Marius Scheepers & Company Attorneys


mariusscheeprs@irodo.com

Electronic Communications & Transactions Act Compliance:

Marius Scheepers & Company,
P.O. Box 38197,
Faerie Glen,
Pretoria,
South Africa,
0043

C/O 519 Spuy Street,
Sunnyside,
Pretoria

Telephone / Fax no.:
+27 (0)12 991 4487

Data / Fax no.:
+27 (0)82 565 5140

Mobile no.:
+27 (0)82 569 4198



Marius Scheepers and Company Attorneys and their associates accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein. They are committed to regularly update all information that is subject to change from time to time. Any person may contact them for further information and to arrange for a consultation to deal with a specific issue or send an e-mail to mariusscheepers@irodo.com The information contained herein does not serve as alternative to legal advice that may be provided during a furrow assessment of the case at a proper consultation.


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Regulation of Interpretation of Communication & Provision of Communication related information act, 70 of 2002

(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

15

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

0

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. .

10

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

u

.z.

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;

\ .

1

(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.

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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

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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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35

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50

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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;

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45

50

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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

the issuing of a decryption direction.

( 3 ) Subject to section 33( 1 ). an application referred to in subsection ( 1 ) must be in

writing and must-

(n? indicate the of the- 20

( i ) applicant:

( i i ) customer. if known, in respect of whom the decryption of encrypted

( i i i ) decryption key holder to whom the decryption direction must be

information is required; and

addressed: 25

( h i 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

( d ) indicate the period for which the decryption direction is required to be issued:

( e ) indicate whether any previous application has been made for the 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 of that application: 35

Ci) proof that an interception direction has been issued: and

(ii) 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 40

obtain such results: and

in which it must be provided: 30

(f) if the application is made in terms of subsection ( I ) f h ) . also contain-

( g i comply with any supplementary directives relating to applications for

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

( 3 ) A decryption direction may only be issued-

decryption directions issued under section 58.

subsection (1). issue a decryption ( u ) if the designated judge concerned is satisfied, on the facts alleged in the

application concerned, that there are reasonable grounds to believe that- -

any indirect communication to which the interception direction con-

cerned applies, or any part of such an indirect communication. consists of SO

encrypted information:

the decryption key holder specified in the application is in possession of

the encrypted information and the decryption key thereto;

the purpose for which the interception direction concerned was issued

would be defeated, in whole or in part, if the decryption direction was not 55

issued: and

it is not reasonably practicable for the authorised person who executes

the interception direction concerned or assists with the execution thereof,

16 No. 23286 GOVERNMENT GAZETTE, 21 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * +

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

to obtain possession of the encrypted information in an intelligible form

without the issuing of a decryption direction; and

( b ) after the designatd 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 5

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 k ~ y holder to whom the

decryption direction 10

(5) A decryption direction-

( a ) must be in writing;

( h i must contain !he information referred to in subsection (3)(u)(ii) and (iii). (b)

and ©:

i c ) must state the period uithin which the decryption key must be disclosed or the 15

decryption assistance must be proiided. whichever is applicable:

i d ) may specify conditions orestrictions relating to decryption authorised

therein: and

[ c i 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 a 20

decryption direction expires when the period or extended period for which the

interception direction concerned has been issued. lapses.

(6) Section 16(7) applies. with the necessary changes. in respect of the issuing of a

\ ,

decryption direction.

-4pplication for, and issuing of, entry warrant 95

22. ( I ) An applicant Msh*

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

also apply for the issuing of an entry warrant: or

( b ) made an application referred to in section 16( I ) or, if he or she is not available.

any other applicant who would have been entitled to make that application, 30

may. at any stage after the issuing of the interception direction in respect of

which such an application was made, but before the expin of the period or

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

the issuing of an e n t v warrant.

( 3 ) Subject to section 23( 1 ). an application referred to in subsection (1 ) must be in 35

writing and must-

(rrl indicate the-

( i ) identity of the applicant:

( i i ) premises in respect of which the entry warrant is required to be issued:

l i i i ) specific purpose. referred to in the definition of “entry warrant”. for

and 40

\vhich the application is made:

( b ) if the application is made in terms of subsection ( 1 )ib), also contain-

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

( i i ) an affidavit setting forth the results obtained from the interception 45

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;

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

entry uwrant for the same purpose or in respect of the same premises 50

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

indicate the current status of that application: and

(a’) comply with any supplementary directives relating to applications for entry

warrants issued under section 58.

(3) A designated judge may, upon an application made to him or her in terms of 55

(4) An entry warrant may only be issued if the designated judge concerned is satisfied,

subsection ( I 1. issue an entry warrant.

on the facts alleged in the application concerned, that-

( a ) the entry of the premises concerned is necessary for a purpose referred to in

the definition of “entry warrant”; or

(h) 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. 5

( 5 ) An entry warrant-

( 0 ) must be in writing:

(6) must contain the information referred to in subsection (2)(a)(ii) and (iii); and

( c I may contain conditions or restrictions relating to th entr u on the premises

concerned as the designated judge deems necessary. \ y p 10

(6) An entry warrant expires when-

( a i the period or extended period for which the interception direction concerned

( h ) it is cancelled in terms of section 23( 1 I ) or 2561 ) or ( 2 ) by the designated

has been issued. lapses; or

judge who issued it or. if he or she is not availabfe, by any other designated 15

judge.

whichever occurs first.

entry %’arrant.

who made the application in respect of the entry warrant concerned or, if he or she is not

available. an!. other applicant who would have been entitled to make that application.

must. as soon as practicable after the date of expiry of the entry warrant concerned. and

without applying to a judge for the issuing of a further entry warrant. remove. or cause

to be removed, any interception device which has been installed thereunder and which. 25

at the date of expiry of that entry warrant. has not yet been removed from the premises

concerned.

(7 1 Section 1617) applies. with the necessary changes. in respect of the issuing of an

(8 I If an entry warrant has expired as contemplated in subsection ( 6 ) ( u ) , the applicant 20

7

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

entry warrant

23. ( 1 1 An application referred to in section 16( 1 ). 17( I ). 1% 1 ). 21 ( 1 ) or 22( 1 ) may be 30

made orally by an applicant who is entitled to make such an application if he or she is

of the opinion that it is not reasonably practicable. having regard to the urgency of the

case or the existence of exceptional circumstances. to make a written application.

( 2 ) An oral application referred to in subsection (1) must-

lrr) contain the information referred to in section 16(2). 17(2). 21(2) or X!(?), 35

u.hichever is applicable;

t 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

I C ‘ ) comply with an)’ supplementary directives relating to oral applications issued 40

under section 58.

( 3 ) Notwithstanding sections 2 and 12 or anything to the contrary in any other law

contained. a designated judge may. upon an oral application made to him or her in terms

of subsection ( 1 ). issue the direction or entry warrant applied for.

( 4 ) A direction or an entry warrant may only be issued under subsection (3)- 4s

( N J if the designated judge concerned is satisfied, on the facts alleged in the oral

application concerned, that-

( i ) there are reasonable grounds to believe that the direction or entry warrant

applied for could be issued:

( i i ) a direction is immediately necessary on a ground referred to in section 50

16(5)la). 17(4) or 21(4)(u), whichever is applicable, or an entry warrant

is immediatel:, necessary on a ground referred to in section 22(4); and

(iii) it is not reasonably practicable. having regard to the urgency of the case

or the existence of exceptional circumstances, to make a written

application for the issuing of the direction or entry warrant applied for; 55

and

SO No. 21786 GOVERNMENT GAZETIE, 22 JANUARY 9003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0

AND PROVISION OF COMMUNICATION-RELATED INFORhfPtTION ACT. 2002

( b ) on condition that the applicant concerned must submit a written application to

the designated judge concerned within 48 hours after the issuing of the

direction or entry warrant under subsection (3).

( 5 ) A direction or entry warrant issued under subsection (3) must be in writing.

(6) Section 16(5)(bl and ©. (6) and (7). 17(5) and (6),21(3)(h), ( 5 ) and (6) or 2215). 5

16). ( 7 ) and (8). whichever is applicable. applies. with the necessary changes, in respect

of the issuing of a direction or an entry warrant under subsection (3).

