REPUBLIC OF SOUTH AFRICA
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF INFORMATION BILL COMMUNICATION-RELATED
(As
Execution of direction
Execution of entry warrant 45
Assistance by postal service provider and telecommunication service provider
Assistance by decryption key holder
CHAPTER 5
INTERCEPTION CAPABILITY AND COMPENSATION
30. Interception capability of telecommunication services and storing of communication-related information
Compensation payable to postal service provider, telecommunication service 5
provider and decryption key holder
CHAPTER 6
INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES
AND INTERNET SERVICE PROVIDERS ASSISTANCE FUND
3 2 . Establish 10
33. Establishment of Office for Interception Centres
34. Director and staff of Office
35. Powers, functions and duties of Director
36. Head and staff of interception centres
37. Keeping of records by heads of interception centres and submission of reports 15
38. Establishment and control of Internet Service Providers Assistance Fund
to Director
CHAPTER 7
DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER
Information to be obtained and kept by certain telecommunication service
providers Information to be obtained and kept in respect of cellular phone and SIM-card
Loss, theft or destruction of cellular phone or SIM-card to be reported
CHAPTER 8
GENERAL PROHIBITIONS AND EXEMPTIONS
Prohibition on disclosure of information
Disclosure of information by authorised person for performance of official
duties L i s t e d 30 Prohibition on manufacture, possession and advertising of listed equipment Exemptions
CHAPTER 9
CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES
Use of information in criminal proceedings Proof of certain facts by certificate Unlawful interception of communication Unlawful provision of real-time or archived communication- related information Offences and penalties Failure to give satisfactory account of possession of cellular phone or SIM-card Absence of reasonable cause for believing cellular phone or SIM-card properly acquired Unlawful acts in respect of telecommunication and other equipment Failure to report loss, theft or destruction of cellular phone or SIM-card and presumption Revoking of licence to provide telecommunication service Forfeiture of listed equipment
CHAPTER 10
GENERAL PROVISIONS
58. Supplementary directives regarding applications
59. Amendment of section 205 of Act 51 of 1977
60. Amendment of section 11 of Act 140 of 1992
61. Amendment of section 3 of Act 40 of 1993
62. Repeal of law and transitional arrangements
63. Short title and commencement Schedule
CHAPTER 1
INTRODUCTORY PROVISIONS
Definitions and interpretation
1. (1) In this Act, unless the context otherwise indicates-
"Agency" means the Agency as defined in section 1 of the Intelligence Services
Act; 15
"applicant" means-
(a) an officer referred to in section 33 of the South African Police Service Act, if
the officer concerned obtained in writing the approval in advance of another
officer in the Police Service with at least the rank of assistant-commissioner
and who has been authorised in writing by the National Commissioner to 20
grant such approval;
(b) an officer as defined in section 1 of the Defence Act, if the officer concerned
obtained in writing the approval in advance of another officer in the Defence ’
Force with at least the rank of major-general and who has been authorised in
writing by the Chief of the Defence Force to grant such approval; 25
(c) a member as defined in section 1 of the Intelligence Services Act, if the
member Concerned obtained in writing the approval in advance of another
member of the Agency or the Service, as the case may be, holding a post of at
least general manager;
(d) the head of the Directorate or an Investigating Director authorised thereto in 30
writing by the head of the Directorate;
(e ) a member of a component referred to in paragraph (e) of the definition of "law
enforcement agency", authorised thereto in writing by the National Director;
or
(f) a member of the Independent Complaints Directorate, if the member 35
concerned obtained in writing the approval in advance of the Executive
Director;
"archived communication-related direction" means a direction issued under
section 18(3)(a) or 19(3) in terms of which a telecommunication service provider
is directed to provide archived communication-related information in respect of a 40
customer;
"archived communication-related information" means any communication-related
information in the possession of a telecommunication service provider and which
is being stored by that telecommunication service provider in terms of section
30(1)(b) for the period determined in a directive referred to in section 30(2)(a), 45
beginning on the first day immediately following the expiration of a period of 90
days after the date of the transmission of the indirect communication to which that
communication-related information relates;
"authorised person" means any-
(a ) law enforcement officer who may, in terms of section 26(l)(a)(i), execute a 50
(b) law enforcement officer or other person who may, in terms of section
"Authority" means the Independent Communications Authority of South Africa
established by section 3 of the Independent Communications Authority of South 55
Africa Act, 2000 (Act No. 13 of 2000);
direction; or
26( l)(a)(ii), assist with the execution of a direction;
"business" means any business activity conducted by any person, including
activities of any private or public body;
"cellular phone" means any fixed or mobile cellular apparatus or terminal which is
capable of connection to a cellular telecommunication system and which is used by
a customer to transmit or receive indirect communications over such telecommunication system;
"communication" includes both a direct communication and an indirect communication;
"communication-related information" means any information relating to an
indirect communication which is available in the records of a telecommunication
service provider, and includes switching, dialling or signalling information that
identifies the origin, destination, termination, duration, and equipment used in
respect, of each indirect communication generated or received by a customer or
user of any equipment, facility or service provided by such a telecommunication
service provider and, where applicable, the location of the user within the 15
telecommunication system;
"Constitution" means the Constitution of the Republic of South Africa, 1996 (Act
No. 108 of 1996);
"contents", when used with respect to any communication, includes any
information concerning the substance, purport or meaning of that communication;
"customer" means any person-
(a) to whom a telecommunication service provider provides a telecommunication
(b) who has entered into a contract with a telecommunication service provider for
service; or
the provision of a telecommunication service, including a pre-paid telecomunication service;
"decryption assistance" means to-
(a) allow access, to the extent possible, to encrypted information; or
(b) facilitate the putting of encrypted information into an intelligible form;
"decryption direction" means a direction issued under section 21(3) in terms of
which a decryption key holder is directed to-
(a) disclose a decryption key; or
(b) provide decryption assistance in respect of encrypted information, and
"decryption key" means any key, mathematical formula, code, password,
algorithm or any other data which is used to-
(a) allow access to encrypted information; or
(b) facilitate the putting of encrypted information into an intelligible form;
"decryption key holder" means any person who is in possession of a decryption
key for purposes of subsequent decryption of encrypted information relating to
indirect communications;
"Defence Act" means the Defence Act, 1957 (Act No. 44 of 1957);
"Defence Force" means the defence force referred to in section 199(2) of the
Constitution;
"designated judge" means any judge of a High Court discharged from active
service under section 3(2) of the Judges’ Remuneration and Conditions of
Employment Act, 2001 (Act No. 47 of 2001), or any retired judge, who is
designated by the Minister to perform the functions of a designated judge for
purposes of this Act;
"direct com an- (a) oral communication, other than an indirect communication, between two or
more persons which occurs in the immediate presence of all the persons
participating in that communication; or
(b) utterance by a person who is participating in an indirect communication, if the
utterance is audible to another person who, at the time that the indirect
communication occurs, is in the immediate presence of the person participating in the indirect communication;
"direction" means any interception direction, real-time communication-related
direction, archived communication-related direction or decryption direction issued
under this Act, and includes an oral direction issued under section 23(7), but, for 60
purposes of section 20, excludes an archived communication-related direction;
"Director" means the Director: Office for Interception Centres, seconded in terms
of section 34( 1);
includes an oral decryption direction issued under section 23(7);
"Directorate" means the Directorate of Special Operations referred to in section 1
of the National Prosecuting Authority Act;
"encrypted information" means any electronic data which, without the decryption key to that data-
(a) cannot, or cannot readily, be accessed; or
(6) cannot, or cannot readily, be put into an intelligible form;
"entry warrant" means a warrant issued under section 22(3) and which authorises
entry upon any premises for purposes of-
(a) intercepting a postal article or communication on the premises; or
(6) installing and maintaining an interception device on, and removing an interception device from, the premises, and includes an oral entry warrant issued under section 23(7);
"Executive Director" means the Executive Director appointed in terms of section
5 1 of the South African Police Service Act; "fixed date" means the date of commencement of this Act; "Fund" means the Internet Service Providers Assistance Fund established by
section 38( 1); "Identification Act" means the Identification Act, 1997 (Act No. 68 of 1997);
"identification document" means, in the case of a person who is
(a) a South African citizen or is lawfully and permanently resident in the Republic
and has attained the age of 16 years-
(i) an identity card or temporary identity certificate as defined in the
Identification Act;
(ii) a green, bar-coded identity document issued in accordance with the
Identification Act, 1986 (Act No. 72 of 1986), until such identity
document is replaced by an identity card as contemplated in section 25 of
the Identification Act; or
(iii) a South African passport as defined in the South African Passports and
Travel Documents Act, 1994 (Act No. 4 of 1994);
(b) a South African citizen or is lawfully and permanently resident in the Republic
and has not attained the age of 16 years, a birth certificate referred to in section
13 of the Identification Act; and
(c) not a South African citizen or is not permanently resident in the Republic-
(i) a travel document as defined in the South African Passports and Travel Documents Act, 1994; or
(ii) a passport or travel document as contemplated in paragraphs (b), (c) and
(d) of the definition of "passport" in the Immigration Act, 2002 (Act No.
