SUMMARY OF SUBMISSIONS ON THE INTERCEPTION AND MONITORING BILL, 2001

INDEX

1. MARSHALL INTERNATIONAL IMB 3 + 4

2. PRIVACY INTERNATIONAL IMB 5

3. SOUTH AFRICAN POLICE SERVICE IMB 6

4. VODACOM GROUP (PTY) LTD IMB 8

5. BUSINESS SOFTWARE ALLIANCE IMB 9

6. ARTICLE 19 IMB 11

7. UUNET SA IMB 12 + 50

8. THE INTERNET SERVICE PROVIDERS' ASSOCIATION IMB 13

9. SOUTH AFRICAN INSTITUTE OF RACE RELATIONS IMB 14 + 14(b)

10. BENEDICT WRIGHT IMB 15

11. CAPE TELECOMMUNICATION USERS' FORUM IMB 17

12. LIBRARY AND INFORMATION ASSOCIATION OF SA IMB 18

13. BRIDGES.ORG IMB 19

14. TELKOM SA LIMITED IMB 20

15. CELL C (PTY) LIMITED IMB 21

16. THE FREE MARKET FOUNDATION OF SOUTHERN AFRICA IMB 22

17. PARINTO-COOPERATE TECHNICAL RISK MANAGEMENT IMB 23

18. SOUTH AFRICAN CHAMBER OF BUSINESS IMB 25

19. MOBILE TELEPHONE NETWORKS (PTY) LTD IMB 34

20. PARLIAMENTARY COMMITTEE OF THE GENERAL COUNCIL

OF THE BAR IMB 35 + 36

21. THE INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA IMB 37

22. DIRECTORATE OF SPECIAL OPERATIONS IMB 39

23. SOUTH AFRICAN HUMAN RIGHTS COMMISSION IMB 40

24. SOUTHERN AFRICAN CATHOLIC BISHOPS' CONFERENCE IMB 41

25. NATIONAL INTELLIGENCE AGENCY IMB 42

26. OFFICE FOR THE CONTROL OF INTERCEPTION AND

MONITORING OF COMMUNICATIONS IMB 43

27. NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS IMB 44

28. INTERNATIONAL FEDERATION OF LIBRARY ASSOCIATIONS

AND INSTITUTIONS IMB 52

29. THE MEDIA INSTITUTE OF SOUTHERN AFRICA AND

THE FREEDOM OF EXPRESSION INSTITUTE IMB 54

30. S A NATIONAL EDITORS' FORUM IMB 55

31. NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS IMB 57


GENERAL PROPOSALS

1. MARSHALL INTERNATIONAL (IMB 3)

(a) An ongoing working group should be established to discuss the legislation regulating the interception and monitoring of communications on a regular basis.

(b) Training courses and seminars on the provisions of the Bill should be held for judges, magistrates, prosecutors and investigating officers.

(c) The advertising of a service or equipment, which is of a criminal nature and which could lead to a contravention of the Bill, should be prohibited. (See the submission for other views expressed in respect of the possession and sale of illegal equipment that is used for interception.)

(d) Provision should be made that a court, the defence or any other person may not demand to be informed of the method or equipment used for interception.

2. PRIVACY INTERNATIONAL (IMB 5)

(a) The Bill—

(i) lacks many safeguards found in the laws of other countries and is also inconsistent with international standards on human rights; and

(ii) is likely to cause more Internet security problems, crime and security flaws in telecommunications networks.

(b) The Bill should—

(i) provide for annual public reporting of information regarding the use of electronic surveillance by law enforcement agencies;

(ii) set timetables for expunging information once it is no longer necessary; and

(iii) require that individuals who have had their communications intercepted or monitored or their transactional information collected, be informed thereof once the investigation has been completed.

3. SAPS (IMB 6)

(a) The Bill should properly regulate the monitoring of communications of employees by employers on internal telephone systems (see legal position in Britain). Government institutions should be included.

(b) Provision should be made for the interception and monitoring of communications in the execution of requests for mutual legal assistance. In line with the British legislation, the judge should be authorized to issue directions in respect of:

"The making, in accordance with an international mutual assistance or other cooperation agreement, of a request for the provision of such assistance in connection with, or in the form of, an interception or monitoring of communications as may be so described.

The provision, in accordance with an international mutual assistance or other cooperation agreement, to the competent authorities of a country or territory outside the Republic of South Africa of any such assistance in connection with, or in the form of, an interception or monitoring of communications as may be so described.".

(c) The monitoring of an instrument which has been stolen or has probably been used in a crime, in cases where the identity of the present user is unknown, should be made possible.

(d) The tampering with, re-chipping and cannibalization of, cellular phones should be made an offence.

(e) The manufacturing, importation, distribution, sale or possession of monitoring devices which are specifically manufactured or adapted to do surreptitious monitoring of communications, should be controlled, prohibited or regulated. (See position in the USA and France.)

4. VODACOM (IMB 8)

(a) The Bill undermines the viability of small, medium and macro telecommunications enterprises, the independence of the judiciary and the protection of rights.

(b) The Bill should—

(i) impose an obligation on every person who loses a cellular phone to report such loss;

(ii) create an offence in respect of the tampering with cellular phones; and

(iii) provide for the interception of communications which could, for example, be used to detonate a bomb.

5. ARTICLE 19 (IMB 11)

(a) The Bill should—

(i) set out in precise terms the limited purposes for which Internet communications and private communications may be monitored; and

(ii) provide that interceptions should only take place as a last resort.

(b) Provision should be made for—

(i) the establishment of an independent body, for example a Commissioner appointed by Parliament, to supervise the operation of the Act;

(ii) the publishing of annual reports by that Commissioner, containing details of, among others, the number of interceptions that took place and the result thereof (arrests/convictions); and

(iii) a judicial complaints mechanism in order to enable persons who suspect that they have been "under surveillance" and that their rights have been breached, to obtain effective redress.

(c) The Bill should require—

(i) judicial authorisation for any interception; and

(ii) all interceptions to be logged.

6. UUNET SA (IMB 12AND 50)

(a) UUNet opposes the implementation of differing national mechanisms and standards for surveillance.

(b) Sections 153 and 154 of the Criminal Procedure Act, 1977 (which regulate circumstances in which criminal proceedings will not take place in an open court and prohibits the publication of certain information relating to criminal proceedings, respectively), should be amended to—

(i) provide for in camera hearings; and

(ii) prohibit the publication of certain information relating to criminal proceedings so as to protect the identity of service provider employees and the nature of telecommunications systems, facilities, devices and equipment used by service providers in compliance with their statutory obligations under this Bill.

(c) A special indemnity provision should be inserted in the Bill to ensure that service providers are properly indemnified by the State for any costs, losses, claims or other liabilities arising out of the good faith execution of any of their statutory obligations pursuant to this Bill. Such indemnity must cover third party civil claims, claims from the State itself and any form of criminal liability where the service providers, their employees or agents acted in good faith pursuant to their obligations under the Bill.

7. ISPA (IMB 13)

Service providers should be indemnified from liability to any third party whose privacy rights may be violated by an interception or monitoring authorised under the Bill.

8. SA INSTITUTE OF RACE RELATIONS (IMB 14 and 14(b))

The short title of the Bill should be amended to read the "Monitoring and Interception Prohibition Act, 2001".

9. B WRIGHT (IMB 15)

The Bill should clarify the use of computer software to establish secure two-way communication links between computers over an insecure telecommunications network.

10. CTUF (IMB 17)

(a) The implications arising out of the Bill pertaining to corporate communication usage policies should be assessed.

(b) A Commissioner should be appointed to monitor the process and issuing of all directions in terms of the Bill. Such Commissioner should—

(i) have the right to inspect communication centres to ensure that the interception and monitoring of communications take place within the ambit of the Bill; and

(ii) report annually to Parliament on, among others, the number of directions issued in terms of the Bill.

11. LIASA (IMB 18)

(a) The constitutional guarantees of freedom of expression and access to information should be embedded in the Bill.

(b) The Bill should ensure that misuse of its provisions to restrict or interfere with the above rights would constitute a serious offence.

12. BRIDGES.ORG (IMB 19)

The following issues should be addressed in the Bill:

(a) Processes to ensure evidential integrity of intercepted information.

(b) Vetting procedures for employees of service providers and staff at monitoring centres.

(c) Service providers must publish a "privacy policy".

(d) The establishment of a national interception standard.

(e) The establishment of an independent Commission to oversee all interception and monitoring activities (see for example Australia, New Zealand and Britain).

(f) Oversight of procedures for handling intercepted material.

(g) An individual's right to privacy must be clearly stated, as must the exceptions under which the Bill will apply.

13. TELKOM (IMB 20)

Consideration should be given to the possibility of providing that employees of service providers may give viva voce evidence "in camera", so as to safe-guard the employee and to keep the employee’s involvement in matters relating to this Bill from becoming public knowledge. Alternatively, consideration should be given to the possibility of providing that such evidence could be given in the form of an affidavit or certificate, as provided for in the Criminal Procedure Act, 1977 (Sections 212 and/or 213).

14. CELL C (IMB 21)

(a) The burden of responsibility (economically, technically and ethically) placed on service providers must be limited as far as possible.

(b) There must be strict control over monitoring and obtaining of information.

(c) If the Bill is passed, the right to obtain information under section 205 of the Criminal Procedure Act, 1977, should be excluded.

(d) The Bill should provide for adequate accountability processes.

(e) The obligation in the telecommunication licence granted to Cell C, namely to preserve the privacy of communications on its network, must be balanced against the objects of the Bill.

