Marius Scheepers & Company Attorneys

(unedited version)

Government Gazette

REPUBLIC OF SOUTH AFRICA

Vol. 451 Cape Town 22 January 2003 No. 24286

THE PRESIDENCY

No. 122 22 January 2003

It is hereby notified that the President has assented to the following Act, which is hereby published for general

information:–

No. 70 of 2002: Regulation of Interception of Communications and Provision of Communication-related

information Act, 2002. AIDS HELPLINE: 0800-123-22 Prevention is the cure 2 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONSe

AND PROVISION OF COMhlUNICATIOK-RELATED INFORMATION ACT. 2002 GENERAL EXPLAKATORI’ NOTE: [ ] Words in bold type in square brackets indicate omissions from existing enactments.

Words underlined with a solid line indicate insertions in

existing enactments.

,=

( Eng l i s h text signed by the President.)

(Assenred 10 30 December 2002.)

ACT

To regulate the interception of certain communications, the monitoring of certain signals and radio frequency spectrums and the provision of certain communication-related information; to regulate the making of applications for, and the issuing

of, directions authorising the interception of communications and the provision of

communication-related information under certain circumstances; to regulate the execution of directions and entry warrants by law enforcement officers and the

assistance to be given by postal service providers, telecommunication service providers and decryption key holders in the execution of such directions and entry

warrants; to prohibit the provision of telecommunication services which do not have the capability to be intercepted; to provide for certain costs to be borne by

certain telecommunication service providers; to provide for the establishment of interception centres, the Office for Interception Centres and the Internet Service

Providers Assistance Fund; to prohibit the manufacturing, assembling, possessing, selling, purchasing or advertising of certain equipment; to create offences and to

prescribe penalties for such offences; and to provide for matters connected therewith. B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

ARRAKGEMENT OF SECTIONS

Section

CH4PTER 1

INTRODUCTORY PROVISIONS

5

I . Definitions and interpretation

CHAPTER 2

PROHIBITION OF INTERCEPTION OF COMMUNICATIONS AND

RELATED INFORMATION AND EXCEPTIONS

Part 1

Prohibition of interception of communications and exceptions

PROVISION OF REAL-TIME OR ARCHIVED COMMUNICATION- I O

2. Prohibition of interception of communication

4 so. 24286 GOVERNMENT GWEITE. 22 JANU.4RY 1003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS ++*

AND PRO\’ISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

3.

3 .

5 .

6.

7 .

8.

9.

10.

11.

Interception of communication under interception direction

Interception of communication by party to communication

Interception of communication with consent of party to communication

Interception of indirect communication in connection with carrying on of business 5

Interception of communication to prevent serious bodily harm

Interception of communication for purposes of determining location in case of emergency

Interception of communications authorised by cert@n,other Acts

Monitoring of signal for purposes of installation or mlintenance of equipment. 10

facilities or devices

Monitoring of signal and radio frequency spectrum for purposes of managing

radio frequency spectrum

, ,

Part 2

Prohibition of Drovision of real-time or archived communication-related 15

12.

13.

11.

15.

16.

17.

18.

19.

30.

21.

23.

23.

25.

13 -- .

26.

27.

38.

29.

information and exceptions

Prohibition of provision of real-time or archived communication-related

information

Provision of real-time or archived communication-related information under

real-time communication-related direction or archived communication-related 20

direction

Proyision of real-time or archived communication-related information upon

authorisation by customer

Availability of other procedures for obtaining real-time or archived communi-

cation-related 25

CHAPTER 3

APPLICATIONS FOR, AND ISSUING OF, DIRECTIONS AND

ENTRY WARRANTS

Application for, and issuing of. interception direction

Application for, and issuing of. real-time communication-related direction 30

Combined application for, and issuing of, interception direction, real-time

communication-related direction and archived communication-related direc-

tion or interception direction supplemented by real-time communication-

related direction

Application for. and issuing of, archived communication-related direction 35

Amendment or extension of existing direction

.4pplication for. and issuing of, decryption direction

Application for. and issuing of, entry warrant

Oral application for. and issuing of. direction, entry warrant. oral direction or

oral 40

Reports on progress

Cancellation of direction, entry warrant, oral direction or oral entry warrant

CHAPTER 4

EXECUTION OF DIRECTIONS AND ENTRY WARRANTS

Execution of direction 45

Execution of entry warrant

Assistance by postal service provider and telecommunication service provider

Assistance by decryption key holder

A No. 24786 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF Ih’TERCEPTION OF COMMUNICATIONS * 0

AND PROVISION OF COMMUNICATION-RELATED INFORM4TION ACT. 2002

CHAPTER 5

INTERCEPTION CAPABILITY AND COMPENSATION

30.

? I .

Interception capability of telecommunication services and storing of commu-

nication-related information

Compensation payable to postal senice provider. telecommunication service 5

proyider and decryption key holder

CHAPTER 6

-.

INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES

AND INTERNET SERVICE PROVIDERS ASSISTa4NCE FUND ,.

!

32. Establishment of interception centres

2 3 . Establishment of Office for Interception Centres

34. Director and staff of Office

- 3 3 . Po\\ ers. functions and duties of Director

36. Head and staff’ of interception centres

37. Keeping of records b> heads o f interception centres and submission of reports

38. Establishment and control of Internet Service Providers Assistance Fund

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7 -

to Director

1 0

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CHAPTER 7

DL’TIES OF TELECOAIRIUNICATION SERVICE PROVIDER AND

CUSTOMER 20

30.

10.

41.

42.

43.

44.

15.

16.

17.

48.

39.

50.

51.

5’.

53.

54.

55.

56.

57.

Information t o be obtained and kept by certain telecommunication sewice

pro\ iders

Information t o br: obtained and kept in respect of cellular phone and SIM-card

Loss. thefr or destruction of cellular phone or SIM-card to be reported

CHAPTER 8 15

GEXERAL PROHIBITIONS .4ND EBERIPTIONS

Prohibition on disclosure of information

Disclosure of information by authorised person for performance of official

duties

Listed 30

Prohibition on manufacture. possession and advertising of listed equipment

Exemptions

CHAPTER 9

CRI3IINAL PROCEEDINGS, OFFENCES AND PENALTIES

Use of information in criminal proceedings 35

Proof of certain facts by certifcate

Unlawful interception of communication

Unlan-ful pro\.ision of real-time or archived communication-related infoma-

tlon

Offences 40

Failure to give satisfactory account of possession of cellular phone or SIM-card

Absence of reasonable cause for believing cellular phone or SIM-card properly

acquired

Unlau.ful acts in respect of telecommunication and other equipment

Failure to report loss. theft or destruction of cellular phone or SIM-card and 45

presumption

Re\.oking of licence to provide telecommunication service

Forfeiture of listed or other equipment

8 No. 21286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0

AND PROVISION OF COh4MtiNICATIOIGRELATED INFORh.C;4TION ACT, 1002

CHAPTER 10

GENERAL PROVISIONS

58. Supplementary directives regarding applications

59. Amendment of section 205 of Act 5 1 of 1977, as substituted by section 11 of

60. Amendment of section 11 of Act 140 of 1992

61. Amendment of section 3 ofAct 40 of 1994. as amer?&d by section 3 of Act 31

of 1995 and section 3 of Act 42 of 1999

62. Repeal of law and transitional arrangements

63. Shortitle and commencement

Act 204 of 1993

Schedule > .