13 of 2002);
"Independent Complaints Directorate" means the Independent Complaints Directorate established by section 50(1) of the South African Police Service Act; "indirect communication" means the transfer of information, including a message or any part of a message, whether-
(a) in the form of-
(i) speech, music or other sounds;
(ii) data;
(iii) text;
(iv) visual images, whether animated or not;
(v) signals; or
(vi) radio frequency spectrum; or
(b) in any other form or in any combination of forms,
that is transmitted in whole or in part by means of a postal service or a
telecommunication system;
‘‘Intelligence Services Act" means the Intelligence Services Act, 1994 (Act NO. 38
of 1994);
‘‘intelligible form" means the form in which electronic data was before an
encryption or similar process was applied to it;
"intercept" means the aural or other acquisition of the contents of any
communication through the use of any means, including an interception device, SO
as to make some or all of the contents of a communication available to a person
other than the sender or recipient or intended recipient of that communication, and
includes the monitoring of any such communication by means of a monitoring device;
(b) viewing, examination or inspection of the contents of any indirect communication-
(c) diversion of any indirect communication from its intended destination to any
and "interception" has a corresponding meaning;
"interception centre" means an interception centre established by section 32(l)(a);
"interception device" means any electronic, mechanical or other instrument,
device, equipment or apparatus which is used or can be used, whether by itself or
in combination with any other instrument, device, equipment or apparatus, to
intercept any communication, but does not include- (a) any instrument, device, equipment or apparatus, or any component thereof (i) furnished to the customer by a telecommunication service provider in the ordinary course of his or her business and being used by the customer in the ordinary course of his or her business;
(ii) furnished by such customer for connection to the facilities of such elecommunication service and used in the ordinary course of his or her business; or
(iii) being used by a telecommunication service provider in the ordinary
course of his or her business; or
(b) a hearing aid or similar device being used to correct below normal hearing to
and a reference to an "interception device" includes, where applicable, a reference
to a "monitoring device";
"interception direction" means a direction issued under section 16(4) or 18(3)(a)
and which authorises the interception, at any place in the Republic, of any
communication in the course of its occurrence or transmission, and includes an oral
interception direction issued under section 23(7);
"Internet" means the international computer network known by that name;
"Internet service provider" means any person who provides access to, or any other
service related to, the Internet to another person, whether or not such access or
service is provided under and in accordance with a telecommunication service
licence issued to the first-mentioned person under Chapter V of the Telecommunications Act;
"law enforcement agency" means-
(a) the Police Service;
(b) the Defence Force;
(c) the Agency or the Service;
(d) the Directorate; or
(e) any component of the prosecuting authority, designated by the National
Director to specialise in the application of Chapter 6 of the Prevention of
Organised Crime Act;
and other destination, not better than normal, "law enforcement officer" means any member (u) the Police Service;
(b) the Defence Force, excluding a member of a visiting force;
(c) the Agency or the Service;
(d) the Directorate; or
(e) any component referred to in paragraph (e) of the definition of "law
"listed equipment" means any equipment declared to be listed equipment under
section 44( l)(a), and includes any component of such equipment;
"Minister" means the Cabinet member responsible for the administration of
justice, except in Chapter 6 where it means the Cabinet member responsible for
intelligence services; "monitor" includes to listen to or record communications by means of a
monitoring device, and "monitoring" has a corresponding meaning; "monitoring device" means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to listen to or record any communication; "National Commissioner" means the National Commissioner referred to in section
6( 1) of the South African Police Service Act;
"National Director" means the National Director of Public Prosecutions contemplated in section 179(l)(a) of the Constitution; enforcement agency";
"National Prosecuting Authority -4ct" means the National Prosecuting Authority
Act, 1998 (Act No. 32 of 1998); "Office" means the Office for Interception Centres established by section 33; "oral direction" mcans any direction issued under section 23(7);
"oral entry warrant" means an entry warrant issued under section 23(7);
"party to the communication", for purposes of
(u) section 4, means, in the case of-
(i) a direct communication, any person-
(ofz) participating in such direct communication or to whom such direct
communication is directed; or
(bh) in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her; OT
(na) the sender or the recipient or intended recipient of such indirect communication;
(bb) if it is intended by the sender of an indirect communication that such indirect communication be received by more than one person, any of those recipients; or
(cc) any other person who, at the time of the occurrence of the indirect communication, is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication; and
(i) a direct communication, any person participating in such direct
(ii) an indirect communication-
(ii) an indirect communication-
(b) section 5 , means, in the case of-
communication or to whom such direct communication is directed; or
(aa) the sender or the recipient or intended recipient of such indirect
communication; or
(bb) if it is intended by the sender of an indirect communication that such
indirect communication be received by more than one person, any of those recipients;
"Police Service" means the South African Police Service established by section
5( 1) of the South African Police Service Act; "postal article" means any postal article as defined in the Postal Services Act; "postal service" means a postal service as defined in the Postal Services Act, and includes any-
(a) private postal service; and
(b) service which is offered 01 provided as a service of which the main purpose,
or one of the main purposes, is to make available, or to facilitate, a means of
transmission from one place to another place of postal articles containing
indirect communications; "Postal Services Act" means the Postal Services Act, 1998 (Act No. 124 of 1998); "postal service provider" means any person who provides a postal service;
"premises" includes any land, building, structure, vehicle, ship, boat, vessel,
aircraft or container; "Prevention of Organised Crime Act" means the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998); "private body" means-
(a) a natural person who carries on any trade, business or profession, but only in
such capacity;
(b ) a partnership which carries on any trade, business or profession; or
I C ) any juristic person, but excludes a public body; "prosecuting authority" means the national prosecuting authority established by section 179 of the Constitution;
"public body" means any-
(a) department of state or administration in the national or provincial sphere of
(b) other functionary or institution when government or any municipality in the local sphere of government; 01‘
(i) exercising a power or performing a duty in terms of the Constitution or
(ii) exercising a public power or performing a public function in terms of any a provincial constitution; or legislation; "real-time communication-related direction" means a direction issued under section 17(3) or 18(3) in terms of which a telecommunication service provider is
directed to provide real-time communication-related information in respect of a customer, on an ongoing basis, as it becomes available, and includes an oral real-time communication-related direction issued under section 23(7); "real-time communication-related information" means communication-related information which is immediately available to a telecommunication service provider (a ) before, during, or for a period of 90 days after, the transmission of an indirect communication; and (b) in a manner that allows the communication-related information to be associated with the indirect communication to which it relates; "relevant Ministers" means the Cabinet members responsible for
(a) communications;
(b) defence;
(c) intelligence services; and
(d) policing,
except in Chapter 6 where it means the Cabinet members referred to in paragraphs
(a), (b) and (d) and the Cabinet member responsible for the administration of
justice;
"serious offence" means any-
(a) offence mentioned in the Schedule; or
(b) offence that is allegedly being or has allegedly been or will probably be
committed by a person, group of persons or syndicate-
(i) acting in an organised fashion which includes the planned, ongoing,
continuous or repeated participation, involvement or engagement in at
least two incidents of criminal or unlawful conduct that has the same or
similar intents, results, accomplices, victims or methods of commission,
or otherwise are related by distinguishing characteristics;
(ii) acting in the execution or furtherance of a common purpose or
conspiracy; or
(iii) which could result in substantial financial gain for the person, group of
persons or syndicate committing the offence,
including any conspiracy, incitement or attempt to commit any of the above-
mentioned offences;
"Service" means the Service as defined in section 1 of the Intelligence Services
Act;
"SIM-card" means the Subscriber Identity Module which is an independent,
electronically activated device designed for use in conjunction with a cellular
phone to enable the user of the cellular phone to transmit and receive indirect
communications by providing access to telecommunication systems and enabling
such telecommunication systems to identify the particular Subscriber Identity
Module and its installed information;
"South African Police Service Act" means the’South African Police Service Act,
1995 (Act No. 68 of 1995);
"system controller" of, or in relation to-
(a ) a private body, means, in the case of a-
(i) natural person, that natural person or any person duly authorised by that
natural person;
(ii) partnership, any partner of the partnership or any person duly authorised
by the partnership; or
(iii) juristic person, the-
(m ) chief executive officer or equivalent officer of the juristic person or
(bb) person who is acting as such or any person duly authoriscd by such
any person duly authorised by that officer; or acting person; and
(h ) a public body, means, in the case of-
(i) a national department. provincial administration or of ganisational
component (on) mentioned in Column I of Schedule 1 or 3 to the Public Service Act,
1994 (Proclamation No. 103 of 1994), the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule I or 3 opposite the name of the relevant national department, provincial administration or organisational
component or the person who is acting as such; or
(bb) not so mentioned, the Director-General, head, executive director or
equivalent officer, respectively, of that national department, provincial administration or organisational component, respectively, or the 5
person who is acting as such;
(ii) a municipality, the municipal manager appointed in terms of section 82
of the Local Government: Municipal Structures Act, 1998 (Act No. 117
of’ 1998), or the person who is acting as such; or
(iii) any other public body, the chief executive officer, or equivalent officer, of 10
that public body or the person who is acting as such;
"Telecommunications Act" means the Telecommunications Act, 1996 (Act No.
103 of 1996);
"telecommunication service" means any telecommunication service as defined in
the Telecommunications Act; 15
"telecommunication service provider" means any-
(a) person who provides a telecommunication service under and in accordance
with a telecommunication service licence issued to such person under Chapter
V of the Telecommunications Act, and includes any person who provides-
(i) a local access telecommunication service, public pay-telephone service, 20
value-added network service or private telecommunication network as
defined in the Telecommunications Act; or
(ii) any other telecommunication service licensed or deemed to be licensed
or exempted from being licensed as such in terms of the Telecommunications Act; and 25
(b) Internet service provider;
"telecommunication system" means a telecommunication system as defined in the
Telecommunications Act.
(2) For purposes of this Act-
(a) the interception of a communication takes place in the Republic if, and only if, 30
the interception is effected by conduct within the Republic and the
communication is either intercepted, in the case of-
(i) a direct communication, in the course of its occurrence; or
(ii) an indirect communication, in the course of its transmission by means of
(b) the time during which an indirect communication is being transmitted by
means of a telecommunication system includes any time when the telecommunication system by means of which such indirect communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it. 40
(3) A reference in this Act to the interception of a communication does not include a
reference to the interception of any indirect communication which is broadcast or
transmitted for general reception. a postal service or telecommunication system, as the case may be; and 35
CHAPTER 2
PROHIBITION OF INTERCEPTION OF COMMUNICATIONS AND 45
PROVISION OF REAL-TIME OR ARCHIVED COMMUNICATION-
RELATED INFORMATION AND EXCEPTIONS
Part 1
Prohibition of interception of communications and exceptions
Prohibition of interception of communication
2. Subject to this Act, no person may intentionally intercept or attempt to intercept, or
authorise or procure any other person to intercept or attempt to intercept, at any place in
the Republic, any communication in the course of its occurrence or transmission.