(f) Demonstration of inability to meet a request for information, monitoring or interception should be permitted before an impartial body / judge.

(g) New telecommunication applications should not be subject to progress in the monitoring of such applications. Government should rather co-operate with the industry in finding solutions that meet international best practice.

(h) Every opportunity must be used to prevent, among others, misuse of information, "fishing expeditions", unaccountable or unauthorised individuals issuing or executing directions and unnecessary retention of information by service providers and law enforcement agencies.

(i) Guidelines should be drawn up, in consultation with the communications sector, regarding achievable and realistic objectives (e.g. time periods for call-record collections).

15. THE FREE MARKET FOUNDATION OF SOUTHERN AFRICA (IMB 22)

The Bill should be abandoned in toto and replaced by a serious national commitment to provide substantially increased human and financial resources for the purposes of combating crime and threats to the State.

16. SACOB (IMB 25)

(a) A suitable balance between the preservation of privacy with the need to combat cyber-crime needs to be found.

(b) A preamble should be inserted, affirming the constitutional commitment to safeguard the right to privacy, together with adequate and effective checks and balances to guard against abuse of that right.

(c) The establishment of an independent body to broadly oversee the interception and monitoring of communications in terms of the Bill should be considered.

17. MTN (IMB 34)

(a) There must be clear and transparent criteria for authorisation of interception. Such criteria must demand substantial and convincing evidence of criminal activities. It should be possible for an individual to call the State into account if it can be established that a given interception was not authorised in accordance with the legislated standard.

(b) Clear rules and guidelines protecting the privacy of communications and limiting Government's ability to intercept electronic communications surreptitiously, need to be advanced and agreed upon.

(c) The Bill should balance three key objectives, namely to—

(i) preserve a narrowly defined capability for law enforcement agencies to carry out properly authorised intercepts;

(ii) protect privacy in the face of increasingly powerful and invasive technologies; and

(iii) avoid impeding the development of new communications services and technologies.

(d) The Bill should—

(i) require a Director of Public Prosecutions or the Minister of Justice to provide annually a numerical estimate of law enforcement's anticipated use of electronic surveillance; and

(ii) provide that the Minister of Justice must report annually to Parliament on, among others, the number of interceptions and the costs involved.

(e) It must be stated policy that law enforcement agencies are not empowered or authorised to prescribe or interfere with the design of telecommunications networks subordinate to the Bill.

(f) The sensitive nature of the information which a service provider may be called upon to provide justifies responses to directives being made by way of affidavit.

(g) A mechanism or structure should be created whereby employees of service providers will not be required to testify in court, but that the above-mentioned affidavit would suffice to address the requirements of any judicial proceedings.

(h) MTN and any licensed telecommunications operator should be indemnified from any claims (civil or criminal) where it acted in accordance with a prima facie valid oral or written directive.

(i) Written directives should be served on MTN at a central point so that the requirements of the Bill can receive adequate response.

18. IDASA (IMB 37)

(a) A mechanism of accountability should be built into the Bill, for example, that a report be tabled in Parliament each year setting out the number of communications intercepted or monitored and the duration of such interception or monitoring, etc. (See corresponding legislation of the USA, UK, Sweden and Australia.)

(b) The establishment of an independent monitoring body to, among others, monitor the application of the Bill, should be considered.

19. DIRECTORATE OF SPECIAL OPERATIONS (IMB 39)

(a) The short title of the Bill creates the impression that it is merely a regulatory law. It may therefore be advisable to—

(i) rather start off with regulating legitimate interception and monitoring of communications; and

(ii) conclude by providing for the circumstances under which such interception and monitoring would be unlawful.

(b) Analogous to section 212 of the Criminal Procedure Act, 1977, a "presumption of regularity" (all (official) acts are presumed to have been lawfully done until proof to the contrary has been adduced) should be included in the Bill or preferably in the Criminal Procedure Act, 1977, to alleviate the State's burden of proving that the requirements for an application for a direction have been complied with and that the proceedings in the Judge's chambers have been in order.

20. SAHRC (IMB 40)

The Bill should—

(a) place a duty on the State to inform a person or organization that he, she or it has been the subject of monitoring; and

(b) provide that communications between medical and legal practitioners and their clients and communications of the media are privileged and that such communications may not form the subject-matter of a monitoring direction or call-related information procedure.

21. NDPP (IMB 44)

The Bill should be amended to provide for a further exception to the general prohibition, namely the interception and monitoring of an employee's communications by the employer. Such a provision will also exclude the interpretation that the Bill does not prohibit private interception and monitoring. (See legislation in the UK which provides for the interception and monitoring of communications between employer and employee.)

22. IFLA (IMB 52)

The Bill has the potential to allow the Government to withhold, monitor, censor, intercept and regulate all Internet and postal communications between South Africa and the rest of the world. The constitutional guarantees of freedom of expression and access to information should be embedded in the Bill and the clauses should be framed to ensure that misuse of the legislation to inhibit those freedoms would be regarded as a very serious crime with harsh penalties.

23. MISA, FXI AND SANEF (IMB 54 AND 55)

(a) The provisions of the Bill which empower law enforcement agencies to—

(i) intercept communications from informers to the media and communications within media companies themselves; and

(ii) "intrude" into newsroom activities and inspect the contents of newspaper reports before they are published (thereby providing such agencies with the means to prevent publication),

must be deleted.

(b) As the application of the Bill to the Internet will amount to a form of censorship, it is essential that very strict parameters should apply to monitoring the Internet.

(c) The Bill should be withdrawn and be redrafted to take account of the serious inroads into the privacy of citizens and their right to express themselves freely and to conduct free media.

24. NDPP (SUPPLEMENTARY) (IMB 57)

(a) In order to save time and prevent the judge, regional magistrate or magistrate issuing the directions in terms of clause 4 or 9 of the Bill to spent hours in court, the following provision (which is similar to section 212 of the Criminal Procedure Act, 1977) should be inserted in the Bill:.

"Proof of certain facts by affidavit

17. Whenever in any criminal proceedings, or civil proceedings in terms of Chapter 5 or 6 of the Prevention of Organised Crime Act, the question arises whether a judge, regional magistrate or magistrate has issued a direction in terms of section 4 or 9, a document purporting to be an affidavit made by a judge, regional magistrate or magistrate who in that affidavit–

(a) alleges that he or she has received and considered an application in terms of section 3 or a request in terms of section 9;

(b) alleges that he or she has issued a direction in terms of section 4 or 9, as the case may be; and

(c) specifies the contents of such direction,

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

(b) The Bill should also provide for the interception of communications relating to the dealing in property contemplated in section 38(2)(a) and (b) of the Prevention of Organised Crime Act, 1998 (In other words property in respect of which there are reasonable grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule 1 of that Act or that such property is the proceeds of unlawful activities). Clauses 4, 9(2) and 13 should be amended to provide for the interception of such communications (see proposed amendments on pages 8, 12 and 16 of "ANNEXURE A" to the submission).

 

CLAUSE 1

1. AD DEFINITION OF "CALL-RELATED INFORMATION"

(a) Marshall International (IMB 3)

Any or a combination of the features, and not necessarily all of them, should constitute "call-related information".

(b) ISPA (IMB 13)

The definition of "call-related information" is problematic in the context of Internet communications where technologies exist to ensure the anonymity and protect the location of the person initiating a communication.

(c) TELKOM (IMB 20)

(i) The expression "equipment identification" should be deleted because it is not clear what is meant thereby.

(ii) With respect to certain types of equipment, it should be noted that not all the call-related information can be provided. The definition should therefore be amended as follows:

"'call-related information' [includes] means, to the extent that it is possible to provide such information, switching, dialling ..... and, where applicable, the location of the user within the telecommunications system;".

(d) MTN (IMB 34)

The extent of the information required is too intrusive and renders the network vulnerable.

2. AD DEFINITION OF "COMMUNICATION"

(a) SAPS (IMB 6)

The inclusion of the word "signals" in the definition will probably ensure that accessing a website brings internet communications within the ambit of the definition.

(b) ISPA (IMB 13)

This definition is too broad and should be brought into line with other technical definitions in the Telecommunications Act, 1996. (Signals and music are not deemed to be communications in terms of that Act.)

(c) NDPP (Supplementary) (IMB 57)

Provisions regulating the interception and monitoring of electronic mail and Internet communications should be included in the Bill. For this purpose the definition of "communication" should be amended as follows:

"'communication' includes a conversation or a message, and any part thereof, whether-

(a) .....

(b) in any other form or in any combinations of forms, including electronic mail and the international computer net known by that name Internet;".

3. AD DEFINITION OF "CUSTOMER"

UUNet SA (IMB 12 and 50)

There are circumstances under which services will be provided to a customer without the need for a formal contract. The definition of "customer" should be amended to reflect this reality of doing business in a global and fast-paced technological environment.

4. AD DEFINITION OF "JUDGE"

(a) VODACOM (IMB 8)

The definition should be amended to provide that the judge should be "a judge in active service" and not a retired judge or a judge discharged from active service.

(b) UUNet SA (IMB 12 and 50)

The reference to "and any retired judge" should be deleted.

(c) The Free Market Foundation of Southern Africa (IMB 22)

For purposes of the Bill "judge" should be limited to an incumbent "judge of the High Court".

(d) GCB (IMB 35 and 36)

It is not clear—

(i) why the definition of "judge" is limited to judges no longer performing active service; and

(ii) what is meant by "retired judge", as distinct from a judge "discharged from active service".

