IMB 73
WORKING DOCUMENT
DRAFT 2
(As on 19/02/2002)
[COMMENT1]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]
Workdoc4
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets
indicate omissions from the Bill [B 50—2001] as introduced in
Parliament.
___________ Words
underlined with a solid line indicate insertions in the Bill [B 50—2001]
as introduced in Parliament.
{ } Words in italic type and between { }
brackets indicate possible options.
[ ] Words in bold type in square brackets
and which are shaded indicate omissions from the Bill [B 50—2001] since
the distribution and discussion of the previous Working document.
Words which are struck out and which
are shaded indicate omissions from the previous Working document since the
distribution and discussion thereof.
___________ Words
underlined with a solid double line and which are shaded indicate insertions in
the Bill [B 50—2001] since the distribution and discussion of the
previous Working document.
___________________________________________________________________
BILL
To regulate the interception [and monitoring] of certain communications; to provide for the interception of postal
articles and communications [and for the monitoring of communications in the
case of a serious offence or if the security or other compelling national
interests of the Republic are threatened] under certain circumstances; to prohibit the provision of certain
telecommunication services which do not have the capacity to be [monitored] intercepted; to regulate authorised telecommunications
[monitoring] 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
Part 1
Prohibition of interception of communication and provision of archived or
real-time call-related information
2. Prohibition of
interception of communication and provision of archived or real-time
call-related information
3. Prohibition of provision of
archived or real-time call-related information
Part 2
Exceptions to prohibitions
4. 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
5. Interception of communication by
party to communication
6. Interception of
communication with consent of party to communication
7. Interception of indirect
communication by, or on behalf of, postal service provider or
telecommunication service provider for purposes relating to
provision or operation of telecommunication service
8. Interception of indirect
communication by, or on behalf of, postal service provider or telecommunication
service provider
9. Interception of communication for
purposes of installation or maintenance of equipment, facilities or devices
10. Interception of indirect
communication in connection with carrying on of business
CHAPTER 3
APPLICATIONS AND REQUESTS
11. Application for interception
direction
12. Application
for archived call-related direction
13. Application for supplementary
direction or real-time call-related direction
14. Single application for interception
direction and archived call-related direction or real-time call-related
direction, or both
15. Application for amendment or
extension of existing direction
16. Oral application for interception
direction
17. Application for decryption direction
18. Request Application
for entry warrant
CHAPTER 4
DIRECTIONS AND ENTRY WARRANTS
19. Issue Issuing of
interception direction
20. Issue Issuing
of archived call-related direction
21. Issue Issuing of
supplementary direction or real-time call-related direction
22. Simultaneous issue issuing of
interception direction and archived call-related direction or real-time
call-related direction, or both
23. Amendment or extension of existing
direction
24. Issue Issuing of oral
interception direction
25. Issue Issuing
of decryption direction
26. Issue Issuing
of entry warrant
27. Reports to
judge on progress
28. Cancellation of direction or oral
interception direction
CHAPTER 5
EXECUTION OF DIRECTIONS AND ENTRY WARRANTS
29. Execution of direction
30. Execution of entry
warrant
31. Assistance
by postal service provider and telecommunication service provider
32. Assistance by decryption key holder
CHAPTER 6
INTERCEPTION CAPABILITY, INTERCEPTION CENTRES AND COSTS
33. Prohibition
of certain telecommunication services
34. Interception centres
35. Remuneration payable to
postal service provider, telecommunication service provider and decryption key
holder
CHAPTER 7
DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER
36. Information to be obtained and kept
by telecommunication service provider
37. Information to be obtained and kept
in respect of cellular phone and SIM-card
36. Notification
of change of address or other information
38. Loss, theft or
destruction of cellular phone or SIM-card to be reported
39. Presumptions relating to
failure to report
CHAPTER 8
PROHIBITIONS AND EXEMPTIONS
40. Prohibition on
disclosure of information
41. Disclosure of information by law
enforcement officer authorised person for performance of official duties
42. Listed equipment
43. Prohibition
on manufacture, possession and advertising of listed equipment
44. Exemptions
CHAPTER 9
CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES
45. Use of information in
criminal proceedings
46. Proof of certain facts by certificate
47. Unlawful acts in respect of telecommunication and
other equipment
48. Offences and penalties
49. Forfeiture of listed equipment
50. Revoking of licence to provide
telecommunication service
CHAPTER 10
GENERAL PROVISIONS
51. Availability of other procedures for
obtaining archived and real-time call-related information
52. Supplementary
directives regarding applications and requests
53. Amendment of section 205 of the
Criminal Procedure Act, 1977
54. Amendment of section 11 of the
Drugs and Drug Trafficking Act, 1992
55. Amendment of section 5 of the
Intelligence Services Act, 1994
56. Amendment of section 3 of the
Intelligence Services Control Act, 1994
57. Repeal of law and transitional
arrangements
58. 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;
[COMMENT2]"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;[3]
"archived call-related direction" means a direction issued under
section 20(1) and in terms of 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 being stored by that telecommunication service provider for a period of at
least 12 months from the first day immediately following the expiration of a
period of 90 days after the date of the transmission of the indirect
communication to which that call-related information relates;
"authorised person" means any law enforcement officer or other
person who may, in terms of section 29(1), execute a direction or assist with
the execution thereof;
"business" includes means any business activity conducted
by any person, including 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 in the records of a
telecommunication service provider and includes switching, dialling or
signalling information that identifies the origin, destination, termination,
duration, and equipment [identification] used in respect, of each indirect communication
generated or received by a customer[4]
or user of any equipment, facility or service provided by [a] 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 [a conversation or a message, and any
part of a conversation or 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] both a direct communication and an indirect
communication;[5]
"compelling national economic interests" means..........;[6]
''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;[7]
"customer" means[—
(a) any person who or any
body or organisation which has entered into a contract with a service provider
for the provision of a telecommunication service to that person, body or
organisation; or
(b)] any person [to
whom or any body or organisation to which][8]
{to whom a telecommunication service provider provides a [pre-paid]
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 25(1) and
in terms of 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
a 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;[9]
"direction" [, except in section 10(2), means a direction referred
to in section 4(1)] 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 26(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
(c) removing an interception
device from the premises;
"fixed date" means the date of commencement of this Act;
"identification
document" means—
(a) an identity card or temporary
identity certificate as defined in the Identification Act, 1997 (Act No. 68 of 1997);
(b) a green, bar‑coded
identity document issued in accordance with the Identification Act, 1986 (Act
No. 72 of 1986), until such identity
document is replaced by an identity card as contemplated in section 25 of the
Identification Act;[10] or
(c) a {South African
passport or travel document as defined in the South African Passports and
Travel Documents Act, 1994 (Act No. 4
of 1994) / passport as defined in the Aliens Control Act, 1991 (Act No. 96 of 1991)};[11]
"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 centre" means an interception centre established by
section 34(1);
"interception device" means any electronic, mechanical or other
instrument, device, equipment or apparatus which is used or can be used[12],
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 his or her
powers or performing his or her duties, which powers or duties do not involve
the interception of communications; or}[13]
(b) a hearing aid or similar
device being used to correct subnormal below normal hearing to not
better than normal,[14]
and a reference to an "interception device" includes, where
applicable, a reference to a "monitoring device";
"interception direction" means a direction issued under section 19(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, [1989 (Act No. 88 of
1989)] 2001 (Act No. 47 of 2001),
and any retired judge, who is designated by the [Cabinet member responsible
for the administration of justice] Minister to perform the functions
of a judge for [the] 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;
(c) member of the Agency or
the Service;
(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 42(1), and includes any component of such equipment;
"Minister" means the Cabinet member responsible for the
administration of justice;
"[monitor] monitoring" includes [the recording of]
to listen to or record communications by means of a monitoring device;
"monitoring device" means any electronic, mechanical or other instrument, device [or],
equipment or apparatus which is used or can be used, whether by itself
or in combination with any other instrument, device [or],
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;
"national security" means ..........;[15]
"party to the communication" means, in the case of—
(a) a direct communication,
any person—
(i) participating in such
direct communication or to whom such direct communication is directed; or
(ii) in whose immediate presence
such direct communication occurs and is audible to the person concerned,
regardless of whether or not the direct communication is specifically directed
to him or her; 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; or
(iii) any other person who, at the
time of the occurrence of the indirect communication, is in the immediate
presence of the sender or the recipient or intended recipient of that indirect
communication;[16]
"Police Service" means the South African Police Service established
by section 5(1) of the South African Police Service Act;
"postal article" means any [letter, postcard, reply postcard,
letter card, newspaper, book, packet, pattern or sample packet or any parcel or
other article while in transit by post, and includes a telegram when conveyed
by post] 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;
["pre-paid telecommunication service" means a mobile cellular
telecommunication service in respect of which—
(a) a service provider
provides the service to a customer without the customer concerned having to