50
Interception of communication under interception direction
3. Subject to this Act, any- 55
12
(a) authorised person who executes an interception direction or assists with the
(6) postal service provider to whom an interception direction is addressed, may
execution thereof, may intercept any communication; and
intercept any indirect communication,
to which that interception direction relates. 5
Interception of communication by party to communication
4. (1) Any person, other than a law enforcement officer, may intercept any
communication if he or she is a party to the communication, unless such communication
is intercepted by such person for purposes of committing an offence.
(2) Any law enforcement officer may intercept any communication if he or she is- 10
(a) a party to the communication; and
{b) satisfied that there are reasonable grounds to believe that the interception of a
communication of another party to the communication is necessary on a
ground referred to in section 16(5)(a),
unless such communication is intercepted by such law enforcement officer for purposes 15
of committing an offence.
Interception of communication with consent of party to communication
5. (1) Any person, other than a law enforcement officer, may intercept any
communication if one of the parties to the communication has given prior consent in
writing to such interception, unless such communication is intercepted by such person 20
for purposes of committing an offence.
(2) Any law enforcement officer may intercept any communication if-
(a ) one of the parties to the communication has given prior consent in writing to
such interception;
(6) he or she is satisfied that there are reasonable grounds to believe that the party 25
who has given consent as contemplated in paragraph (a ) will-
(i) participate in a direct communication or that a direct communication will
(ii) send or receive an indirect communication; and
ground referred to in section 16(5)(a),
be directed to him or her; or
(c) the interception of such direct or indirect communication is necessary on a 30
unless such communication is intercepted by such law enforcement officer for purposes
of committing an offence.
Interception of indirect communication in connection with carrying on of business
6. (1) Any person may, in the course of the carrying on of any business, intercept any 35
indirect communication-
(a ) by means of which a transaction is entered into in the course of that business;
(6 ) which otherwise relates to that business; or
(c) which otherwise takes place in the course of the carrying on of that business,
in the course of its transmission over a telecommunication system. 40
(2) A person may only intercept an indirect communication in terms of subsection
(1)-
(a ) if such interception is effected by, or with the express or implied consent of,
(h) for purposes of- 45
the system controller;
(i) monitoring or keeping a record of indirect communications-
(.a) in order to establish the existence of facts;
(bb) for purposes of investigating or detecting the unauthorised use of
(cc) where that is undertaken in order to secure, or as an inherent part of, 50
that telecommunication system; or
the effective operation of the system; or
(ii) monitoring indirect communications made to a confidential voice-
telephony counselling or support service which is free of charge, other
than the cost, if any, of making a telephone call, and operated in such a
way that users thereof may remain anonymous if they so choose; 55
(c ) if the telecommunication system concerned is provided for use wholly or
partly in connection with that business; and
(dl if the system controller has made all reasonable efforts to inform in advance a
person, who intends to use the telecommunication system concerned, that
indirect communications transmitted by means thereof may be intercepted or
if such indirect communication is intercepted with the express or implied
consent of the person who uses that telecommunication system. 5
Interception of communication to prevent serious bodily harm
7. (1) Any law enforcement officer may, if-
to the communication has-
(i) caused, or may cause, the infliction of serious bodily harm to another 10
(ii) threatens, or has threatened, to cause the infliction of serious bodily harm
(iii) threatens, or has threatened, to take his or her own life or to perform an
(a) he or she is satisfied that there are reasonable grounds to believe that a party
person;
to another person; or
act which would or may endanger his or her own life or would or may 15
cause the infliction of serious bodily harm to himself or herself;
(6) he or she is of the opinion that because of the urgency of the need to intercept
the communication, it is not reasonably practicable to make an application in
terms of section 16( 1) or 23( 1) for the issuing of an interception direction or
an o r a l i n t e r c e p t i o n 20
(c) the sole purpose of the interception is to prevent such bodily harm,
intercept any communication or may orally request a telecommunication service
provider to route duplicate signals of indirect communications specified in that request
to the interception centre designated therein.
or her in terms of subsection (I), route the duplicate signals of the indirect
communications concerned to the designated interception centre.
(3 ) The law enforcement officer who made a request under subsection (1) must as
soon as practicable after making that request, furnish the telecommunication service
provider concerned with a written confirmation of the request which sets out the 30
information given by that law enforcement officer to that telecommunication service
provider in connection with the request.
(4) The law enforcement officer who intercepts a communication under subsection (1)
or (2 ) must, as soon as practicable after the interception of the communication.
c o n c e r n e d , s u b judge- 35
(a) a copy of the written confirmation referred to in subsection (3);
(b) an affidavit setting forth the results and information obtained from that
interception; and
(c) any recording of the communication that has been obtained by means of that
interception, any full or partial transcript of the recording and any notes made 40
by that law enforcement officer of the communication if nothing in the
communication suggests that bodily harm, attempted bodily harm or
threatened bodily harm has been caused or is likely to be caused.
(5 ) A telecommunication service provider who, in terms of subsection (2), has routed
duplicate signals of indirect communications to the designated interception centre must, 45
as soon as practicable thereafter, submit an affidavit to a designated judge setting forth
the steps taken by that telecommunication service provider in giving effect to the request
concerned and the results obtained from such steps.
(6) A designated judge must keep all written confirmations and affidavits and any
recordings, transcripts or notes submitted to him or her in terms, of subsections (4) and 50
(S ), or cause it to be kept, for a period of at least five years.
(2) A telecommunication service provider must, upon receipt of a request made to him 25
Interception of communication for purposes of determining location in case of
emergency
8. (1) In circumstances where-
(a ) a p e r s o n is ;i party to a communication; 55
(b) that person, as a result of information received from another party to the
communication (in this section referred to as the "sender"), has reasonable
grounds to believe that an emergency exists by reason of the fact that the life
of another person, whether or not the sender, is being endangered or that he or
she is dying or is being or has been seriously injured or that his or her life is
likely to be endangered or that he or she is likely to die or to be seriously
injured; and
(c) the location of the sender is unknown to that person,
(i) a law enforcement officer, and if he or she is of the opinion that determining
the location of the sender is likely to be of assistance in dealing with the
emergency, orally request, or cause another law enforcement officer to orally
request, the telecommunication service provider concerned to-
(aa) intercept any communication to or from the sender for purposes of
(bb) determine the location of the sender in any other manner which the
(ii) not a law enforcement officer, inform, or cause another person to inform, any
law enforcement officer of the matters referred to in paragraphs (a), (b) and
(2) A law enforcement officer who has been informed as contemplated in subsection
(I)($, may, if he or she is of the opinion that determining the location of the sender is
likely to be of assistance in dealing with the emergency, orally request, or cause another
law enforcement officer to orally request, the telecommunication service provider
concerned to act as contemplated in subsection (l)(i)(aa) or (bb).
(3) A telecommunication service provider must, upon receipt of a request made to him
or her in terms of subsection (l)(i) or (2)-
(a) intercept any communication to or from the sender for purposes of
determining his or her location; or
(b) determine the location of the sender in any other manner which the
telecommunication service provider deems appropriate,
and if the location of the sender has been so determined, the telecommunication service
provider concerned must, as soon as practicable after determining that location, provide
the law enforcement officer who made the request with the location of the sender and
any other information obtained from that interception which, in the opinion of the
telecommunication service provider concerned, is likely to be of assistance in dealing
with the emergency.
(4) The law enforcement officer who made a request under subsection (l)(i) or (2)
mus1,-
(a) as soon as practicable after making that request, furnish the telecommunication service provider concerned with a written confirmation of the request
which sets out the information given by that law enforcement officer to that
telecommunication service provider in connection with the request;
(b) as soon as practicable after making that request, furnish a designated judge
with a copy of such written confirmation; and
(c) if the location of the sender and any other information has been provided to
him or her in terms of subsection (3 ), as soon as possible after receipt thereof,
submit to a designated judge an affidavit setting forth the results and
information obtained from that interception.
(5) A telecommunication service provider who has taken any of the steps
contemplated in subsection (3 ), must, as soon as practicable thereafter, submit to a
designated judge-
(a) an affidavit setting forth the steps taken by that telecommunication service
provider in giving effect to the request concerned and the results and
information obtained from such steps; and
(b ) if such steps included the interception of an indirect communication, any
recording of that indirect communication that has been obtained by means of
that interception, any full or partial transcript of the recording and any notes
made by that telecommunication service provider of that indirect communication.
(6) A designated judge must keep all written confirmations and affidavits and any
recordings, transcripts 01- notes submitted to him or her in terms of subsections (4)(b)
and (c ) and (5), or cause it to be kept, for a period of at least five years.
the person referred to in paragraph (a ) may, if he or she is-
determining his or her location; or
telecommunication service provider deems appropriate; or
(c).
15
lnterception of communications authorised by certain other Acts
!). (I ) Any communication may, in the course of its occurrence or transmission, be
intercepted in any prison as defined in section 1 of the Correctional Services Act, 1998
(Act No. 1 I1 of 1998), if such interception takes place in the exercise of any power
confirmed by or under, and in accordance with, any regulations made under that Act. 5
(a) were made prior to the fixed date, the Cabinet member responsible for
correctional services must within one month after the fixed date, if Parliament
is then in ordinary session, or, if Parliament is not then in ordinary session,
within one month after the commencement of its, next ensuing ordinary 10
session, submit a copy of those regulations to Parliament; or
(b) are made after the fixed date, the Cabinet member responsible for correctional
services must, before the publication thereof in the Gazette, submit those
regulations to Parliament.