( 7 ) Notwithstanding subsection (5). a designated judge may. upon an oral application

made t o him or her in terms of subsection ( 1 ). orally issue the direction or entry warrant

applied for.

(8, An oral direction or oral entry warrant may only be issued under subsection (7)-

(cr I if the designated judge concerned is satisfied, on the facts alleged in the oral

appl~cation concerned. that-

( i ) i t is not reasonably practicable. having regard IO the urgency of the case

‘. . 10

or the existence of exceptional circumstances to issue the direction or 15

entry warrant applied for in wrriting: or

oral direction or oral entr). warrant: lind

l i i ) any other exceptional circumstances exist which justify the issuing of an

( h i on condition that the applicant concerned must submit a written application to

the designated judge concerned Mithin 48 hours after the issuing of the oral 20

direction or oral entry n’arrant under subsection (7).

(9) Section 16(5)ib) and fc). (6)lb). © and i d ) and ( 7 ) . 17(5)(bJ, fc) and (d) and ( 6 ) .

2 l(4)lb). (S)(b). IC). (dl and ( e ) and (6) or 1 3 S ) f h ) and (c). (6). (7) and (8). applies. with

the necessary changes. in respect of the issuing of an oral direction or oral entry warrant

under ( 7 ) . 15

(10) A designated judge who issues an oral direction or oral entry warrant under

subsection ( 7 ) must-

(a) immediately after the issuing thereof. inform the applicant and, if applicable.

the postal service provider or telecommunication service provider to whom it

is addressed. orally of such an oral direction or oral entry warrant. including 30

( i ) contents thereof: and

l i i ) period for which it has been issued: and

after the issuing 35

the-

( 1 7 ) confirm that oral direction or oral entry warrant in writing within 11 hours

( 11 I .4 designated judge who issued-

( a ) a direction or an entry warrant under subsection 13): or

( / I ) an oral direction or oral entry warrant under subsection ( 7 ) ,

or. if he or she is not available. any other designated judge who would have been entitled

to issue such direction. entry warrant. oral direction or oral entq warrant must. upon 30

receipt of a written application submitted to him or her in terms of subsection (4)lh) or

( 8 ) ( h ) . reconsider that application u,hereupon he or she may confirm. amend or cancel

that direction. entry warrant. oral direction or oral entry warrant.

( 11) It’ a dircction. entr) warrant, oral direction or oral entry warrant is-

( a ) confirmed or amended in terms of subsection ( 1 1 ). the designated judge 4s

concerned must forthv,.ith in lvriting inform-

( i ) the applicant concerned: and

( i i ) if applicable. the postal ser\,ice provider, telecommunication service

of such confirmation or amendment: or 50

cancelled in terms of subsection ( 1 1 ). section 35(3), (4) and (5) applies with

the necessary changes.

provider or decryption ke!. holder concerned.

52 No. 732x6 GOVERNMENT GAZETTE. 22 JANUARY 2003

c. Act NO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS *.

.4ND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 1002

Reports on progress

24. The designated judge who issued a direction or an entry warrant may at the issuing

thereof or at any stage before’the date of expiry thereof, in writing require the applicant

who made the application in respect of the direction or entry warrant concerned to report

to him or her in writing- 5

( [ I ) at such intenals as he or she determines, on-

( i ) the progress that has been made towards achie\.ing the objectives of the

(ii ) any other matter which the designated judge deems necessary; or

(bl on the date of expiry of the entry warrant concerned. on whether the 10

interception device has been removed from the premises concerned and. if so.

the date of such removal.

direction or entry warrant concerned: and ,..

> .

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

25. i 1 ) The designated judge who issued a direction or an entry warrant or, if he or she

is not available. any other designated judge who would have been entitled to issue such 15

direction or entry warrant may cancel that direction or entry Lvarrant if-

tal the applicant concerned fails to submit a repon in terms of section 23. if

applicable: or

t h ) he or she. upon receipt of a report submitted i n terms of section 24. is satisfied

that the- 20

( i ) objectives of the direction or entry warrant concerned have been

( i i ) ground on which the direction or the purpose for which the entry warrant

achieved: or

concerned was issued, has ceased to exist.

( 2 ) The designated issued- ‘ 5

icli a direction or an entry warrant under section 23(3): or

((11 an oral direction or oral entry warrant.

or. if’ he or she is not available. any other designated judge who would have been entitled

to issue such a direction. entry warrant. oral direction or oral entry warrant. must cancel

that direction. entry warrant. oral direction or oral entry warrant if the applicant

concerned fails to comply with section 23(4)(0, or (8)(b).

( 3 I If a designated judge cancels-

i I I J a direction or an entry warrant:

(6, a direction or an entry warrant issued under section 23(3): or

i c i an oral direction or oral entry warrant.

(i \ the applicant concerned: and

(ii if applicable, the postal service protider. telecommunication service provider

in terms of subsection ( 1 ) or ( 2 ) . he or she must forthwith in tvriting inform-

or decryption key holder concerned.

of such cancellation.

( 4 ) If an e n t c warrant or oral entry warrant is cancelled in terms of subsection ( 1 ) or

( 2 ) . the applicant concerned must. as soon as practicable after having been informed of

such cancellation. remove. or cause to be removed. any interception device which has

been installed under the entry warrant or oral entry warrant concerned.

( 5 ) If a direction issued under section 13(3) or an oral direction is cancelled in terms

of subiection ( 2 ) -

the contents of any communication intercepted under that direction or oral

direction 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. unless the court is of the opinion that the admission of such

evidence would not render the trial unfair or otherwise be detrimental to the

administration of justice; or

any postal article that was taken into possession under that direction or oral

direction must be dealt with in accordance with section 26(4).

30

35

40

45

so

54 No. 24286 GOVERNMENT GAZETTE. 22 JANUARY 2003

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

PIND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

CHAPTER 4

EXECUTION OF DIRECTIONS AND ENTRY WARRANTS

Execution of direction

26. ( 1 ) ( u i If a direction has been issued under this Act. any-

( i ) law enforcement officer may execute that direction: or

(ii) law enforcement officer or other person may assist w2Q the execution thereof.

if the law enforcement officer or person concerned has been authorised by the applicant

who made the application for the issuing of the direction concerned to execute that

direction or to assist with the execution thereof.

( h ) A direction issued under this Act upon an application made by an applicant

referred to in paragraph (,f) of the definition of “applicant”‘niay only be executed by a

law enforcement officer authorised thereto in writing by the applicant concerned. after

consultation with the National Commissioner. if that Ian enforcement officer is a

member of the Police Service. or the National Director. if that law enforcement officer

is a member of the Directorate or of any component referred to in paragraph ( e ) of the

definition of “lau. enforcement agency“.

( 2 ) The applicant concerned may authorise such number of authorised persons to

assist with the execution of the direction as he or she deems necessary.

( 3 ) An authorised person who executes a direction or assists with the execution

thereof may intercept. at any place in the Republic, any communication in the course of

its occurrence or transmission to which the direction applies.

(4) If any postal article has been taken in possession in terms of subsection ( 3 ) , the

authorised person who executes the direction concerned or assists with the execution

thereof-

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;

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 )

(ii)

(iii)

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

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

such postal article may be returned without prejudice to the public health

or safet).. national security or compelling national economic interests of

the Republic. as the case ma)’ be: or

may. in circumstances other than those referred to in-

(i)

(ii)

paragraph (b). with the written approval of the applicant concerned,

return such postal article or cause it to be returned to the postal service

provider concerned if such postal article-

(aaj has not been disposed of in terms of paragraph (a): and

(Db) 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

paragraph (a), on the written instructions of the applicant concerned

dispose of such postal article 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 such postal article-

(aai has not been disposed of in terns of paragraph (a); and

(bhj in the opinion of the applicant concerned, cannot be returned in

terms of subparagraph (i) without prejudice to the public health or

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56 No. 21286 GOVERNMENT GAZEnE, 22 JANUARY 2003

Act No. 70,202 REGULATION OF INTERCEPTION OF COMMUNICATIONS a.