CHAPTER 1

INTRODUCTORY PROVISIONS

Definitions and interpretation

1. (1 ) In this Act. unless the context othenvise indicates-

“Agency” means the Agency as defined in section 1 of the Intelligence Services

Act:

“applicant” means-

an officer referred to in section 33 of the South African Police Service Act. if

the officer concerned obtained in Lvriting the approval in advance of another

officer in the Police Service with at least the rank of assistant-commissioner

and who has been authorised in Lvriting by the National Commissioner to

grant such approval:

an officer as defined in section 1 of the Defence Act. if the officer concerned

obtained in v.riting the approval in advance of another officer in the Defence

Force with at least the rank of major-general and who has been authorised in

writing by the Chief of the Defence Force to grant such approval:

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 A2enc!, or the Senice. as the case may be, holding a post of at

least general manager:

the head of the Directorate or an Investigating Director authorised thereto in

a.riting by the head of the Directorate:

a member of a component referred to in paragraph ( e ) of the definition of “law

enforcement agent!.”. authorised thereto in writing by the National Director:

or

a member of the Independent Complaints Directorate, if the member

concerned obtained in N.riting the approval in advance of the Executive

Director:

“archived communication-related direction” means a direction issued under

section 1 S( 3 ) ( a ) or 19( 3) in terms of which a telecommunication service provider

is directed to protzide archived communication-related information in respect of a

customer;

“archi\sed communication-related information” means any communication-related

information in the possession of a telecommunication service provider and which

is being stored by that telecommunication service provider in terms of section

30( I)(!,) for the period determined in a directive referred to in section 30(2)(a).

beginning on 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

communication-related information relates:

“authorised person” means any-

( a ) law enforcement officer who may. in terms of section 26(l)(a)(i). execute a

(bl law enforcement officer or other person who may, in terms of section

direction: or

26(l)(a)(iij. assist with the execution of a direction;

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I O No. 24286 GOVERNMENT GAZETTE, 12 JANUARY 7003

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Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS *

.4ND PROVISION OF COMMUNICATION-RELATED INFORMXTION ACT. 2002

“Authority” means 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);

“business” means any business activity conducted by any person. including

acti\.ities of any private or public body;

“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 telecommu-

nication k..

“communication” includes both a direct communication and an indirect commu-

nication:

“communication-related information” means any information relating to an

indirect communication which is available in the recor;ds of a telecommunication

sen ice provider. and includes sMitching, dialling or. signalling information that

identities the origin. destination. termination. duration. and equipment used in

respect. o f each indirect communication generated or received by a customer or

user o ! any equipment. facility or service prhided b), such a telecommunication

ser\.ice pro\,ider and. where applicable. the location of the user u>ithin the

telecommunication system:

“Constirution” means the Constitution of the Republic of South Africa. 1996 (Act

No. i08 of 1996):

“contents”. when used with respect to any Communication. includes any

information concerning the substance. purport or meaning of that communication:

“customer” means any persoll-

((11 to \\,horn a telecommunication service provider pro\.ides a telecommunication

service: or

who has entered into a contract with a telecommunication service provider for

the provision of a telecommunication senzice. including a pre-paid telecom-

munication semice:

“decryption assistance” means to-

( ( 1 ) allow access. to the extent possible. to encrypted information; or fh, facilitate the putting of encrypted information into an intelligible form:

“decr!.ption direction” means a direction issued under section 71(3) in terms of

u hich a decryption key holder is directed t o -

( o j disclose a decryption key: or

( h i protide decryption assistance in respect of encrypted information. and

“decr\ption key” means any key. mathematical formula, code. password.

algorithm or any other data which is used to-

(cr I allow access to encrypted information: or

( h ~ f’xilitate the putting of encrypted information into an intelligible form:

“decryption ke! holder” means an! person who is in possession of a decryption

ke! for purposes of subsequent decryption of encrypted information relating to

indirect communications;

“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:

“designated judge” means any judge of a High Court discharged from active

serjice under section 3(1) of the Judges’ Remuneration and Conditions of

Emplo\ment .4ct. 2001 (Act No. 47 of 2001). or any retired judge. who is

designated b!, the Minister to perform the functions of a designated judge for

purposes of this Act:

“direct communication” means an-

( 0 J 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

( h r 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 participat-

ing in the indirect communication;

“direction” means any interception direction, real-time communication-related

direction. archived communication-related direction or decryption direction issued

includes an oral decryption direction issued under section 23(7):

12 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATlON OF INTERCEPTION OF COMMUNICATIONS * *

AND PROVISION OF COMMUNICATION-RELATED lNFORR$ATION ACT, ZOO?

under this Act, and includes an oral direction issued under section 23(7), but, for

purposes of section 20, excludes an archived communication-related direction;

“Director” means the Director: Office for Interception Centres. seconded in terms

of‘ section 34( 1 1:

“Directorate” means the Directorate of Special Operations referred to in section 1 5

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 2 3 3 ) and which authorises

entry upon any premises for purposes of-

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

( h ) installing and maintaining an interception de&e on, and removing an

L. .

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interception de\ice from. the premises. and includes an oral entry warrant 15

issued under section 93(7):

“Executive Director“ means the Executive Director appointed in terms of section

51 of the South African Police Service Act;

“fixed date” means the date of commencement of this Act:

“Fund“ means the Internet Service Providers Assistance Fund established by 20

section 38( I ):

“Identification Act“ means the Identification Act. 1997 (Act No. 68 of 1997);

“identification document” means. in the case of a person who is-

( a J a South African citizen or is lawfully and permanently resident in the Republic

and has attained of 16 years- 25

( i ) an identity card or temporary identity certificate as defined in the

Identification Act:

(ii) 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 30

the Identification Act: or

Travel Documents Act, 1994 (Act No. 4 of 1994):

(iii) a South African passport as defined in the South African Passports and

( b J a South African citizen or is lawfully and permanently resident in the Republic

and has not attained the age of 16 years. a birth certificate referred to in section 35

I3 of the Identification Act: and

(c,l not a South African citizen or is not permanently resident in the Republic-

( i ) a travel document as defined in the South African Passports and Travel

Documents ,4ct. 1994: or

(ii) a passport or travel document as contemplated in paragraphs (b), (c) and 40

( d l of the definition of “passport” in the Immigration Act, 3002 (Act No.