(2) If any regulations referred to in subsection (1)-
Monitoring of signal for purposes of installation or maintenance of equipment, 15
facilities o r devices
10. Any person who is lawfully engaged in duties relating to the-
(a) installation or connection of any equipment, facility or device used, or
(6) operation or maintenance of a telecommunication system; or 20
(c) installation, connection or maintenance of any interception device used, or
intended to be used, for the interception of a communication under an
interception direction,
may, in the ordinary course of the performance of those duties, monitor a signal relating
to an indirect communication where it is reasonably necessary for that person to monitor 25
that signal for purposes of performing those duties effectively.
intended to be used, in connection with a telecommunication service;
Monitoring of signal and radio frequency spectrum for purposes of managing
radio frequency spectrum
11. Any person appointed as an inspector in terns of section 98 of the
Telecommunications Act and who is lawfully engaged in performing the functions of the 30
Authority relating to the management of the radio frequency spectrum, as contemplated
in section 28(1) of that Act, may, in the ordinary course of the performance of those
functions, monitor a signal or radio frequency spectrum relating to an indirect
communication which is transmitted over radio, where it is reasonably necessary for that
employee to monitor that signal or radio frequency spectrum for purposes of identifying, 35
isolating or preventing an unauthorised or interfering use of such a signal or frequency
or of a transmission.
Part 2
Prohibition of provision of real-time or archived communication-related
i n f o r m a t i o n a n d e x c 40
Prohibition of provision of real-time or archived communication-related information
12. Subject to this Act, no telecommunication service provider or employee of a
telecommunication service provider may intentionally provide or attempt to provide any
real-time or archived communication-related information to any person other than the 45
customer of the telecommunication service provider concerned to whom such real-time
or archived communication-related information relates.
Provision of real-time or archived communication-related information under
reatirr.e communicating -related directing or archived crmm~~icati=n-relzted
direction 50
13. Subject to this Act, any telecommunication service provider to whom a real-time
communication-related direction or an archived communication-related direction is
addressed, may provide any real-time or archived communication-related information to
which that real-time communication-related direction or archived communication-
related direction relates.
Provision of real-time or archived communication-related information upon
authorisation by customer 5
14. Any telecommunication service provider may, upon the written authorisation
given by his or her customer on each occasion, and subject to the conditions determined
by the customer concerned, provide to any person specified by that customer real-time
or archived communication-related information which relates to the customer concerned. 10
Availability of other procedures for obtaining real-time or archived communication-related information
15. (1) Subject to subsection (2), the availability of the procedures in respect of the
provision of real-time or archived communication-related information provided for in
sections 17 and 19 does not preclude obtaining such information in respect of any person 15
in accordance with a procedure prescribed in any other Act.
(2) Any real-time or archived communication-related information which is obtained
in terms of such other Act may not be obtained on an ongoing basis.
CHAPTER 3
APPLICATIONS FOR, AND ISSUING OF, DIRECTIONS AND ENTRY 20
WARRANTS
Application for, and issuing of, interception direction
16. (1) An applicant may apply to a designated judge for the issuing of an interception
(2) Subject to section 23(1), an application referred to in subsection (1) must be in 25
direction.
writing and must-
(a) indicate the identity of the-
(i) applicant and, if known and appropriate, the identity of the law
(ii) person or customer, if known, whose communication is required to be 30
(iii) postal service provider or telecommunication service provider to whom
(0) specify the ground referred to in subsection (5)(a) on which the application is
(c) contain full particulars of all the facts and circumstances alleged by the
(d) include-
enforcement officer who will execute the interception direction;
intercepted; and
the direction must be addressed, if applicable;
made; 35
applicant in support of his or her application;
(i) a description of the-
(aa) nature and location of the facilities from which, or the place at 40
(Ah) type of communication which is required to be intercepted; and
application is made will be obtained through the interception;
which, the communication is to be intercepted, if known; and
(ii) the basis for believing that evidence relating to the ground on which the
(e ) if applicable, indicate whether other investigative procedures have been 45
applied and have failed to produce the required evidence or must indicate the
reason why other investigative procedures reasonably appear to be unlikely to
succeed if applied or are likely to be too dangerous to apply in order to obtain
the required evidence: Provided that this paragraph does not apply to an
application for the issuing of a direction in respect of the ground referred to in 50
subsection (5)(u)(i) or (v) if the-
(i) serious offence has been or is being or will probably be committed for the
benefit of, at the direction of, or in association with, a person, group of
persons or syndicate involved in organised crime; or
(ii) property is or could probably be an instrumentality of a serious offence or
indicate the period for which the interception direction is required to be
issued;
indicate whether any previous application has been made for the issuing of an 5
interception direction in respect of the same person or customer, facility or
place specified in the application and, if such previous application exists, must
indicate the current status of that application; and
comply with any supplementary directives relating to applications for
interception directions issued under section 58. 10
application on a ground referred to in-
subsection (j)(a)(i), must be made by an applicant referred to in paragraph
(a), (d) or (f) of the definition of "applicant";
subsection (5)(n)(ii) or (iii), must be made by an applicant referred to in
paragraph (b) or (c ) of the definition of "applicant"; 15
subsection (5)(a)(iv), must, in the case of-
(i) the investigation of a serious offence, be made by an applicant referred to
(ii) the gathering of information, be made by an applicant referred to in
subsection (5)(u)(v), must be made by an applicant referred to in paragraph (e )
of the definition of "applicant":
is or could probably be the proceeds of unlawful activities;
in paragraph (a) or (d) of the definition of "applicant"; and
paragraph (c) of the definition of "applicant"; and 20
that an applicant referred to in paragraph If) of the definition of "applicant"
(i) if the offence allegedly has been or is being or will be committed by a member 25
(ii) in respect of a death in police custody or as a result of police action.
may only make an application on the ground referred to in subsection (5)(u)(i)-
of the Police Service; or
(4) Notwithstanding section 2 or anything to the contrary in any other law contained,
a designated judge may, upon an application made to him or her in terms of subsection
(l), issue an i n t e r c e p t i o n d i r e c t i o n 30
(5 ) An interception direction may only be issued if the designated judge concerned is
satisfied, on the facts alleged in the application concerned, that-
(a ) there are reasonable grounds to believe that-
(i) a serious offence has been or is being or will probably be committed;
(ii) the gathering of information concerning an actual threat to the public 35
health or safety, national security or compelling national economic
interests of the Republic is necessary;
(iii) the gathering of information concerning a potential threat to the public
health or safety or national security of the Republic is necessary;
(iv) the making of a request for the provision, or the provision to the 40
competent authorities of a country or territory outside the Republic, of
any assistance in connection with, or in the form of, the interception of
communications relating to organised crime or any offence relating to
terrorism or the gathering of information relating to organised crime or
terrorism, is in- 45
(an) accordance with an international mutual assistance agreement; or
(bb) the interests of the Republic’s international relations or obligations;
or
(v) the gathering of information concerning property which is or could
probably be an instrumentality of a serious offence or is or could 50
probably be the proceeds of unlawful activities is necessary;
(b) there are reasonable grounds to believe that the-
(i) interception of particular communications concerning the relevant
ground referred to in paragraph (a) will be obtained by means of such an
i n t e r c e p t i o n and 55
(ii) facilities from which, or the place where, the communications to be
intercepted are being used, or are about to be used, in connection with the
relevant ground referred to in paragraph (a) are commonly used by the
person or customer in respect of whom the application for the issuing of
an interception direction is made; and 60
(c) in respect of the grounds referred to in paragraph (a)(i), (iii), (iv) or (v), other
investigative procedures have been applied and have failed to produce the
required evidence or reasonably appear to be unlikely to succeed if applied or
are likely to be too dangerous to apply in order to obtain the required evidence
and that the offence therefore cannot adequately be investigated, or the
information therefore cannot adequately be obtained, in another appropriate
manner: Provided that this paragraph does not apply to an application for the
issuing of a direction in respect of the ground referred to in paragraph (a)(i) or 5
(v) if the-
(i) serious offence has been or is being or will probably be committed for the
benefit of, at the direction of, or in association with, a person, group of
persons or syndicate involved in organised crime; or
(ii) property is or could probably be an instrumentality of a serious offence or 10
is or could probably be the proceeds of unlawful activities.
(6) An interception direction-
(a) must be in writing;
(b ) must contain the information referred to in subsection (2)(a)(ii) and (iii) and
(c) may specify conditions or restrictions relating to the interception of
(d) may be issued for a period not exceeding three months at a time, and the
(d)(i); 15
communications authorised therein; and
period for which it has been issued must be specified therein.
(7) [a) An application must be considered and an interception direction issued without 20
any notice to the person or customer to whom the application applies and without
hearing such person or customer.
(6) A designated judge considering an application may require the applicant to furnish
such further information as he or she deems necessary.
Application for, and issuing of, real-time communication-related direction 25
17. (1) If no interception direction has been issued and only real-time communication-
related information on an ongoing basis is required, an applicant may apply to a
designated judge for the issuing of a real-time communication-related direction.
(2) Subject to section 23(1), an application referred to in subsection (1) must be i n
writing and must- 30
(tz) indicate the identity of the-
(i) applicant;
(ii) customer, if known, in respect of whom the real-time communication-
(iii) telecommunication service provider to whom the real-time communication-related direction must be addressed; related information is required; (B ) specify the ground referred to in subsection (4) on which the application is
(c ) contain full particulars of all the facts and circumstances alleged by the
(d) include-
made; applicant in support of his or her application; 40
(i) a description of the type of real-time communication-related information
(ii) the basis for believing that evidence relating to the ground on which the
that is required; and
application is made will be obtained through the provision of the 45
real-time communication-related information;
(e ) indicate whether the real-time communication-related information must be-
(i) routed to a designated interception centre specified in the application; or
(ii) provided to the law enforcement agency concerned;
(f) indicate the period for which, and the manner in which, the real-time 50
communication-related information is required to be provided;
(g) indicate whether any previous application has been made for the issuing of a
real-time communication-related direction in respect of the same customer or
real-time communication-related information specified in the application and,
if such previous application exists, must indicate the current status of that 55
application; and
(11) comply with any supplementary directives relating to applications for
real-time communication-related directions issued under section 58.