(e) CELL C (IMB 21)

Applications for directions should be made to a serving judge of a High Court.

5. AD DEFINITION OF "MONITORING DEVICE"

(a) SAPS (IMB 6)

If a definition of "intercept" is inserted in the Bill, the definition of "monitoring device" should be amended as follows:

"'monitoring device' means ..... to listen to [or], record, or archive any communication, or to retrieve a communication from a telecommunications system;".

(b) UUNet SA (IMB 12 and 50)

The definition should be amended as follows:

"'monitoring device' means ..... to listen to, view or record any communication;".

6. AD DEFINITION OF "POSTAL ARTICLE"

Marshall International (IMB 3)

Postal articles which are sent or delivered by courier services or by another person or company appear to be excluded from the definition.

7. AD DEFINITION OF "PRE-PAID TELECOMMUNICATIONS SERVICE"

(a) SAPS (IMB 6)

The words "mobile cellular" should be deleted.

(b) NIA (IMB 42)

The words "mobile cellular" should be deleted so as to include any pre-paid telecommunication service.

8. AD DEFINITION OF "SERIOUS OFFENCE"

(a) Marshall International (IMB 3)

(i) The words "serious offence" should be substituted with "criminal offence" in order to include any crime that carries a conviction. Many companies are affected by matters that may not be classified as "serious offences", but which are detrimental to the running of the company, e.g industrial espionage. Consequently, consideration should also be given to the protection of companies and individuals.

(ii) Provision is made that the "offence is allegedly being or has allegedly been committed". Provision should also be made for interception and monitoring in a case where information is obtained that a crime will be committed in the future.

(iii) The question is posed whether the installation of CCTV, without the judge's authorisation, will constitute a contravention of the Bill or not.

(b) SAPS (IMB 6)

The definition of "serious offence" could be substituted with the following definition:

"'serious offence' means any offence-

(a) which involves drugs, weapons of war, firearms, ammunition, explosives, diamonds, precious metals and stones, motor vehicles, protected and endangered wildlife species and flora, money-laundering, fraud, robbery and theft, and which is committed in an organized fashion;

(b) relating to the security of the Republic;

(c) which may damage or be detrimental to the international relations of the Republic;

(d) relating to the economy of the Republic;

(e) relating to corruption;

(f) relating to the death of, or infliction of grievous bodily harm to any person;

(g) for which a person, upon conviction, may be sentenced to imprisonment for a period of one(?) year or longer;".

(c) UUNet SA (IMB 12 and 50)

(i) Paragraph (a) should be amended as follows:

"any offence mentioned in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), provided that the offence has not been declared inconsistent with the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), or is likely to be so declared by any court of competent jurisdiction and provided further that—".

(ii) Paragraph (a)(iii) should be deleted.

(iii) The expression "compelling national interests" in paragraph (g) should be substituted with "compelling defence interests".

(d) SA Institute of Race Relations (IMB 14 and 14(b))

The definition of "serious offence" should be substituted with the following definition:

"'serious offence' means—

(a) any offence mentioned in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), provided that—

(i) that offence is allegedly being or has allegedly been committed on an organised, planned or premeditated basis by the persons involved therein; or

(ii) that offence is allegedly being or has allegedly been committed on a regular basis by the person or persons involved therein;

or

(b) any offence referred to in the Prevention of Organised Crime Act, 1998, (Act No. 121 of 1998),

including any conspiracy or attempt to commit any of the above-mentioned offences;".

(e) The Free Market Foundation of Southern Africa (IMB 22)

The expression "any offence threatening ..... other compelling national interests of the Republic" in paragraph (g) requires a detailed and comprehensive listing of the precise circumstances and description of what constitutes a serious offence under that expression.

(f) SACOB (IMB 25)

The expression "compelling national interests" should be defined, meaning, for example, "national security, public policy, financial interests of the State".

(g) MTN (IMB 34)

The expression "other compelling national interests" in paragraph (a)(iii) and (g) should be deleted or should be very narrowly defined.

(h) GCB (IMB 35 and 36)

(i) The word "security" should be inserted after the word "economy" in paragraph (a)(iii).

(ii) The reference to "section 14(b)" in paragraph (b) should be deleted because section 7 of the Drugs and Drug Trafficking Act, 1992, was repealed in 1998.

(iii) Paragraph (c) should be deleted.

(iv) Paragraph (f) should be deleted.

(v) Paragraph (g) should be deleted (see detailed reasons in submission).

(i) SAHRC (IMB 40)

The expression "national interests" should either be deleted or be clearly defined.

(j) NIA (IMB 42)

Would not object against the deletion of the expression "or other compelling national interests" in paragraphs (a)(iii) and (g).

(k) Office for the Control of Interception and Monitoring of Communications (IMB 43)

The definition of "serious offence" should be substituted with the following definition:

"'serious offence' means—

(a) any offence mentioned in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977); or

(b) any offence referred to in sections 13(f) and 14(b) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992); or

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

(d) any offence relating to the death of, or infliction of grievous bodily harm to, any person; or

(e) any offence which is a threat to the security, economy or national interests of the Republic; or

(f) any attempt to commit any of the above-mentioned offences;".

(l) NDPP (IMB 44)

The following options could be considered:

A. By using Schedule 1 of the Prevention of Organized Crime Act, 1998, as basis, the definition of "serious offence" could be substituted with the following definition:

"'serious offence' means—

(a) any offence mentioned in Schedule 1 to the Prevention of Organized Crime Act, 1998 (Act No. 121 of 1998);

(b) any specified offence as defined in section 1 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); and

(c) treason, sedition or any other offence threatening the security or other compelling national interest of the Republic,

including any conspiracy, incitement or attempt to commit any of the above-mentioned offences: Provided that—

(i) that offence is allegedly being or has allegedly been committed on an organised, planned or premeditated basis by the persons involved therein; or

(ii) that offence is allegedly being or has allegedly been committed on a regular basis by the person or persons involved therein; or

(iii) that offence may cause harm to the economy or other compelling national interests of the Republic;".


B.
Alternatively, a separate list could be drafted in terms of which only serious offences relating to the objects of interception and monitoring are listed (see Canadian legislation).

(m) NDPP (Supplementary) (IMB 57)

(i) A separate Schedule, setting out the "serious offences", should be inserted in the Bill (see proposed Schedule on page 22 of "ANNEXURE A" to the submission).

(ii) The definition of "serious offence" should further be amended as follows:

"'serious offence' means–

(a) any offence mentioned in Schedule 1, provided that–

(i) that offence is allegedly being or has allegedly been committed on an organised, planned or premeditated basis by the persons involved therein; or

(ii) that offence is allegedly being or has allegedly been committed on a regular basis by the person or persons involved therein;

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

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

(d) any offence threatening the public safety and national security,

including any conspiracy, incitement or attempt to commit any of the above-mentioned offences;".

9. AD DEFINITION OF "SERVICE PROVIDER"

(a) VODACOM (IMB 8)

(i) The broadening of the scope of the Bill to include all telecommunications operators will have a detrimental impact on the telecommunications industry as a whole. (Value Added Network Service Operators and Private Telecommunications Networks operate in relatively small niche markets which are extremely competitive and the imposition of additional financial obligations on such operators will undermine their viability and growth.)

(ii) The Minister for Justice and Constitutional Development, in consultation with the Minister of Communications and the Independent Communications Authority (ICASA), should determine which categories of telecommunications licencees should be obliged to comply with the Bill.

(b) Business Software Alliance (IMB 9)

The Bill could be interpreted to apply to information service providers that do not merely facilitate communications between users, but also provide electronic information to their users. Such an interpretation may be beyond the ambit of the aims of the Bill. The Bill should therefore explicitly exclude information service providers from its ambit of operation.

10. AD DEFINITION OF "TELECOMMUNICATION SERVICE"

NDPP (Supplementary) (IMB 57)

The definition of "telecommunication service" should be amended by the insertion, after paragraph (d), of the following paragraph, whilst the existing paragraph (e) becomes paragraph (f):

"(e) electronic mail and the international computer net known by that name Internet;".

11. NEW DEFINITIONS

(a) SAPS (IMB 6)

It could be considered to define "intercept" with reference to postal (physical) communications, and to "block" or prevent electronic communications from reaching their destinations. Should such a definition be included in the Bill, the definition of "monitoring device" will have to be amended accordingly.

(b) VODACOM (IMB 8)

A definition of "interception" should be inserted.

(c) UUNet SA (IMB 12 and 50)

(i) There may be a need to define the expression "intercept" so as to cover the act of interception, including any further retransmission of any intercepted communication.

(ii) If UUNet's proposals regarding the role of ICASA are accepted, the following definition should be inserted:

"'the 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);".

(d) Bridges.org (IMB 19)

A definition of "national security" should be inserted in the Bill.

(e) NDPP (Supplementary) (IMB 57)

The Bill should only provide for the "interception" of communications which will include the monitoring of communications. The following definition of "intercept" should be inserted in the Bill:

"'intercept' means the aural or other acquisition of the contents of any communications through the use of any means, including any electronic, mechanical, or other equipment, device or apparatus, and includes the monitoring of any such communication by means of a monitoring device and when used as a noun has a corresponding meaning;".

The proposed definition necessitates various consequential amendments (see "ANNEXURE A" to the submission).