13 of 2002 1:

“Independent Complaints Directorate“ means the Independent Complaints Direc-

torate established b!, section 50( 1 ) of the South African Police Service Act;

“indirect communication“ means the transfer of information, including a message 45

or any part of a message. whether-

( a ) in the form of-

( i ) speech. music or other sounds:

(ii) data:

(iii) text;

(iv) \,isual images. whether animated or not;

( v ) signals; or

( v i ) radio frequency spectrum: or

(bi in an!. other form or in any combination of forms.

that is transmitted in whole or in part by means of a postal service or a 55

telecommunication system;

“Intelligence Services Act” means the Intelligence Services Act, 1994 (Act No. 38

of 1994):

“intelligible form” means the form in which electronic data was before an

encryption or similar it; 60

“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

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14 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

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Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIGATIONS .*

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

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 communi-

( c I diversion of any indirect communication from its intended destination to any

and “interception” has a corresponding meaning:

”interception centre” means an interception centre estahshed by section 32( I)(a);

“interception device“ means any electronic, mechanical or other instrument,

device, equipment or apparatus which is used or can be used. whether by itself or

in combination with any other instrument. device, equipment or apparatus, to

intercept an!’ 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 businqss and being used by the customer in

the ordinary course of his or her business:

iii) furnished by such customer for connection to the facilities of such

telecommunication service and used in the ordinary course of his or her

business: or

(iii) being used by a telecommunication service provider in the ordinary

course of his or her business: or

(D) a hearing aid or similar device being used to correct below normal hearing to

and a reference to an “interception device” includes, where applicable, a reference

to a ”monitoring device”:

”interception direction“ means a direction issued under section 16(3) or 18(3)(a)

and which authorises the interception. at any place in the Republic, of any

communication in the course of its occurrence or transmission, and includes an oral

interception direction issued under section 23(7);

”Internet” means the international computer network known by that name;

“Internet s e n k e provider“ means an). person who provides access to. or any other

ser\.ice related to. the Internet to another person. whether or not such access or

ser\ice is pro\kled under and in accordance with a telecommunication senice

licence issued to the first-mentioned person under Chapter V of the Telecommu-

nications Act;

“law enforcement agency’. means-

ra) the Police Service:

r h 1 the Defence Force:

© the Agency or the Service:

rdi the Directorate: or

( e l any component of the prosecuting authority, designated by the National

Director to specialise in the application of Chapter 6 of the Preventior? of

Organised Crime .4ct:

cation: and

other destination.

not better than normal,

“law enforcement officer” means an! member of-

( a ) the Police Service;

(0) the Defence Force, excluding a member of a visiting force;

(c, the Agency or the Service:

tdi the Directorate; or

( e l any component referred to in paragraph ( e ) of the definition of “law

“listed equipment” means any equipment declared to be listed equipment under

section 34( l)(a). and includes any component of such equipment;

“Minister“ means the Cabinet member responsible for the administration of

justice, except in Chapter 6 where it means the Cabinet member responsible for

intelligence services;

“monitor” includes to listen to or record communications by means of a

monitoring device. and “monitoring” has a corresponding meaning;

“monitoring device” means any electronic, mechanical or other instrument,

device, equipment or apparatus which is used or can be used, whether by itself 01

in combination with any other instrument, device, equipment or apparatus, to listen

enforcement agency”;

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to or record any communication:

16 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS .bo

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

“National Commissioner” means the National Commissioner referred to in section

6( 1) of the South African Police Service Act;

“National Director” means the National Director of Public Prosecutions contem-

plated in section 179(1)(a) of the Constitution;

“National Prosecuting Authority Act” means the National Prosecuting Authority

Act, 1998 (Act No. 32 of 1998);

“Office” means the Office for Interception Centres established by section 33;

“oral direction” means any direction issued under section 23(7);

“oral entry warrant” means an entry warrant issued un*p section 23(7);

“party to the communication”, for purposes of-

( a ) section 4. means, in the case of-

(i) a direct communication. any person-

(aal participating in such direct communication or to whom such direct

communication is directed; or

(bb) 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

(ii) an indirect communication-

laai the sender or the recipient or intended recipient of such indirect

communication:

(bb) 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

(cc) 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; and

(i) a direct communication, any person participating in such direct

(ii) an indirect communication-

, +

(b) section 5, means. in the case of-

communication or to whom such direct communication is directed; or

( a a ) the sender or the recipient or intended recipient of such indirect

communication: or

(bb) 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;

“Police Senice” means the South African Police Service established by section

5( 1) of the South African Police Service Act;

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

“postal service” means a postal service as defined in the Postal Services Act, and

includes any-

( a ) private postal service; and

(b) service which is offered or provided as a service of which the main purpose,

or one of the main purposes, is to make available. or to facilitate, a means of

transmission from one place to another place of postal articles containing

indirect communications:

“Postal Senices Act” means the Postal Services Act, 1998 (Act NO. 124 of 1998);

“postal service provider” means any person who provides a postal service;

“premises” includes any land, building, structure, vehicle, ship, boat, vessel,

aircraft or container;

“Prevention of Organised Crime Act” means the Prevention of Organised Crime

Act, 1998 (Act No. 121 of 1998);

“private body” means-

( a ) a natural person who carries on any trade, business or profession, but only in

such capacity;

(b) a partnership which carries on any trade, business or profession; or

© any juristic person,

but excludes a public body;

“prosecuting authority” means the national prosecuting authority established by

section 179 of the Constitution;

“public body” means any-

(a) department of state or administration in the national or provincial sphere of

government or any municipality in the local sphere of government; or

(b) other functionary or institution when-

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18 No. 23286 GOVERNMEhT GAZE’ITE, 21 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS a*

.4ND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

( i ) exercising a power or performing a duty in terms of the Constitution or

iii) exercising a public power or performing a public function in terms of any

“real-time communication-related direction” means a direction issued under

section 17t3) or 18(3) in terms of which a telecommunication service provider is

directed to provide real-time communication-related information in respect of a

customer, on an ongoing basis. as it becomes available, and includes an oral

real-time communication-related direction issued underdection 23(7 ):

“real-time communication-related information” mean; communication-related

information which is immediately available to a telecommunication service

provider-

( ( 1 ) before. during. or for a period of 90 days after. the transmission of an indirect

communication; and

( h i in a manner that allows the communication-related information to be

associated with the indirect communication to which it relates:

“relevant Ministers” means the Cabinet members responsible for-

( a ) communications:

0 1 ) defence:

( c i intelligence serjices: and

I d ) policing.

except in Chapter 6 where it means the Cabinet members referred to in paragraphs

( a i . ( 6 , and Id1 and the Cabinet member responsible for the administration of

justice:

“serious offence” means any-

( ( 1 ) offence mentioned in the Schedule: or

( h ) ofl’ence that is allegedly being or has allegedly been or will probably be

committed by a person. group of persons or syndicate-

r i ) acting in an organised fashion which 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;

(ii) acting in thexecution or furtherance of a common purpose or

conspiracy; or

( i i i ) which could result in substantial financial gain for the person. group of

persons or syndicate committing the offence.

including any conspiracy. incitement or attempt to commit any of the above-

mentioned offences:

“Service” means the Service as defined in section 1 of the Intelligence Services

Act;

“SIM-card” means the Subscriber Identity Module which is an independent.

electronically activated device designed for use in conjunction with a cellular

phone to enable the user of the cellular phone to transmit and receive indirect

communications by providing access to telecommunication systems and enabling

such telecommunication systems to identif)) the particular Subscriber Identity

Module and its installed information:

“South .4frican Police Service Act” means the South African Police Service Act,

1995 (Act No. 68 of 1995):

“system controller” of. or in relation to-

( a ) a private body. means, in the case of a-

a provincial constitution; or

legislation;

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(i) natural person. that natural person or any person duly authorised by that

natural person;