(3) Notwithstanding section 12 or anything to the contrary in any other law contained,
a designated judge may, upon an application made to him or her in terms of subsection 60
(I ), issue a real-time communication-related direction.5
(.1) A real-time communication-related direction may only be issued if it appears to
the designated judge concerned, on the facts alleged in the application concerned, that
there are reasonable grounds to believe that-
a serious offence has been or is being or will probably be committed;
the gathering of information concerning an actual threat to the public health or 5
safety, national security or compelling national economic interests of the
Republic is necessary;
the gathering of information concerning a potential threat to the public health
or safety or national security of the Republic is necessary;
the making of a request for the provision, or the provision to the competent 10
authorities of a country or territory outside the Republic, of any assistance in
connection with, or in the form of, the interception of communications
relating to organised crime or any offence relating to terrorism or the gathering
of information relating to organised crime or terrorism, is in-
(i) accordance with an international mutual assistance agreement; or 1s
(ii) the interests of the Republic’s international relations or obligations; or
the gathering of information concerning property which is or could probably
be an instrumentality of a serious offence or is or could probably be the
proceeds of unlawful activities is necessary,
and that the provision of real-time communication-related information is necessary for 20
purpuses of investigating such offence or gathering such information.
(5 ) A real-time communication-related direction-
(a ) must be in writing;
(b) must contain the information referred to in subsection (2)(a)(ii) and (iii), (d)(i)
(c) may specify conditions or restrictions relating to the provision of real-time
(d) may be issued for a period not exceeding three months at a time, and the
and (e); 25
communication-related information authorised therein; and
period for which it has been issued must be specified therein.
application for, and the issuing of, a real-time communication-related direction.
(6) Section 16(3) and (7) applies, with the necessary changes, in respect of an 30
Combined application for, and issuing of, interception direction, real-time
communication-related direction and archived communication-related direction
or interception direction supplemented by real-time communication-related
direction 35
18. (1) If the-
(a) interception of an indirect communication and the provision of communication-related information, whether real-time or archived or both; or
(b) provision of real-time and archived communication-related information,
are required, an applicant may, subject to sections 16(2) and (3), 17(1) and (2) and 19(1) 40
and (2), in a combined application, apply to a designated judge for the simultaneous
issuing of any combination of directions referred to in those sections.
(2) (a ) If an interception direction has been issued under section 16, the applicant who
made the application in respect of the interception direction concerned or, if he or she is
not available, any other applicant who would have been entitled to make that 45
application, may, subject to section 17(1) and (2), apply to a designated judge for the
issuing of a real-time communication-related direction to supplement that interception
direction.
(b) An application referred to in paragraph (a ) must-
(i) contain an affidavit setting forth the results obtained from the interception 50
direction concerned from the date of its issuance up to the date on which that
application is made, or a reasonable explanation of the failure to obtain such
results;
(ii) contain proof that an interception direction has been issued; and
(iii) be made at any stage after the issuing of the interception direction concerned, 55
but before the expiry of the period or extended period for which it has been
issued.
(3) Notwithstanding sections 2 and 12 or anything to the contrary in any other law
contained, a designated judge may, upon an application made to him or her in terms of-
(a ) subsection (1) and subject to sections 16(S), (6) and (7), 17(4), (5) and (6) and 60
19(4), (5) and (6), issue the combination of directions applied for; or10
20
(b) subsection (2) and subject to section 17(4), (5) and (6), issue a real-time
communication-related direction to supplement that interception direction:
Provided that a real-time communication-related direction issued under this
paragraph expires when the period or extended period for which the
interception direction concerned has been issued, lapses. 5
(4) Notwithstanding section 19( l), (3) and (4)-
(a) an application in terms of subsection (1) for the issuing of an archived
communication-related direction may only be made to a designated judge; and
ib) only a designated judge may issue an archived communication-related
d i r e c t i o n u n d e r (3)(a). 10
Application for, and issuing of, archived communication-related direction
19. (1) If only archived communication-related information is required, an applicant
may apply to a judge of a High Court, a regional court magistrate or a magistrate for the
issuing of an archived communication-related direction.
(2) An application referred to in subsection (1) must be in writing and must- 15
(a ) contain, with the necessary changes, the information referred to in section
jb) comply with any supplementary directives relating to applications for
17(2); and
archived communication-related directions issued under section 58.
a judge of a High Court, a regional court magistrate or a magistrate may, upon an
application made to him or her in terms of subsection (l), issue an archived
communication-related direction.
(4) An archived communication-related direction may only be issued if it appears to
the judge of a High Court, regional court magistrate or magistrate concerned, on the facts 25
alleged in the application concerned, that there are reasonable grounds to believe that-
(a) a serious offence has been or is being or will probably be committed;
(b) the gathering of information concerning an actual threat to the public health or
safety, national security or compelling national economic interests of the
Republic is necessary; 30
(c) the gathering of information concerning a potential threat to the public health
or safety or national security of the Republic is necessary;
(d) the making of a request for the provision, or the provision to the competent
authorities of a country or territory outside the Republic, of any assistance in
connection with, or in the form of, the interception of communications 35
relating to organised crime or any offence relating to terrorism or the gathering
of information relating to organised crime or terrorism, is in-
(i) accordance with an international mutual assistance agreement; or
(ii) the interests of the Republic’s international relations or obligations; or
(e) the gathering of information concerning property which is or could probably 40
be an instrumentality of a serious offence or is or could probably be the
proceeds of unlawful activities is necessary,
and that the provision of archived communication-related information is necessary for
purposes of investigating such offence or gathering such information.
(3) Notwithstanding section 12 or anything to the contrary in any other law contained, 20
(5 ) An archived communication-related direction-
(a) must be in writing;
(h) must contain the information referred to in section 17(2)(a)(ii) and (iii), (d)(i)
(c) must state the period within which the archived communication-related
(d) may specify conditions or restrictions relating to the provision of archived
(6 ) Section 16(3) and (7) applies, with the necessary changes, in respect of an
(7) If a judge of a High Court, regional court magistrate or magistrate issues an 55
and (e);
information must b e r o u t e d or provided; and 50
communication-related information authorised therein.
application for, and the issuing of, an archived communication-related direction.
archive communication-related direction, he or she must, as soon as practicable
thereafter, submit a copy of the application and archived communication-related
direction concerned to a desiguated judge.
(8) A designated judge must keep all copies of applications and archived
communication-related directions submitted to him or her in terms of subsection (7), or 60
cause it to be kept, for a period of at least five years.
Amendment or extension of existing direction
20. (1 ) The applicant who made the application in respect of an existing direction or,
if he or she is not available, any other applicant who would have been entitled to make
that application, may, at any stage after the issuing of the existing direction concerned,
but before the expiry of the period for which it has been issued, apply to a designated
judge for an amendment thereof or the extension of the period for which it has been
issued.
(2 ) An application referred to in subsection (1) must be in writing and must-
contain full particulars of the reasons and circumstances alleged by the
applicant in support of his or her application;
in the case of an application for the---
(i) amendment of an existing direction, indicate the amendment which is
(ii) extension of the period for which an existing direction has been issued,
contain an affidavit setting forth the results obtained from the direction
concerned from the date of its issuance up to the date on which that
application is made, or a reasonable explanation of the failure to obtain such
results; and
comply with any supplementary directives relating to applications for the
amendment or extension of directions issued under section 58.
required; or
indicate the period for which the extension is required;
(3 ) A designated judge may, upon an application made to him or her in terms of
subsection (1)-
(a) amend an existing direction; or
(b) extend the period for which an existing direction has been issued.
(4) An existing direction may only be amended or the period for which it has been
issued may only be extended if the designated judge concerned is satisfied, on the facts
alleged in the application Concerned, that the amendment or extension is necessary for
purposes of achieving the objectives of the direction concerned: Provided that the period
for which an existing direction has been issued may only be extended for a further period
not exceeding three months at a time.
(5) Any amendment of an existing direction or extension of the period for which it has
been issued, must be in writing.
(6) Section 16(7) applies, with the necessary changes, in respect of the amendment of
an existing direction or the extension of the period for which an existing direction has
been issued.
Application for, and issuing of, decryption direction
21. (1) An applicant who-
(a) makes an application referred to in section 16( 1) may in his or her application
also apply for the issuing of a decryption direction; or
(b) made an application referred to in section 16( 1) or, if he or she is not available,
any other applicant who would have been entitled to make that application,
may, at any stage after the issuing of the interception direction in respect of
which such an application was made, but before the expiry of the period or
extended period for which it has been issued, apply to a designated judge for
the issuing of a decryption direction.
(2) Subject to section 23(1), an application referred to in subsection (1) must be in
writing and must-
(a) indicate the identity of the-
(i) applicant;
(ii) customer, if known, in respect of whom the decryption of encrypted
(iii) decryption key holder to whom the decryption direction must be
information is required; and
addressed;
(b) describe the encrypted information which is required to be decrypted;
(c) specify the-
(i) decryption key, if known, which must be disclosed; or
(ii) decryption assistance which must be provided, and the form and manner
(d) indicate the period for which the decryption direction is required to be issued;
in which it must be provided;
(e) indicate whether any previous application has been made for the issuing of a
decryption direction in respect of the same customer or encrypted information
specified in the application and, if such previous application exists, must
indicate the current status of that application;
(f) if the application is made in terms of subsection (l)(b), also contain- 5
(i) proof that an interception direction has been issued; and
(ii) an affidavit setting forth the results obtained from the interception
direction concerned from the date of its issuance up to the date on which
that application is made, or a reasonable explanation of the failure to
obtain such r e s u l t s ; a n d 10
(8) comply with any supplementary directives relating to applications for
(3) A designated judge may, upon an application made to him or her in terms of
(4) A decryption direction may o n l y b e issued- 15
application concerned, that there are reasonable grounds to believe that-
decryption directions issued under section 58.
subsection (l), issue a decryption direction.