AND PROVISION OF COMMUNICATION-RELATED INFORMARON ACT. 2002

safety. national security or compelling national economic interests

of the Republic. as the case may be.

Execution of entry warrant

27. If an entry warrant has been issued. any authorised person who executes the

interception direction in respect of which that entry warrant has been issued or assists

with the execution thereof may, at any time during which the entry warant is of force,

without prior notice enter the premises specified in the entry wanant and perfom any

act relating to the purpose. referred to in the definition of “entry \ barrant”, for which the

entry warrant concerned has been issued.

Assistance by postal service provider and telecommunication service provider . *

28. ( 1 ) If an interception direction or a copy thereof is hinded to the postal service

provider or telecommunication service provider to whom the interception direction is

addressed b!, the authorised person who executes that interception direction or assists

with the execution thereof. the-

( a i postal service provider concerned must intercept the postal article to which the

interception direction applies and hand it to the authorised person concerned:

01’

l h ) telecommunication ser\zice provider concerned must immediately-

ii) route the duplicate signals of indirect communications to which that

interception direction applies to the designated interception centre

concerned; or

iii) make available the necessary assistance and. subject to section 46(7)(b),

the necessary facilities and devices to enable the authorised person

concerned to effect the necessary connections in order to intercept any

indirect communications to which the interception direction applies.

( 2 ) If a real-time communication-related direction or an archived communication-

related direction or a copy thereof is handed to the telecommunication service provider

to whom the real-time communication-related direction or archived communication-

related direction is addressed by the authorised person who executes that real-time

communication-related direction or archived communication-related direction or assists

with the execution thereof, the telecommunication service provider concerned must-

( i ) real-time communication-related information specified in the real-time

communication-related direction concerned immediately; or

( i i ) archived communication-related information specified, and within the

period stated. in the archived communication-related direction con-

cemed,

( a ) route the-

to the designated interception centre concerned; or

( 1 ) real-time communication-related information specified in the real-time

communication-related direction concerned immediately; or

(ii) archived communication-related information specified, and within the

period stated. in the archived communication-related direction con-

cerned,

to the law enforcement agency concerned, in the form as specified in that

real-time communication-related direction or archived communication-

related direction.

( h , pro\,ide the-

Assistance by decryption key holder

29. ( 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 authorised person who

executes that decryption direction or assists with the execution thereof, the decryption

key holder concerned must within the period stated in the decryption direction-

(a) disclose the decryption kej.; or

( b ) provide the decryption assistance.

specified in the decryption direction concerned. to the authorised person concerned.

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56 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

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

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT, 2002

( 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 necessarylto obtain access to the encrypted information specified in

that decryption direction or to put that encrypted information in an intelligible

(hl may only disclose the decryption key or provide the decryption assistance to

the authorised person who executes that decryption direction or assists with

the execution thereof: and

© may not disclose any other information. which , k n o t specified in that

decryption direction. relating to the customer in respect of whose encrypted 1 0

information the decryption key has been disclosed or the decryption

assistance has been provided.

( 3 ) A decryption key holder to whom a decryption directiop is addressed and who is

form: 5

in possession of both the encrypted information and the decryption key thereto-

(01 may use any decryption key in his or her possession to provide decryption 15

( h i must. ‘in providing such decryption assi.&ance. make a disclosure of the

(4) A decryption key holder u.ho. in terms of a decnption direction. is required to

assistance: and

encrypted information in an intelligible form.

provide decryption assistance in respect of any encrypted information. will be regarded 20

as having complied with that requirement if he or she-

( a ) instead of providing such decryption assistance. discloses any decryption key

f h ) makes such a disclosure, in accordance with the decryption direction

to the encrypted information that is in his or her possession: and

concerned, to the authorised person to whom. and by the time by which. he or 25

she was required to provide the decryption assistance.

( 5 ) If a decryption key holder to whom a decryption direction is addressed. is-

( ( I ) not in possession of the encrypted infonnation: or

( ( 1 ) incapable. nithout the use of a decryption ke! that is not in his or her

the decryption key holder concerned must endeavour to compl!. to the best of his or her

ability, with that decvption direction.

(6) If a decryption key holder to whom a decnption direction is addressed, is in

possession of difl’erent decnption keys. or combinations of decryption keys. to the

encrypted information- 35

( 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 thow the disclosure of which. alone. is sufficient to enable

the authorised person to whom they are disclosed to obtain access to the

encrypted information and to put i t into an intelligible form: or 4 0

( b ) the decryption k q holder may select which of the decryption keys. or

combination of decFption keys. to disclose for purposes of complying with

the decryption direction concerned.

possession, to comply fully with that decryption direction. 30

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

( u ) has been i n possession of the decryption Le! to the encrypted information. but 35

is no longer in possession thereof;

(hi if he or she had continued to have the decryption ke). in his or her possession,

he or she would have been required by virtue of the decryption direction to

disclose it; and

( ~ 1 is in possession of any information that would facilitate the obtaining or 50

discovery of the decryption key or the provision of decryption assistance,

he or she must disclose all such information as is in his or her possession to the

authorised person who executes the decryption direction or assists with the execution

thereof.

section-

(8) An authorised person to whom a decryption key has been disclosed under this 55

( 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

( 6 ) must, on or before the expiry of the period or extended period for which the 60

decryption direction concerned has been issued. with the written approval of

60 KO. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0

AND PROVISIOK OF COh4MUNICATION-RELPED INFORMNION ACT. 2002

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 5

connection with such records: or

iii) 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 5

INTERCEPTION CAPABILITY AND CORlPENSATION 10

Interception capability of telecommunication services and storing of communica-

tion-related information

30. [ I i Notwithstanding any other law. a telecomnpnication service provider must-

( ( 1 ) provide a telecommunication service which has the capability to be

f h ) store communication-related infonnation.

intercepted: 15

( 3 ) The Cabinet member responsible for communications. in consultation with the

hqinister and the other relevant Ministers and after consultation with the Authority and

the telecommunication service provider or category of telecommunication service

pro\,iderh concerned. must. on the date of the issuing of a telecommunication service 3-0

licence under the Telecommunications Act. to such a telecommunication service

pro\.ider or category of telecommunication service providers-

((11 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 3-5

telecommunication service provider or category of telecommunication

service providers concerned:

lii) security. technical and functional requirements of the facilities and

devices to be acquired by the telecommunication service projider or

catezory of telecommunication service providers to enable the- 30

~ L I L ~ ) interception of indirect communications in terms of this Act: and

f h h ) storing of communication-related information in terms of subsec-

( i i i ) type of communication-related information which must be stored in

terms of subsection (1 ) , b ) and the period for tvhich such information 35

must be stored. which period ma!, subject to subsection (8). not be less

than three years and not more than five years from the date of the

transmission of the indirect communication to which that communica-

tion-related information relates: and

tion ( l ) ( h ) : and

I ~ J determine a period. which may not be less than three months and not more 40

than six months from the date on which a directive referred to in p a r a p p h ( a )

is issued. for compliance with such a directive. and the period so determined

must be mentioned in the directi\,e concerned.

( 3 ) A directive referred to in subsection ( 2 ) ( a k -

( ~ 1 1 must. where the- 35

( i ) capacit). needed for interception purposes:

(ii) technical requirements of the systems to be used;

(iii) connectivity with interception centres:

(iv) manner of routing duplicate signals of indirect communications to

designated interception centres in terms of section 28( 1 )(bi(i): and 50

(i.1 manner of routing real-time or archived communication-related informa-

tion to designated interception centres in terms of section 28(2)(u); and

62 KO. 21286 GOVERNMENT GAZETTE, 12 JANUARY 2003

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

AND PROVISION OF COMMUNICATION-RELATED INFORMXTION ACT. 2002

( b ) may prescribe any other matter which the Cabinet member responsible for

communications. in consultation with the Minister and the other relevant

Ministers and after consultation with the Authority, deems necessary or

expedient.

(4) Notwithstanding any other law, agreement or licence. a telecommunication

Service provider must. subject to section 46(1)(a), at own cost acquire, whether by

purchasing or leasing. the facilities and devices determined in a directive referred to in

subsection ( 2 ) f u ) .