( i i ) partnership, any partner of the partnership or any person duly authorised

by the partnership: or

(iii) juristic person. the-

(aa) chief executive officer or equivalent officer of the juristic person or

(bhi person who is acting as such or any person duly authorised by such

any person duly authorised by that officer; or

acting person; and

Ih) a public body. means, in the case of-

(i) a national department, provincial administration or organisational

component-

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20 KO. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIQTIONS

a

\%

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. ?M)2

1 aa

(hh

mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act,

1993 (Proclamation No. 103 of 1994), the officer who is the

incumbent of the post bearing the designation mentioned in Column

2 of the said Schedule 1 or 3 opposite the name of the relevant

national department. provincial administration or organisational .5

component or the person who is acting as such; or

not so mentioned. the Director-General, head, executive director or

equivalent officer, respectively, of that national department, provin-

cial administration or organisational companent, respectively, or the

person who is 10

I ii ) a municipality. the municipal manager appointed in terms of section 82

of the Local Government: Municipal Structures Act, 1998 (Act No. 11 7

of 1998). or the person who is acting as such: or

(iii ) any other public body. the chief executive offiier, or equivalent officer, of

that public body or the person who is acting as such: 1s

“Telecommunications Act” means the Telecommunications Act, 1996 (Act No.

103 of 1996,: !

“telecommunication service” means any telecommunication service as defined in

the Telecommunications Act:

“telecommunication service provider” means any- 20

(aJ 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-

( i ) a local access telecommunication service, public pay-telephone service,

value-added network service or private telecommunication network as 25

defined in the Telecommunications Act; or

(ii) any other telecommunication service licensed or deemed to be licensed

or exempted from being licensed as such in terms of the Telecommuni-

cations Act: and

(hi Internet service 30

“telecommunication system” means a telecommunication system as defined in the

Telecommunications Act.

13) For purposes of this Act-

l 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 3.5

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

(hj the time during which an indirect communication is being transmitted by 40

means of a telecommunication system includes any time when the telecom-

munication 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.

( 3 ) A reference in this Act to the interception of a communication does not include a 45

reference to the interception of any indirect communication which is broadcast or

transmitted for general reception.

32 KO. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * -e ~ -~

AND PROVISION OF COMMUNICATIONRELATED INFOR~ATION ACT. 2002

CHAPTER 2

PROHIFHTION OF .INTERCEPTION OF COMMUNICATIONS AND

PROVISION OF REAL-TIME OR ARCHIVED COMMUNICATION-

RELATED INFORMATION AND EXCEPTIONS

Part 1

Prohibition of interception of communications y d exceptions

Prohibition of interception of communication

2. Subject to this Act, no person may intentionally intercept or attempt to intercept. or

authorise or procure any other person to intercept or attem’pt’to intercept. at any place in

the Republic. any communication in the course of its occurrence or transmission.

Interception of communication under interception direction

3. Subject to this Act. any-

l u ) authorised person who executes an interception direction or assists with the

Ib) postal service provider to whom an interception direction is addressed, may

execution thereof. may intercept any communication: and

intercept any indirect communication,

to which that interception direction relates.

Interception of communication by party to communication

4. ( I ) Any person, other than 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.

( 3 Any law enforcement officer may intercept any communication if he or she is-

l a ) a party to the communication: and

i h ) satisfied that there are reasonable grounds to believe that the interception of a

communication of another party to the communication is necessary on a

ground referred to in section 16(5)(a).

unless such communication is intercepted by such law enforcement officer for purposes

of committing an offence.

Interception of communication with consent of party to communication

5. ( 1 ) An!. person, other than a lam. enforcement officer, may intercept any

communication if one of the parties to the communication has given prior consent in

witing to such interception. unless such communication is intercepted by such person

for purposes of committing an offence.

(3) An!. law enforcement officer ma). intercept any communication if-

( a ) one of the parties to the communication has given prior consent in writing to

such interception;

f b J he or she is satisfied that there are reasonable grounds to believe that the party

who has given consent as contemplated in paragraph (a) will-

(i) participate in a direct communication or that a direct communication will

(ii) send or receive an indirect communication: and

ground referred to in section 16(5)(aJ.

be directed to him or her; or

© the interception of such direct or indirect communication is necessary on a

unless such communication is intercepted by such law enforcement officer for purposes

of committing an offence.

5

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40

45

24 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS *

AND PROVISION OF COMMUNICATION-RELATED INFORM4TION ACT, 2002

Interception of indirect communication in connection with carrying on of business

6. (1) Any person may. in the course of the carrying on of any business, intercept any

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

(b) which otherwise relates to that business; or

© which otherwise takes place in the course of the carrying on of that business,

( 2 ) A person may only intercept an indirect communicath i n terms of subsection

( a ) if such interception is effected by, or with the express or implied consent of,

(b) for purposes of-

indirect communication- .

in the course of its transmission over a telecommunication system.

(1)-

the system controller;

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

, ,

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

Ibb) for purposes of investigating or detecting the unauthorised use of

(cc) where that is undertaken in order to secure. or as an inherent part of,

(ii) monitoring indirect communications made to a confidential voice-

telephony counselling 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;

© if the telecommunication system concerned is provided for use wholly or

partly in connection with that business; and

(d) if the system controller has made all reasonable efforts to inform in advance a

person. who intends to use the telecommunication system concerned, that

indirect communications transmitted by means thereof may be intercepted or

if such indirect communication is intercepted with the express or implied

consent of the person who uses that telecommunication system.

that telecommunication system; or

the effective operation of the system; or

Interception of communication to prevent serious bodily harm

7. (1) Any lam. enforcement officer may, if-

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

to the communication has-

(i) caused, or may cause. the infliction of serious bodily harm to another

(ii) threatens, or has threatened, to cause the infliction of serious bodily harm

(iii) threatens. or has threatened, to take his or her own life or to perform an

person;

to another person: or

act which would or may endanger his or her own life or would or may

cause the infliction of serious bodily harm to himself or herself;

he or she is of the opinion that because of the urgency of the need to intercept

the communication, it is not reasonably practicable to make an application in

terms of section 16(1) or 13jl) for the issuing of an interception direction or

an oral interception direction; and

the sole purpose of the interception is to prevent such bodily harm,

any communication or may orally request a telecommunication service

provider to route duplicate signals of indirect communications specified in that request

to the interception centre designated therein.

(2) A telecommunication service provider must, upon receipt of a request made to him

or her in terms of subsection ( I ) , route the duplicate signals of the indirect

communications concerned to the designated interception centre.

(3) The law enforcement officer who made a request under subsection (1) must as

soon as practicable after malung that request, furnish the telecommunication service

provider concerned with a written confirmation of the request which sets out the

5

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40

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50

26 No. 21286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS Q C

AND PROVISION OF COMMUNICATION-RELATED INFORM~TION ,413.2002

information given by that law enforcement officer to that telecommunication service

proiider in connection with the request.

( 3 ) The law enforcement officer who intercepts a communication under subsection ( 1 )

or (2) must. as soon as practicable after the interception of the communication

concerned. submit to a designated judge-

( a ) a copy of the written confirmation referred to in subsection ( 3 ) ;

(b) an affidavit setting forth the results and information obtained from that

interception: and

(c.1 any recording of the communication that has been &gained by means of that

interception. any full or partial transcript of the recording and any notes made

by that law enforcement officer of the communication if nothing in the

communication suggests that bodily harm. attempted bodily harm or

threatened bodily harm has been caused or is IikLy to be caused.