(a) if the designated judge concerned is satisfied, on the facts alleged in the
any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of
e n c r y p t e d 20
the decryption key holder specified in the application is in possession of
the encrypted information and the decryption key thereto;
the purpose for which the interception direction concerned was issued
would be defeated, in whole or in part, if the decryption direction was not
issued; and 25
it is not reasonably practicable for the authorised person who executes
the interception direction concerned or assists with the execution thereof,
to obtain possession of the encrypted information in an intelligible form
without the issuing of a decryption direction; and
(6) after the designated judge concerned has considered- 30
(i) the extent and nature of any other encrypted information, in addition to
the encrypted information in respect of which the decryption direction is
to be issued, to which the decryption key concerned is also a decryption
key; and
(ii) any adverse effect that the issuing of the decryption direction might have 35
on the business carried on by the decryption key holder to whom the
decryption direction is addressed.
(5) A decryption direction-
(a) must be in writing;
(b) must contain the information referred to in subsection (2)(a)(ii) and (iii), (b) 40
and (c);
(c) must state the period within which the decryption key must be disclosed or the
decryption assistance must be provided, whichever is applicable;
(d) may specify conditions or restrictions relating to decryption authorised
therein; and 45
/e) may be issued for a period not exceeding three months at a time, and the
period for which it has been issued must be specified therein: Provided that a
decryption direction expires when the period or extended period for which the
interception direction concerned has been issued, lapses.
(6) Section 16(7) applies, with the necessary changes, in respect of the issuing of a SO
decryption direction.
Application for, and issuing of, entry warrant
22. (1 ) An applicant who--
(a ) makes an application referred to in section 16(1) may in his or her application
also apply for the issuing of an entry warrant; or 55
(b ) made an application referred to in section 16(1) or, if he or she is not available,
any other applicant who would have been entitled to make that application,
may, at any stage after the issuing of the interception direction in respect of
which such an application was made, but before the expiry of the period or
extended period for which it has been issued, apply to a designated judge for 60
the issuing of an entry warrant.5
(2) Subject to section 23(1): an application referred to in subsection (1) must be in
writing and must-
indicate the-
(i) identity of the applicant;
(ii) premises in respect of which the entry warrant is required to be issued;
(iii) specific purpose, referred to in the definition of "entry warrant", for
if the application is made in terms of subsection (l)(h), also contaiw-
(i) proof that an interception direction has been issued; and
(ii) an aflidavit setting forth the results obtained from the interception
direction concerned from the date of its issuance up to the date on which
that application is made, or a reasonable explanation of the failure to
obtain such results;
indicate whether any previous application has been made for the issuing of an
entry warrant for the same purpose or in respect of the same premises
specified in the application and, if such previous application exists, must
indicate the current status of that application; and
comply with any supplementary directives relating to applications for entry
warrants issued under section 58.
and
which the application is made;
(3) A designated judge may, upon an application made to him or her in terms of
subsection (I), issue an entry warrant.
(4) An entry warrant may only be issued if the designated judge concerned is satisfied,
on the facts alleged in the application concerned, that-
(a) the entry of the premises concerned is necessary for a purpose referred to in
the definition of "entry warrant"; or
(b) there are reasonable grounds to believe that it would be impracticable to
intercept a communication under the interception direction concerned
otherwise than by the use of an interception device installed on the premises.
(5) An entry warrant-
(a) must be in writing;
(6) must contain the information referred to in subsection (2)(a)(ii) and (iii); and
(c) may contain conditions or restrictions relating to the entry upon the premises
concerned as the designated judge deems necessary.
(6) An entry warrant expires when-
(a) the period or extended period for which the interception direction concerned
has been issued, lapses; or
(b) it is cancelled in terms of section 23(11) or 25( 1) or (2) by the designated
judge who issued it or, if he or she is not available, by any other designated
judge,
whichever occurs first.
(7) Section 16(7) applies, with the necessary changes, in respect of the issuing of an
entry warrant.
(8) If an entry warrant has expired as contemplated in subsection (6)(a), the applicant
who made the application in respect of the entry warrant concerned or, if he or she is not
available, any other applicant who would have been entitled to make that application,
must, as soon as practicable after the date of expiry of the entry warrant concerned, and
without applying to a judge for the issuing of a further entry warrant, remove, or cause
to be removed, any interception device which has been installed thereunder and which,
at the date of expiry of that entry warrant, has not yet been removed from the premises
concerned.
Oral application for, and issuing of, direction, entry warrant, oral direction or oral
entry warrant
23. (1)An application referred to in section 16(1), 17(1), 18(1), 21(1) or22(1) may be
made orally by an applicant who is entitled to make such an application if he or she is
of the opinion that i t i s not reasonably practicable, having regard to the urgency of the
cast: or the existence of exceptional circumstances, to make a written application.
(2 ) An oral application referred to in subsection (1) must-
(a) contain the information referred to in section 16(2), 17(2), 21(2) or 22(2),
whichever is applicable;
(b) indicate the particulars of the urgency of the case or the other exceptional
circumstances which, in the opinion of the applicant, justify the making of an
oral application; and
(c) comply with any supplementary directives relating to oral applications issued
under section 58.
(3) Notwithstanding sections 2 and 12 or anything to the contrary in any other law
contained, a designated judge may, upon an oral application made to him or her in terms
of subsection (l), issue the direction or entry warrant applied for.
(4) A direction or an entry warrant may only be issued under subsection (3)-
(a) if the designated judge concerned is satisfied, on the facts alleged in the oral
application concerned, that-
(i) there are reasonable grounds to believe that the direction or entry warrant
applied for could be issued;
(ii) a direction is immediately necessary on a ground referred to in section
16(5)(a), 17(4) or 21(4)(a), whichever is applicable, or an entry warrant
is immediately necessary on a ground referred to in section 22(4); and
(iii) it is not reasonably practicable, having regard to the urgency of the case
or the existence of exceptional circumstances, to make a written
application for the issuing of the direction or entry warrant applied for;
and
(b) on condition that the applicant concerned must submit a written application to
the designated judge concerned within 48 hours after the issuing of the
direction or entry warrant under subsection (3).
(5) A direction or entry warrant issued under subsection (3) must be in writing.
(6 ) Section 16(5)(b) and (c), (6) and (7), 17(5) and (6), 21(4)(b), (5) and (6) or 22(5),
(6), (7 ) and (S), whichever is applicable, applies, with the necessary changes, in respect
of the issuing of a direction or an entry warrant under subsection (3).
(7) Notwithstanding subsection (9 , a designated judge may, upon an oral application
made to him or her in terms of subsection (l), orally issue the direction or entry warrant
applied for.
(8) An oral direction or oral entry warrant may only be issued under subsection (7)-
(a) if the designated judge concerned is satisfied, on the facts alleged in the oral
application concerned, that-
(i) it is not reasonably practicable, having regard to the urgency of the case
or the existence of exceptional circumstances to issue the direction or
entry warrant applied for in writing; or
(ii) any other exceptional circumstances exist which justify the issuing of an
oral direction or oral entry warrant; and
(b) on condition that the applicant concerned must submit a written application to
the designated judge concerned within 48 hours after the issuing of the oral
direction or oral entry warrant under subsection (7).
(9) Section 16(5)(h) and (c), (6)(b), (c) and (d) and (7), 17(5)(b), (c) and (d) and (6),
21 (4)(b), (5)(b), (c), (dJ and (e ) and (6) or 22(5)(b) and (c), (6), (7) and (8), applies, with
the necessary changes, in respect of the issuing of an oral direction or oral entry warrant
under subsection (7).
(1 0 ) A designated judge who issues an oral direction or oral entry wal-rant under
subsection (7) must-
(u) immediately after the issuing thereof, inform the applicant and, if applicable,
the postal service provider or telecommunication service provider to whom it
is addressed, orally of such an oral direction or oral entry warrant, including
the-
(i) contents thereof; and
(ii) period for which it has been issued; and
after the issuing thereof.
(1 I j A designated judge who issued-
(0) confirm that oral direction or oral entry warrant in writing within 12 hours
((7) a direction or an entry warrant under subsection (3); or
(b ) an oral direction or oral entry warrant under subsection (7),
01, if he or she is not available, any other designated judge who would have been entitled
to issue such direction, entry warrant, oral direction or oral entry warrant must, upon
receipl of a written application submitted to him or her in terms of subsection (4)(6) or
(S )(D ), reconsider that application whereupon he or she may confirm, amend or cancel
that direction, entry warrant, oral direction or oral entry warrant.
(12) If a direction, entry warrant, oral direction or oral entry warrant is-
25
(a) confirmed or amended in terms of subsection (l l ), the designated judge
concerned must forthwith i n writing inform-
(i) the applicant concerned; and
(ii) if applicable, the postal service provider, telecommunication service
of such confirmation 01- amendment; or
the necessary changes.
provider or decryption key holder concerned, 5
(b) cancelled in terms of subsection (11); section 25(3), (4) and (5 ) applies with
Reports on progress
24. The designated judge who issued a direction or an entry warrant may at the issuing 10
thereof or at any stage before the date of expiry thereof, in writing require the applicant
who made the application in respect of the direction or entry warrant concerned to report
to him or her in writing-
(a) at such intervals as he or she determines, on-
direction or entry warrant concerned; and
(i) the progress that has been made towards achieving the objectives of the 15
(ii) any other matter which the designated judge deems necessary; or
(b) on the date of expiry of the entry warrant concerned, on whether the
interception device has been removed from the premises concerned and, if so,
the date of such removal. 20
Cancellation of direction, entry warrant, oral direction or oral entry warrant
25. (1) The designated judge who issued a direction or an entry warrant or, if he or she
is not available, any other designated judge who would have been entitled to issue such
direction or entry warrant may cancel that direction or entry warrant if-
(a ) the applicant concerned fails to submit a report in terms of section 24, if 25
applicable; or
(b) he or she, upon receipt of a report submitted in terms of section 24, is satisfied
that the-
(i) objectives of the direction or entry warrant concerned have been
(ii) ground on which the direction or the purpose for which the entry warrant
achieved; or 30
Concerned was issued, has ceased to exist.