enter into a contract with the service provider for the provision of that
service to the customer;
(b) the customer pays for
the provision of the service before it is used; and
(c) no other person, body or
organisation, including another service provider, gives the customer an account
for the provision of the service after it has been used;][17]
"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);
"public health or safety" means ..........;[18]
"real-time call-related direction" means a direction issued under
section 21(2) and in terms of 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 immediately available to a telecommunication service provider—
(a) before, during, or immediately
for a period of 90 days 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;
(c) Minister of
Intelligence; and
(d) Minister of for
Safety and Security;
"serious offence" means—
(a) any offence mentioned in
the Schedule [1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), provided that—
(i) that offence is allegedly
being or has allegedly been committed on an organised, planned or premeditated
basis by the persons involved therein;
or
(ii) that offence is allegedly
being or has allegedly been committed on a regular basis by the person or
persons involved therein; or
(iii) that offence may cause harm to
the economy or other compelling national interests of the Republic]; or
(b) [any offence referred
to in sections 13(f) and 14(b) of the Drugs and Drug Trafficking
Act, 1992 (Act No. 140 of 1992)] 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; or
(iii) on a regular basis by
the person or persons involved therein;
or
(c) any offence—
(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;[19] or
(iii) which could result in {substantial}
financial gain for the person, group of persons or syndicate committing the
offence; or
[(c)] (d) any
specified offence as defined in section 1 of the National Prosecuting Authority
Act; or
[(d) any offence relating
to the dealing in or smuggling of firearms, ammunition, explosives or
armament; or
(e) any offence relating to
the death of, or infliction of grievous bodily harm to, any person; or]
[(f)] (e) any
offence referred to in Chapter 2 or 4 of the Prevention of Organised
Crime Act, [1998 (Act No. 121 of
1998);[20] or
(g) any offence threatening the
security or other compelling national interests of the Republic],
including any conspiracy or incitement [or attempt] to commit any
of the above-mentioned offences;[21]
"Service" means the Service as defined in section 1 of the
Intelligence Services Act;
["service provider" means any person who or body or organisation
which provides a telecommunication service under and in accordance with a
telecommunication service licence issued to such person, body or organisation
in terms of Chapter V of the Telecommunications Act, and, for the purposes of—
(a) sections 6, 14(2) and
15(2)(a), includes any person, body or organisation responsible for the
dispatching of a postal article or the transmission of a communication over a
telecommunications system or for the provision of a postal service; and
(b) sections 6, 14(2) and
15(2)(a), includes any person, body or organisation providing a local
access telecommunication service, public pay-telephone service, value-added
network service or private telecommunication network contemplated in sections
39, 40 and 41 of the Telecommunications 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
21(1) and in terms of 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[, in respect of—
(a) a public switched
telecommunication service;
(b) a mobile cellular
telecommunication service;
(c) a national long-distance
telecommunication service;
(d) an international
telecommunication service; or
(e) any other
telecommunication service licensed or deemed to be licensed or exempted from
being licensed as such in terms of 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) a local access
telecommunication service, public pay-telephone service, value-added network
service or private telecommunication network as defined in of the
Telecommunications Act; or
(b) any other telecommunication
service licensed or deemed to be licensed or exempted from being licensed as
such in terms of the Telecommunications Act;
"telecommunication[s] system" means [any system or series
of telecommunication facilities or radio, optical or other electromagnetic
apparatus or any similar technical system used for the purpose of
telecommunication, whether or not such telecommunication is subject to
rearrangement, composition or other processes by any means in the course of
their transmission or emission or reception] a telecommunication system
as defined in the Telecommunications Act;
["telegram" means any communication in written form or information
in the form of an image transmitted over a telecommunications system and
delivered in any such form, or intended to be thus transmitted and delivered,
or delivered from any post office as defined in the Post Office Act, 1958 (Act
No. 44 of 1958), or intended to be thus
delivered as a communication or as information transmitted either wholly or in
part over a telecommunications system]
"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 /
time during which} 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
Part 1
Prohibition of interception of communication and provision of archived or
real-time call-related information
[Interception and monitoring
2. (1) Subject to subsections (2) and (3) and section 4, no person
may—
(a) intentionally and
without the knowledge or permission of the dispatcher intercept a communication
which has been or is being or is intended to be transmitted by telephone or in
any other manner over a telecommunications system; or
(b) intentionally monitor
any communication by means of a monitoring device so as to gather confidential
information concerning any person, body or organisation.
(2) Any person may monitor any
communication by means of a monitoring device where—
(a) such person is a party
to that communication; or
(b) one of the parties to
the communication has consented to such monitoring.
(3) Any person who is a party to a
communication may, in the course of the carrying on of any business and without
the knowledge or permission of the other party to that communication—
(a) intercept the
communication which has been or is being or is intended to be transmitted by
telephone or in any other manner over a telecommunications system; or
(b) monitor the
communication by means of a monitoring device,
for the purpose of monitoring or keeping a record of communications—
(i) in respect of transactions
entered into in the course of that business;
or
(ii) relating to that business.]
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, at any place in the
Republic,—
(a) any direct
communication in the course of its occurrence;
or any
(b)indirect
communication in the course of its occurrence or transmission by means of a
postal service or telecommunication system, as the case may be,
by any meansat any place in the Republic.
Prohibition of provision of archived or real-time call-related information
3. 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 to any person other than the customer of the telecommunication
service provider concerned to whom such archived or real-time call-related
information relates; 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 to him or her or any other person: Provided that a customer of a
telecommunication service provider may authorise the telecommunication service
provider of which he or she is a customer or an employee of that
telecommunication service provider to provide archived or real-time
call-related information which relates to him or her to any person specified by
the customer concerned.
Part 2
Exceptions to prohibitions
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[22]
3 4. Any—
(a) law enforcement
officer {or other person} authorised 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[23]
4 5. (1) Any person {, including a law
enforcement officer,} may intercept any communication if he or she is a
party to the communication, unless such communication is intercepted by such
person for purposes of committing an offence.[24]
{(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 11(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 11(1) or 16(1) for the issuing of an
interception direction or an oral interception direction;[25] 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.}
(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 an offence.}
Interception of communication with consent of party to communication
5 6. (1) Any person {, including a law
enforcement officer,} may intercept any communication if one of the parties
to the communication has given prior consent {in writing} to such
interception[26], unless
such communication is intercepted by such person for purposes of committing an
offence.[27]
{(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 11(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 11(1) or 16(1) for the issuing of an
interception direction or an oral interception direction;[28] 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—}[29]
(i) is satisfied that the
consent is voluntary; and
(ii) has given the law
enforcement officer concerned prior approval in writing for such interception.
{(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 crime an offence.}
Interception of indirect communication by, or on behalf of, postal
service provider or telecommunication service provider for purposes
relating to provision or operation of telecommunication service
6 7. (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;[30] or
(b) is effected for purposes
relating to the provision or operation of that telecommunication service.[31]
Interception of indirect communication by, or on behalf of, postal service
provider or telecommunication service provider
8. 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.[32]
Interception of communication for purposes of installation or
maintenance of equipment, facilities or devices
7 9. Any
person 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.[33]
Interception of indirect communication in connection with carrying on of
business
8 10. (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
(c) which otherwise takes
place in the course of the carrying on of that business,
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; or
(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;
(c) if the telecommunication
system concerned is provided for use wholly or partly in connection with that
business;
(d) if the system controller
has—
(i) informed every employee in his
or her business; and
(ii) made all reasonable
efforts to inform every other 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
[3]11. (1) An applicant may apply to a judge for
the issue issuing 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;[34]
(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.
[(1)](2) An application
for [purposes of section 4(2) or (4), must be made by] a reason
mentioned on a ground referred to in—
(a) [an officer referred
to in section 33 of the South African Police Service Act, if the officer
concerned obtained 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] subsection (1)(a) or (d), must be made by an
applicant referred to in paragraph (a) or (d) of the definition of
"applicant";
(b) [an officer as
defined in section 1 of the Defence Act, if the officer concerned obtained 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] 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) [a member as defined
in section 1 of the Intelligence Services Act, if the member concerned obtained
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 by an Investigating Director authorised in writing by the head
of the Directorate to make such an application] subsection (1)(e), must
be made by the National Director.