( 5 1 A telecommunication service provider who. in terms isf subsection ( 2 ) . has routed

duplicate signals of indirect comn~unications to the designated interception centre must,

as soon as practicable thereafter. submit an affidavii to a designated judge setting forth

the steps taken b\, that telecommunication service provider in giving effect to the request

concerned and the results obtained from such steps.

( 6 ) A designated judge must keep all written confirmations and affidavits and any

recordings. transcripts or notes submitted to him or her in terms of subsections (4) and

(5). or cause it to be kept. for a period of at least five years.

Interception of communication for purposes of determining location in case of

emergency

8. ( 1 ) I n circumstances where-

( a ) a person is a party to a communication:

/ h i that person. as a result of information received from another party to the

communication (in this section referred to as the “sender”), has reasonable

grounds to believe that an emergency exists by reason of the fact that the life

o f another person. whether or not the sender. is being endangered or that he or

she is dying or is being or has been seriously injured or that his or her life is

likely to be endangered or that he or she is likely to die or to be seriously

injured: and

( ( ‘ 1 the location of the sender is unknown to that person,

( i ) ;I Iau enforcement officer. and if he or she is of the opinion that determining

the location of the sender is likely to be of assistance in dealing with the

emergency. orally request. or cause another law enforcement officer to orally

request. the telecommunication service provider concerned to-

f u u ) intercept any Communication to or from the sender for purposes of

ihb) determine the location of the sender in any other manner which the

( i i ) not a lair. enforcement officer. inform, or cause another person to inform, any

lau- enforcement officer of the matters referred to in paragraphs (u), (b) and

i c i .

( 3 ) A laq, enforcement officer who has been informed as contemplated in subsection

( 1 )iii ), may. if he or she is of the opinion that determining the location of the sender is

likely to be of assistance in dealing with the emergency, orally request, or cause another

lav enforcement officer to orally request, the telecommunication service provider

concerned to act as contemplated in subsection (1 )(i)(au) or (bb).

( 3 ) A telecommunication service provider must. upon receipt of a request made to him

or her in ternis of subsection ( I )(i) or (2)-

( a ) intercept any communication to or from the sender for purposes of

(01 determine the location of the sender in any other manner which the

and if the location of the sender has been so determined, the telecommunication service

provider concerned must. as soon as practicable after determining that location, provide

the law enforcement officer who made the request with the location of the sender and

the person referred to in paragraph f a ) may, if he or she is-

determining his or her location: or

telecommunication service provider deems appropriate; or

determining his or her location: or

telecommunication service provider deems appropriate,

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20

25

30

35

40

45

50

55

28 No. 24286 GOVERNMENT GAZElTE, 12 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COhlMUNIC,4TIONS *

AND PROVISION OF COMMCTNICATION-RELATED IMFORMATION ACT, 2002

any other information obtained from that interception which, in the opinion of the

telecommunication service provider concerned, is likely to be of assistance in dealing

with the emergency.

($1 The law enforcement officer who made a request under subsection (I)(i) or (2)

must-

( a ) as soon as practicable after making that request, furnish the telecommunica-

tion service provider concerned with a written confirmation of the request

which sets out the information gi\ren by that law yfprcement officer to that

telecommunication service provider in connection nhth the request;

(b) as soon as practicable after making that request. furnish a designated judge

with a copy of such written confirmation; and

(cj if the location of the sender and any other information has been provided to

him or her in terms of subsection ( 3 ) . as soon aspxsible after receipt thereof.

submit to a designated judge an affidavit setting forth the results and

information obtained from that interception.

( 5 ) A telecommunication service provider yho has taken any of the steps

contemplated in subsection ( 3 ) . must. as soon as practicable thereafter, submit to a

designated judge-

(ai an affida\>it setting forth the steps taken by that telecommunication service

provider in giving effect to the request concerned and the results and

information obtained from such steps: and

( / I ) if such steps included the interception of an indirect communication. any

recording of that indirect communication that has been obtained by means of

that interception, any full or partial transcript of the recording and any notes

made by that telecommunication service provider of that indirect communi-

cation.

( 6 ) A designated judge must keep all u%tten confirmations and affidavits and any

recordings. transcripts or notes submitted to him or her in terms of subsections (3)(b)

and © and ( 5 ) . or cause it to be kept. for a period of at least five years.

Interception of communications authorised by certain other Acts

9. ( I ) Any communication may. in the course of its occurrence or transmission. be

intercepted in an!’ prison as defined in section 1 of the Correctional Services Act, 1998

(Act No. 11 1 of 1998 ). if such interception takes place in the exercise of any power

conferred by or under. and in accordance with. any regulations made under that Act.

( 2 ) If any regulations referred to in subsection (1 )--

(a) were made prior to the fixed date. the Cabinet member responsible for

correctional services must within one month after the fixed date, if Parliament

is then in ordinary session. or. if Parliament is not then in ordinary session.

within one month after the commencement of its next ensuing ordinary

session. submit a copy of those regulations to Parliament: or

lh) are made after the fixed date. the Cabinet member responsible for correctional

services must. before the publication thereof in the Gazette, submit those

regulations to Parliament.

Monitoring of signal for purposes of installation or maintenance of equipment,

facilities or devices

10. Any person who is lawfully engaged in duties relating to the-

( a ) installation or connection of any equipment, facility or device used, or

( h ) operation or maintenance of a telecommunication system; or

I C ) installation. connection or maintenance of any interception device used, or

intended to be used. for the interception of a communication under an

interception direction.

intended to be used. in connection u,ith a telecommunication service;

5

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15

20

25

30

35

30

45

50

-

may. in the ordinary course of the performance of those duties. monitor a signal relating

30 No. 24186 GOVERNMENT GAZETTE, 22 JANUARY 1003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNIC&TIONS *

AND PROVISION OF COMMUN1CATIOi’-RELATED INFORMATlON ACT, 2002

to an indirect communication where i t is reasonably necessary for that person to monitor

that signal for purposes of performing those duties effectively.

Monitoring of signal and radio frequency spectrum for purposes of managing

radio frequency spectrum

11. .4ny person appcinted a5 an inspector in terms of section 98 of the 5

Telecommunications Act and who is law’fully engaged in performing the functions of the

Authority relating to the management of the radio frequency spectrum, as contemplated

in section 28( 1 ) of that .4ct. may. in the ordinary course of the performance of those

functions. monitor a signal or radio frequency spectrum relating to an indirect

communication which is transmitted over radio. where it is reasonably necessary for that 1 0

employee to monitor that signal or radio frequency spectru? for purposes of identifying,

isolatiny or preventing an unauthorised or interfering use of such a signal or frequencv - or of a transmission. I -

Part 2 ‘

Prohibition of provision of real-time or archived communication-related

information and exceptions

Prohibition of provision of real-time or archived communication-related informa-

tion

12. Subject to this Act. no telecommunication service provider or employee of a

telecommunication service provider may intentionally provide or attempt to provide any

real-time or archived communication-related information to any person other than the

customer of the telecommunication ser\Jice provider concerned to whom such real-time

or archi\.ed communication-related inforn-~ation relates.

