (4), is guilty of an offence and liable on conviction, in the case of—

(a) a trade partner, who is a—

(i) natural person, to a fine or to imprisonment for a period not exceeding ..... years; or

(ii) juristic person, to a fine not exceeding R.....;

(b) an employee, to a fine or to imprisonment for a period not exceeding ..... years.

(5) (a) Any decryption key holder or any employee of a decryption key holder who—

(i) contravenes or fails to comply with section 30(1);

(ii) contravenes or fails to comply with section 30(2), (3)(b), (5) or (7) or 39(2); or

(iii) performs an act contemplated in subsection (1)(c), (e) or (h),

is guilty of an offence.

(b) Any decryption key holder or employee of a decryption key holder who is convicted of an offence referred to in paragraph (a) is liable, in the case of—

(i) a decryption key holder who is a—

(aa) natural person, to a fine or to imprisonment for a period not exceeding ..... years; or

(bb) juristic person, to a fine not exceeding R.....;

(ii) an employee, to a fine or to imprisonment for a period not exceeding ..... years.

(6) Any person referred to in section 35(1)(b) who contravenes or fails to comply with section 35(3) or (4) is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding ..... years.

(7) A conviction of an offence referred to in—

(a) subsection (2)(a)(ii) does not relieve any postal service provider or any employee of such a postal service provider, of the obligation to comply with section 29(1)(a);

(b) subsection (3)(a)(i) or (ii) does not relieve any telecommunication service provider or any employee of such a telecommunication service provider, of the obligation to comply with section 29(1)(b) or (2), 31(1) or (2), 34(3) or 35(6); or

(c) subsection (5)(a)(i) does not relieve any decryption key holder or any employee of such a decryption key holder, of the obligation to comply with section 30(1),

as the case may be, and the postal service provider, telecommunication service provider or decryption key holder or employee concerned is liable, in the case of—

(i) a postal service provider, telecommunication service provider or decryption key holder, as the case may be, to a further fine not exceeding R.....; or

(ii) an employee, to a further fine not exceeding R.....,

for every day during which such contravention or failure continues.

(8) Notwithstanding anything to the contrary in any other law contained, a magistrate's court may impose any penalty provided for in this Act.

(9) No person who—

(a) in good faith assists another person with the execution of a direction; and

(b) believes on reasonable grounds that such other person is acting in accordance with such a direction,

is liable to prosecution for a contravention of section 2(1).

Forfeiture of listed equipment

48. (1) A court convicting a person of an offence referred to in section 47(1)(a) may, in addition to any penalty it may impose in respect of that offence, declare any listed equipment—

(a) by means of which the offence was committed;

(b) which was used in connection with the commission of the offence;

(d) the possession of which constituted the offence; and

(e) any rights of the convicted person thereto,

to be forfeited to the State.

(2) A declaration of forfeiture under subsection (1) does not affect any rights which any person other than the convicted person may have to such listed equipment, if it is proved that such other person—

(a) could not reasonably be expected to have known or had no reason to suspect that the listed equipment concerned was being or would be used in connection with the offence;

(b) had taken all reasonable steps to prevent the use thereof in connection with the offence; or

(3) Section 35(4) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), applies with the necessary changes to any declaration of forfeiture under subsection (1).^[39]

Revoking of licence to provide telecommunication service

49. The Minister of Communications, after consultation with the Independent Communications Authority of South Africa, established by section 3 of the Independent Communications Authority of South Africa Act, 2000 (Act No. 13 of 2000),^[40] may, in the case of a second or subsequent conviction of an offence referred to in section 47(3)(b) and notwithstanding the imposition of any penalty prescribed by section 47(3), revoke the licence issued to the telecommunication service provider concerned under Chapter V of the Telecommunications Act, to provide a telecommunication service.

CHAPTER 10

GENERAL PROVISIONS

Availability of other procedures for obtaining archived or real-time call-related information^[41]

50. (1) Subject to subsection (2), the availability of the procedures in respect of the provision of archived or real-time call-related information provided for in sections 18 and 19 does not preclude obtaining such information in respect of any person in accordance with a procedure prescribed in any other Act.

(2) Any archived or real-time call-related information which is obtained in terms of such other Act may not be obtained on an ongoing basis.^[42]

Supplementary directives regarding applications and requests

51. (1) A judge or, if there is more than one judge, all the judges jointly, may, after consultation with the respective Judges‑President of the High Courts, issue directives to supplement the procedure for making applications for the issue of directions or requests for the issue of entry warrants in terms of this Act.