[(2)](3) Subject to
section [12(2)] 16, an application referred to in subsection (1)
must be in writing and must—
(a) [be in writing] 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) [contain full
particulars of all the facts and circumstances alleged by the officer or member
concerned in support of his or her application] indicate the specific
matter specify the ground referred to in subsection (1) in respect
terms 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 ground in terms 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)(d) indicate the
period for which the interception direction is required to be issued;
(f)(e) indicate whether
any previous application has been made for the issue issuing 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
[(c)](f) comply with [the]
any supplementary directives [referred to in] relating to
applications for interception directions issued under section [12(1)]
52.
Application for archived call-related direction[35]
12. (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 issuing of an archived call-related
direction.
(2) Section 11(1) and (2)
applies, 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 archived call-related direction must be addressed;
(b) indicate the
specific matter specify the ground referred to in section 11(1) in respect
terms 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 ground in respect terms 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)(e) indicate the
period for which, and the manner in which, the archived call-related
information is required to be provided;
(g)(f) indicate whether
any previous application has been made for the issue issuing 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)(g) comply with any
supplementary directives relating to applications for archived call-related
directions issued under section 52.
Application for supplementary direction or real-time call-related direction
13. (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
issuing 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 12(3)(a), (c), (d),
(e) and (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 application
is made, or a reasonable explanation of the failure to obtain such results;
(iii) contain proof that an
interception direction has been issued;
(iv) be made at any stage after the
issuing of the interception direction concerned, but before the expiry of the
period or extended period for which it has been issued; and
(iv)(v) comply with any
supplementary directives relating to applications for supplementary directions
issued under section 52.
(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 issuing of a
real-time call-related direction.
(b) Section 11(1) and (2)
applies, with the necessary changes, in respect of an application referred to
in paragraph (a).
(c) 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 12(3)(a), (b), (c),
(d), (e) and (f) and (g); and
(ii) comply with any
supplementary directives relating to applications for real-time call-related
directions issued under section 52.
Single application for interception direction and archived call-related
direction or real-time call-related direction, or both
14. (1) If,
in a specific case, the interception of an indirect 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 issuing of—
(a) an interception
direction; and
(b) an archived call-related
direction or a real-time call-related direction; or
(c) an archived call-related
direction and a real-time call-related direction.
(2) Sections 11, 12 and
13(2) apply, with the necessary changes, in respect of an application referred
to in subsection (1).
Application for amendment or extension of existing direction
15. (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 stage after the issuing of the existing
direction concerned, but before the expiry of the period for which that
direction it has been issued, apply to a judge for an amendment thereof or
the extension of the period for which the direction concerned it 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 of 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 52.
Oral application for interception direction
16. (1) An applicant may make an oral
application to a judge for the issue issuing 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— of the opinion that
it is not reasonably practicable, having regard to the urgency of the case or
(i) urgency of the
case; or
(ii) existence of any other
exceptional circumstances; and
(b)such
the existence of exceptional circumstances, to make a written application for
an interception direction as required by section 11(3).
(2) Section 11(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 11(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
(c) comply with any
supplementary directives relating to oral applications issued under section 52.
Application for decryption direction
17. (1) If an interception direction has been
issued, 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, at any stage after the issuing of the
interception direction concerned, but before the expiry of the period or
extended period for which it has been issued, apply to a judge for the issue
issuing 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} authorised
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;
(c) specify the—
(i) decryption key, if
known, 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)(d) indicate the
period for which the decryption direction is required to be issued;
(f)(e) indicate whether
any previous application has been made for the issue issuing 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)(f) 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)(g) contain proof
that an interception direction has been issued; and
(i)(h) comply with any
supplementary directives relating to applications for decryption directions
issued under section 52.
[Request] Application for entry warrant
18. (1) An applicant who—
(a) makes an application
referred to in section 11(1) may in his or her application, include a
request also apply for the issue issuing of an entry warrant; or
(b) made an application
referred to in section 11(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 stage
after the issuing of the interception direction in respect of which such an
application was made, but before the expiry of the period or extended period
for which it has been issued, make a request apply to a judge for the issue
issuing 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 An
application 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)(i) the premises in
respect of which the entry warrant is required to be issued;
(iii)(ii) the specific
purpose, referred to in the definition of "entry warrant", for which
the entry warrant is required; and
(iv)(iii) 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 application
is made, or a reasonable explanation of the failure to obtain such
results; and
(iii) contain proof that an
interception direction has been issued;
(c) indicate whether any
previous request application has been made for the issue issuing
of an entry warrant for the same purpose or in respect of the same premises
specified in the request application and, if such previous request
application exists, must indicate the current status of that request application; and
(d) comply with any
supplementary directives relating to requests applications for entry
warrants issued under section 52.
CHAPTER 4
DIRECTIONS AND ENTRY WARRANTS
[Issue] Issuing of interception direction
[4]19. (1) Notwithstanding section 2[(1)] or
anything to the contrary in any other law contained, [but subject to
subsection (2),] a judge may, upon an application [referred to in
section 3, direct that—
(a) (i) a postal article; or
(ii) a communication which has been
or is being or is intended to be transmitted by telephone or in any other
manner over a telecommunications system,
be intercepted;
(b) communications to or
from a person, body or organisation, whether a telecommunications system is
being used in conducting or transmitting those communications or not, be
monitored in any manner by means of a monitoring device] made to him or
her in terms of section 11(1), issue an interception direction.
(2) [A] An interception
direction may only be issued if the judge concerned is satisfied, on the facts
alleged in an application [referred to in section 3] concerned
that—
(a) there are reasonable
grounds to believe that—
[(a)](i) a serious offence
has been or is being or will {probably / possibly} be committed
and cannot be investigated in another appropriate manner; [or]
[(b)](ii) the gathering
of information concerning an actual threat to the public health or safety,
national security or [other] compelling national {economic}
interests of the Republic [are threatened or that] is necessary; or
(iii) the gathering of
information concerning a potential threat to the public health or
safety or national security [or other compelling national interests]
of the Republic is necessary and cannot be obtained in another appropriate
manner;[36] 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,
and that the offence cannot be investigated, or the information cannot be
obtained, in another appropriate manner;
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 and cannot be obtained in another appropriate manner; and
(b) there are reasonable
grounds to believe that the—
(i) interception of
particular communications concerning the relevant matter ground 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 ground referred
to in paragraph (a) are commonly used by the person or customer in respect of
whom the application for the issue issuing 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) [A] 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;
(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 [mentioned in the direction] specified therein.
[(4) Any judge may upon an
application —
(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,
if the extension or amendment, as the case may be, is necessary for a reason
mentioned in subsection (2).][37]
[(5)](4) (a) An application referred to in subsection
[(2) or (4)] (1) must be [heard] considered and [a]
an interception direction issued without any notice to the person [,
body or organisation to which] or customer to whom the application
applies and without hearing such person[, body or organisation] 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 as he or she deems necessary.
[(6) An application referred to
in subsection (2) or (4) may also be granted if an investigation referred to in
subsection (2)(a) may disclose information that may help to prevent the
commission of a serious offence.][38]
[Request for provision of] Issuing of archived call-related
[information] direction[39]
[9]20. (1) [If, in a specific case, only
call-related information without the actual monitoring of a communication is
required—
(a) an officer of at least
the rank of assistant‑commissioner in the Police Service or a member of
the Police Service occupying a post on at least the same level;
(b) an officer of at least
the rank of major‑general in the Defence Force;
(c) a member of the Agency
or the Service holding a post of at least general manager; or
(d) the head of the
Directorate or an Investigating Director of the Directorate,
may in writing request the service provider concerned to provide call-related
information in respect of the customer concerned] A
Notwithstanding section 3 or anything to the contrary contained in any other
law, a judge of a High Court{, a regional court magistrate or a magistrate}[40]
may, upon an application made to him or her in terms of section 12(1), issue an
archived call-related direction.
(2) (a) [A request referred to in subsection
(1) may only be made if there are reasonable grounds to believe that the
gathering of call-related information is necessary in an investigation relating
to—
(a) the commission or
alleged commission of a serious offence;
or
(b) a threat or
alleged threat to the security or other compelling national interests of the
Republic] 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 on a ground referred to in section 19(2)(a).