(2) The designated judge who issued-
(a ) a direction or an entry warrant under section 23(3); or
(b) an o r a l d i r e c t i o n or o r a l e n t r y warrant, 3.5
or, if he or she is not available, any other designated judge who would have been entitled
to issue such a direction, entry warrant, oral direction or oral entry warrant, must cancel
that direction, entry warrant, oral direction or oral entry warrant if the applicant
concerned fails to comply with section 23(4)(b) or (8)(b).
(3) If a designated judge cancels- 40
(a) a direction or an entry warrant;
(b) a direction or an entry warrant issued under section 23(3); or
(c) an oral direction or oral entry warrant,
(i) the a p p l i c a n t c o n c e r n e d ; and 45
(ii) if applicable, the postal service provider, telecommunication service provider
in terms of subsection (1) or (2), he or she must forthwith in writing inform-
or decryption key holder concerned,
of such cancellation.
(4) If an entry warrant or oral entry warrant is cancelled in terms of subsection (1) or
(2), the applicant concerned must, as soon as practicable after having been informed of 50
such cancellation, remove, or cause to be removed, any interception device which has
been installed under the entry warrant or oral entry warrant concerned.
(5 ) If a direction issued under section 23(3) or an oral direction is cancelled in terms
of subsection (2)-
(a) the contents of any communication intercepted under that direction or oral 5.5
direction will be inadmissible as evidence in any criminal proceedings or civil
proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised
Crime Act, unless the court is of the opinion that the admission of such5
evidence would not render the trial unfair or otherwise be detrimental to the
administration of justice; or
(0) any postal article that was taken into possession under that direction or oral
direction must be dealt with in accordance with section 26(4).
CHAPTER 4
EXECUTION OF DIRECTIONS AND ENTRY WARRANTS
Execution of direction
26. (1) (a ) If a direction has been issued under this Act, any-
(i) law enforcement officer may execute that direction; or
(ii) law enforcement officer or other person may assist with the execution thereof,
if the law enforcement officer or person concerned has been authorised by the applicant
who made the application for the issuing of the direction concerned to execute that
direction or to assist with the execution thereof.
(b) A direction issued under this Act upon an application made by an applicant
refened to i n paragraph (f) of the definition of "applicant" may only be executed by a
law enforcement officer authorised thereto in writing by the applicant concerned, after
consultation with the National Commissioner, if that law enforcement officer is a
member of the Police Service, or the National Director, if that law enforcement officer
is a member of the Directorate or of any component referred to i n paragraph (e ) of the
definition of "law enforcement agency".
(2) The applicant concerned may authorise such number of authorised persons to
assist with the execution of the direction as he or she deems necessary.
(3) An authorised person who executes a direction or assists with the execution
thereof may intercept, at any place in the Republic, any communication in the course of
its occurrence or transmission to which the direction applies.
(4) If any postal article has been taken in possession in terms of subsection (3 ), the
authorised person who executes the direction concerned or assists with the execution
thereof-
(a) must take proper care of such postal article and may, if the postal article
concerned is perishable, with due regard to the interests of the persons
concerned and with the written approval of the applicant concerned, dispose
of that postal article in such manner as the circumstances may require;
(b ) must, with the written approval of the applicant concerned, return such postal
article, if it has not been disposed of in terms of paragraph (a), or cause it to
be returned to the postal service provider concerned if, in the opinion of the
applicant concerned-
Ci) no criminal proceedings or civil proceedings as contemplated in Chapter
5 or 6 of the Prevention of Organised Crime Act, will be instituted in
connection with such postal article; or
(ii) such postal article will not be required at any such criminal or civil
proceedings for purposes of evidence or for purposes of an order of
court; and
(iii) such postal article may be returned without prejudice to the public health
or safety, national security or compelling national economic interests of
the Republic, as the case may be; or
(I:) may, in circumstances other than those referred to in-
(i) paragraph (O), with the written approval of the applicant concerned,
return such postal article or cause it to be returned to the postal service
provider concerned if such postal article-
(Oii) has iiOt been diSpOseb of in teriils Gf pXagi-aph (0); and
(hb) in the opinion of the applicant concerned, may be returned wirhout
prejudice to the public health or safety, national security or
compelling national economic interests of the Republic, as the case
may be: or
(ii) paragraph (a), on the written instructions of the applicant concerned
dispose of such postal article i n such manner as the public health or
safety, national security or compelling national economic interests of the
Republic, as the case may be? requires, if such postal article-
(00) has not been disposed of in terms of paragraph (a ); and
5
1 27
(llh) i n the opinion of the applicant concerned, cannot be returned i n
temls of subparagraph (i) without prejudice to the public health or
safety, national security or compelling national economic interests
of the Republic, as the case may be.
Execution of entry warrant
27. If an entry warrant has been issued, any authorised person who executes the
interception direction in respect of which that entry warrant has been issued or assists
with the execution thereof may, at any time during which the entry warrant is of force,
without prior notice enter the premises specified in the entry warrant and perform any
act relating to the purpose, referred to in the definition of "entry warrant". for which the
entry warrant concerned has been issued.
Assistance by postal service provider and telecommunication service provider
28. (1) If an interception direction or a copy thereof is handed to the postal service
provider or telecommunication service provider to whom the interception direction is
addressed by the authorised person who executes that interception direction or assists
with the execution thereof, the-
(a ) postal service provider concerned must intercept the postal article to which the
interception direction applies and hand it to the authorised person concerned;
or
(i) route the duplicate signals of indirect communications to which that
interception direction applies to the designated interception centre
concerned; or
(ii) make available the necessary assistance and, subject to section 46(7)(b),
the necessary facilities and devices to enable the authorised person
Concerned to effect the necessary connections in order to intercept any
indirect communications to which the interception direction applies.
(2) If a real-time communication-related direction or an archived communication-
related direction or a copy thereof is handed to the telecommunication service provider
to whom the real-time communication-related direction or archived communication-
related direction is addressed by the authorised person who executes that real-time
communication-related direction or archived communication-related direction or assists
with the execution thereof, the telecommunication service provider concerned must-
(i) real-time communication-related information specified in the real-time
communication-related direction concerned immediately; or
(ii) archived communication-related information specified, and within the
period stated, in the archived communication-related direction concerned,
(h) telecommunication service provider concerned must immediately-
(a) route the-
to the designated interception centre concerned; or
(i) real-time communication-related information specified in the real-time
communication-related direction concerned immediately; or
(ii) archived communication-related information specified, and within the
period stated, in the archived communication-related direction concerned,
to the law enforcement agency concerned, in the form as specified in that
real-time communication-related direction or archived communication-
related direction.
(b) provide the-
Assistance by decryption key holder
29. (1) If a decryption direction or a copy thereof is handed to the decryption key
holder to whom the decryption direction is addressed by the authorised person who
executes that decryption direction or assists with the execution thereof, the decryption
key holder concerned must within the period stated in the decryption direction-
(a ) disclose the decryption key; or
(b) provide the decryption assistance,
specified in the decryption direction concerned, to the authorised person concerned.
5 28
(2) In complying with a decryption direction, a decryption key holder-
(a) must only disclose such decryption key or provide such decryption assistance
which is necessary to obtain access to the encrypted information specified in
that decryption direction or to put that encrypted information in an intelligible
form;
(h ) may only disclose the decryption key or provide the decryption assistance to
the authorised person who executes that decryption direction or assists with
the execution thereof; and
(c) may not disclose any other information, which is not specified in that
decryption direction, relating to the customer in respect of whose encrypted
information the decryption key has been disclosed or the decryption
assistance has been provided.
(3) A decryption key holder to whom a decryption direction is addressed and who is
(a) may use any decryption key in his or her possession to provide decryption
(b) must, in providing such decryption assistance, make a disclosure of the
(4) A decryption key holder who, in terms of a decryption direction, is required to
provide decryption assistance in respect of any encrypted information, will be regarded
as having complied with that requirement if he or she-
(a) instead of providing such decryption assistance, discloses any decryption key
to the encrypted information that is in his or her possession; and
(b) makes such a disclosure, in accordance with the decryption direction
concerned, to the authorised person to whom, and by the time by which, he or
she was required to provide the decryption assistance.
in possession of both the encrypted information and the decryption key thereto-
assistance; and
encrypted information in an intelligible form.
(5 ) If a decryption key holder to whom a decryption direction is addressed, is-
(a) not in possession of the encrypted information; or
(h) incapable, without the use of a decryption key that is not in his or her
the decryption key holder concerned must endeavour to comply, to the best of his or her
ability, with that decryption direction.