(2) Any directive issued under subsection (1) may at any time in like manner be amended or withdrawn.

(3) Any directive issued under subsection (1) must be submitted to Parliament.

Amendment of section 205 of Act 51 of 1977, as substituted by section 11 of Act 204 of 1993

52. Section 205 of the Criminal Procedure Act, 1977, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) A judge of [the supreme court] a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4), and section 50 of the Regulation of Interception of Communications Act, 2001, upon the request of [an attorney‑general] a Director of Public Prosecutions or a public prosecutor authorized thereto in writing by the [attorney‑general] Director of Public Prosecutions, require the attendance before him or her or any other judge, regional court magistrate or magistrate, for examination by the [attorney‑general] Director of Public Prosecutions or the public prosecutor authorized thereto in writing by the [attorney‑general] Director of Public Prosecutions, of any person who is likely to give material or relevant information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the [attorney‑general] Director of Public Prosecutions or public prosecutor concerned prior to the date on which he or she is required to appear before a judge, regional court magistrate or magistrate, he or she shall be under no further obligation to appear before a judge, regional court magistrate or magistrate.".

Amendment of section 11 of Act 140 of 1992

53. Section 11 of the Drugs and Drug Trafficking Act, 1992, is hereby amended by the substitution in subsection (1) for paragraph (e) of the following paragraph:

"(e) subject to section 50 of the Regulation of Interception of Communications Act, 2001, require from any person who has in his or her possession or custody or under his or her control any register, record or other document which in the opinion of the police official may have a bearing on any offence or alleged offence under this Act, to deliver to him or her then and there, or to submit to him or her at such time and place as may be determined by the police official, any such register, record or document;".

Amendment of section 5 of Act 38 of 1994, as amended by section 5 of Act 66 of 2000

54. Section 5 of the Intelligence Services Act, 1994, is hereby amended—

(a) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:

"If a judge as defined in section 1 of the Regulation of Interception [and Monitoring Prohibition] of Communications Act, [1992 (Act No. 127 of 1992)] 2001, is [convinced] satisfied, on the [grounds mentioned] facts alleged in a written application complying with directives issued under subsection (7), that there are reasonable grounds to believe that—";

(b) by the substitution in subsection (3) for paragraph (a) of the following paragraph:

"(a) A direction referred to in subsection (2) shall be issued by the judge concerned for a specific period not exceeding three months at a time, and the period for which it has been issued shall be mentioned in the direction.";

(c) by the substitution for subsection (4) of the following subsection:

"(4) The judge referred to in subsection (2) may, upon a written application complying with the directives issued under subsection (7)—

(a) extend the period referred to in subsection (3) for a further period not exceeding three months at a time; or

(b) amend an existing direction referred to in subsection (3),

if that judge is [convinced] satisfied that the extension or, amendment, as the case may be, is necessary for a reason mentioned in subsection (2)."; and

(d) by the substitution for subsection (7) of the following subsection:

"(7) (a) The Judges‑President of the [several Divisions of the Supreme Court of South Africa] High Courts may jointly issue directives to uniformly regulate the manner and procedure of applications in terms of subsection (2).

(b) If the judge referred to in subsection (2) considers any case to be sufficiently urgent, the procedure contemplated in paragraph (a) may be dispensed with and the matter may be dealt with in such manner and subject to such conditions as he or she deems fit, including, in an appropriate case, the hearing of an oral application and the granting of an oral direction.

(c) An oral direction referred to in paragraph (b) must be confirmed in writing within 48 hours.".

Amendment of section 3 of Act 40 of 1994, as amended by section 3 of Act 31 of 1995 and section 3 of Act 42 of 1999

55. Section 3 of the Intelligence Services Control Act, 1994, is hereby amended by the substitution in paragraph (a) for subparagraph (iii) of the following subparagraph:

"(iii) any judge as defined in section 1 of the Regulation of Interception [and Monitoring Prohibition] of Communications Act, [1992 (Act No. 127 of 1992)] 2001, a report regarding the functions performed by him or her in terms of that Act, including statistics regarding such functions, together with any comments or recommendations which such judge may deem appropriate: Provided that such report shall not disclose any information contained in an application or direction [contemplated in section 3 of] referred to in that Act;".

Repeal of law and transitional arrangements

56. (1) Subject to subsections (2) and (3), the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), is hereby repealed.