(5) Any costs incurred by a telecommunication service prcqider under this .Act in-

((I) enabling- .

(i 1 a tciecommunicvtion service to be intercepted: and

( i i ) communication-related information to be stored.

including the investment. technical. maintenance and operating costs: and

f h j compl!.ing with section ?S( 1 )ih)(i) and (?)(a), ‘,\.

must be borne by that telecommunication service provider.

withdrawn.

( 6 ) .4 directi\.e issued under subsection ( ? ) ( ( I ) may in like manner be amended or

( 7 ) The Cabinet member responsible for communications must. within two months

after the fixed dare ;~nd in consultation with the Minister and the other relevant Ministers

and after consultation uith the Authority and a telecommunication service provider or

category of telecommunication service providers to whom. prior to the fixed date. a

telecommunicatlon service licence has been issued under the Telecommunications

Act-

( ( 1 ) issue a directive referred 20 in subsection (2)(a) in respect of such a

telecommunication service provider or category of telecommunication

service providers: and

fbj determine a period. which may not be less than three months and not more

than six months from the date on which a directive referred to in paragraph (a)

is issued. for compliance with such a directive, and the period so determined

must be mentioned in the directive concerned.

( 8 ) If a period of more than three years has been determined in terms of subsection

(2)laj(iii). the Cabinet member responsible for communications may. upon application

by the telecommunication senice provider concerned and in consultation with the

relevant Ministers. reduce that period to a period which may not be less than three years

by issuing an amended directive under subsection ( ? ) ( a ) .

Compensation payable to postal service provider. telecommunication service

provider and decnption key holder

31, ( 1 J ( ( 1 ) The Minister. after consultation with the Cabinet members responsible for

communications and national financial matters and the postal service providers or

telecommunication service providers concerned. as the case may be. must b!, notice in

the Ga:etre prescribe-

( i j the forms of assistance in the execution of a direction for which a postal

serlticc provider. telecommunication service provider or decryption key

holder must be compensated: and

( i i ) reasonable tariffs of compensation payable to a postal service provider,

telecommunication service provider or decryption key holder for providing

such prescribed forms of assistance.

( h ) The tarif% prescribed under paragraph (a)(ii)-

(i) may differ in respect of different categories of postal service providers.

( i i ) must be uniform in respect of each postal service provider, telecommunication

( c ) A notice issued under paragraph (a) may at any time in like manner be amended

( d ) The first notice to be issued under paragraph (a) must be published in the Gaxrte

( 2 ) The forms of assistance referred to in subsection (I)(a)(i) must include. in the case

( a ) telecommunication service provider, the making available of a facility. device

telecommunication service providers or decryption key holders: and

service provider or decryption key holder falling within the same category.

or withdraw.

kvithin three months after the fixed date.

of a-

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64 No. 24286 GOVERNMENT GAZElTE. 22 JANUARY 2003

Act No. 70,2002 REGULATION OF 1KI”TRCEPTION OF COMMUNICA+TIONS * -

AND PROVISION OF COMMUNICP;TION-RELATED INFORMATION ACT. 2002

(hi decryption key holder, the-

(i) disclosure of a decryption key: and

( i i ) provision of decryption assistance.

(3) The compensation payable to a postal service provider, telecommunication service

provider or decryption key holder in terms of this section will only be for direct costs 5

incurred in respect of personnel and administration which are required for purposes of

providing any of the forms of assistance contemplated in subsection (I)(a)(i).

(4) Any notice issued under subsection (1) must. before publication thereof in the

Gazette. be submitted to Parliament. \ .

CHAPTER 6 10

INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES AND

INTERNET SERF’ICE PROVIDERS ASSI$$ANCE FUND

Establishment of interception centres

32. ( 1 ) The Minister. in consultation with the rele\ant Ministers and the Cabinet

member responsible for national financial matters. must. at State expense- 15

(01 establish one or more centres. to be known as interception centres, for the

chi equip. operate and maintain such interception centres;

( c i acquire. install and maintain connections between telecommunication

tdi administer the interception centres.

interception of communications in terms of this Act:

systems and interception 30

( 2 ) The h’finister must exercise final responsibility over the administration and

( 3 ) Notu ithstanding the Telecommunications Act, an interception centre will. for

functioning of interception centres.

purpoxs of performing its functions in terms of this Act, be exempted from- 35

f r i l obtaining any kind of licence required by that Act; and

0 1 ) paying any fees payable in terms of that Act.

(4 1 The Minister must enter into senice level agreements with the relevant Ministers

in respec1 of the provision of ser\.ices by the interception centres to the law enforcement

agencies. 30

(5) The Executive Director ma! enter into agreements with the National Commis-

sioner and National Director to make use of the services of interception centres,

including the cost thereof.

Establishment of Office for Interception Centres

33. There is hereb!, established an office to be known as the Office for Interception 35

Centres.

Director and staff of Office

31. ( I ) The Minister and the reh’ant Ministers must. from among their respective

Departments. second a member or an officer to the Office as the Director: Office for

Interception Centres. who will be the head of the Office. 40

( 2 ) The Director may exercise the powers and must perform the functions and carry

out the duties conferred upon. assigned to or imposed upon him or her by the Minister

or under this Act. subject to the control and directions of the Minister.

( 3 ) Whenever the Director is for any reason unable to exercise, perform and carry out

his or her powers. functions and duties or when the secondment of a member or an 45

officer as Director is pending. the hlinister and the relevant Ministers may. from among

their respective Departments. designate a member or an officer to the Office as Acting

Director. to exercise the powers. perform the functions and cany out the duties of the

Director.

carrying out of the duties conferred upon. assigned to or imposed upon him or her by the

Minister or under this Act, be assisted. subject to his or her control and directions, by-

( ( I ) members of the law enforcement agencies. seconded or designated to the

(4) The Director will in the exercise of the powers, performance of the functions and 50

Office for that purpose by the-

66 KO. 21286 GOVERNMENT GAZETTE, 22 JANUARY 1003

.Act KO. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS

0

AND PROVISION OF COM~~UNICATIO~-RELATED INFORMATION ACT. 2002

(i) National Commissioner;

(ii) Secretary for Defence;

(iii) Director-General: National Intelligence Agency;

(iv) Director-General: South African Secret Service; and

(1.) National Director: and

particular service.

fhi officers of any other Department of State seconded to the Office. for a

( 5 1 A member or an officer may only be seconded or designated as contemplated in

this section and section 36- ‘i. .

I N ) in terms of the laws regulating such secondment;

tbi Lsith his or her consent: and

r c ) after a security clearance has been issued by the Agency in respect of that

member or officer. - 1

Powers. functions and duties of Director

35. ( 1 ) In order to achie1.e tht. objects of this Act: the Director-

must carr!’ out the administrative duties relating to the functioning of the

Office:

{ h l must exercise control over heads of interception centres and staff of the Office:

i c / must manage, and exercise administratiye conrrol over, interception centres:

i d , must regulate the procedure and determine the manner in which the provisions

of’this Act must be carried out by interception centres:

f c l must co-ordinate the activities of interception centres:

f,f) must prescribe the information to be kept b!- the head of an interception centre

in terms of section 37. \vhich must include particulars relating to-

( i ) applications for the issuing of directions and the directions issued upon

such applications w,hich is relelmt to the interception centre of m,hich he

or she is the head: and

t i i ) the results obtained from every direction executed at that interception

centre;

ig) must prescribe the manner in. and the period for. which such information must

be kept; and

1 / 7 1 is. for purposes of the exercise of the p v e r s . performance of the functions

and carrying out of the duties conferred upon. assigned to or imposed upon

him or her by the Minister or under this Act. accountable to the Minister.

( 2 ) A member or an officer seconded or designated in terms of section 34(4) may

exercise the power5 and must perform the functions and carry out the duties conferred

upon. assigned to or imposed upon him or her by the Director. subject to the control and

directions of the Director.

( 3 I The law enforcement agencies and other Departments of State must render such

assistance as ma\ be reasonabl! required in the exrr2ise of the powers. performance of

the functions and carrying out of the duties conferred upon. assigned to or imposed upon

the Director by the Minister or under this Act.