Provision of real-time or archived communication-related information under

1

real-time communication-related direction or archived communication-related 25

direction

13. Subject t o this Act. an!. telecommunication service provider to whom a real-time

communication-related direction or an archived communication-related direction is

addressed. may prmide an! real-time or archil ed communication-related information to

which that real-time communication-related direction or archived communication- 30

related direction relateh.

Provision of real-time or archived communication-related information upon

authorisation by customer

14. An!, telecommunication senice pro\.ider may. upon the written authorisation

given b! his or her customer on each occasion. and subject to the conditions determined 35

b! the customer concerned. pro\.ide to an)’ person specified b!. that customer real-time

or archi\.ed communication-related information which relates to the customer con-

cerned.

Availability of other procedures for obtaining real-time or archived communica-

tion-related 40

15. ( 1 ) Subject to subsection ( 2 ) . the availability of the procedures in respect of the

provision of real-time or archived communication-related information provided for in

sections 17 and 19 does not preclude obtaining such information in respect of any person

in accordance with a procedure prescribed in any other Act.

in terms of such other Act may not be obtained on an ongoing basis.

( 2 ) Any real-time or archived communication-related information which is obtained 45

37 No. 24186 GOVERNMEKT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGCLATION OF IXTERCEPTION OF COMMUNICATIONS

c. *,

AND PRO\’lSION OF COMMUNICATION-RELATED INFORMATlON ACT. 2002

CHAPTER 3

APPLICATIONS FOR, AND ISSUING OF, DIRECTIONS .4ND ENTRY

WARRANTS

Application for. and issuing of, interception direction

30

16. ( 1 ) .4n applicant may apply to a designated judge for the issuing of an interception 5

i?i Subject to section ?3( 1 1. an application referred to in subsection ( 1 ) must be in

direction. \- -

writing and must-

( ( 1 ) indicate the identity of the-

! i ) applicant and. if known and appropriat,e,, the identity of the law 10

( i i ) person or customer. if knot4m. whose communication is required to be

( i i i 1 postal service provider or telecommimication service provider t o whom

( h i specif!. the ground referred to in subsection (5)((/) on \vhich the application is

( ( ‘ 1 contain full particulars of all the facts and circumstances alleged by the

i d ) include-

enforcement officer who will execute the interception direction:

intercepted: and

the direction must be addressed. i f applicable: 15

made;

applicant in support of his or her application:

j i I subject to subsection (8). a description of the-

(LICIJ nature and location of the facilities from which. or the place at

which. the communication is to be intercepted. if known: and

ibh) type of communication which is required to be intercepted; and

( i i ) the basis for believing that evidence relating to the ground on which the 3-51

application is made will be obtained through the interception:

( P I if applicable. indicate whether other investigative procedures have been

applied and have failed to produce the required evidence or must indicate the

r a w n wh!. other inI’estigative procedures reasonably appear to be unlikely to

wcceed if applied or are likeljp to be too dangerous to apply in order to obtain 30

the required etidence: Provided that this paragraph does not apply to an

application for the issuing of a direction in respect of the ground referred to in

suhection ( 5 ) ( ~ / ) ( i ) or (1.) if the-

( i I serious offence has been or i < being or m i l l probably be committed for the

benefit of. at the direction of. or in association kvith. a person. group of 35

persons or syndicate invol\.ed in organised crime; or

is or could probably be the proceeds of unlawful actitities:

( i i ) property is or could probabl! be an instrumentality of a serious offence or

indicate the period for which the interception direction is required to be

isued: 3 0

indicatc. ushether any pre\,ious application has been made for the issuing of an

interception direction in respect of the same person or customer. facilit) or

piace specified in the application and. if such previous application exists. must

indicate the current status of’that application; and

( 1 1 ) compl) \\,ith any supplementar!, directives relating to applications for 45

interception directions issued under section 58.

( 3 ) An application on a ground referred to in-

( a ) subsection (5)(a)(i). must be made by an applicant referred to in paragraph

ibJ subsection (5)(aJ(ii) or (iii). must be made by an applicant referred to in 50

© subsection (5)iu)(iv). must, in the case of-

( ( I ) . (dl or (j’) of the definition of “applicant”:

paragraph ( b ) or © of the definition of “applicant”:

i i ) the investigation of a serious offence, be made by an applicant referred to

t i i ) the gathering of information. be made by an applicant referred to in 55

in paragraph ( n l or (dl of the definition of “applicant”: and

paragraph © of the definition of “applicant”; and

( d ) subsection (5)(a)(v). must be made by an applicant referred to in paragraph ( e )

of the definition of “applicant”:

34 Nn. 14186 GOVERNMENT GAZETTE. 22 JANUARY 2003

Act Ivo. 70.2002 REGULATION OF IKTERCEPTION OF COMMUNICATIONS *

.AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

Provided that an applicant referred to in paragraph If) of the definition of s’applicant”

may only make an application on the ground referred to in subsection (5)(0)(i)--

( i ) if the offence allegedly has been or is being or will be committed by a member

(ii) i n respect of a death in police custody or as a result of police action. 5

of the Police Service; or

(4) Kotwithstanding section 2 or anything to the contrary in any other law contained.

a designated judge may. upon an application made to him or her in terms of subsection

( 1 ). issue an interception direction.

( 5 ) An interception direction may only be issued if the designated judge concerned is

satisfied. on the facts alleged in the application concerned. that- 10

(cr) there reasonable grounds to believe that-

( i 1 a serious offence has been or is being or will probably be committed:

i i i l the gathering of information concerning a,n ;actual threat to the public

health o r safetl,. national security or conlpelling national economic

interests of the Republic is necessary: 15

( i i i J the gathering of information concerning a potential threat t o the public

health or safety or national security of the Republic is necessary:

t i \ . ) the making of a request for the provision. or the projision to the

competent authorities of a country or territory outside the Republic. of

an\’ assistance in connection with. or in the fom1 of. the interception of 70

communications relating to organised crime or an!’ offence relating to

terrorism or the gathering of information relating to organised crime or

terrorism. is in-

i t r u 1 accordance with an international mutual assistance agreement: o r

ibhi the interests of the Republic’s international relations or obligations: 75

or

I \ the gathering of information concerning property which is or could

probably be an instrumentality of a serious offence or is or could

probabl!, be the proceeds of unlawful activities is necessary:

i l l ) there are reasonable grounds to believe that- 3 0

( i ) the interception of particular communications concerning the relevant

ground referred to in paragraph ( a ) will be obtained by means of such an

interception direction: and

i i i i subject 10 subsection ( 6 ) . the facilities from which. or the place at which.

the communications are to be intercepted are being used. or are about t o 35

be used. in connection with the relevant ground referred to in paragraph

111 are commonly used b!, the person or customer in respect of whom the

application for the issuing of an interception direction is made: and

ic.1 in respect of the grounds referred to in paragraph i a i ( i ) . (iii). (iv) or ( \ ‘ ) . other

in\,estigative procedures have been applied and have failed to produce the 30

required evidence or reasonably appear to be unlikely to succeed if applied or

are likel) to be too dangerous to apply in order to obtain the required eyidence

and that the offence therefore cannot adequatel! be investigated. or the

information ther.:fore cannot adequately be obtained. in another appropriate

manner: Pro\ Ided that this paragraph does not appl! to an application for the 45

issuing of a direLtion in respect of the ground referred to in paragraph i a K i ) or

i \ ) if the-

i i ) serious off’ence has been or is being or will probably be committed for the

benefit of. at the direction of. or in association uith. a person. group of

persons or s!.ndicate invol\.ed in organised crime: or SO

( i i ) property is or could probably be an instrumentality of a serious offence or

is or could probably be the proceeds of unlawful activities.