(b) Section 19(4) applies,
with the necessary changes, in respect of the issuing of an archived
call-related direction.
(3) [A request referred to in
subsection (1) must] 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) [contain particulars of]
must describe the type of archived call-related information which
is [required] authorised to be provided {and the reason mentioned
in section 19(2)(a) to which it relates};
[(b)] (c) must
indicate whether the archived call-related information must be—
(i) routed to [a central
monitoring] an interception centre and, if so, must specify the
designated [central monitoring] interception centre; or
(ii) provided to the Police
Service, the Defence Force, the Agency, the Service [or], 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 [and];
[(c)](d) must
specify the period for which, and the form in which, the provision of the archived
call-related information is [required] authorised; and
(e) may specify conditions
or restrictions relating to the provision of archived call-related information
authorised therein.
[Direction for provision of] Issuing of supplementary direction or
real-time call-related [information] direction[41]
[10]21. (1) (a) [Notwithstanding the fact that a direction has been issued
in terms of section 4, a] Notwithstanding section 3 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 13(1), issue a supplementary direction [in
which the service provider concerned is directed to provide call-related
information, on an ongoing basis for a specified period, as it becomes
available].
(b) [A service provider
to whom or which a supplementary direction referred to in paragraph (a)
is addressed, must, in respect of all communications which are monitored in
terms of this Act—
(i) route the call-related
information specified in the supplementary direction concerned to the
designated central monitoring centre concerned; or
(ii) provide the call-related
information specified in the supplementary direction concerned to the Police
Service, the Defence Force, the Agency, the Service or the Directorate, whichever is applicable] 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 on a ground referred to in section
19(2)(a).
(c) Sections [3 and 4(3), 4(4),
4(5) and 4(6)] 19(3)(e) and (4) and 20(3)(a), (b), (c) and (e)
apply, with the necessary changes, in respect of [an application for, and]
the issuing of[,] a supplementary direction [referred to in paragraph
(a)]: Provided that a
supplementary direction expires when the period or extended period for which
the interception direction concerned has been issued, lapses.
(2) (a) [Notwithstanding the fact that no direction has been issued
in terms of section 4 in a specific case, a] Notwithstanding section 3
or anything to the contrary in any other law contained, a judge may,
upon an application [if only call-related information on an ongoing basis
without the actual monitoring of a
communication is required, direct that the service provider concerned must—
(i) route the call-related
information specified in the direction concerned to the designated central monitoring
centre concerned; or
(ii) provide the call-related
information specified in the direction concerned to the Police Service, the
Defence Force, the Agency, the Service or the Directorate, whichever is
applicable] made to him or her in terms of section 13(2), issue a
real-time call-related direction.
(b) A real-time
call-related direction [referred to in paragraph (a)] may
only be issued [by a] if the judge [if he or she] 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 [in an investigation relating to—
(i) the commission or alleged
commission of a serious offence; or
(ii) a threat or alleged threat to
the security or other compelling national interests of the Republic] for
a reason mentioned on a ground referred to in section 19(2)(a).
(c) Sections [3 and 4(3), 4(4),
4(5) and 4(6)] 19(3)(e) and (4) and 20(3)(a), (b), (c) and (e)
apply, with the necessary changes, in respect of [an application for, and] the
issuing of[,] a real-time call-related direction [referred to
in paragraph (a)].
[(3) The availability of the
above procedures in respect of the provision of call-related information does
not preclude obtaining such information in respect of any person, body or
organisation in accordance with a procedure prescribed in any other Act: Provided that any such information which is
obtained in terms of such Act may not be obtained on an ongoing basis.][42]
Simultaneous [issue] issuing of interception direction and archived
call-related direction or real-time call-related direction, or both
22. (1) A judge may, upon an application made
to him or her in terms of section 15(1), simultaneously issue—
(a) an interception
direction; and
(b) an archived call-related
direction or a real-time call-related direction; or
(c) an archived call-related
direction and a real-time call-related direction.
(2) Section 19, 20 and 21(2)
apply, with the necessary changes, in respect of the issue of the relevant
directions under subsection (1).
Amendment or extension of existing direction
23. (1) A judge may, upon an application made
to him or her in terms of section 14(1)—
(a) amend an existing
direction; or
(b) extend the period
for which an existing direction has been issued.
(2) An existing direction
may only be amended or the period for which an existing direction it has
been issued may only be extended— if the judge
concerned is satisfied, on the facts alleged in the application concerned, that
the
(a)direction concerned continues to be necessary for a reason mentioned in
section 17(2)(a); and amendment or
extension is necessary for purposes of achieving the objectives of the
direction concerned: Provided that the
period for which an existing direction has been issued may only be extended for
a further period not exceeding three months at a time.
(b)
(3) Any amendment of an existing
direction or extension of the period for which it has been issued, must be in
writing.
(3)(4) Sections 19(4)
and 27 apply, 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.
Issuing of oral interception direction[43]
24. (1) A judge may, upon an oral application
made to him or her in terms of section 16(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 on a ground
referred to in section 19(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 11 and 19, 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.[44]
(3) Section 19(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, or any person authorised thereto in writing by him
or her, must personally , as soon as possible thereafter, inform the
applicant and, if applicable, the postal service provider or telecommunication
service provider to whom it is addressed, {in writing} 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 28, confirm that oral
interception direction in writing within 24 hours after the receipt of the
written application referred to in subsection (2)(b).[45]
[Issue] Issuing of decryption direction
25. (1) A judge may, upon an application made
to him or her in terms of section 17(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} authorised
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;
(c) must specify the—
(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 19(3)(e) and (4)
applies, 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.
Issuing of entry warrant
26. (1) A judge may, upon a request an
application made to him or her in terms of section 18(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 application 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)(i) the premises in
respect of which the entry warrant has been issued; and
(iii)(ii) 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 19(4) applies,
with the necessary changes, in respect of the issuing of an entry warrant.
Reports to judge on progress
27. 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 or extended 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 in writing, at such intervals as he or
she may determines, 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.[46]
Cancellation of direction or oral interception direction
28. (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 27, if applicable; or
(b) he or she, upon receipt
of a report submitted in terms of section 27, 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 24(2)(b);
or
(b) the judge, upon receipt
of a written application contemplated in section 24(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)—
(a) the contents of any
communication intercepted under that oral interception direction must be
regarded as having been obtained in contravention of this Act will be
inadmissible as evidence in any criminal proceedings or civil proceedings as
contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act; or
(b) any postal article that was
taken into possession under that oral interception direction must be dealt with
in accordance with section 29(3).
CHAPTER
5
EXECUTION OF DIRECTIONS AND ENTRY WARRANTS
Execution of direction
[5]29. (1) If a direction has been issued [in
terms of section 4] under this Act, any [member of the Police
Service or a member, excluding a member of a visiting force, as defined in
section 1 of the Defence Act, a member of the Agency or the Service or a member
of the Directorate] law enforcement officer or any other person may
execute that direction or assist with the execution [of the direction
concerned] thereof, if the [member] law enforcement
officer or person concerned has been authorised by the [officer or
member who made the application in terms of section 3(1)] applicant who
made the application for the issue of the direction concerned to execute
that direction or to assist with the execution [of the direction] thereof.
(2) [A member] law
enforcement officer [or other person] An authorised person
who executes a direction or assists with the execution [of a direction] thereof
may—
(a) [take
possession of and examine any postal article or telegram to which the direction
applies, or, as the case may be, listen in to or make a recording of any
communication] intercept, at any
place in the Republic, any—
(i) direct
communication in the course of its occurrence;
or
communication in the course of its occurrence or transmission
(ii) indirectby means of a
postal service or telecommunication system, as the case may be,
to which the direction applies.