(2) Any judge whose designation in terms of the Interception and Monitoring Prohibition Act, 1992, to perform the functions of a judge for purposes of that Act was still in force immediately before the fixed date, must be regarded as having been so designated in terms of this Act.

(3) A direction issued under section 3 of the Interception and Monitoring Prohibition Act, 1992, and which is still in force immediately before the fixed date, must be regarded as having been issued under this Act and remains in force until the period or extended period for which that direction has been issued, lapses.

(4) Any information which, before the fixed date, has been obtained as contemplated in section 4, 5 or 8, is admissible as evidence in any criminal proceedings as if those provisions were in operation at the date of obtaining such information.

(5) The directives issued in terms of section 6 of the Interception and Monitoring Prohibition Act, 1992, and which are still in force immediately before the fixed date, cease to be of force and effect from the fixed date.

Short title and commencement

57. This Act is called the Regulation of Interception of Communications Act, 2001, and comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE

(Section 1)

1. high treason;

2. sedition;

3. any offence relating to terrorism;

4. any offence relating to the death of, or infliction of grievous bodily harm to, any person;

5. rape;

6. kidnapping;

7. arson;

8. public violence;

9. robbery;

10. indecent assault;

11. the statutory offence of—

(a) unlawful carnal intercourse with a girl under a specified age;

(b) committing an immoral or indecent act with a girl or a boy under a specified age;

12. contravention of section 20(1) of the Sexual Offences Act, 1957 (Act No. 23 of 1957);

13. any offence contemplated in section 1(1) of the Corruption Act, 1992 (Act No. 94 of 1992);

14. extortion;

15. childstealing;

16. breaking or entering any premises whether under the common law or a statutory provision, with intent to commit an offence;

17. theft, whether under the common law or a statutory provision;

18. fraud;

19. any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992);

20. any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament and the unlawful possession of such firearms, explosives or armament;

21. dealing in, being in possession of or conveying endangered, scarce and protected game or plants or parts or remains thereof in contravention of a statute or provincial ordinance;

22. any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones;

23. any offence contemplated in sections 1(1) and 1A(1) of the Intimidation Act, 1982 (Act No. 72 of 1982);

24. defeating or obstructing the course of justice;

25. perjury;

26. subornation of perjury;

27. any offence referred to in Chapter 3 of the Prevention of Organised Crime Act;

28. any offence the punishment wherefor may be a period of imprisonment exceeding ..... year without the option of a fine.

[1]. The long title will be reconsidered once the Bill reaches finalisation.

[3]. This proposed amendment must be read with the proposed new definitions of "direct communication" and "indirect communication".

[4]. See definition of "contents" in section 2510(8) of USA Act.

[5]. The 2001 Oregon Bill purports to amend the definition of "oral communication" contained in the Oregon Revised Statutes as follows:

"(7) 'Oral communication' means:

(a) Any oral communication, other than a wire or electronic communication, uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation; or

(b) An utterance by a person who is participating in a wire or electronic communication, if the utterance is audible to another person who, at the time the wire or electronic communication occurs, is in the immediate presence of the person participating in the communication.".

[6]. See definition in section 2510(5) of the USA Act.

[7]. See, for example, the legislation of the USA, Ohio, Oregon and Massachusetts.

[8]. The inclusion of this definition depends on which of the two options under paragraph (b)(ii) of the definition of "serious offence" will be supported.

[9]. Should a person who, at the time of the occurrence of a direct communication or the transmission of an indirect communication, is in the immediate presence of a party to the communication, be included in, or excluded from, the definition of "party to the communication"?. In this regard the 2001 Oregon Bill purports to insert the following provision in the section of the Oregon Revised Statutes regulating orders for interception of oral communications:

"......a person is a party to an oral communication if the oral communication is made in the person's immediate presence and is audible to the person regardless of whether the communication is specifically directed to the person.".

[10]. See proposed new definition of "organised fashion".

[11]. Consideration could be given to the possibility of including this subparagraph as an item in the Schedule.

[12]. See exceptions in section 6(2) of the Australian Act.

[13]. See section 7(4) of the Australian Act.

[14]. See section 2511(2)(d) of the USA Act.

[15]. Section 3(1) of the United Kingdom Act requires the consent of both parties.

[16]. See section 7(5) of the Australian Act. In terms of section 7(6) of that Act an application must still be made for a warrant authorising such interception.

[17]. See section 5704(2)(ii) of the Pennsylvania Act in respect of paragraph (d).