(6) An interception direction-

( c t J must be in writing:

( h i must contain the information referred to in subsection (7,luXii) and (iii) and 55

© nap specify conditions or restrictions relating to the interception of

(dl ma!’ be issued for a period not exceeding three months at a time. and the

( 7 ) ( N ) .4n application must be considered and an interception direction issued without

any notice to the person or customer to whom the application applies and without

hearing such person or customer.

idtci );

communications authorised therein; and

period for a,hich it has been issued must be specified therein. 60

1

36 No. 21286 GOVERNMENT GAZETTE. 72 JAN’C’ARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS 0

AND PROVISION OF COMMUNIC.4TION-RELATED INFORMATION ACT. 2002

(0) A designated judge considering an application may require the applicant to furnish

such further information as he or she deems necessary.

(8) The requirements of subsections (2)(dJ(i)(aa) and (5)(b)(ii) relating to the

description of the facilities from which. or the place at which, the communication is to

be intercepted do not apply if, in the case of an application for the issuing of an 5

interception direction which authorises the interception of-

(a) a direct communication-

(i) the application contains full particulars of all the facts and circumstances

(ii) the application indicates the identity of the person whose communication 10

(iii) the designated judge is satisfied. on the facts alleged in the application.

as to why such description is not practical;

is required to be intercepted: and

that such description is not practical: and

L. .

( b ) an indirect communication. the- , .

( i ) application indicates the identity of the custcher whose communication 15

is required to be intercepted:

(ii) applicant submits proof that there are, reasonable grounds to believe that

the actions of the customer concerned could have the effect of preventing

interception from a specified facility;

( i i i ) designated judge is satisfied that sufficient proof has been submitted: and 20

(iv) interception direction authorises the interception only for such time as it

is reasonable to presume that the customer identified in the application is

or \vas reasonably close to the instrument through which such commu-

nication will be or was transmitted.

(9) The interception of a communication under an interception direction to which the 25

requirements of subsections (?)(d)(iHm/J and 15)(O)(ii) do not apply by reason of

subsection (8)(ai may not take place until the place at which the communication is to be

intercepted is determined by the authorised person who executes the interception

direction concerned or assists with the e\ecution thereof.

referred to in subsection (S)ib) is addressed. may in writing apply to a designated judge

for an amendment or the cancellation of the interception direction concerned on the

ground that his or her- assistance uith respect to the interception of the indirect

communication cannot be performed in a timely or reasonable fashion.

must. as soon as possible after receipt thereof-

(10)ia) A telecornmunication service provider to whom an interception direction 30

( h ) A designated judge to n.hom an application is made in terms of paragraph ( a ) 3S

(i) inform the applicant concerned of that application: and

( i i ) consider and give a decision in respcct of the application.

Application for, and issuing of, real-time communication-related direction

17. ( 1 ‘I If no interception direction has heen issued and only real-time communication- 40

related information on an ongoing basis is required, an applicant may appl! to a

designated judge for the issuing of a real-time communication-related direction.

( 9 ) Subject to section ?3( 1). an application referred to in subsection ( 1 ) must be in

writing and must-

( a ) indicate the identity of the-

(i) applicant;

35

(ii) customer. if known. in respect of whom the real-time communication-

( i i i ) telecommunication service proyider to whom the real-time communica-

(11) specify the ground referred to in subsection (4) on which the application is

made;

(cl contain full particulars of all the facts and circumstances alleged by the

applicant in support of his or her application:

( d l include- 55

( i ) a description of the type of real-time communication-related information

that is required; and

(ii) the basis for believing that evidence relating to the ground on which the

application is made will be obtained through the provision of the

real-time communication-related information: 60

related information is required: and

tion-related direction must he addressed; SO

38 No. 71286 GOVERNMENT GAZE7TE. 22 JANUARY 7003

Act KO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICA7JONS * -

4ND PRO\’ISION OF COMMUNICATION-RELATED INFORMATION ACT. 1002

indicate whether the real-time communication-related information must be-

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

(ii) pro\,ided to the law enforcement agency concerned;

indicate the period for which. and the manner in which, the real-time

communication-related information is required to be provided; 5

indicate whether any previous application has been made for the issuing of a

resl-time communication-related direction in respect of the same customer or

real-time communication-related infommtion specified in the application and.

if such previous application exists, must indicate *-current status of that

application; and 10

compl! with an) supplementary directives relatins to applications for

real-time communication-related directions issued under section 58.

(3) Notujithstanding section 12 or anything to the contrary in any other law contained.

a designated judge ma!. upon an application made t o him o’r>her in terms of subsection

( 1 1. issue a real-time communication-related direction. 15

( 3 ) .A real-time commLlnication-related direction ma!’ onl!, be issued if it appears to

the desiyated judse concerned. on the facts alleged in the application concerned. that

there are rea<onable grounds to believe that-

( ( 1 a serious offence has been or is being or will probably be committed;

( / ? I the gatherin: of information concerning an actual threat to the public health or 30

safet!.. national security or compelling national economic interests of the

Republic is necessary:

( c ) the gathering of information concernins a potential threat to the public health

or safety or national securit), of the Republic is necessary;

( d l the making of a request for the provision. or the provision to the competent 35

authorities of a country or territory outside the Republic. of any assistance in

connection with. or in the form of. the interception of communications

rrlating to organised crime or an!’ offexe relating to terrorism or the gathering

of information relating to organised crime or terrorism. is in-

( i I accordancc Lvith an international mutual assistance agreement; or 30

( i i ) the interest\ ofthe Republic’s international relations or obligations; or

fc.1 the gathering of information concerning property which is or could probably

be an instrumentalit! of a serious offence or is or could probably be the

proceeds of unlawful activities is necessar)’.

and that the prwision of real-time communication-related information is necessary for 35

purposes of in\-esiigating such offence or gathering such information.

(5 .A real-time comm~~nication-related direction-

( 0 1 must be in writing:

t h J must contain the information referred to in subsection (3’)(a)(ii) and (iii). (d)(i)

( ( ‘ i ma! specif! conditions or restrictions relating to the provision of real-time

( ( 1 ) ma! he iswed for a period not exceeding three months at a time. and the

and ( e l : 30

communication-related information authorised therein: and

period for \vhich it has been issued must be specified therein.

application for, and the issuing of. a real-time communication-related direction.