CLAUSE 2

1. GENERAL

(a) Marshall International (IMB 3)

(i) Interception and monitoring by the legal occupier of premises, which takes place on the premises of the legal occupier, should not be prohibited. A provision should be included in the Bill which empowers a company (which has reason to believe that there is any illegal activity which will be detrimental to the Republic, the company concerned or any other individual) to carry out, on its property, any surveillance, interception or monitoring of its equipment or premises. Authorisation by a judge should not be required in such instances.

(ii) The Bill should clearly state which types of interception and monitoring will not constitute a contravention thereof.

(iii) The owner of a company should have the power to grant a law enforcement agency or private investigation agency permission to monitor on his or her premises.

(iv) The SAPS should have the power to authorise a private investigator to carry out surveillance, interception and monitoring and to assist with an application to a judge. (See submission for more details.)

(v) A company owner should be able to monitor any activity involving the company assets in a public place.

(b) MISA, FXI and SANEF (IMB 54 and 55)

Scrupulous care must be taken to ensure that the absolute minimum interference with constitutional rights occurs.

2. AD SUBCLAUSE (1)

(a) Marshall International (IMB 3)

The word "confidential" in paragraph (b) should be deleted or replaced by "personal".

(b) UUNet SA (IMB 12 and 50)

(i) Paragraph (a) should be amended as follows:

"..... intentionally and without the knowledge [or] and permission of the dispatcher or receiver .....".

(ii) The expression "confidential information" in paragraph (b) should be substituted with "any information".

3. AD SUBCLAUSE (2)

(a) SAPS (IMB 6)

(i) It would assist law enforcement if police agents and traps be allowed to monitor(record) conversations in a participant monitoring situation during entrapment and undercover operations which are authorized in terms of section 252A of the Criminal Procedure Act, and guidelines issued by Directors of Public Prosecutions. There is furthermore a need in exceptional cases to monitor conversations with the explicit permission of one of the parties to the conversation, for example, in cases of extortion or kidnaping.

(ii) The question of allowing participant monitoring, should be viewed against the proposal relating to control over monitoring equipment. Allowing participant monitoring in general and not only for law enforcement purposes, would open arguments for possession of surreptitious monitoring equipment.

(b) ARTICLE 19 (IMB 11)

Paragraph (b) should be deleted.

(c) ISPA (IMB 13)

Subclauses (2) and (3) should be deleted or, at least, be more clearly motivated.

(d) Office for the Control of Interception and Monitoring of Communications (IMB 43)

The expression "party to the communication" requires further consideration. (See submission for a discussion of the position in the USA.)

(e) MISA, FXI and SANEF (IMB 54 and 55)

Subclauses (2) and (3) should be amended so as to provide that the person concerned has to be informed of the monitoring of his or her communications (i.e. similar to present position).

4. AD SUBCLAUSE (3)

(a) Marshall International (IMB 3)

The words preceding paragraph (a) should be amended as follows:

"Any person who is a party to a communication, or the proprietor of the communication system may, in the course of the carrying on of any business and without the knowledge or permission of [the] any other party [to that communication]—".

(b) SAPS (IMB 6)

(i) It is recommended that—

(aa) the matter provided for in subclause (3) should be regulated in more detail (see the British legislation, which requires, inter alia, that the necessary steps be taken in order that all users of such a system be informed beforehand that communications may be monitored);

(bb) the circumstances under which such communications may be monitored, should also be spelled out (see the British legislation); and

(cc) it should be clearly stated that such monitoring will also be allowed in government institutions.

(ii) In some businesses it is a common business practice to log calls relating to transactions on their internal communications system for business reasons. Businesses which resort to this practice, should give a warning on the telephone system that calls may be recorded or logged.

(c) Parinto-Cooperate Technical Risk Management (IMB 23)

A company or other business entity should be able to monitor activities and communications on its own premises. Such monitoring should include all forms of communication.

(d) SACOB (IMB 25)

Subclause (3) is prima facie unconstitutional. It must be defined more precisely so as to limit its application to those directly involved in the communication transmission business or other such limitation.

(e) NIA (IMB 42)

Subclause (3) should be narrowed so as to exclude private investigators.

(f) NDPP (Supplementary) (IMB 57)

(i) In principle it is agreed that participating monitoring by law enforcement agencies should be regulated. Preferably by way of directives to be issued by the National Director of Public Prosecutions. Consideration should be given to provide for the determination of such directives after consultation with the law enforcement agencies concerned and after Parliament has considered such directives.

(ii) The Office of the NDPP is at present investigating the matter further and would submit a further submission to the Committee in this regard. In the meanwhile it is proposed that the wording preceding paragraph (a) should be amended as follows:

"Any person who is a party to a communication may, in the course of the carrying on of any business [and without the knowledge or permission of the other party to that communication]—".

5. NEW SUBCLAUSE

NDPP (Supplementary) (IMB 57)

In order to provide for requirements similar to those contained in the UK legislation, the following subclause should be added:

"(4) A person may only intercept a communication in terms of subsection (3) if–

(a) such interception is effected solely for the purpose of monitoring or keeping a record of communications relevant to that person's business;

(b) the telecommunication system in question is provided for use wholly or partly in connection with that business; and

(c) that person has made all reasonable efforts to inform every person who may use the telecommunication system in question that communications transmitted by means thereof may be intercepted.".


CLAUSE 3

1. AS SUBCLAUSE (1)

(a) Marshall International (IMB 3)

The South African Revenue Services, Customs and Excise and any commission of enquiry appointed by the President, should also be authorised to apply to a judge for a direction for interception and monitoring.

(b) SAPS (IMB 6)

Subclause (1) does not reflect the mandates of the respective law enforcement agencies and should therefore be amended to make it clear that the agencies are, as far as applications for directions are concerned, limited to their respective mandates. (See formulation of section 3(2) of the Interception and Monitoring Prohibition Act, 1992.)

(c) The Free Market Foundation of Southern Africa (IMB 22)

Granting the power to apply for a direction to relatively junior officials is unacceptable. Such power should only be granted to "high level officials".

(d) CELL C (IMB 21)

There should be a closed list of Government officials who will be entitled to apply for a direction or to request call-related information.

(e) NIA (IMB 42)

NIA expresses the same view as the SAPS (see paragraph (b) above).

2. AD SUBCLAUSE (2)

(a) UUNet SA (IMB 12 and 50)

Paragraph (b) should be amended as follows:

"(b) contain full particulars in accordance with any directives regarding the manner and procedure of applications issued by the Judges-President of the High Courts in terms of section 12 of all the facts and circumstances alleged by the officer or member concerned in support of his or her application; and".

(b) GCB (IMB 35 and 36)

Applications for directions should be in the form of an application supported by an affidavit deposed to in accordance with the regulations made in terms of section 10 of the Justices of the Peace and Commissioners of Oaths Act, 1963.


CLAUSE 4

1. GENERAL

(a) Privacy International (IMB 5)

The scope for authorising surveillance under clause 4 does not include meaningful limitations to prevent abuses. The surveillance laws of most democracies either specifically define the crimes which may be investigated by means of electronic surveillance or limit it to crimes that impose a certain level of penalty.

(b) CELL C (IMB 21)

(i) Any decision by a judge in chambers as to whether—

(aa) a serious offence is involved, should be reviewed by two other judges in chambers; and

(bb) the security or other compelling national interests of the Republic is involved, should be reviewed by three other judges of the same High Court,

within a reasonable time.

(ii) The judge issuing the direction should also decide whether the person required to do the interception or monitoring can be informed of the facts and circumstances alleged in support of the application. This should be done if such facts and circumstances can be disclosed without prejudicing the interests involved.

2. AD SUBCLAUSE (1)

(a) Marshall International (IMB 3)

(i) Provision should be made for a number of judges to be appointed throughout the country.

(ii) The Minister should have the power to appoint any person, and not only a judge, to issue directions.

(iii) The appointment of additional judges to concentrate on specialised criminal activities should be considered.

(iv) Goods or parcels being conveyed by any other means of transport should be included in paragraph (a).

(b) NIA (IMB 42)

The wording of paragraph (a) should be the same as that of section 2(2)(a) and (b) of the Interception and Monitoring Prohibition Act, 1992.

(c) MISA, FXI and SANEF (IMB 54 and 55)

If subclause (1) will allow law enforcement agencies to enter or raid homes or other premises to monitor communications even before they have been sent, the strongest protest is submitted against that subclause.

3. AD SUBCLAUSE (2)

(a) Marshall International (IMB 3)

The word "serious" in paragraph (a) should be deleted.

(b) Privacy International (IMB 5)

(i) Paragraph (b) authorises interception or monitoring to protect the "security or other compelling national interests" without defining it or placing any limitations on that broad discretion.

(ii) The requirement that a direction may only be issued if the "judge .... is satisfied ..... that there are reasonable grounds to believe ..." is lower than the standard required by the laws of most other democratic countries.

(iii) The requirement in paragraph (a) that a serious offence has been committed and "cannot be investigated in another appropriate manner" provides little protection (see position in USA). Under paragraph (b) even that minor finding is not required. This is a considerably lower level of protection than that found in many other democratic countries.

(c) Business Software Alliance (IMB 9)

Subclause (2) should provide that a judge may only issue a direction for the interception or monitoring of a communication if he or she is satisfied that it is "technically feasible".

(d) ARTICLE 19 (IMB 11)

The expression "other compelling national interests of the Republic" in paragraph (b) is vague and may be open to abuse.

(e) UUNet SA (IMB 12 and 50)

Paragraph (b) should be amended as follows:

"(b) the security or other compelling national defence interests of the Republic are threatened [or] and that the gathering of information concerning a threat to the security or other compelling national defence interests of the Republic is necessary.".