(3) If any postal article has
been taken in possession in terms of subsection (2)(b), the authorised person
who executes the direction concerned or assists with the execution thereof—
(a) must take proper care of such
postal article and may, if the postal article concerned is perishable, with due
regard to the interests of the persons concerned and with the written approval
of the applicant concerned, dispose of that postal article in such manner as
the circumstances may require;
(b) must, with the written approval
of the applicant concerned, return such postal article, if it has not been
disposed of in terms of paragraph (a), or cause it to be returned to the postal
service provider concerned if, in the opinion of the applicant concerned—
(i) no criminal proceedings or
civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of
Organised Crime Act, will be instituted in connection with such postal
article; or
(ii) such postal article will not
be required at any such criminal or civil proceedings for purposes of evidence
or for purposes of an order of court;
and
(iii) such postal article 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; or
(c) may, in circumstances
other than those referred to in —
(b)(i) paragraph (b), with the
written approval of the applicant concerned, return a such 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—
(aa) has not been disposed of in
terms of paragraph (a); and
(bb) 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; or
(c)(ii) paragraph (a), on the written
instructions of the applicant concerned dispose of the such 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 such postal article concerned—
(aa) has not been disposed of in
terms of paragraph (a), and
(bb) in the opinion of the applicant
concerned, cannot be returned in terms of paragraph (b) subparagraph
(i) without prejudice to the public health or safety, national security or
compelling national {economic} interests of the Republic, as the case
may be.
[(3)](4) The [officer
or member who granted the authorisation referred to in subsection (1),] applicant
concerned may authorise such number of [members] law
enforcement officers [or other persons] authorised person
to assist with the execution of the direction as he or she deems necessary.
[(4) A member or other person who
executes a direction or assists with the execution of a direction may at any
time enter or board any premises, vehicle, vessel or aircraft in order to
install, maintain or remove a monitoring device, or to intercept or take into
possession a postal article, or to intercept any communication, or to install,
maintain or remove a device by means of which any communication can be
intercepted, for the purposes of this Act.][47]
Execution of entry warrant[48]
30. (1) [A member] If an entry warrant
has been issued, any law enforcement officer [or other person]
authorised person who executes [a] the interception
direction in respect of which that entry warrant has been issued or
assists with the execution [of a direction] thereof may at any
time during which the entry warrant is of force, without prior notice
enter [or board any] the premises[, vehicle, vessel or
aircraft in order to] specified in the entry warrant for purposes of—
(a) intercepting a
postal article or communication on the premises;
(b) [install, maintain or
remove a monitoring device, or to intercept or take into possession a postal
article, or to intercept any communication, or to install, maintain or remove a
device by means of which any communication can be intercepted, for the purposes
of this Act] 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 entry warrant concerned,
as specified in the entry warrant.[49]
(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
(c) his or her personal
privacy.
(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)(3) Subject to
subsections (2), (5), (6), (7) and (8) (4), (5) and (6), any law
enforcement officer {or other person} authorised person may, without
an entry warrant, enter any premises for the purposes referred to in subsection
(1) if the law enforcement officer {or person} authorised 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)(4) 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)(5) (a) A law enforcement officer {or
other person} An authorised 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}
authorised 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} authorised
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)(6) 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} authorised 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 [at execution of direction] by postal service provider and
telecommunication service provider[s]
[6]31. (1) If [a] an interception
direction or a copy thereof is handed to the postal service provider or
telecommunication service provider to whom [or which] the interception
direction is addressed by [a member] the law enforcement officer
[or other person] authorised person who executes that interception
direction or assists with the execution [of that direction] thereof,
the [service provider concerned must as soon as possible]—
(a) postal service
provider concerned must as soon as possible intercept the postal article [or
telegram concerned or all postal articles or telegrams] to which the interception
direction applies and hand it to [a member] the law enforcement
officer [or other person who is authorised in terms of section 5(1)
to execute the direction concerned or to assist with the execution thereof]
authorised person concerned; or
(b) telecommunication
service provider concerned must as soon as possible—
(i) make available the necessary
assistance and, subject to section 44(6)(b), the necessary facilities
and devices to enable the [member] law enforcement officer
[or other person who is authorised in terms of section 5(1) to
execute a direction or to assist with the execution of a direction] authorised
person concerned, to effect the necessary connections in order to [monitor]
intercept any indirect communications to which the interception
direction applies; or
(ii) route the duplicate
signals of indirect communications to which that interception direction applies
to the designated interception centre concerned[50].
[(2) If a service provider, for
the purposes mentioned in—
(a) subsection (1)(b),
has made a facility, device or telecommunications system available;
(b) section 8(3), has routed
duplicate signals; or
(c) sections 9(1) and 10(1)
or (2), has provided or routed call-related information,
the remuneration agreed upon by the service provider and the National
Commissioner of the Police Service, the Chief of the Defence Force, the
Director‑General of the Agency or the Service or the head of the
Directorate, as the case may be, must be paid to that service provider.
(3) If an agreement is not reached
in terms of subsection (2), the Minister of Communications, with the
concurrence of the Minister of Finance, must determine a reasonable
remuneration in order to compensate a service provider at least for any costs
incurred as a result of any direction handed to the service provider concerned
in terms of this Act.
(4) The remuneration referred to in
subsections (2) and (3) is only in respect of direct costs incurred in respect
of personnel and administration and the lease of telecommunications systems,
where applicable, and may not include the costs of acquiring the facilities and
devices referred to in section 7(2).][51]
(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} authorised 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.[52]
Assistance by decryption key holder
32. (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} authorised
person who executes that decryption direction or assists with the execution
thereof, the decryption key holder concerned must {as soon as {practically}
possible/ within 36 working hours after receipt of the decryption direction}—
(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} authorised 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} authorised 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} authorised 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} authorised 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} authorised person who executes
the decryption direction or assists with the execution thereof.
(8) A law enforcement
officer {or other person} An authorised 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 or extended period for which the decryption direction
concerned has been issued, with the written approval of the applicant who made
the application for the issuing of a decryption direction, destroy all records
of the disclosed decryption key if, in the opinion of the applicant concerned—
(i) no criminal proceedings or
civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of
Organised Crime Act, will be instituted in connection with such records; or
(ii) such records will not be
required at any such criminal or civil proceedings for purposes of evidence or
for purposes of an order of court.
CHAPTER
6
INTERCEPTION CAPABILITY, INTERCEPTION CENTRES AND COSTS
[Prohibition of certain] Interception capability of telecommunication
services
[7]33. (1) Notwithstanding any other law, no telecommunication
service provider may provide any telecommunication service which does not have
the [capacity] capability to be [monitored] intercepted: Provided that a telecommunication
service provider [providing such a service] 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.
[(4)] (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, [may from time to time]
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.
[(5)] (3) A directive
referred to in subsection [(4)](2)(a) [may include
specifications relating to] must, if applicable, 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 [central
monitoring] interception centres referred to in section [8] 34;
(e) the manner of routing
duplicate signals of indirect communications to designated [central
monitoring] interception centres in terms of section [8(3)] 31(1)(b)(ii); [or]
(f) the manner of routing archived
or real-time call-related information to designated [central monitoring]
interception centres in terms of [sections 9(4) and 10(1) or (2)]
section 31(2); or
(g) any other matter
which the Minister of Communications deems necessary or expedient.
[(2)] (4) A telecommunication
service provider must, subject to section 44(1), at own cost [and
within the period, if any, specified by the Minister of Communications in a
directive referred to in subsection (4)(a),] acquire the [necessary]
facilities and devices [to enable the monitoring of communications in terms
of this Act] determined in a directive referred to in subsection (2)(a).
[(3)] (5) The investment,
technical, maintenance and operating costs in enabling a telecommunication
service to be [monitored] 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.
[Central monitoring] Interception centres
[8]34. (1) (a) The Police Service, the Defence Force, the Agency, the
Service [and], the Directorate and the National Director
must, at State expense, establish, equip, operate and maintain [central
monitoring] interception centres for the authorised [monitoring]
interception of communications in terms of this Act.
(b) An agreement on the
sharing of [a central monitoring] 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 [and], the head of the Directorate and
the National Director, respectively, {must / may} designate
specific [central monitoring] interception centres established in
terms of subsection (1) for purposes of giving effect to [subsection (3) and
sections 9(4)(a) and 10(1)(b)(i) and (2)(a)(i)] section
31.
[(3) Duplicate signals of
communications authorised to be monitored in terms of this Act, must be routed
by the service provider concerned to the designated central monitoring centre
concerned.][53]
Remuneration payable to postal service provider, telecommunication service provider
and decryption key holder[54]
35. (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 of indirect communications; 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 33(2)(a).
(4) Any notice issued under
subsection (1) must, before publication thereof in the Gazette, be
submitted to Parliament.