Head and staff of interception centres

36. ( 1 The Minister must in respect of ever?. interception centre to be established by

section 32( 1)fa). request the persons referred to in section 34(4)(n)(i) to (v) to second a

member or an officer from among their respective Departments to such interception

centre as head of the interception centre in ternls of the laws regulating such

secondment.

( 2 ) The head of an interception centre may exercise the powers and must perform the

functions and carry out the duties conferred upon, assigned to or imposed upon him or

her b!- the Director or under this Act, subject to the control and directions of the Director.

( 3 ) Whenever the head of an interception centre is for any reason unable to exercise,

perform and carry out his or her powers, functions and duties or when the secondment

of a member or an officer as head of an interception centre is pending. the Minister may

68 So. 21286 GOVERNMENT Act No. 70.2002 REGULATION OF IXTERCEPTION OF COMMUNICATIONS * -

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

request the persons referred to in section 34(4)(a)(i) to (v), to designate, from among

their respective Departments, a member or an officer to that interception centre as acting

head of the interception centre concerned, to exercise the powers. perform the functions

and carry out the duties of the head of that interception centre.

(4) The head of an interception centre will in the exercise of the powers, performance

of the functions and carrying out of the duties conferred upon. assigned to or imposed

upon him or her by the Director or under this Act. be assisted, subject to his or her

control and directions, by-

fcrl members of the law enforcement agencies. seconded- or designated to the

interception centre concerned for that purpose by the persons referred to in

section 34(4)(aJ(i) to (v); and

f h ) officers of any other Department of State seconded to the Office, for a

particular service.

( 5 ) A member or an officer seconded or designated in <ehs of subsection (4) may

exercise the powers and must perform the functions and carr! out the duties conferred

upon. assigned to or imposed upon him or her by the Director or the head of the

interception centre concerned. subject to the control and directions of the head of the

interception centre concerned.

( 6 ) In order to achieve the objects of this Act. the head of’ an interception centre must

exercise control over members and officers seconded or designated to the interception

centre in terms of subsection (4’1.

Keeping of records by heads of interception centres and submission of reports to

Director

37. ( 1 1 The head of an interception centre must keep or cause to be kept proper records

of such information as may be prescribed by the Director in terma of section 3 j( 1 )(f,.

( 2 ) f o J The head of an interception centre must on a quarterly basis. or as often as the

Director requires. submit a Lvritten report to the Director on-

( i ) the records kept by hitn or her in terms of subsection ( 1 ):

( ii 1 an!- abuses in connection w,ith the execution of directions which he or she is

aivare of:

(iii) any defects in any telecommunication system or in the operation of the

interception centre which have been discovered: and

t i \ . ) such activities at the interception centre or on any other matter relating to this

Act uhich the Director requests the head of the interception centre to deal with

in such report.

f h , Notw-ithstanding paragraph ( a ) . a head of an interception centre may at any stage

submit a report to the Director on an) matter which. in the opinion of the head

concerned. should urgently be brought to the attention of the Director.

( 3 ) The Director must. upon receipt of a report contemplated in subsection (?)(a),

submit a cop!. of that report to the Minister and the Chairperson of the Joint Standing

Committee on Intelligence established b!. section 2 of the Intelligence Services Control

,4ct. 1993 (.Act No. 40 of 1993).

Establishment and control of Internet Service Providers Assistance Fund

38. ( I ) There is hereby established a fund to be knonm as the Internet Service

( 2 J The Fund will be credited with-

Proliders .4ssistance Fund.

f a ) the contributions referred to in section 46( ])(/I):

( h i interest derived from the investment of money in the Fund: and

money accruing to the Fund from any other source.

( 3 , The money in the Fund must be utilised for-

purposes of section 46(7)(b); and

( ( I ) acquiring, whether by purchasing or leasing, facilities and devices for

( b l the expenses involved in the control and management of the Fund.

( 3 ) The Director is the accounting officer of the Fund in terms of the Public Finance

(5) The Fund is. subject to the directions of the Minister, in consultation with the

Management Act. 1999 (Act No. 1 of 1999).

relevant Ministers. under the control and management of the Director, who-

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70 50. 21286 GOVERNMENT GAZETTE. 22 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNIC@lONS

r. *

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

f a ) must utilise the money in the Fund in accordance with subsection ( 3 ) :

(11) will be charged with the responsibility of accounting for money received in,

( r ‘ ) must cause the necessary accounting and other related records to be kept.

( 6 ) The Minister. in consultation with the relevant Ministers. must make recommen-

dations to the Director relating to the utilisation of the money in the Fund as

contemplated in subsection (3)fa).

17) Any money in the Fund which is not required for immediate use must be invested

by the Director with a banking institution approved by the Mirfister. in consultation with

the Cabinet member responsible for national financial matters, and may be withdrawn

u.hen required.

( 8 ) An!, unexpended balance of the money in the Fund at the end of any financial year

must be carried forward as a credit in the Fund to the nex: fipncial year.

(9) The Fund and the records referred to in subsection ( 5 ) ( c ) must be audited by the

Auditor-General.

and payments made from, the Fund; and

CHAPTER 7

DUTIES OF TELECOMMUNICATION SERVICE PROVIDER

AND CUSTOMER

Information to be obtained and kept b!- certain telecommunication service

providers

39. (1 1 Before a telecommunication service provider. other than a telecommunication

senrice 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-

I N ) must. if that person is a natural person-

ii) obtain from him or her-

I O U ) his or her full names, identity number. residential and business or

postal address. whichever is applicable: and

f h h ) a certified photocopy of his or her identification document on u,hich

his or her photo. full names and identit) number, whichever is

applicable. appear:

iii) retain the photocopy obtained in terms of subparagraph (i)(bh): and

i i i i ) verify the photo. full names and identity number, whiche\,er is

applicable. of that person with reference to his or her identification

document: or

(11) must. if that person is a juristic person-

ii) obtain from the person representing that juristic person-

( m i his or her full names. identity number. residential and postal

address. whichever is applicable:

(hb) the business name and address and. if registered as such in terms of

an)’ law, the registration number of that juristic person;

(cc-1 a certified photocopy of his or her identification document on which

his or her photo. full names and identity number. whichever is

applicable. appear: and

(dd) a certified photocop), 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):

(iii) verify the-

and

(all) photo. full names and identity number. whichever is applicable, of

that person with reference to his or her identification document: and

(bh] name and registration number of that juristic person with reference

to its business letterhead or other similar document: and

icj may obtain from such person any other information which the telecommuni-

( 2 ) A telecommunication service provider referred to in subsection (1) must ensure

cation service provider deems necessary for purposes of this Act.

that proper records are kept of-

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72 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 1003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIC&rIONS

- \B

AND PROVISION OF C0:MMUNICATION-RELATED INFORMATION ACT. 2002

(a) the information. including the photocopies. referred to in subsection (1) and,

where applicable, any change in such information which is brought to his or

her attention;

(hl the telephone number or any other number allocated to the person concerned;

and 5

( c ) any other information in respect of the person concerned which the

telecommunication service provider concerned may require in order to enable

him or her to identify that person.

( 3 ) An applicant may. for purposes of making an applicahn for the issuing of a

direction. in writing request 3 telecommunication service providereferred to in 10

subsection ( I ) to-

(ul confirm that the person specified in the request is a customer of that

telecommunication service provider concerned: ., *

/ h i provide the applicant with the telephone number or any other number

allocated to that person by that telecommunication service provider: and 15

( c ) furnish the applicant with a photocopy ofdhe identification document of that

person which is retained by that telecommunication service provider in terms

of subsection ( 1 )(aJ(ii).

(1) .A telecommunication senice provider who receives a request referred to in

subsection ( 3 ) must immediately comply with that request if the person specified in the 20

request is a customer of the telecommunication service provider concerned.