(f) ISPA (IMB 13)

The standard of "compelling national interest" in paragraph (b) should be defined.

(g) SA Institute of Race Relations (IMB 14 and 14(b))

Paragraph (b) should be deleted.

(h) MTN (IMB 34)

Paragraph (b) should be deleted.

(i) GCB (IMB 35 and 36)

Paragraph (b) should be deleted.

(j) SAHRC (IMB 40)

Paragraph (a) should be amended as follows:

"(a) a serious offence has been or is being or will probably be committed and cannot be investigated in another appropriate manner and that other available methods of investigation have failed; or".

(k) MISA, FXI and SANEF (IMB 54 and 55)

(i) The expression "the facts alleged" is merely a statement of suspicion by a member of a law enforcement agency - there is no requirement for sworn evidence or corroboration of the alleged facts. On the facts alleged a judge has little scope for doubt or for not being satisfied before issuing a direction. Consequently the safeguard of requiring a judge to authorise surveillance is almost valueless. The placing of "facts alleged" before a judge should be narrowed so that the requirement is for "overwhelming evidence" to be placed before a judge.

(ii) The expressions "security" and "compelling national interests" must be clearly defined.

4. AD SUBCLAUSE (4)

(a) SAHRC (IMB 40)

Provision should be made that the original direction may only be extended for one further period of three months. Thereafter a new application must be made for the issuing of a direction.

(b) TELKOM (IMB 20)

If "a judge" may direct the interception or monitoring of a communication (subclause (2)) and "any judge" may extend the operative period of a direction, it could be near impossible for a service provider to verify and check the source and identity of a judge when a verbal direction is issued. It is therefore submitted that—

(i) a judge should be designated for purposes of issuing directions in terms of the Act (as is presently the case); and

(ii) the reference should be to "a judge designated" and not merely to "a judge" or "any judge".

5. AD SUBCLAUSE (5)

(a) Office for the Control of Interception and Monitoring of Communications (IMB 43)

The word "heard" should be substituted with "considered".

(b) GCB (IMB 35 and 36)

Consideration should be given to affording affected persons a subsequent hearing if that would not defeat the purpose of an investigation. Such a hearing could deal with the return of postal articles, recordings or transcripts of communications. A blanket exclusion of a right to be heard might not be a justifiable infringement of the right to fair administrative action.

6. AD SUBCLAUSE (6)

(a) Marshall International (IMB 3)

The word "serious" should be deleted.

(b) UUNet SA (IMB 12 and 50)

Subclause (6) should be amended as follows:

"(6) An application referred to in subsection (2) or (4) may also be granted if an investigation referred to in subsection (2)(a) [may disclose information that may help to prevent the commission of a serious offence] is reasonably necessary, having regard to all the relevant facts and circumstances of the investigation, to prevent the perpetration of a serious offence and cannot be obtained by any other appropriate means.".

(c) Southern African Catholic Bishops' Conference (IMB 41)

Subclause (6) should be amended as follows:

"(6) An application referred to in subsection (2) or (4) may also be granted if an investigation referred to in subsection (2)(a) [may] is likely to disclose information that [may] will probably help to prevent the commission of a serious offence.".

(d) GCB (IMB 35 and 36)

Subclause (6) should be deleted because—

(i) it is not clear how it interacts with clause 4(2)(a); and

(ii) it permits infringements of privacy and freedom of expression on the basis of speculation.

7. NEW SUBCLAUSE

SAPS (IMB 6)

In some cases it might be necessary to monitor communications as well as to receive the call-related information of the suspect’s communication. In such instances it would not be expedient to obtain a section 205 warrant as well as a direction from a judge, whilst the judge have to consider the application for monitoring. A new subclause (7) should be inserted in clause 4, providing that a judge may, if so requested and if motivated in an application for interception and monitoring, also direct that the call-related information in respect of the communications for which the direction is issued, be provided by the service provider, and that the service provider will be obliged to provide the same, upon production of the direction.

CLAUSE 5

1. GENERAL

UUNet SA (IMB 12 and 50)

(a) The reference to "or any other person" should be deleted throughout the clause.

(b) All references to "compelling national interests" should be substituted with "compelling national defence interests".

2. AD SUBCLAUSE (1)

(a) ISPA (IMB 13)

(i) Some specificity should be given to the power of persons outside law enforcement agencies to assist with the execution of directions.

(ii) Provision should also be made for procedural safeguards beyond the secrecy provisions contained in clause 14.

(b) GCB (IMB 35 and 36)

The words "or any other person" should be deleted.

3. AD SUBCLAUSE (2)

(a) SAPS (IMB 6)

Consideration should be given to the possibility of including in subclause (2) the provisions of section 4(2)(b) and (c) of the Interception and Monitoring Prohibition Act, 1992, which regulate, among others, the disposal of postal articles or telegrams which were taken into possession.

(b) GCB (IMB 35 and 36)

It should be spelt out that intercepted postal articles or telegrams, if not returned to the service provider or destroyed, may be kept by the agencies for the purposes of the current investigation or anticipated prosecutions.

4. AD SUBCLAUSE (4)

(a) UUNet SA (IMB 12 and 50)

The following proviso should be added at the end of subclause (4):

"provided that, wherever possible, reasonable notice shall be given to the {designated liaison officer referred to in section 14 or} owner, or failing which, the person in possession of the relevant property, .....".

(b) ISPA (IMB 13)

Given the constitutional protection against search and seizure of property, some procedural specificity should be added to subclause (4).

(c) SA Institute of Race Relations (IMB 14 and 14(b))

Entry onto premises should also require judicial approval and the prior issuing of a warrant authorising such entry. In cases of extreme urgency, the need for the prior issuing of a warrant could be dispensed with, provided that the unauthorised entry subsequently receives judicial endorsement.

(d) CELL C (IMB 21)

(i) The right to enter premises needs restriction and should only be permitted if specifically directed by the serving judge in chambers.

(ii) The right to remove articles and intercept communications must be subject to reasonable provisions regarding minimum interference and the issuing of a receipt for the articles taken away.

CLAUSE 6

1. GENERAL

UUNet SA (IMB 12 and 50)

(a) Customers have the ability to operate their own mail services and in such instances the service provider neither has access to the e-mail nor would it be reasonable for a service provider to facilitate lawful interception.

(b) The reference to "or any other person" should be deleted throughout the clause.

2. AD SUBCLAUSE (1)

(a) UUNet SA (IMB 12 and 50)

(i) In circumstances where UUNet is required by law to intercept a communication, there should be no additional liability imposed on it for carrying out such requirement.

(ii) Paragraph (b) should be amended as follows:

"(b) make available [the necessary] any assistance, facilities and devices reasonably necessary to enable the member.....".

(b) ISPA (IMB 13)

(i) Given the nature of technology, a reasonableness standard should be inserted. The words preceding paragraph (a) should be amended as follows:

" If a direction ..... is handed to the service provider ..... the service provider concerned must as soon as is reasonably possible—".

(ii) Given the complex technologies involved in Internet communications, it may not always be possible to make the necessary facilities available to monitor communications, as required by paragraph (b). The Bill should reflect this possibility so as not to impose a sanction on service providers where there may be an impossibility of compliance.

(iii) There should be express provision, with the onus on the State to prove the contrary, that a service provider who cannot reasonably comply with a request, be indemnified from any criminal liability.

(c) TELKOM (IMB 20)

(i) In order not to expose employees of service providers to risk, the obligation in paragraph (b) to enable execution or to assist with the execution of a direction should exclude:

(aa) The rendition of assistance by employees of service providers to gain entry into customer premises, or to provide cover for authorized entry.

(bb) The installation or placement of technical monitoring or bugging devices into in customer premises, handsets or other devices and connecting it to the service provider's network.

(cc) The installation of additional lines or connections on or to customer premises.

(ii) The Bill should provide that—

(aa) directives be served on the service provider concerned at its registered head office or chosen domicilium citandi et executandi; and

(bb) verbal directions by a designated judge should be given directly to a service provider's designated official.

3. AD SUBCLAUSE (2)

(a) UUNet SA (IMB 12 and 50)

(i) When UUNet is required by law to intercept a communication, the cost of carrying out such requirement should be borne by the law enforcement agency requiring the interception.

(ii) Provision should be made for reimbursement of costs involved with data interception or other activities mandated by law enforcement agencies. (See the European Union's Mutual Legal Assistance Convention.)

(b) ISPA (IMB 13)

A scale of rates should be determined, in consultation with the industry, and be published in the Gazette.

(c) CELL C (IMB 21)

(i) Provision should be made—

(aa) to pay for the gathering of information;

(bb) for interest to be paid on overdue amounts in order to encourage early payment; and

(cc) for the reimbursement of costs incurred in searching for, and making available, archived information.

(ii) A tariff basis for remuneration should be established so that costs can be recovered according to the particular services provided or efforts expended in gathering the information.

(d) NDPP (IMB 44)

Subclause (2) should be amended as follows:

"(2) ..... the remuneration agreed upon by the service provider and ..... the head of the Directorate, after consultation with the Chief Executive Officer, ..... must be paid to that service provider.".

4. AD SUBCLAUSE (4)

(a) VODACOM (IMB 8)

The correct interpretation of "reasonable remuneration" includes a capital component plus interest, maintenance and other variable costs. This can be achieved by—

(i) a fixed monthly charge by which network operators will be compensated over a period of time for the cost of procuring, installing and upgrading the facilities and equipment; and

(ii) a monthly charge in respect of the monthly variable costs relating to, inter alia, the operation and maintenance of the system.