[Request for provision of call-related information
9. (1) If, in a specific case, only call-related information without
the actual monitoring of a communication is required—
(a) an officer of at least
the rank of assistant‑commissioner in the Police Service or a member of
the Police Service occupying a post on at least the same level;
(b) an officer of at least
the rank of major‑general in the Defence Force;
(c) a member of the Agency
or the Service holding a post of at least general manager; or
(d) the head of the
Directorate or an Investigating Director of the Directorate,
may in writing request the service provider concerned to provide call-related
information in respect of the customer concerned.
(2) A request referred to in
subsection (1) may only be made if there are reasonable grounds to believe that
the gathering of call-related information is necessary in an investigation
relating to—
(a) the commission or
alleged commission of a serious offence;
or
(b) a threat or
alleged threat to the security or other compelling national interests of the
Republic.
(3) A request referred to in
subsection (1) must—
(a) contain particulars of
the call-related information which is required;
(b) indicate whether the
call-related information must be—
(i) routed to a central monitoring
centre and, if so, must specify the designated central monitoring centre; or
(ii) provided to the Police
Service, the Defence Force, the Agency, the Service or the Directorate,
whichever is applicable; and
(c) specify the period for
which, and the form in which, the provision of the call-related information is
required.
(4) Any service provider who or
which receives a request referred to in subsection (1) must as soon as possible
after such receipt—
(a) route the call-related
information specified in the request concerned to the designated central
monitoring centre concerned; or
(b) provide the call-related
information specified in the request concerned to the Police Service, the
Defence Force, the Agency, the Service or the Directorate, whichever is
applicable, in the form as requested.[55]
Direction for provision of call-related information
10. (1) (a) Notwithstanding
the fact that a direction has been issued in terms of section 4, a judge may,
upon an application, issue a supplementary direction in which the service
provider concerned is directed to provide call-related information, on an
ongoing basis for a specified period, as it becomes available.
(b) A service provider to
whom or which a supplementary direction referred to in paragraph (a) is
addressed, must, in respect of all communications which are monitored in terms
of this Act—
(i) route the call-related
information specified in the supplementary direction concerned to the
designated central monitoring centre concerned; or
(ii) provide the call-related
information specified in the supplementary direction concerned to the Police
Service, the Defence Force, the Agency, the Service or the Directorate,
whichever is applicable.
(c) Sections 3 and 4(3),
4(4), 4(5) and 4(6) apply with the necessary changes in respect of an
application for, and the issuing of, a supplementary direction referred to in
paragraph (a): Provided that a
supplementary direction expires when the period or extended period for which
the direction concerned has been issued, lapses.
(2) (a) Notwithstanding the fact that no
direction has been issued in terms of section 4 in a specific case, a judge may
upon an application, if only call-related information on an ongoing basis
without the actual monitoring of a communication is required, direct that the
service provider concerned must—
(i) route the call-related
information specified in the direction concerned to the designated central
monitoring centre concerned; or
(ii) provide the call-related
information specified in the direction concerned to the Police Service, the
Defence Force, the Agency, the Service or the Directorate, whichever is
applicable.
(b) A direction referred to
in paragraph (a) may only be issued by a judge if he or she is
satisfied, on the facts alleged in the application, that there are reasonable
grounds to believe that the gathering of call-related information is necessary
in an investigation relating to—
(i) the commission or alleged
commission of a serious offence; or
(ii) a threat or alleged threat to
the security or other compelling national interests of the Republic.
(c) Sections 3 and 4(3),
4(4), 4(5) and 4(6) apply with the necessary changes in respect of an
application for, and the issuing of, a direction referred to in paragraph (a).
(3) The availability of the above
procedures in respect of the provision of call-related information does not
preclude obtaining such information in respect of any person, body or
organisation in accordance with a procedure prescribed in any other Act: Provided that any such information which is
obtained in terms of such Act may not be obtained on an ongoing basis.][56]
CHAPTER 7
DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER
Information to be obtained and kept by telecommunication service
provider
[11]36. (1) [A] Before a telecommunication
service provider [must], 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) [before he, she or it
enters into a contract with any person, for the provision of a
telecommunication service to such person] must, obtain from such
person—
[(i)] [in the case of]
if that person is a natural person [, require from such person] at
least—
(i) obtain from him or her—
(aa) his or her full names, identity
number, residential and business or postal address [and identity
number]; [or] and
(bb) a {certified} photocopy
of that page of his or her identification document on which his or her photo,
full names and identity number appear and must retain such photocopy; and
(ii) verify the photo, full names
and identity number of that person with reference to his or her identification
document; or
[(ii)](b) must, [in
the case of a corporation or any other organisation, require from such
corporation or organisation] at least if that person is a
juristic person—
(i) obtain from the person
representing that juristic person—
(aa) his or her full names, identity
number, residential and postal address;
(bb) [its] the
business name and address and, if registered as such in terms of any law, [its]
the registration number of
that juristic person;
(cc) a {certified} photocopy
of that page of his or her identification document on which his or her photo,
full names and identity number appear;
and
(dd) a {certified} photocopy
of the business letterhead of, or other similar document relating to, that
juristic person;
(ii) retain the photocopies
obtained in terms of subparagraph (i)(cc) and (dd); and
(iii) verify—
(aa) the photo, full names and
identity number of that person with reference to his or her identification
document; and
(bb) the name and registration
number of that juristic person with reference to its business letterhead or
other similar document; and
[(iii)] (c) may
obtain from such person any [such] other information [as] which
the telecommunication service provider deems necessary for purposes
of this Act[; and].
[(b)](2) A
telecommunication service provider referred to in subsection (1) must
ensure that proper records are kept of—
[(i)](a) the information,
including the photocopies, referred to in [paragraph (a)] subsection
(1) and, where applicable, any change in such information which is brought
to [the] his or her attention [of the service provider] in
terms of section 36(1); and
[(ii)](b) if applicable,
the number allocated to the person concerned [are kept].
[(2)](3) A telecommunication
service provider referred to in subsection (1) must provide the Police
Service, the Defence Force, the Agency, the Service [or], 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 [section 3(1)] paragraph (a), (b), (c)
or (d) of the definition of "applicant", the National
Director or a law enforcement officer {or other person} an
authorised person who executes a direction or assists with the execution
thereof, to perform the functions and exercise the powers authorised by
law.
[(3)](4) The obligation in
terms of subsection [(2)](3) includes the provision of the
information and the furnishing of the photocopies referred to in
subsection (1)[(a) in respect of a person—
(a) with whom the service
provider concerned has entered into a contract for the provision of a
telecommunication service; or
(b) to whom a pre-paid
telecommunication service is provided, if such information is available].
Information to be obtained and kept in respect of cellular phone and
SIM-card
37. (1) Before a telecommunication service
provider, who provides a mobile cellular telecommunication service, supplies a
cellular phone or SIM-card to any— trade partner or
person for purposes of the sale thereof, or the provision thereof in any other
manner, to any other person
(a); or
(b) person for
purposes of the donation thereof or the awarding thereof as a prize or reward,
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.
(a) must, if that trade
partner or person is a natural person—
(i) obtain from him or her—
(aa) his or her full names, identity
number, residential and business or postal address; and
(bb) a {certified} photocopy
of that page of his or her identification document on which his or her photo,
full names and identity number appear and must retain such photocopy; and
(ii) verify the photo, full names
and identity number of that person with reference to his or her identification
document; or
(b) must, if that trade partner or
person is a juristic person—
(i) obtain from the person
representing that juristic person—
(aa) his or her full names, identity
number, residential and postal address;
(bb) the business name and address
and, if registered as such in terms of any law, the registration number
of that juristic person;
(cc) a {certified} photocopy
of that page of his or her identification document on which his or her photo,
full names and identity number appear;
and
(dd) a {certified} photocopy
of the business letterhead of, or other similar document relating to, that
juristic person;
(ii) retain the photocopies
obtained in terms of subparagraph (i)(cc) and (dd); and
(iii) verify—
(aa) the photo, full names and
identity number of that person with reference to his or her identification
document; and
(bb) the name and registration
number of that juristic person with reference to its business letterhead or
other similar document; and
(c) 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 Subsection
(1) applies, with the necessary changes, in respect of a telecommunication
service provider referred to in subsection (1), or a trade partner and a
person who sells, or in any other manner provides, a cellular phone or SIM-card
to any other 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).
(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.
(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.
(3) Section 36(2), (3) and
(4) applies, with the necessary changes, in respect of a telecommunication
service provider referred to in subsection (1), a trade partner and a person
who sold, or in any other manner provided, a cellular phone or SIM-card to any
other person.