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

40. ( 1 ) Before any person s e l k or in any other manner provides, any cellular phone

or SIhl-card to any other person, he or she-

( ( 1 J must, if the receiver of that cellular phone or SIM-card is a natural person- 25

( i ) obtain from him or her-

lual his or her full names, identity number. residential and business or

( h h ) a certified photocopy of his or her identification document on which

postal address. whichever is applicable; and

his or her photo, full names and identity number, whichever is 30

applicable. appear;

( i i ) retain the photocopy obtained in terms of subparagraph (i)(bh); and

(iii) verify the photo, full names and identity number. whichever is

applicable, of th,at person with reference to his or her identification

document: or 35

( h 1 must. if the receiver of that cellular phone or SIM-card is a juristic person-

(an) his or her full names. identity number, residential and postal

address. whichever is applicable:

(bb) the business name and address and, if registered as such in terms of 40

any law. the registration number of that juristic person:

(cc) a certified photocopy of his or her identification document on which

his or her photo. full names and identity number. whichever is

applicable, appear: and

(dd) a certified photocopy of the business letterhead of. or other similar 45

document relating to. that juristic person:

( i ) obtain from the person representing that juristic person-

(ii) retain the photocopies obtained in terms of subparagraph (i)(cc) and (dd):

(iii) verify the-

and

(aa) photo, full names and identity number. whichever is applicable. of 50

that person with reference to his or her identification document; and

(bh) name and registration number of that juristic person with reference

to its busines letterhead or other similar document; and

© may obtain from the r’xeiver of that cellular phone or SIM-card any other

71 So. 21286 GOVERNMENT GAZETTE. 22 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS

w

AND PROVISION OF COhlMUNICATION-RELATED INFORMATlON ACT. 1002

information which the person who sells or in any other manner provides the

cellular phone or SIM-card deems necessary for purposes of this Act.

(2) A person referred to in subsection ( 1 ) must ensure that proper records are kept of-

( a ) the information. including the photocopies, referred to in subsection ( 1 ) and.

where applicable. any change in such information which is brought to his or 5

her attention:

( b ) the cellular telephone number or any other number allocated to the other

i c ) the number of the cellular phone concerned: and

Id) any other informati011 in respect of the other person which the person 1 0

concerned m q S require in order to enable him or her to identify that other

person.

( 3 ) Section 39(3) and (4) applies, with the necessary chaqes. in respect of any person

a,ho sold. or in any other manner provided. a cellular phone or SIM-card to any other

person. 15

person;

q. .

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

41. ( I ) Whenever a cellular phone or SIM-card is lost. stolen or destroyed. the owner

of that cellular phone or SIhl-card. or any other person u.ho was in possession. or had

control. thereof when it was so l’ost. stolen or destroyed. must within a reasonable time

after having reasonabl!. become aware of the loss. theft or destruction of the cellular 20

phone or SIM-card. report such loss. theft or destruction in person or through a person

authorised thereto by him or her. to a police official at an!; police station.

( 2 ) A police official u.ho recei\.es a report contemplated in subsection (1). must

immediately pro\.ide the person Tivho 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 75

of the report.

station a here such a report has been made.

with the Cabinet member responsible for policing. issue directives prescribing the- 30

( 3 ) X record of ever!. report made in terms of subsection ( 1 ) must be kept at the police

(1) ( ( 1 ) The Minister must, within three months after the fixed date and in consultation

( i ) form and manner in Lvhich-

( u a ) a report contemplated in subsection ( 1 ) must be made; and

( h b ) records contemplated in subsection ( 3 ) must be kept: and

( i i ) information to be contained in such a report or record.

Ih) .4ny directive issued under paragraph ( a ) may at any time in like manner be 35

I C ) Any directive issued under paragraph ( a ) must. before the implementation thereof.

amended or withdrawn.

bs submitted to Parliament.

CHAPTER 8

GENERAL PROHIBITIONS .4ND EXEMPTIONS

Prohibition on disclosure of information

32. ( I ) No person may disclclse 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

.4ct. except-

to any other person who of necessity requires it for the performance of his or 45

her functions in terms of this Act:

if he or she is a person who of necessity supplies it in the performance of his

or her functions in ternis of this Act:

information which is required in terms of any law or as evidence in any court

of law: or so

to any competent authority which requires it for the institution, or an

investigation with a view to the institution, of any criminal proceedings or

76 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

~~~

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

AND PROVISION OF COMMUNICATION-RELATED INFOR~ATION ACT, 2002

civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of

Organised Crime Act.

( 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 informatioqvhich he or she obtained

in the course of his or her employment and which is connected with the

exercising of any power or the performance of any duty in terms of this Act,

whether that employee is involved in the exercising of that power or the

performance of that duty or not.

except for the purposes mentioned in subsection (1). .,

relating to the fact that-

. .

(3) The information contemplated in subsections ( I ) and (7) includes information

I n ) a direction has been issued under this Aut;

( b ) a communication is being or has been or will probably be intercepted:

© real-time or archived communication-related information is being or has been

or v.ill probably be provided:

(d) a decryption key is being or has been or will probably be disclosed or that

decryption assistance is being or has been or will probably be provided; and

le) an interception device is being or has been or will probably be installed.

Disclosure of information by authorised person for performance of official duties

43. Notwithstanding section 42( I), any authorised person who executes a direction or

( a ) the contents of any communication intercepted under that direction, or

( b ) real-time or archived communication-related information provided under that

assists with the execution thereof and who has obtained knowledge of-

evidence derived therefrom; or

direction,

may-

( i ) disclose such contents or elidence or real-time or archived communication-

related information t o another law enforcement officer. to the extent that such

disclosure is necessary for the proper performance of the official duties of the

authorised person making or the law enforcement officer receiving the

disclosure: or

(ii) use such contents or evidence or real-time or archived communication-related

information to the extent that such use is necessary for the proper performance

of hi5 or her official duties.

Listed equipment

44. ( 1) ( a ) The Minister must. by notice in the Gacerte, declare any electronic.

electro-magnetic. acoustic. melzhanical or other instrument, device or equipment, the

design of which renders it primail), useful for purposes of the 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.

( r ) The first notice to be issued under paragraph (a) must be published in the Gazetre

within three months after the fixed date.

( 2 ) fa) 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 one month must elapse between the publication of the

draft notice and the notice under subsection ( I ).

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78 No. 21286 GOVERNMENT Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * e

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

(3) Subsection 12) 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

(bj 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

Gumre, be submitted to Parliament.

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

45. ( 1 ) Subject to subsection (2) and section 46, no person may manufacture, 10

assemble, possess. sell, purchase or advertise any listed equipment.

( 2 ) Subsection 1) does not apply to any telecommunicatidn service provider or other

person who. or law enforcement agency which. manufactures, assembles. possesses,

sells. purchases or advertises listed equipment under the authority of a certificate of

exemption issued to him or her or it for that purpose by the Minister under section 46. 15

Exemptions

46. ( 1 ) iu) The Minister may, upon application and in consultation with the relevant

(i) Internet service provider from complying with section 30(4) in respect of the

(ii J telecommunication service provider or any other person from one or all of the

(iii) law enforcement agency from the prohibited acts of possessing and

for such period and on such conditions as the Minister determines. 25

( b ) A condition referred to in paragraph ( a ) may include that an Internet service

provider to whom an exemption has been granted under paragraph (a)(i) must pay as an

annual contribution to the Fund such amount as the Minister determines in each case.

(1) The Minister may only grant an exemption under subsection (l)(a) if he or she is

satisfied that- 30

(u1 in the case of an exemption under subsection (l)(a)(i), the Internet service

provider concerned carries on such a small business that he or she cannot

comply with section 30(4): or

ih J in the case of an exemption under subsection (I)(a)(ii), the purpose for which

the listed equipment will be manufactured, assembled, possessed, sold, 35

purchased or advertised is reasonably necessary; and

© such exemption is in the public interest; or

(d) special circumstances exist which justify such exemption.

Ministers, exempt any-

facilities and devices referred to in section 30(2)(a)(ii); 20

prohibited acts referred to in section 45(1): or

purchasing referred to in section 4 3 1).

( 3 ) ( a i An exemption under subsection (l)(a) must be granted by issuing to the-

ii) Internet senice provider; 40

(ii) telecommunication service provider or other person; or

(iii) law enforcement agency.

concerned. a certificate of exemption in which his or her or its name and the scope.

period and conditions of the exemption are specified.

(i) must be published in the Gazetre; and

(ii) becomes valid upon the date of such publication.

(b) A certificate of exemption issued under paragraph (a)- 45

(4) ( a ) The Minister must. before he or she publishes a certificate of exemption in

terms of subsection (3)(h)(i), table such certificate in the National Assembly for

approval. 50

(bj The National Assembly may reject a certificate tabled in terms of paragraph (a)

within two months after it has been tabled. if Parliament is then in ordinary session, or,

if Parliament is not then in ordinary session, within 14 days after the commencement of

its next ensuing ordinary session.

amended certificate in the National Assembly.

© If the National Assembly rejects such a certificate, the Minister may table an 55

80 No. X286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS \\

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002

(d) If the Minister tables an amended certificate and the National Assembly-

(i) approves the amended certificate. the Minister must publish that certificate in

terms of subsection (3)(b)(i) within one month of the National Assembly’s

approval: or

(ii) rejects the amended certificate within two months after it has been tabled, if 5

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

session. within 13 days after the commencement of its next ensuing ordinary

session. paragraph © and this paragraph apply.

( e ) If the National Assembly does not reject a certificate as tanternplated in paragraph

( 6 ) or 10

ii) such certificate will be deemed to have been approved by the National

(ii) the Minister must publish that certificate in t,erf”s of subsection (3)(b)(i)

Assembly: and

within one month thereafter.

(5) A certificate of exemption contemplated in subsection (3) may at any time in like 15

(6) An exemption under subsection (1)ful 1apseSupon-

manner be amended or withdrawn by the Minister.

( u ) termination of the period for which it was granted: or

( h ) withdraual of the relevant certificate under subsection (5).

( 7 ) If an exemption has been granted to an Internet service provider under subsection 20

(1)fuNi)-

( 0 ) that Internet service provider will be subject to all the other applicable

provisions of this Act: and

( b ) the law enforcement agency which made the application for the issuing of the

direction which is addressed to such Internet service provider, must make 25

available the necessary facilities and devices to execute that direction.

CHAPTER 9

CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES

Use of information in criminal proceedings

17. ( 1 ) Information regarding the commission of any criminal offence, obtained by 30

means of an)’ interception. or the provision of any real-time or archived communication-

related information, under this Act. or any similar Act in another country, may be

admissible as evidence in criminal proceedings or civil proceedings as contemplated in

Chapter 5 or 6 of the Pre\.ention of Organised Crime Act.

another countrj-. ma!’ only be used as evidence in any criminal proceedings or civil

proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime

Act, with the written authority of the National Director. or any member of the

prosecuting authority authorised thereto in writing by the National Director.

( 2 ) P l y information obtained by the application of this Act, or an). similar Act in 35

Proof of certain facts by certificate 40

48. 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 designated

judge. judge of a High Court. regional magistrate or magistrate has issued a direction

under this Act, a certificate signed by a designated judge. judge of a High Court. regional

magistrate or magistrate in which he or she- 45

(a) alleges that he or she has received and considered an application made to him

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

© specifies the contents of such direction,

or her in terms of this Act:

shall, upon its mere production at such proceedings, be pritna facie proof that the 50

designated judge. judge of a High Court, regional magistrate or magistrate concerned

received and considered such application, issued such direction and of the contents

thereof.

82 No. 24286 GOVERNMENT GAZETTE, 21 JANUARY 2003

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

AND PROVISION OF COMMUNICATION-RELATED INFOR&~ATION ACT, 2002

Unlawful interception of communication

49. (1) Any person who intentionally intercepts or attempts to intercept, or authorises

or procures any other person to intercept or attempt to intercept, at any place in the

Republic, any communication in the course of its occurrence or transmission, is guilty

of offence. 5

( a ) interception of a communication as contemplated in sections 3, 4, 5 . 6. 7 , 8

( h ) monitoring of a signal or radio frequency spectrum as contemplated in

(2) Subsection (1) does not apply to the-

and 9; or

sections 10 and 1 1. 10

\\

Unlawful provision of real-time or archived communication-related information . .

50. ( 1 ) Any telecommunication service provider or employee of a telecommunication

service provider who intentionally provides or attempts to provide any real-time or

archived communication-related information to any person other than the customer of

the telecommunication service provider concerned to whom such real-time or archived 15

communication-related information relates, is guilty of an offence.

communication-related information as contemplated in sections 13. 14 and 15.

( 2 ) Subsection ( 1 ) does not apply to the provision of real-time or archived

Offences and penalties

51. ( 1 ) ( a ) Any person who- 20

contraienes or fails to comply with section 6(2), 7(4), 8(4), 29(8), 40( 1 ), (3)

or (3). 42( 1 ) or 45( 1):

in any application 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; 25

acts contrary to the authority of an)’ direction issued under this Act or proceeds

to act under any such direction knowing that it has expired;

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 purposes of intercepting a postal article or communication. or installing 30

and maintaining an interception device. on that premises;

forges or, with the intent to deceive, alters or tampers with any direction or

entry warrant issued under this Act:

furnishes particulars or information in any affidavit or report referred to in this

,4ct, knowing such particulars or information to be false, incorrect or 35

misleading or not belieling it to be correct: or

obstructs, hinders or interferes with an authorised person who executes any

direction or e n t q warrant issued under this Act or assists with the execution

thereof. in the exercising of his or her powers under that direction or entn.

wwrant, 40

of an offence.

(b) .L\ny person who is convicted of an offence referred to in-

(i) paragraph (a) or in section 49(1) or 54. is liable to a fine not exceeding

R2 000 000 or to imprisonment for a period not exceeding 10 years: or

(ii) section 52,53( 1 or 55(1). is liable to a fine or to imprisonment for a period not 45

exceeding two years.