(b) TELKOM (IMB 20)

(i) The remuneration referred to in subclauses (2) and (3) should include all incidental costs such as installation costs, the cost of providing data, call-related information and routing as well as witness fees.

(ii) Service providers should, as a minimum, be permitted to amortize the cost of any equipment purchased for the purpose of the Bill, over the technical life of the equipment and include such cost into the cost of the leased circuits or the cost of providing the specific service.

(iii) The form in which duplicate signals and call-related information are to be provided has cost implications which should be recoverable.

5. NEW SUBCLAUSE

UUNet SA (IMB 12 and 50)

A new subclause should be inserted, providing that the provisions of clause 6 regarding remuneration and compensation apply mutatis mutandis to the actual capital costs, including investment, technical and maintenance costs, incurred by service providers in establishing monitoring devices and other facilities and equipment installed by service providers pursuant to this Bill.


CLAUSE 7

1. GENERAL

(a) CTUF (IMB 17)

(i) The technical design of new telecommunication and communications technologies may need to ensure that compliance with the Bill is adhered to before those technologies can be implemented. This may impact negatively on the commercial application of new technologies in the market.

(ii) The following issues require further consideration, namely—

(aa) the cost of compliance to smaller service providers (setting up, administration and maintenance of interception and monitoring equipment);

(bb) the cost to be borne by the consumer as a result of compliance with the Bill; and

(cc) the cost to be borne by the taxpayer for the establishment and operation of central monitoring centres.

(b) TELKOM (IMB 20)

(i) The capacity of network providers to intercept and monitor communications is severely limited by a vast array of dissimilar network architectures and encryption modes that reside on such networks.

(ii) The financial implications of ensuring that all communications are capable of being monitored, would undermine the telecommunications policy framework of Government.

(iii) Both the responsibility for administering law enforcement and the funding of interception and monitoring operations should be borne by the organs and agencies charged with safety and security or the intelligence function.

(c) SACOB (IMB 25)

SACOB argues forcefully against imposing too severe a burden on the service provider sector. The cost implications must be borne in mind and the apportionment of those costs agreed to. The principle in the Bill, namely that in the control of cyber-crime the costs are to be borne by the consumer, requires clarity. If the Bill is passed, SACOB would insist that the costs of the enforcement of the Bill be accounted for in a transparent manner.

(d) MTN (IMB 34)

The costs of interceptibility should be deducted from the 5% Net Operating Income payable by MTN and Government should then budget its disbursement of the balance.

(e) SAHRC (IMB 40)

Service providers will hand their expenses incurred in terms of the Bill onto their service users which could result in increased costs of telecommunications and Internet communications. The impact of this on the development of the economy and society needs to be considered and effective remedies sought by Government to limit the impact when the Minister of Communications issues directives to service providers in terms of the Bill.

(f) Office for the Control of Interception and Monitoring of Communications (IMB 43)

Reservations are expressed as to whether a Department of State, as a negotiating party, could legally unilaterally determine the costs to be borne by the other party which is an independent commercial enterprise. Every possible effort should be made to reach agreement on those matters.

2. AD SUBCLAUSE (1)

(a) Privacy International (IMB 5)

(i) Subclause (1) will negatively affect the development of new technologies and efforts to provide access to telecommunications to all citizens in South Africa.

(ii) It is inconsistent with basic human rights for a government to demand that no conversation should ever be free from being overheard.

(iii) See the submission for a detailed discussion of the cost issue and the comparative study conducted in this regard.

(b) Business Software Alliance (IMB 9)

The Bill should provide that service providers must provide the facility for encryption only if it is reasonably practicable.

(c) UUNet SA (IMB 12 and 50)

Subclause (1) should be amended as follows:

"(1) Unless specifically exempted by the Independent Communications Authority of South Africa, in consultation with the Minister of Justice, and notwithstanding any other law,.....".

(d) ISPA (IMB 13)

The provisions regulating encryption have implications for broader encryption policies awaited by the industry. The Committee is urged to streamline and co-ordinate this process with that of the e-commerce legislation to ensure consistency and to avoid overlap or conflict.

(e) B Wright (IMB 15)

In terms of the subclause (1), a telecommunications service that uses encryption facilities provided by a service provider to a customer will be prohibited. The Bill should specify the legality of using encryption over a telecommunications system where the encryption facility has not been provided by the service provider.

(f) Bridges.org (IMB 19)

Procedures for dealing with encryption and decryption should be clearly stated.

(g) TELKOM (IMB 20)

The obligation on service providers to render all telecommunications capable of being monitored should be qualified by "the extent to which it is possible and technically and economically feasible to do so". Consequently, subclause (1) should be amended as follows:

"(1) Notwithstanding any other law, no service provider may, to the extent that it is both technically and economically feasible, provide any telecommunication service ......".

3. AD SUBCLAUSE (2)

(a) VODACOM (IMB 8)

(i) The prevention and investigation of crime is the responsibility of the State and therefore the cost associated with discharging that duty should be borne by the State.

(ii) The imposition of a statutory obligation to acquire interception and monitoring facilities and devices at own cost constitutes a material breach of Vodacom's telecommunications licence.

(iii) It is arguable that the obligation imposed on network operators by subclause (2) constitutes an expropriation of property by the State.

(iv) It is critical for all telecommunications operators that the total financial impact of all obligations being imposed on them be assessed (see submission).

(b) Business Software Alliance (IMB 9)

The State should reimburse, or make a reasonable contribution toward, the costs incurred by service providers in complying with authorised directions for interception and monitoring. This should include, but should not be limited to, the cost of acquiring, installing, operating and maintaining facilities and devices to enable interception and monitoring.

(c) UUNet SA (IMB 12 and 50)

(i) UUNet opposes excessive demands from law enforcement agencies for surveillance facilities that would be both costly and damaging to consumer confidence in the Internet as a communications medium.

(ii) Without a legislative mechanism for facilities and equipment reimbursement, the cost burden of complex search and seizure requirements could destroy smaller Internet Service Providers.

(iii) Subclauses (2) and (3) should be deleted in their entirety and substituted with the following:

"Any costs of whatever nature incurred by a service provider in complying with a directive referred to in subsection (4) of this section, including any capital investment, technical, maintenance and service costs, shall be paid for by the State, subject to the compensation procedure set out in section .... of this Act.".

(d) ISPA (IMB 13)

Consideration should be given to cost sharing or some form of subsidy to overcome the problems relating to costs.

(e) Bridges.org (IMB 19)

Further consideration should be given to the requirement that service providers must cover the costs incurred in allowing for the surveillance of their communication services. (See for example the British legislation which provides that the Government will cover "reasonable costs" incurred by the smaller Internet Service Providers in ensuring that their services are brought in line with that legislation.)

(f) TELKOM (IMB 20)

(i) The obligation to acquire the facilities and devices within a stipulated period is, from a practical point of view, problematic.

(ii) The Minister should not, and does not need to, have the power to prescribe to the service providers what systems they need to acquire for purposes of the monitoring of communications.

(iii) Subclause (2) limits Telkom’s commercial and contractual freedom.

(iv) The obligation of a service provider to acquire specific equipment at its own cost for a public purpose or benefit without compensation may not stand legal scrutiny.

(g) The Free Market Foundation of Southern Africa (IMB 22)

(i) The costs should be dispersed among taxpayers in general.

(ii) The proposal in subclause (2) amounts to an arbitrary tax which may be unconstitutional in terms of section 77(1) of the Constitution, unless specified under a Money Bill submitted to Parliament by the Minister of Finance. The same argument of unconstitutionality applies to clauses 8(3), 10(1)(a) and 10(1)(b)(i), should they seek to impose costs on service providers.

(h) CELL C (IMB 21)

(i) As the public interest is involved, the public should bear the costs of acquiring the facilities and devices. This could be achieved by levying charges on customers of all telecommunications services in the country, or by obtaining the money from the public purse. The Minister of Communications should not be given the right to direct service providers to spend such money without provision being made for obtaining reimbursement of that money.

(ii) It should be stipulated that the facilities and devices which may be required must be of such a nature that interception, monitoring and surveillance is not possible, save where it is specifically ordered by a judicial officer. Central monitoring centres must not have free access to private information.

(i) MTN (IMB 34)

Subclause (2) provides the Minister of Communications with more powers and jurisdiction than that Minister has under the present Telecommunications Act, 1996.

(j) MISA and FXI (IMB 54)

The costs should be borne by the State or offset against cellular phone providers' substantial annual levies paid to the State.

4. AD SUBCLAUSE (3)

TELKOM (IMB 20)

(a) Since the monitoring of communications is quintessentially a function of law enforcement the attendant investment, technical, maintenance and operating costs of acquiring, providing and monitoring facilities and devices should be recoverable from the cost of rendering assistance to monitor communications. Costs pertaining to the upgrading of software equipment should also be recoverable.

(b) Subclause (3) is both unreasonable and unfair.

(i) It is, among others, unreasonable because the law enforcement agencies, which do not bear the costs, will have little or no incentive to confine their requirements to what is necessary and reasonable, nor is there any provision in the Bill to compel them to do so. Furthermore, the service provider has no capacity to resist unreasonable directions or requests.

(ii) It is unfair because it, among others, puts the burden of financing an activity of the state, security and crime prevention, on a predetermined section of the population, the providers of telecommunication services and through them their customers. This would be in conflict with the principle of proportionality and involve some form of artificial cross-subsidisation.