Combined application for, and issuing of, interception direction, real-time

communication-related direction and archived communication-related direction

or interception direction supplemented by real-time communication-related

direction 50

(6) Section 16(3) and ( 7 ) applies. with the necessary changes. in respect of an 45

18. ( 1 ) If tht-

i c r ) interceplion of an indirect communication and the provision of communica-

tion-related information. whether real-time or archived or both; or

pro:.ision of real-time and archived communication-related information,

I

40 No. 71286 GOVERNMENT GAZETTE. 22 JANUARY 2003

Act No. 70.2002 REGUL.4TION OF 1NTERCEPTION OF COMMUNICATIONS * 0

AYD PROVISION OF COMMUNICATION-RELATED INFORMA’ION ACT. 2002

are required. an applicant may. subject to sections 16(2) and (3), 17(1) and (2) and 19(1)

and ( 2 ) . in a combined application. apply to a designated judge for the simultaneous

issuing of any combination of directions referred to in those sections.

( 2 ) ( a / If an interception direction has been issued under section 16, the applicant who

made the application in respect of the interception direction concerned or. if he or she is 5

not available. any other applicant who would have been entitled to make that

application. may. subject to section 17( 1) and (2). apply to a designated judge for the

issuing of a real-time communication-related direction to supplement that interception

direction.

(hi An application referred to in paragraph ( a ) must- \. .

I O

(i 1 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: *.

( i i ) contain proof that an interception direction has been issued: and 15

( i i i ) he made at any stage after the issuing of the interception direction concerned.

but before the expiry of the period or extended period for which i t has been

issued.

( 3 ) Notwithstanding sections 2 and 11. or anything to the contrary in any other law

contamed. a designated judge may. upon an application made to him or her in terms of- 20

( ( I J subsection ( I ) and subject to sections 16(5). ( 6 ) and (7). 17(4). ( 5 ) and (6) and

l9(4). ( 5 ) and ( 6 ) . issue the combination of directions applied for: or

( h i subsection ( 2 ) and subject to section 17(4). ( 5 ) and (6). issue a real-time

communication-related direction to supplement that interception direction:

Provided that a real-time communication-related direction issued under this 25

paragraph expires whcn the period or extended period for which the

interception direction concerned has been issued. lapses.

I

( 4 , SotLvithstanding section 191 1 ). ( 3 ) and (4)-

( ( I J an application in terms of subsection ( 1 ) for the issuing of an archived

(/IJ onI! a desipated judge ma)’ issue an archived communication-related

communicarion-related direction may only be made to a designated judge; and 30

direction under subsection (3)fu).

Application for, and issuing of. archived communication-related direction

19. ( 1 ) If only archived communication-related information is required. an applicant

ma! apply to a judge of a High Court. a regional court magistrate or a magistrate for the 35

issuing of an archi\.ed communication-related direction.

( 2 ) .4n application referred to in subsection ( I ) must be in writing and must-

( ( 1 ) contain. with the necessary changes. the information referred to in section

0 1 ) comply q.ith an)’ supplementar!, directives relating to applications for 30

l ? C ) : and

archived communication-related directions issued under section 5 8 .

( 3 ) Notwithstanding section 12 or anything to the contrary in any other lau contained.

a judge of a High Court. a regional court magistrate or a magistrate may. upon an

application made to him or her in terms of subsection ( 1 ). issue an archived

communication-related 45

(4) . i n archived communication-related direction may only be issued if it appears to

the judge of a High Court. regional court magistrate or magistrate concerned. on the facts

alleged in the application concerned. that there are reasonable grounds to believe that-

( ( 1 1 a serious ofTence has been or is being or will probably be committed:

( 1 1 ) the gathering of information concerning an actual threat to the public health or 50

safety. national security or compelling national economic interests of the

Republic is necessan:

( ( ‘ 1 the gathering of information concerning a potential threat to the public health

or safety or national securit!, of the Republic is necessary:

32 No. ‘1286 GOVERNMENT GAZETTE. 22 JANUARY 2003

AND PROVISION OF COMMUNICATION-RELATED INFORM~ION ACT. 2002

t.

Act No. 70.2002 REGULATIOR OF INTERCEPTION OF COMMUNICATIONS *

( d l 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

relatin: to organised crime or any offence relating to terrorism or the gathering

of information relating to organised crime or terrorism, is in- 5

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

(ii) the interests of the Republic’s international relations or obligations; or

( P ) the gathering of information concerning property which is or could probably

be an instrumentality of a serious offence or is o j o u l d probably be the

proceeds of unlawful activities is necessary.

and that the pro\,ision of archived communication-related information is necessary for

purposes o f investigating such offence or gathering such information.

10

( 5 i An archived communication-related direction- ,, ,

( a i must he in Lvriting: I

f b ) must contain the information referred to in section 17(2)(a)(ii) and (iii). (d)(i) 15

f c l must state the period within lvhich the archived communication-related

/ d l may specif!, conditions or restrictions relating to the provision of archived

(6) Section 16(3) and ( 7 ) applies, with the necessary changes. in respect of an

application for. and the issuing of. an archived communication-related direction.

( 7 ) If a judge of a High Court. regional court magistrate or magistrate issues an

archive communication-related direction. he or she must, as soon as practicable

thereafter. submit a copy of the application and archived communication-related 25

direction concerned to a designated judge.

( 8 ) A designated judge must keep all copies of applications and archived

cornmunicarion-relaIed directions submitted to him or her in terms of subsection (7), or

cause it to be kept. for a period of at least five years.

and ( e ) :

information must be routed or provided: and

communication-related information authorised therein. 70

.4mendment or extension of existing direction 30

20. 1 I The applicant who macle the application in respect of an existing direction or,

if he or she is not a\.ailahle. any other applicant who would have been entitled to make

that application. ma!.. at any stage after the issuing of the existing direction concerned.

but before the expiry of the period for which it has been issued. apply to a designated

judge for an amendment thereof or the extension of the period for which it has been 35

issued.

( 2 ) .4n application referred to in subsection ( 1 I must be in writing and must-

(rr) contain full particulars of the reasons and circumstances alleged by the

applicant in support of his or her application;

r h l in the case of an application for the- 40

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

( i i ) extension of the period for which an existing direction has been issued,

( c / contain an affidavit setting forth the results obtained from the direction 45

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 J comply with any supplementan directives relating to applications for the

amendment or extension of directions issued under section 58. 50

(3) .4 designated judge may. upon an application made to him or her in terms of

required: or

indicate the period for which the extension is required;

subsection (1 )-

( a ) amend an existing direction: or

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

(4) An existing direction may only be amended or the period for which it has been 55

issued may only be extended if the designated judge concerned is satisfied, on the facts

alleged in the application concerned, that the amendment or extension is necessary for

purposes of achieving the objectives of the direction concerned: Provided that the period

51 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0

AND PROVISION OF COMhZUNICATlOK-RELATED INFORMATION ACT. 2002

for which an existing direction has been issued may only be extended for a further period

not exceeding three months at a time.

(5) Any amendment of an existing direction or extension of the period for which it has

been issued, must be in writing.

(6) Section 16(7) applies. with the necessary changes. in respect of the amendment of S

an existing direction or the extension of the period for which an existing direction has

been issued.

Application for, and issuing of, decryption direction L.

21. ( 1 An applicant w h o -

( a ) makes an application referred to in section 16( 1 ) may in his or her application 10

also apply for the issuing of a decryption directiqn, or

( b ) made an application referred to in section 16( 1 ) 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 in respect of

which such an application was made. but before the expiry of the period or 15

extended period for which it has been issued, apply to a designated judge for