[18]. See section 2511(2)(d) of the USA Act.

[19]. See section 7(2)(ac) of the Australian Act.

[20]. See also section 2511(2)(a)(i) of the USA Act for further exemptions i.r.o. service providers.

[21]. See section 3(3) of the United Kingdom Act.

[22]. Should this power be limited to service providers and their employees?

[23]. See section 7(2)(aa) and (ab) of the Australian Act.

[24]. The desirability of indicating the identity of the law enforcement officer or other person who is authorised to execute a direction, should be considered.

[28]. Should provision also be made for oral directions in respect of the provision of call-related information?

[31]. See existing clauses 9(4) and 10(1)(b).

[32]. See existing clause 6(2), (3) and (4).

[33]. For example MTN Gladiators and other competitions.

[34]. The question arises whether this obligation should be placed on such a person or should such person merely be obliged to inform the service provider of the particulars of the person to whom the cellular phone or SIM-card was, for example, donated.

[35]. A policy decision needs to be taken regarding the question whether such information should be submitted to the service provider or whether it should be kept by the trade partner.

[36]. Consider whether the owner of a cellular phone or SIM-card should specifically be mentioned or whether such a person is included in definition of customer (may be owner of cellular phone or SIM-card without having it connected to service).

[38]. This clause needs further consideration once the Bill reaches finalisation.

[39]. Section 35(4) of the Criminal Procedure Act, 1977, provides as follows:

(4) (a) The court in question or, if the judge or judicial officer concerned is not available, any judge or judicial officer of the court in question, may at any time within a period of three years with effect from the date of declaration of forfeiture, upon the application of any person, other than the accused, who claims that any right referred to in subparagraph (i) or (ii) of this paragraph is vested in him, inquire into and determine any such right, and if the court finds that the weapon, instrument, vehicle, container or other article in question‑

(i) is the property of any such person, the court shall set aside the declaration of forfeiture and direct that the weapon, instrument, vehicle, container or other article, as the case may be, be returned to such person, or, if the State has disposed of the weapon, instrument, vehicle, container or other article in question, direct that such person be compensated by the State to the extent to which the State has been enriched by such disposal;

(ii) was sold to the accused in pursuance of a contract under which he becomes the owner of such weapon, instrument, vehicle, container or other article, as the case may be, upon the payment of a stipulated price, whether by instalments or otherwise, and under which the seller becomes entitled to the return of such weapon, instrument, vehicle, container or other article upon default of payment of the stipulated price or any part thereof‑

(aa) the court shall direct that the weapon, instrument, vehicle, container or other article in question be sold by public auction and that the said seller be paid out of the proceeds of the sale an amount equal to the value of his rights under the contract to the weapon, instrument, vehicle, container or other article, but not exceeding the proceeds of the sale; or

(bb) if the State has disposed of the weapon, instrument, vehicle, container or other article in question, the court shall direct that the said seller be likewise compensated.

(b) If a determination by the court under paragraph (a) is adverse to the applicant, he may appeal therefrom as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result whereof the declaration of forfeiture was made, or against a sentence imposed as a result of such conviction.

(c) When determining any rights under this subsection, the record of the criminal proceedings in which the declaration of forfeiture was made, shall form part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it may deem fit.

[40]. Section 100(3) of the Telecommunications Act, 1996, provides as follows:

"(3) Where the Authority, after investigation, finds that the licensee concerned has been responsible for a failure or contravention contemplated in subsection (1), the Authority may—

(a) direct the licensee to desist from any further failure or contravention;

(b) direct the licensee to pay the prescribed fine;

(d) where the licensee has repeatedly been guilty of such failure or contraventions, in terms of this section, revoke his or her licence." (Our emphasis).

[42]. Section 205 of the Criminal Procedure Act, 1977, and section 11(1)(e) of the Drugs and Drug Trafficking Act, 1992, confer powers on law enforcement agencies to obtain evidence such as call-related information. The Commission questioned the need for the existence of different methods of enabling law enforcement agencies to obtain call-related information and expressed the view that the Interception and Monitoring Prohibition Act, 1992, should be the only Act to authorise the request for call-related information. Consequently, the Commission recommended that a provision be inserted in the Act, providing that the availability of the procedures set out in the Act in respect of the on-going provision of call-related information excludes the use of any power in any other Act to obtain evidence or information in respect of a person, body or organization (See paragraphs 12.2.20.1 to 12.2.20.6 of the Commission's Report).