5. AD SUBCLAUSE (4)

(a) Privacy International (IMB 5)

Subclause (4) excludes important stakeholders e.g. independent technical experts and human rights groups, from the creation of the document on technical standards. This closed process ensures that privacy interests will be sacrificed to real other goals.

(b) UUNet SA (IMB 12 and 50)

The words preceding paragraph (a) should be substituted with the following:

"The Independent Communications Authority of South Africa, in concurrence with the Minister of Communications, after consultation with the service provider concerned, may from time to time—".

(c) CELL C (IMB 21)

The Minister should not issue directives (determining the facilities and devices to be acquired) in an arbitrary fashion. The Minister should be obliged to prepare draft directives, to publish the directives for comment, to take public submissions in regard to those directives into account and to publish any reasonable directives that come out of the process in the Gazette. This process could be controlled by the Independent Communications Authority of South Africa.

(d) MTN (IMB 34)

(i) Although the Bill provides for a consultative process, MTN is concerned that legitimate problems raised during such consultation process may not be taken into account by Government prior to the issuing of the directives.

(ii) The time period referred to in subclause (4) does not take into regard the realities of telecommunications. (Configuration of new systems into an existing network could mean that the systems specified by the Minister prove to be incompatible and hence defy integration into the existing network. In terms of the Bill a service provider could in such instances be deemed to be in breach of a licence condition.)

(e) Southern African Catholic Bishops' Conference (IMB 41)

Service providers should be given adequate time to comply with a directive - the minimum of three months provided for in paragraph (b) is inadequate.

6. AD SUBCLAUSE (5)

(a) Privacy International (IMB 5)

The list of criteria is unbalanced and places the interests of surveillance over all others. Factors such as cost effectiveness and assurances that privacy and human rights will be protected by technical measures from unauthorised interceptions are excluded. (See requirements in the Communications Assistance for Law Enforcement Act.)

(b) Business Software Alliance (IMB 9)

The Bill should not—

(i) require from service providers to do more than to maintain a reasonable interception capability consistent with the system design and technology which they employ; and

(ii) impose mandatory design or technical requirements upon service providers.

(c) ISPA (IMB 13)

Subclauses (4) and (5) are too broad - too much specification may have further adverse cost and technological implications for service providers. It is submitted that as long as a network is capable of being monitored and routing signals, call-related information and connectivity are ensured, this power should be diluted to allow commercial efficiency to operate where necessary.

(d) TELKOM (IMB 20)

(i) Subclause (5) is unreasonable because—

(aa) it empowers the Minister of Communications to prescribe, among others, the security, technical and functional requirements of the facilities and devices to be acquired and the manner of routing duplicate signals of communications and thereby leaving the service provider concerned with no choice of provider or mode of routing; and

(bb) it takes no account of the fact that the facilities of the service provider's choice may, for example, be cheaper, better and more compatible to its infrastructure than the facilities prescribed.

(ii) It is doubtful whether the Minister will in fact have the capability to specify some of the listed elements, as often only the affected service provider, or the equipment supplier, will have the required technical information.

(e) MTN (IMB 34)

Subclause (5) seems to indicate that it will be the obligation of a network provider to ensure connectivity with a central monitoring centre. This will mean that in an instance where the systems of a network operator cannot connect with such a centre, the network operator may be deemed to be in breach of an obligation as a result of being unable to provide such connectivity.


CLAUSE 8

AD SUBCLAUSE (1)

(a) TELKOM (IMB 20)

Since the location and number of monitoring centers will have an effect on the cost and may require an expansion on TELKOM's network, the cost should be recoverable.

(b) SAHRC (IMB 40)

The priority that will be given to the establishment of central monitoring centres needs further debate. Government's inability thus far to commit resources to the implementation of rights-based legislation (for example the Equality legislation) must be highlighted within the context of this new legislation which makes further demands on Government's fiscal capacity.

CLAUSE 9

1. GENERAL

(a) Privacy International (IMB 5)

(i) A direction issued by a judge should be a requirement for obtaining the information contemplated in clause 9.

(ii) Clauses 9 and 11 do not set a limitation on the duration for which information can be held. SA is still lacking a law protecting personal data as required by the Constitution and Parliament should urgently adopt such a law.

(b) UUNet SA (IMB 12 and 50)

(i) The Bill should—

(aa) exempt service providers and other private parties from liability to third parties when they have relied in good faith upon a legal order for assistance; and

(bb) contain provisions, similar to the EU's E-Commerce Directive, to limit the liability of service providers with regard to acts over which they have no knowledge or control.

(ii) The provisions of clauses 3, 4 and 12 should apply mutatis mutandis to call-related information. Alternatively, in respect of circuit switched or other forms of facsimile or voice communications, provision should be made for judicial certification of a decision made by an officer, member or official in respect of any written request to a service provider for the provision of call-related information.

(iii) There should be express provision for duration and time periods. The time period limitations implied in clause 10(1)(a) should also apply to call-related information directives.

(c) CELL C (IMB 21)

(i) Call-related information should—

(aa) be limited to the information which is recorded in documents or electronically and should not include the surveillance of individuals, particularly on an ongoing basis;

(bb) only be obtainable on the order of a judicial officer (judge or magistrate); and

(cc) only be obtainable to the extent that it is available within the technical capacity of the technology currently being used by the service provider.

(ii) The decision of the judicial officer should be subject to review. (See proposals under clause 4.)

(d) MTN (IMB 34)

If call-related information is required, a judge (in terms of the Bill) or a magistrate (in terms of section 205 of the Criminal Procedure Act, 1977) should issue the relevant order.

(e) IDASA (IMB 37)

Provision should be made that—

(i) a person whose call-related information has been requested is thereafter advised that a law enforcement agency has such information at its disposal but will not be using it; and

(ii) call-related information will only be kept for a stipulated period of time.

(f) SAHRC (IMB 40)

(i) Clause 9 should be amended by inserting a time period for collecting call-related information. Thereafter further information must be obtained through a judicial directive.

(ii) A Committee, headed by a judge, should be established to oversee all requests for call-related information. All applications for call-related information must be submitted to, and reviewed by, such a Committee who must also report to Parliament.

(g) NDPP (Supplementary) (IMB 57)

Taking into account the provisions of section 205 of the Criminal Procedure Act, 1977, clause 9 should be amended to provide for the following:

(i) A "request" or "direction" to a service provider may only be directed after the mentioned functionaries have applied for such a direction to "a judge of the High Court, a regional court magistrate or a magistrate".

(ii) The judge, regional court magistrate or a magistrate may only grant such a direction if he or she is satisfied that there are reasonable grounds to believe that the gathering of call-related information is necessary in an investigation relating to–

(aa) the commission or alleged commission of a serious offence, "whether or not it is known by whom the offence was committed"; or

(bb) a threat or alleged threat to public safety or national security (see proposed amendments on page 12 of "ANNEXURE A" to the submission).

2. AD SUBCLAUSE (1)

(a) SAPS (IMB 6)

(i) If subclause (1) is to be—

(aa) retained in its present form, the expression "assistant-commissioner" in paragraph (a) should be substituted with "Director"; or

(bb) reformulated, the SAPS would not object to the deletion of paragraph (a).

(ii) It should specifically be provided that ongoing call-related information may be obtained in terms of section 205 of the Criminal Procedure Act, 1977.

(b) VODACOM (IMB 8)

A direction issued by a judge should be a requirement for obtaining call-related information in terms of clause 9 or any location based information.

(c) Business Software Alliance (IMB 9)

All requests for the provision of call-related information should be made subject to judicial scrutiny.

(d) UUNet SA (IMB 12 and 50)

It would be difficult for a service provider to rely on anything less than a court order when intercepting communications for law enforcement agencies. Without the pertinent detail and authority of a court order—

(i) the Bill would subject Internet users to surveillance of their communications based upon varying levels of substantiation; and

(ii) service providers would expose themselves to potential liability for the results of such interception requests, whether legitimate or not.

(See Article 18 of the European Union's Mutual Legal Assistance Convention.)

(e) SA Institute of Race Relations (IMB 14 and 14(b))

A direction issued by a judge should be a requirement for obtaining call-related information in terms of clause 9.

(f) MTN (IMB 34)

(i) Any request envisaged in terms of this subsection must comply with provisions similar to those contained in clause 4(2).

(ii) It is not clear whether the call-related information is historical or current of nature. A request in terms of subclause (1) should only relate to historical information.

(g) GCB (IMB 35 and 36)

Subclause (1) should be amended so as to contain the safeguard of a decision by a judge.

(h) IDASA (IMB 37)

Law enforcement agencies should approach a court for an order to enable them to obtain call-related information from a service provider.

(i) Southern African Catholic Bishops' Conference (IMB 41)

Call-related information should only be provided in accordance with a judicial direction.

(j) NIA (IMB 42)

The obtaining of call-related information in terms of clause 9 should be subject to judicial authorisation.

(k) MISA, FXI and SANEF (IMB 54 and 55)

The freedom to pry into call-related information must be deleted from the Bill or must be protected with the same safeguard as proposed under clause 4(2), together with the requirement that an application must be made to a judge for obtaining such information.

3. AD SUBCLAUSE (2)

SA Institute of Race Relations (IMB 14 and 14(b))

Paragraph (b) should be deleted.

4. AD SUBCLAUSE (3)

UUNet SA (IMB 12 and 50)

See submission for the requirements in respect of a request, as contained in Article 18 of the European Union's Mutual Legal Assistance Convention.