[Notification of change of address or other information
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
38. (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 / a reasonable time}
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]
any police station [nearest to the place where it occurred].[57]
(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.
(3) A record of every report
made in terms of subsection (1) must be kept at the police station where such a
report has been made.
(4) (a) The Minister must, within three months after the fixed date
and in consultation with the Minister for Safety and Security, issue directives
prescribing—
(a) the form and manner in which—
(i) a report contemplated in
subsection (1) must be made; and
(ii) records contemplated in
subsection (3) must be kept; and
(b) the information to be contained
in such a report or record.
(b) Any directive issued under
paragraph (a) may at any time in like manner be amended or withdrawn.
Presumptions
relating to failure to report
39. (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.
[Directives regarding applications
12. (1) The respective Judges‑President of the High Courts may
jointly issue directives in which the manner and procedure of applications in
terms of sections 3(1) and 4(4) are uniformly regulated.
(2) (a) If a judge considers any case to be
sufficiently urgent, the procedure contemplated in subsection (1) 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.
(b) An oral direction
referred to in paragraph (a) must be confirmed in writing within 48
hours.[58]
Use of information in criminal proceedings
13. (1) The use of any information obtained by the application of
this Act, or any similar Act in another country, as evidence in any
prosecution, is subject to the decision of 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
monitoring in terms of this Act, or any similar Act in another country, may be
admissible as evidence in criminal proceedings.][59]
CHAPTER 8
PROHIBITIONS AND EXEMPTIONS
[Secrecy] Prohibition on disclosure of information
[14]40. (1) No person [who is or was concerned in
the performance of any function in terms of this Act,] may disclose any
information which he or she obtained in the exercising of his or her powers
or the performance of [such a function] 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 [function] duty in terms of
this Act, whether that employee is involved in the exercising of that power
or the performance of that [function] 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 authorised
person for performance of official duties
41. (1) Notwithstanding section 40, any law
enforcement officer {or other person} authorised 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
authorised person making or the law enforcement officer 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} an authorised 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).
[COMMENT3]Listed
equipment
42. (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
43. (1) Subject to subsection (2) and section
44, 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 authorised person 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)(b) 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)(c) 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)(d) 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 44;
or
(f)(e) 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
44. (1) The Minister may, upon application and after consultation
with the relevant Ministers, exempt any—
(a) telecommunication service provider from
complying with section 33(4); or
(b) person from section 43(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[60]
[13]45. (1) The use of any information obtained by
the application of this Act, or any similar Act in another country, as evidence
in any [prosecution] 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.[61]
(2) Information regarding the
commission of any criminal offence, obtained by means of any interception [or
monitoring in terms of] , 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
46. 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
(c) specifies the contents
of such direction,
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
47. (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[62]
[15]48. (1) (a) [A] Any person who—
(a) contravenes or fails to
comply with section [ 2(1) or 14 is guilty of an offence and liable on
conviction, in the case of a contravention of—
(a) section 2(1), to a fine
or to imprisonment for a period not exceeding two years; or
(b) section 14, to a fine or
to imprisonment for a period not exceeding five years] 2(1) or (2)(b),
3(b), 32(8), 36(1) , 38, 40(1), 43(1) or 47;
(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 38(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;[63] or
(h) obstructs or hinders a
law enforcement officer {or any other person} an authorised 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), 40(2);
(ii) contravenes or fails
to comply with section 31(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.
[(2)](3) (a) Any telecommunication service
provider or employee of a telecommunication service provider who [or
which]—
[(a)](i) contravenes
or fails [or refuses] to comply with[, or to assist with the
execution of, a direction issued in terms of
section 4 or 10(2) or a supplementary direction issued in terms of
section 10(1)] section 31(1)(b) or (2), 33(1) or 36(3) or 37(6);
[(b)](ii) contravenes
or fails [or refuses] to comply with [a directive issued in terms
of] section [7(4)] 33(2);
[(c)](iii) contravenes
or fails to comply with section [7(1), 8(3) or 11(2)] 2(1)
or (2)(a) , 3(a), 36(1) or (2) or 37(1) or (2) or (5) or 36(2); [or]
[(d)](iv) [contravenes
section 11(1)] makes any entry in the records to be kept under section
36(2) or 37(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 [and liable on conviction, in the case of a
conviction of an offence referred to in—
(i) paragraph (a), (b)
or (c), to a fine not exceeding R1,000 000 and to a further fine not
exceeding R50 000 for every day during which such failure, refusal or contravention
continues; [or]
(ii) paragraph (d), to a
fine not exceeding R200 000].
(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
37(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 32(1);
(ii) contravenes or fails
to comply with section 32(2), (3)(b), (5) or (7) or 40(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)(6) 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 31(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 31(1)(b) or (2), 33(1) or (2) or 36(3) or 37(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 32(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.
[(3)](7) Notwithstanding
anything to the contrary in any other law contained, a magistrate's court may
impose any penalty provided for in this Act.
[(4)](8) 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)].
[COMMENT4]Forfeiture
of listed equipment
49. (1) A court convicting a person of an
offence referred to in section 48(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;
(c) which was found in the
possession of the convicted person; or
(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
(c) could not have prevented
the commission of the offence.
(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).[64]
Revoking of licence to provide telecommunication service
[16]50. 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),[65]
may, in the case of a second or subsequent conviction of an offence referred to
in section [15(2)(b)] 48(3)(b)(a)(ii) and notwithstanding
the imposition of any penalty prescribed by section [15(2)] 48(3)(b),
revoke the licence issued to the telecommunication service provider
concerned [in terms of] 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[66]
51. (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 20 and 21 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.[67]
Supplementary directives regarding applications and requests
[12]52. (1) [The] 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, [may jointly]
issue directives [in which] to supplement the [manner and]
procedure [of] for making applications for the issue issuing
of directions or requests for the issue of entry warrants in terms
of [sections 3(1) and 4(4)] this Act [are uniformly regulated].
(2) [(a) If a judge considers any case to be
sufficiently urgent, the procedure contemplated in subsection (1) 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.
(b) An oral direction
referred to in paragraph (a) must be confirmed in writing within 48
hours.][68] 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
[17]53. 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 51 of the
Regulation of Interception of Communications Act, 2001 2002, 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
[18]54. 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 51 of the Regulation of Interception of Communications Act, 2001
2002, 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
[19]55. 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
2002, 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
[20]56. 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 2002,
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
[21]57. (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 [the] purposes of that Act was still in force
immediately before the [commencement of this Act] 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 [commencement of this Act] 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 [commencement of this Act] fixed date, has been obtained as
contemplated in section [2(2) or (3)] 5, 6 or 10, 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
[22]58. This Act is called the
Regulation of Interception [and Monitoring] of Communications
Act, [2001] 2002, 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 involving sabotage;
5. any offence relating to
the death of, or infliction of grievous bodily harm to, any person;
6. rape;
7. kidnapping;
8. arson;
9. public violence;
10. robbery;
11. indecent assault;
12. 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;
(c) soliciting or enticing
such girl or boy to the commission of an immoral or indecent act;
13. contravention of section
20(1) of the Sexual Offences Act, 1957 (Act No. 23 of 1957);
14. any offence contemplated
in section 1(1) of the Corruption Act, 1992 (Act No. 94 of 1992);
15. extortion;
16. childstealing;
17. breaking or entering any
premises whether under the common law or a statutory provision, with intent to
commit an offence;
18. theft, whether under the
common law or a statutory provision;
19. fraud;[69]
20. any offence referred to
in section 13(f) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992);
21. 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;
22. 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;
23. any offence under any
law relating to the illicit dealing in or possession of precious metals or
precious stones;
24. any offence contemplated
in sections 1(1) and 1A(1) of the Intimidation Act, 1982 (Act No. 72 of 1982);
25. defeating or obstructing
the course of justice;
26. perjury;
27. subornation of perjury;
28. any offence referred to
in Chapter 3 of the Prevention of Organised Crime Act;
29. 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.
[2]. See existing clause 3(1).
[3]. The view has been expressed that
"municipal police" should also be included in this definition and in
the definition of "law enforcement officer".
[4]. Telkom points out that—
(a) at present, it only stores data in respect of outgoing
calls of its subscribers and that no data is available in respect of incoming
calls not originating from within its own network; and
(b) the use of the words "generated or received by a
customer" seems to imply that operators will in future be obliged to keep
record of incoming communications not originating from within their own
networks.