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

(i) contravenes or fails to comply with section 28(l)(a);

(ii) contravenes or fails t o comply with section 42(2); or

(iii) performs an act contemplated in subsection (l)(a)(iii), (v) or (vii), 50

is guilty of an offence.

convicted of an offence referred to in paragraph fa) is liable. in the case of-

(b) Any postal service provider or employee of a postal service provider who is

(i) a postal service provider who is a-

84 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

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

AND PROVISION OF COMMUNICATION-RELATED INFOR~ATION ACT, 2002

(aa) natural person, to a fine not exceeding R2 000 000 or to imprisonment

(bb) juristic person, to a fine not exceeding R5 000 000; or

period not 10 years. 5

for a period not exceeding 10 years; or

(ii) an employee, to a fine not exceeding R2 000 000 or to imprisonment for a

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

service provider who-

( i j contravenes or fails to comply with section 7(2). 8(3), 28( 1)fb) or (2), 30( 1) or

39(4L x- .

(ii) contravenes or fails to comply with section 30(4); 10

(iii) contral’enes or fails to comply with section 7(5), 8(5). 39( 1 j or ( 2 ) or 42(2); or

(ivj performs an act contemplated in subsection (I)(aj(iii), (v) or (viij.

is guilty of an offence.

service provider a.ho is convicted of an offence referred to in paragraph ( 0 ) or in section 15

50( 1). is liable. in the case of-

(bj Any telecommunication senice provider or employke of a telecommunication

( i ) a telecommunication service provider who is a-

laai natural person, to a fine not exceeding R2 000 000 or to imprisonment

(Ob) juristic person, to a fine not exceeding R5 000 000; or 20

period not exceeding 10 years.

for a period not exceeding 10 years; or

(ii) an employee. to a fine not exceeding R2 000 000 or to imprisonment for a

(4) ( a ) An!- decryption key holder or any employee of a decryption key holder who-

(i) contra\.enes or fails to comply with section 29( 1);

(ii) contravenes or fails to comply with section 29(2). (3)(b), ( 5 ) or (7) or 42(2); 25

(iii) performs an act contemplated in subsection (l)(a)(iii). (v) or (vii).

or

is guilty of an offence.

convicted of an offence referred to in paragraph (a) is liable, in the case of- 30

(6) Any decqption key holder or employee of a decryption key holder who is

(i) a decryption key holder who is a-

l o a , natural person. to a fine not exceeding R2 000 000 or to imprisonment

(bb, juristic person, to a fine not exceeding R5 000 000: or

period not exceeding 10 years.

(5) A con\zicrion of an offence referred to in-

lor a period not exceeding 10 years; or

(ii) an employee, to a fine not exceeding R3- 000 000 or to imprisonment for a 35

(a) subsection (?)(aj(i) does not relieve any postal service provider or any

emplo!ze of such a postal service provider of the obligation to comply with

section 18( 1 j(a); 40

( b ) suhsection (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 18( 1 ) ( h ) or ( 2 ) . 30( 1) or (4) or 39(4): or

( c j subsection (4)(a)(i) does not relieve any decryption key holder or any

employe of such a decryption key holder of the obligation to comply with 45

section 29( 1 j.

(6) Notwithqanding anything to the contrary in any other law contained, a

(7) No person \ \ , h e

magistrate’s court may impose any penalty provided for in this Act.

( 0 ) in good faith assists an authorised person with the execution of a direction; 50

(b) belie\.es on reasonable grounds that such authorised person is acting in

and

accordance with such a direction,

is liable to prosecution for a contravention of this Act.

86 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70.2002 REGULAllON OF INTERCEPTION OF COMMUNICATIONS * 0

AND PROVISION OF COMMUNICATION-RELATED INFOMATION ACT, 2002

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

52. Any person who is found in possession of any cellular phone or SIM-card in

regard to which there is reasonable suspicion that it has been stolen and is unable to give

a satisfactory account of such possession, is guilty of an offence.

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

acquired

\ .

53. (1 1 Any person who in any manner acquires or receives into his or her possession

from any other person a stolen cellular phone or SIM-card without having reasonable

cause for believing at the time of such acquisition or receipt that such cellular phone or

SIM-card is the property of the person from whom he or she acquires or receives it or

that such person has been duly authorised by the owner thege’of to deal with it or dispose

of it. is guilty of an offence.

( 2 ) In the absence of evidence to the contrary which raises a reasonable doubt, proof

of such possession is sufficient evidence of the absence of reasonable cause.

Unlawful acts in respect of telecommunication and other equipment

54. ( 1 ) Any person who. intentionally and unlawfully, in any manner-

fa) modifies, tampers with. alters, reconfigures or interferes with, any telecom-

munication equipment. including a cellular phone and a SIM-card. or any part

thereof;

ih, reverse engineers. decompiles, disassembles or interferes with, the software

installed on any telecommunication equipment. including a cellular phone and

a SIM-card, by the manufacturer thereof; or

ic,j allows any other person to perform any of the acts referred to in paragraph ( a )

or (6).

is guilty of an offence.

( 2 ) Any person who. intentionally and unlawfully, in any manner-

la) modifies. tampers with or interferes with, any interception or monitoring

i h i alloLvs any other person to perform any of the acts referred to in paragraph (a).

equipment, device or apparatus installed or utilised in terms of this Act; or

is guilty of an offence.

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

presumption

55. 1 ) Any person who fails to report the loss, theft or destruction of a cellular phone

or SIM-card in terms of sectior. 11(1), is guilty of an offence.

( 2 ) Whenever a person is charzed with an offence referred to in subsection ( 1 ) and it

is proved that such person wax. 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 a

written request by a police official to do so. will, in the absence of evidence to the

contrary wzhich raises reasonable doubt, be sufficient evidence that the cellular phone or

SIM-card has been lost. stolen or destroyed.

Revoking of licence to provide telecommunication service

56. The Cabinet member responsible for communications, after consultation with the

.4uthority. may. in the case of a second or subsequent conviction of a telecommunication

service provider of an offence referred to in section 5 1 (3)(a)(ii) and notwithstanding the

imposition of any penalty prescribed by section 5 1 (3)jb), revoke the licence issued to

the telecommunication service provider concerned under Chapter V of the Telecommu-

nications Act. to provide a telecommunication service.

5

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88 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003

Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICJTIONS * v

AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT, 2002

Forfeiture of listed or other equipment

57. (1) A court convicting a person of an offence referred to in section 51 must, in

addition to any penalty which 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;

© which was found in the possession of the convicted person; or

(d) the possession of which constituted the offence, 1.

to be forfeited to the State.

(2) A court convicting a person of an offence referred to in section 5 1 may, in addition

to any penalty which it may impose in respect of that offence, declare any equipment,

other than listed equipment-

(a) bg means of which the offence was committed:,’

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

© which was found in the possession of the convicted person; or

(d) the possession of which constituted the offence.

to be forfeited to the State.

(3) Any listed equipment or other equipment declared forfeited under subsection (1)

or (2) must, as soon as practicable after the date of declaration of forfeiture, be delivered

to the Police Service.

(4) Any listed equipment or other equipment delivered to the Police Service in terms

of subsection ( 3 ) must. in the case of-

(a) listed equipment declared forfeited under subsection (l), be kept by the Police

Service-

( i ) for a period of four months with effect from the date of declaration of

(ii) if an application referred to in subsection (6)(a) is made, until a final

(iii) if an application referred to in subsection (7)(a) is made, until a final

and must-

( a a ) as soon as practicable after the expiry of the period referred to in

subparagraph (i);

(bb) if the decision referred to in subparagraph (ii) has been given against the

telecommunication service provider or other person concerned. as soon

as practicable after that decision has been given; or

(cc) if an application referred to in subparagraph (iii) has been refused, as

soon as practicable after such rerusal; or

( h ) equipment declared forfeited under subsection ( 2 ) , be kept by the Police

Service-

(i) for a period of 30 days with effect from the date of declaration of

(ii) must as soon as practicable after the expiry of the period referred to in

forfeiture;

decision in respect of any such application has been given; or

decision in respect of any such application has been given.

forfeiture: and

subparagraph (i).

be destroyed by the Police Service.

( 5 ) A declaration of forfeiture under subsection ( 1 ) does not affect any right which any

telecommunication service provider or other person, other than the convicted person,

may have to such listed equipment. if it is proved that such telecommunication service

provider or other person-

(a) has been exempted, under section 46( l)(a), from the relevant prohibited act

referred to in section 45(1) in respect of such listed equipment;

(b) 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: and

© had taken all reasonable steps to prevent the use thereof in connection with the

offence.

(6) (a) The court in question or. if the judge or judicial officer concerned is not

available, any other judge or judicial officer of the court in question, may upon an

application made at any time within a period of three months with effect from the date

of declaration of forfeiture under subsection ( I ) , by any telecommunication service

provider or other person, other than the convicted person, who claims that-

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90 No. 24286 GOVERNMENT GAZElTE, 22 JANUARY 2003 -

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

AND PROVISION OF COMMUNICATION-RELATED INFOIU~ATION ACT, 2002

(i) the listed equipment declared forfeited under subsection (1) is his or her

(ii) he or she is a person referred to in subsection (5).

property; and

inquire into and determine those matters.

(b) If the court referred to in paragraph (a) is satisfied that the-

(i) listed equipment concerned is the property of the telecommunication service

(ii) telecommunication service provider or other person concerned is a person

the court must set aside the declaration of forfeiture and direct that the listed equipment

concerned be returned to such telecommunication service proyider or other person.

© If a determination by the court under paragraph (b) is adverse to the applicant, he

or she may appeal therefrom as if it were a convictioq by the court making the

determination. and such appeal may be heard either separately or jointly with an appeal

against the con\$iction as a result whereof the declaration of forfeiture under subsection

( 1 ) was made. or against a sentence imposed as a result of such conviction.

( d ) When determining the matters referred to in Caragraph (a)(i) and (ii), the record of

the criminal proceedings in which the declaration of forfeiture under subsection (1) was

made. must form part of the relevant proceedings, and the court making the

determination may hear such additional evidence, whether h!, affidavit or orally, as it

deems fit.

provider or other person concerned; and

referred to in subsection (S), x. -

(7) ( a ) The Minister may. if an application referred to in subsection (6)(a)--

(il has not been made, upon an application made at any time after a period of

three months with effect from the date of declaration of forfeiture under

subsection ( I ) but before the expiry of a period of four months from that date;

or

(ii) has been made and the declaration of forfeiture has not been set aside, upon an

application made at any time within a period of one month with effect from the

date on which a final decision in respect of that