5. AD SUBCLAUSE (4)

ISPA (IMB 13)

The words preceding paragraph (a) should be amended as follows:

"Any service provider who or which receives a request referred to in subsection (1) must as soon as is reasonably possible after such receipt—".


CLAUSE 10

1. AD SUBCLAUSE (1)

(a) TELKOM (IMB 20)

The Bill should—

(i) take account of the fact that the provision of call-related information in real time is not possible; and

(ii) specify the form in which call-related information is to be provided.

(b) GCB (IMB 35 and 36)

The objective test in clauses 4(2) and 10(2)(b), namely that "he or she is satisfied ..... that there are reasonable grounds to believe ....." should be included in paragraph (a).

2. AD SUBCLAUSE (2)

(a) SA Institute of Race Relations (IMB 14 and 14(b))

Paragraph (b)(ii) should be deleted.

(b) GCB (IMB 35 and 36)

(i) The differences between the tests in clause 4(2) and paragraph (b) must be closely scrutinized, in particular the absence in the latter of the requirement that the offence "cannot be investigated in another appropriate manner".

(ii) Paragraph (b)(ii) should be deleted.

CLAUSE 11

1. GENERAL

(a) VODACOM (IMB 8)

(i) The information of pre-paid customers should be excluded from the obligation contained in clause 11.

(ii) Clause 11 should be implemented from a date determined by the Minister of Communications.

(iii) An obligation should be placed on a customer to bring any amended information/particulars to the attention of his or her service provider.

(b) ISPA (IMB 13)

Service providers who fail to obtain accurate information from subscribers where free services or other factors affecting that ability exist, should be exempted from liability.

(c) SACOB (IMB 25)

(i) It must be incumbent upon a service provider to notify—

(aa) a customer that his or her information has been provided to a law enforcement agency; and

(bb) all its customers that it is their responsibility to notify the service provider of any changes to the required information.

(ii) The responsibility for accurate and correct information should lie with the customers and not with the service providers.

(d) CELL C (IMB 21)

It should be made clear that where a service provider has to obtain information from a customer, such information can only reasonably be obtained from long term contracting customers.

2. AD SUBCLAUSE (1)

TELKOM (IMB 20)

(a) The practicality of subclause (1) is questionable because service providers conduct business by telephone which means that the identity and personal information of applicants can not always be verified and vouched for.

(b) The Bill should specify the period for which the records are required to be kept and if records need to be kept for past clients.

3. AD SUBCLAUSE (2)

(a) Business Software Alliance (IMB 9)

All requests for the provision of customer information should be made subject to judicial scrutiny.

(b) GCB (IMB 35 and 36)

The obligation imposed on service providers by subclause (2) is too vague to justify the resulting invasion of the service providers' customers' privacy or to sustain a criminal offence.

4. AD SUBCLAUSE (3)

(a) SAPS (IMB 6)

It is deemed absolute essential that pre-paid services should be registered. Consideration could be given to a registration procedure similar to the one applicable in Australia.

(b) VODACOM (IMB 8)

It is not clear whether subclause (3) will apply to prospective customers after the Bill has been put into operation.

(c) MTN (IMB 34)

A service provider should not be held accountable if it does not comply with the requirements relating to pre-paid subscribers as a result of the practicalities surrounding the matter.

CLAUSE 12

1. AD SUBCLAUSE (1)

(a) UUNet SA (IMB 12 and 50)

Subclause (1) should be amended as follows:

"(1) The respective Judges-President of the High Courts [may] shall, within three months of commencement of this Act, jointly issue directives in which the manner and procedure of applications in terms of sections 3(1) and 4(4) are uniformly regulated.".

(b) GCB (IMB 35 and 36)

Subclause (1) should also refer to clause 10(1) and (2) and clause 9 (if the latter is to be retained in an amended form).

2. AD SUBCLAUSE (2)

MTN (IMB 34)

(a) Subclause (2) should be amended to ensure that a network operator is protected in the event that an oral directive differs from the specifications of the subsequent written directive.

(b) A service provider should not be required to divulge any confidential information on the basis of an oral directive only.


CLAUSE 13

1. GENERAL

(a) SAHRC (IMB 40)

Clause 13 should only refer to information obtained in terms of clause 4 (See French legislation).

(b) CELL C (IMB 21)

Provision should be made that information which is not to be used for purposes of a prosecution or which has already been used, should be destroyed.

2. AD SUBCLAUSE (1)

NDPP (IMB 44)

Subclause (1) should be amended as follows:

"(1) The use of any information ..... as evidence in any prosecution, is subject to the decision of the National Director, the head of the Directorate, the Director of Public Prosecutions or an Investigating Director .....".

3. AD SUBCLAUSE (2)

GCB (IMB 35 and 36)

It is not clear what purpose is served by subclause (2), more specifically what is meant by "may be admissible".


CLAUSE 14

1. AD SUBCLAUSE (1)

Marshall International (IMB 3)

Provision should be made for the exchange of information between different law enforcement agencies.

2. NEW SUBCLAUSE

UUNet SA (IMB 12 and 50)

The following new subsection should be inserted:

"(3) Every service provider shall designate a special liaison officer, including an alternate special liaison officer, for the purposes of ensuring compliance with the provisions of this Act, whose full name, particulars and contact details shall be filed and recorded in a register to be established for this purpose at the Independent Communications Authority of South Africa, and which shall be updated to reflect any changes from time to time: Provided that in respect of any service provider having less than 25 employees, the chief executive officer of such service provider shall be registered as the special liaison officer.".


CLAUSE 15

1. GENERAL

(a) CELL C (IMB 21)

(i) Where any person is accused of contravening the provisions of the Bill, all information relating to the facts and circumstances should be made available to such person.

(ii) It must be a defence that the information in question should not have been requested in the first place, or that the request was unjustifiable and unreasonable in relation to the nature and extent of the need for the information.

(iii) Service providers must be protected against threats of prosecution or actual prosecution where there are good reasons for their inability to provide the information.

(iv) Before any prosecution is commenced, the matter should be referred back to the judicial officer who granted the original order to certify whether there should be a prosecution or not, having regard to all the facts and circumstances.

(v) The Bill is deficient in that it assumes guilt and non-cooperation and over-penalises for incomplete compliance with monitoring orders. Penalties for non-compliance should be fines.

(b) NDPP (Supplementary) (IMB 57)

(i) An offence should be included in the Bill in order to prohibit unlawful modifications of, and tampering with, cellular phones.

(ii) A provision should also be included so as to prohibit tampering with interception and monitoring equipment.

(iii) Consequently, the following subclause should be added to clause 15:

"(5) Any person who without just cause shown–

(a) modifies or tampers, or allows any other person to modify or tamper, with a cell-phone of which he or she is not the lawful owner or possessor;

(b) tampers, or allows any other person to tamper, with any interception or monitoring equipment, device or apparatus installed or utilised in terms of this Act,

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

2. AD SUBCLAUSE (1)

(a) Marshall International (IMB 3)

The fine should be stipulated with provision for annual amendments thereof.

(b) TELKOM (IMB 20)

The maximum penalty prescribed for illegal monitoring (paragraph (a)) is less than that prescribed for improper disclosure of information (paragraph (b)) and is disproportionate to the gravity of infringing a fundamental right. It will therefore not be much of a crime-prevention deterrent.

3. AD SUBCLAUSE (2)

(a) TELKOM (IMB 20)

The obligations in the Bill are absolute and could be extremely onerous. There is a real risk that telecommunication service providers may be unable to comply with the obligation to acquire or upgrade facilities timeously.

(b) MTN (IMB 34)

In terms of subclause (2) a network operator which fails to comply with a directive issued by the Minister of Communications is guilty of an offence. Given the nature of the industry, the complexities of responding to directives and the subtleties of constitutional rights, such vulnerability would be untenable for network operators.

(c) MISA and FXI (IMB 54)

As the penalties will also apply to service providers operating at low financial levels, the fines should be reconsidered.

4. AD SUBCLAUSE (3)

TELKOM (IMB 20)

It is arguable whether justification exists for the imposition of fines (implicitly the adjudication of offences associated with offences relating to the statutory limitation of fundamental rights) by magistrates' courts.

CLAUSE 16

(a) UUNet SA (IMB 12 and 50)

Clause 16 should be amended as follows:

"The [Minister of Communications] Independent Communications Authority of South Africa may, ..... revoke the licence ..... to provide a telecommunication service subject to due investigation and adjudication in terms of the procedure provided for in section 100 of that Act.".

(b) ISPA (IMB 13)

The sanction provided for may be too onerous for the offence concerned and therefore the inclusion of a clause providing for an exemption from liability in such circumstances should be considered.

(c) CELL C (IMB 21)

The power of the Minister to revoke a telecommunications licence is draconian and should be deleted.

(d) MTN (IMB 34)

Clause 16 does not comply with any of the provisions contained in the current MTN licence or the Telecommunications Act, 1996, and should therefore be deleted.

(e) MISA, FXI and SANEF (IMB 54 and 55)

This clause, which enables the State to close down a service which cannot be monitored, should be deleted and the authorities should investigate other forms of dealing with such services.


CLAUSE 17

MISA, FXI and SANEF (IMB 54 and 55)

The proposed section 205 of the Criminal Procedure Act, 1977, contains more stringent provisions relating to the calling of witnesses before judicial officers to give evidence than the present section. The imposition of more stringent provisions runs counter to the requests by MISA, FXI and SANEF to have section 205 amended so as to take cognisance of the constitutional requirements of freedom of expression and freedom of the media.