A policy decision needs to be taken regarding
the above matter.
[5]. This proposed amendment must be read
with the proposed new definitions of "direct communication" and
"indirect communication".
[6]. The view has been expressed that
this expression should, for legal certainty, be defined.
[7]. See definition of
"contents" in section 2510(8) of USA Act. The view has been expressed that this definition could be problematic
if it is intended to oblige operators to analyse communications for which they
merely provide a conduit.
[8]. Section 1 of the Interpretation Act,
1957, defines "person" as follows:
"'person' includes‑
(a) any divisional council, municipal
council, village management board, or like authority;
(b) any
company incorporated or registered as such under any law;
(c) any body of persons corporate or unincorporate;".
[9]. 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.".
[10]. Section 25 of the Identification
Act, 1997, provides as follows:
Transitional arrangements
25. (1) Until a date determined by the
Minister by notice in the Gazette the Director‑General shall continue to
issue the green, bar‑coded identity documents in accordance with the
Identification Act, 1986 (Act 72 of 1986), despite the repeal of that Act by
section 24.
(2) Any
green, bar‑coded identity document issued in accordance with the
Identification Act, 1986, shall remain valid until it is replaced by an
identity card issued in terms of section 14 or until a date contemplated in
subsection (4), whichever is the sooner.
(3) As
from the date of commencement of the Identification Amendment Act, 2000, all
forms of identity documents other than the green, bar‑coded identity
documents issued in accordance with the Identification Act, 1986, will cease to
be valid.
(4) The Minister may by notice in the
Gazette fix a date for the replacement of green, bar‑coded identity
documents referred to in subsection (2) and may make regulations regarding such
replacement.
[11]. The South African Passports and Travel
Documents Act, 1994, defines "South African passport" and
"travel document" as follows:
"'South
African passport' means a passport issued in terms of this Act to a South
African citizen;" and
"'travel
document' means any travel document other than a passport, issued in terms of
this Act to a person who is not a South African citizen."
The Aliens Control Act, 1991, defines passport as follows"
"'passport' means any passport or travel
document issued‑
(a) to a person under the South African Passports and Travel
Documents Act, 1994 (Act 4 of 1994);
(b) on behalf of the government of any country or territory,
recognized by the Government of the Republic, to a person who is a citizen of
the country or territory concerned but not also a South African citizen; or
(c) on behalf of any international organization, so
recognized, to a person who is not a South African citizen,
and which‑
(i) contains a personal description of such person, the name
of the country in which he or she was born and the date of his or her birth,
and to which a photograph of him or her is attached in which all his or her features
are clearly and correctly depicted; and
(ii) in the case contemplated in paragraph (c), was recognized
beforehand as such by the Minister;
[12]. The view has been expressed that an
"interception device" should be a device which will not interfere
with a service provider's obligation to provide telecommunication services to
its customers.
[13]. See definition in section 2510(5) of
the USA Act.
[14]. See, for example, the legislation of
the USA, Ohio, Oregon and Massachusetts.
[15]. The view has been expressed that
this expression should, for legal certainty, be defined.
[16]. 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.".
[17]. The deletion of this definition must
be read with the new proposed definition of "customer" and the new
clauses 36 and 37. No distinction is
drawn between a "contract" and "pre-paid" telecommunication
service.
[18]. The view has been expressed that
this expression should, for legal certainty, be defined.
[19]. Consideration could be given to the
possibility of including this subparagraph as an item in the Schedule.
[20]. Consideration could be given to the
inclusion of paragraph (e) in the Schedule (which already contains a reference
to Chapter 3 of the said Act).
[21]. The view has been expressed that the
constitutionality of the broad definition of "serious offence" should
be considered.
[22]. This clause is a duplication of the
provisions of clauses 29(2)(a) and 31(2) and therefore the deletion thereof
could be considered.
[23]. As clauses 5(2) and 6(2) contain
almost identical provisions, the possibility of combining clauses 5 and 6 could
be considered.
[24]. See section 2511(2)(d) of the USA
Act and exceptions in section 6(2) of the Australian Act. The view has also been expressed that a law
enforcement officer who intercepts a communication in terms of this clause
should be obliged to seek ratification of his or her actions by a judge (in the
same manner as an application is made in terms of clause 11) and that failure
to do so should be made an offence.
[25]. See section 7(4) of the Australian
Act.
[26]. Section 3(1) of the United Kingdom
Act requires the consent of both parties.
[27]. See section 2511(2)(d) of the USA
Act.
[28]. See section 7(5)(b) 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.
[29]. See section 5704(2)(ii) of the
Pennsylvania Act in respect of paragraph (b).
[30]. See section 7(2)(ac) of the
Australian Act.
[31]. See also section 2511(2)(a)(i) of
the USA Act for further exemptions i.r.o. service providers.
[32]. See section 3(3) of the United
Kingdom Act.
[33]. See section 7(2)(aa) and (ab) of the
Australian Act.
[34]. The view has been expressed that a
reference to "compelling national {economic} interests" should
also be inserted in paragraph (c).
[35]. The view has been expressed that
this provision will create unnecessary paperwork and delays. The same information could probably be
obtained in terms of section 205 of the Criminal Procedure Act, 1977.
[36]. The view has been expressed that a
reference to "compelling national {economic} interests" should
also be inserted in subparagraph (iii).
[37]. See new clauses 14 and 22.
[38]. The intention of this subsection is
not clear.
[39]. See existing clause 9.
[40]. The view has been expressed that
this power should be limited to judges.
[41]. See existing clause 10.
[42]. See new clause 51.
[43]. See existing clause 12(2). The view has been expressed that an
interception direction should always be in writing, irrespective of whether it
is issued on the ground of a written or
oral application.
[44]. The view has been expressed that
failure to comply with paragraph (b) should constitute an offence.
[45]. The view has been expressed that
provision should also be made for oral directions in respect of the provision
of call-related information?
[46]. The view has been expressed that
failure to comply with this clause should constitute an offence.
[47]. See new clauses 18, 26 and 30.
[48]. Existing clause 5(4).
[49]. It has been pointed out that service
providers, in terms of this provision, could be required to assist in the
execution of entry warrants. Should an
employee of a service provider in such event be involved in activities which
have caused damage to property, the service providers concerned could be
exposed to the risk of civil litigation.
Furthermore, the view has been expressed that service providers would
not like to expose their employees to the risk of personal harm or injury
should they be required to testify in criminal proceedings.
[50]. See existing clause 8(3).
[51]. See new clause 35.
[52]. See existing clauses 9(4) and
10(1)(b).
[53]. See new clause 31(1)(b)(ii).
[54]. See existing clause 6(2), (3) and
(4).
[55]. See new clauses 12 and 20.
[56]. See new clauses 13 and 21.
[57]. The view has been expressed that the
establishment of a single reporting centre should be considered.
[58]. See new clause 52.
[59]. See new clause 45.
[60]. See existing clause 13.
[61]. The view has been expressed that
information obtained under this Act should be available to be used in civil
proceedings without having to obtain permission from the National Director etc.
[62]. This clause needs further
consideration once the Bill reaches finalisation.
[63]. The view has been expressed that
this provision could have the effect that the offices of the Directors of
Public Prosecutions could be swamped with dockets relating to this offence.
[64]. 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.
[65]. 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;
(c) direct the licensee to take such remedial and other steps
as may be determined by the Authority;
(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).
[66]. See existing clause 10(3).
[67]. The view has been expressed that an
obligation to apply for directions for the provision of such call-related
information will create additional paper work for law enforcement officers. The need for placing a restriction
on the obtaining of archived or real-time call-related information "on an
ongoing basis" is therefore questioned.
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).
[68]. See new clauses 16 and 24.
[69]. The view has been expressed that the
possession of counterfeit notes should be included in the Schedule.
[COMMENT1]This
document was copied from Working Document 1 (Workdoc3(i)), as distributed in
the Portfolio Committee on 24/01/2002, whereafter it has been amended in
accordance with the Committee's instructions and additional comment received.
[COMMENT2]Exactly
the same as new clause 11(1) in amended form.
[COMMENT3]See
section 11 of Act 85 of 1993 and section 98A(2) of Act 24 of 1936.
[COMMENT4]See
section 48 of Act 12 of 1988, section 30 of Act 73 of 1989 and section 41 of
Act 4 of 1998.