REPUBLIC OF SOUTH AFRICA

THE REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL

(As introduced in the National Assembly as a section 75 Bill; explanatory summary of Bill published in Government Gazette No. of 2006)

(The English text is the official text of the Bill)

(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B —2006]

______________________________________________________________________________

REPUBLIEK VAN SUID-AFRIKA

WYSIGINGSWETSONTWERP OP DIE WET OP DIE REËLING VAN ONDERSKEPPING VAN KOMMUNIKASIES EN VERSTREKKING VAN KOMMUNIKASIE-VERWANTE INLIGTING

(Soos by die Nasionale Vergadering ingedien as ‘n artikel 75-wetsontwerp; verduidelikende opsomming van Wetsontwerp gepubliseer in Staatskoerant No. van 2006)

(Die Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)

(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[B —2006]

GENERAL EXPLANATORY NOTE:

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

____________ Words underlined with a solid line indicate insertions in existing enactments

BILL

To amend the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002, so as to amend the registration of cellular phones and SIM-cards; and to provide for matters connected therewith.

Amendment of section 1 of Act 70 of 2002

1. Section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (hereinafter referred to as the principal Act), is hereby amended by the insertion after the definition of "Executive Director" of the following definition:

" ‘family member’ means a person’s –

spouse; or

child, parent, brother or sister, whether such a relationship results from birth, marriage or adoption;".

Substitution of section 40 of Act 70 of 2002

2. The following section is hereby substituted for section 40 of the principal Act:

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

40. (1) A telecommunication service provider who provides a mobile cellular service shall not—

(a) activate a SIM-card; or

(b) allow the use of any cellular phone,

on its telecommunication system unless the SIM-card or cellular phone is registered in the manner provided for in subsection (2).

(2) From the date of commencement of this section a telecommunication service provider must, subject to subsection (4), at own cost, implement a process on its telecommunication system in order to record and store the following information in a storage facility―

(a) the Mobile Subscriber Integrated Service Digital Network number (MSISDN-number) of the SIM-card;

(b) the International Mobile Equipment Identity number (IMEI-number) of the cellular phone; and

(c) the full names, identity number, residential and business and postal address, of the person who requests that a SIM-card be activated or that a cellular phone be allowed to be used with a SIM-card.

(3) For verification of information set out in subsection (2)(c), a telecommunication service provider must—

(a) verify the full names and identity number of a person with reference to his or her identification document; and

(b) require from a person to submit documentation to the satisfaction of the telecommunication service provider in which his or her address is identified.

(4) A telecommunication service provider must ensure that the process and storage facility referred to in subsection (2) are secure and only accessible to specific persons nominated by a telecommunication service provider.

(5) Any customer who from the date of commencement of this section sells or in any other manner provides a cellular phone or SIM-card to another person, other than a family member, must―

(a) in writing obtain from such person his or her—

(i) full names;

(ii) identity number; and

(iii) residential, business and postal address;

(b) verify the photo, full names and identity number with reference to such a person’s identification document;

(d) notify the telecommunication service provider of –

(i) the date on which the cellular phone or SIM-card was handed to the other person; and

(ii) the particulars set out in paragraph (a).

(6) Subsection (2) applies, with the necessary changes, in respect of a telecommunication service provider to whom information has been provided in terms of subsection (5)(d).

(7) Section 39(3)(a) and (b) and (4) applies, with the necessary changes in respect of a telecommunication service provider who provides a mobile cellular service.".

Amendment of section 51 of Act 70 of 2002

3. Section 51 of the principal Act is hereby amended –

(a) by the substitution for subparagraph (i) of paragraph (a) in subsection (1) of the following subparagraph:

"(i) contravenes or fails to comply with section 6(2), 7(4), 8(4), 29(8), [40(1), (2) or (3),] 42(1) or 45(1);";

(b) by the insertion after subsection (3) of the following subsections:

"(3A) (a) Any telecommunication service provider who fails to comply with section 40(1), (2), (3) or (4) or section 62(6)(a),(b) or (c) is guilty of an offence.

(b) Any telecommunication service provider who is convicted of an offence referred to in paragraph (a) is liable to a fine not exceeding R100 000 for each day on which such failure to comply continues.

(3B) (a) Any customer who fails to comply with section 40(5) is guilty of an offence.

(b) Any customer who is convicted of an offence referred to in paragraph (a) is liable to a fine or imprisonment not exceeding 12 months."; and

(i) the deletion of the word "or" at the end of paragraph (b) of subsection (5);

(ii) the addition of the word "or" at the end of paragraph (c) of subsection (5);

and

(iii) the addition after paragraph (c) of subsection (5) of the following paragraph:

"(d) subsection (3A) does not relieve any telecommunication service provider of the obligation to comply with section 40(1), (2), (3) or (4) or section 62(6)(a), (b) or (c).".

Amendment of section 62 of Act 70 of 2002

4. Section 62 of the principal Act is hereby amended by the substitution for subsection (6) of the following subsection:

"(6) (a) A telecommunication service provider who provides a mobile cellular service must, within 12 months from the date of commencement of this section register all –

(i) SIM-cards; and

(ii) cellular phones,

which are used on its telecommunication system if such SIM-cards and cellular phones have not already been registered in terms of section 40.

(b) Section 40(2), (3) and (4) applies to the registration process to be followed by a telecommunication service provider referred to in paragraph (a).

(c) A telecommunications service provider who provides a mobile cellular service shall not allow service continuation, other than allowing network access to emergency calls, customer care calls and calls for the purpose of compliance with paragraph (a) of this subsection, in respect of any SIM-card or cellular phone which is not registered at the expiry of the 12 month period referred to in paragraph (a) unless there is full compliance with paragraph (a) of this subsection.

(d) Section 39(3)(a) and (b) and (4) applies, with the necessary changes in respect of a telecommunication service provider who provides a mobile cellular service.".

Short title and commencement

5. This Act is called the Regulation of Interception of Communications and Provision of Communication-related Information Amendment Act, 2006, and comes into operation on 30 June 2006 or on such earlier date as the President may determine by proclamation in the Gazette.