(6) If a decryption key holder to whom a decryption direction is addressed, is in
possession of different declyption keys, or combinations of decryption keys, to the
encrypted information-
(a ) it will not be necessary, for purposes of complying with the decryption
direction concerned, for the decryption key holder to disclose any decryption
keys in addition to those the disclosure of which, alone, is sufficient to enable
the authorised person to whom they are disclosed to obtain access to the
encrypted information and to put it into an intelligible form; or
(b ) the decryption key holder may select which of the decryption keys, or
combination of decryption keys, to disclose for purposes of complying with
the decryption direction concerned.
possession, to comply fully with that decryption direction,
(7) If a decryption direction is addressed to a decryption key holder who-
(u) has been in possession of the decryption key to the encrypted information, but
is no longer in possession thereof;
(b) if he or she had continued to have the decryption key in his or her possession,
he or she would have been required by virtue of the decryption direction to
disclose it; and
(c.) is in possession of any information that would facilitate the obtaining or
discovery of the decryption key or the provision of decryption assistance.,
he or she must disclose all such information as is in his or her possession to the
authorised person who executes [!?e decryption direction or assists with the execution
thereof:
(8) An authorised person to whom a decryption key has been disclosed under this
section-
(a ) may use the decryption key only in respect of the encrypted information, and
in the manner and for the purposes, specified in the decryption direction
concerned; and
(bj must, on or before the expiry of the period or extended period for which the
decryption direction concerned has been issued, with the written approval of
the applicant who made the application for the issuing of a decryption
29
direction, destroy all records of the disclosed decryption key if, in the opinion
of the applicant concerned-
(i) no criminal proceedings or civil proceedings as contemplated in Chapter
5 or 6 of the Prevention of Organised Crime Act, will be instituted in
connection with such records; or
(ii) such records will not be required at any such criminal or civil
proczedirlgs for purposes of evidence or for purposes of an order of court.
CHAPTER 5
1NTEKCEPTION CAPABILITY AND COMPENSATION
Interception capability of telecommunication services and storing of communication-related information
30. (I) Notwithstanding any other law, a telecommunication service provider must-
(a) provide a telecommunication service which has the capability to be
(b) store communication-related information.
intercepted; and
(2) The Cabinet member responsible for communications, in consultation with the
Minister and the other relevant Ministers and after consultation with the Authority and
the telecommunication service provider or category of telecommunication service
providers concerned, must, on the date of the issuing of a telecommunication service
licence under the Telecommunications Act, to such a telecommunication service
provider or category of telecommunication service providers-
(a) issue a directive in respect of that telecommunication service provider or
category of telecommunication service providers, determining the-
(1)
(ii)
(iii)
manner in which effect is to be given to subsection (1) by the
telecommunication service provider or category of telecommunication
service providers concerned;
facilities and devices to be acquired by the telecommunication service
provider or category of telecommunication service providers to enable
the-
(aaj interception of indirect communications in terms of this Act; and
(bb) storing of communication-related information in terms of subsec-
type of communication-related information which must be stored in
terms of subsection (l)(b) and the period for which such information
must be stored, which period may not be less than three years from the
date of the transmission of the indirect communication to which that
communication-related information relates: and
tion (I)@); and
(6) determine a period, which may not be less than three months and not more
than six months from the date on which a directive referred to in paragraph (a)
is issued, for compliance with such a directive, and the period so determined
must be mentioned in the directive concerned.
(3) A directive referred to in subsection (2)(aj-
(a ) must, if applicable, prescribe the-
(i) security, technical and functional requirements of the facilities and
(ii) capacity needed for interception purposes;
(iii) systems to be used;
(iv) connectivity with interception centres;
(v) manner of routing duplicate signals of indirect communications to
designated interception centres in terms of section 28( l)(b)(i);
(vi) manner of routing real-time or archived communication-related information to designated interception centres in terms of section 28(2)(a); and
(b) may prescribe any other matter which the Cabinet member responsible for
communications, in consultation with the Minister and the other relevant
Ministers and after consultation with the Authority, deems necessary or
expedient.
(4) Notwithstanding any other law, agreement or licence, a telecommunication
service provider must, subject to section 46(1)(a), at own cost acquire, whether by
devices to be acquired in terms of subsection (2)(a)(ii);
5 30
purchasing or leasing, the facilities and devices determined in a directive referred to in
subsection (2)(a).
(5) Any costs incumd by a telecommunication service provider under this Act in-
((7) enabling---
(i) a telecommunication service to be intercepted; and 5
(ii) communication-related information to be stored,
including the investment, technical, maintenance and operating costs; and
(b ) complying with section 2S(l)(b)(i) and (2)(a),
must be borne by that telecommunication service provider.
(6) A directive issued under subsection (2)(a) may in like manner be amended or 10
withdrawn.
(7) The Cabinet member responsible for communications must, within two months
after the fixed date and i n consultation with the Minister and the other relevant Ministers
and after consultation with the Authority and a telecommunication service provider or
category of telecommunication service providel-s to whom, prior to the fixed date, a 15
telecommunication service licence has been issued under the Telecommunications
(u) issue a directive referred to in subsection (2)(a) in respect of such a
telecommunication service provider or category of telecommunication
service providers; and 20
(b ) determine a period, which may not be less than three months and not more
than six months from the date on which a directive referred to in paragraph (a)
is issued, for compliance with such a directive, and the period so determined
must be mentioned in the directive concerned.
Act-
Compensation payable to postal service provider, telecommunication service 25
provider and decryption key holder
31. ( 1) (a) The Minister, after consultation with the Cabinet members responsible for
communications and national financial matters and the postal service providers or
telecommunication service providers concerned, as the case may be, must by notice in
the Gazette preseribe- 30
(i) the forms of assistance in the execution of a direction for which a postal
service provider, telecommunication service provider or decryption key
holder must be compensated; and
(ii) reasonable tariffs of compensation payable to a postal service provider,
telecommunication service provider or decryption key holder for providing 35
such prescribed forms of assistance.
(h) The tariffs prescribed under paragraph (a)(ii)-
(i) may differ in respect of different categories of postal service providers,
telecommunication service providers or decryption key holders; and
(ii) must be uniform in respect of each postal service provider, telecommunication 40
service provider or decryption key holder falling within the same category.
(c) A notice issued under paragraph (a ) may at any time in like manner be amended
(d) The first notice to be issued under paragraph (0) must be published i n the Gazette
(2) The forms of assistance referred to in subsection (I)(a)(i) must include, in the ease
(a) telecommunication service provider, the making available of a facility, device
(h) decryption key holder, the- 50
or withdrawn.
w i t h i n t h r e e the fixed date. 45
of a-
or telecommunication system; and
(i) disclosure of a decryption key-; and
(ii) provision of decryption assistance.
(3) The compensation pay:lble to a postal service provider, telecommunication service
provider or decryption key holder in terms of Ibis section will only be for direct costs
incurred i n respect of personnel and administration which are required for purposes of 55
providing any of the forms of assistance contemplated in subsection (l)(n)(i).
Gazette, be wbmitted to Parliament.
(4) Any notice issued under subsection (1 ) must. before publication thereof in the
31
CHAPTER 6
INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES AND
INTERNET SERVICE PROVIDERS ASSISTANCE FUND
Establishment of interception centres
32. (1) The Minister, in consultation with the relevant Ministers and the Cabinet S
member responsible for national financial matters, must, at State expense-
(u ) establish one or more centres, to be known as interception centres: for the
(b) equip, operate, and maintain such interception centres;
(c) acquire, install and plaintaill connections between telecommunication sys- 10
tems and interception centres; and
(d j administer the interception centres.
interception of communications in terms of this Act;
(2) The Minister must exercise final responsibility over the administration and
(3) Notwithstanding the Telecommunications Act, an interception centre will, for 15
functioning of interception centres.
purposes of performing its functions in terms of this Act, be exempted from-
(a ) obtaining any kind of licence required by that Act; and
(b) paying any fees payable in terms of that Act.
(,1) The Minister must enter into service level agreements with the relevant Ministers
in respect of the provision of services by the interception centres to the law enforcement 20
agencies.
(5) The Executive Director may enter into agreements with the National Commissioner and National Director to make use of the services of interception centres,
including the cost thereof.
Establishment of Oftice for I n t e r c e p t i o n C e n t r e s 25
33. There is hereby established an office to be known as the Office for Interception
Centres.
Director and staff of Office
34. (1 ) The Minister and the relevant Ministers must, from among their respective
Departments, second a member or an officer to the Office as the Director: Office for 30
Interception Centres, who will he the head of the Office.
(2,) The Director may exercise the powers and must perform the functions and carry
out t.he duties conferred upon, assigned to or imposed upon him or her by the Minister
or under this Act, subject to the control and directions of the Minister.
his or her powers, functions and duties or when the secondment of a member or an
officer as Director is pending, the Minister and the relevant Ministers may, from among
their respective Departments, designate a member or an officer to the Office as Acting
Director, to exercise the powers, perform the functions and carry out the duties of the
Director. 40
(4) The Director will in the exercise of the powers, performance of the functions and
carrying out of the duties conferred upon, assigned to or imposed upon him or her by the
Minister or under this Act, be assisted, subject to his or her control and directions, by-
(a ) members of the law enforcement agencies, seconded or designated to the
(3) Whenever the Director is for any reason unable to exercise, perform and carry out 35
Office for that purpose by the- 4s
(i) National Commissioner;
(ii) Secretary for Defence;
(iii) Director-General: National Intelligence Agency;
(iv) Director-General: South African Secret Service; and
(v) National Director; and 50
particular service.
(6) officers of any other Department of State seconded to the Office, for a
(S j A nkmber or an officer may only be seconded or designated as contemplated in
this section and section 36-
(a ) in terms of the laws regulating such secondment; 5s
(b ) with his or her consent; and10
1 32
(e ) after a security clearance has been issued by the Agency in respect of that
member or officer.
Powers, functions and duties of Director
35. (1) In order to achieve the objects of this Act, the Director-
(a) must carry out the administrative duties relating to the functioning of the 5
(b ) must exercise control over heads of interception centres and staff of the Office;
(c ) must manage, and exercise administrative control over, interception centres;
(d) must regulate the procedure and determine the manner in which the provisions
(e) must co-ordinate the activities of interception centres;
If) must prescribe the information to be kept by the head of an interception centre
in terms of section 37, which must include particulars relating to-
(i) applications for the issuing of directions and the directions issued upon
Office;
of this Act must be carried out by interception centres; 10
such applications which is relevant to the interception centre of which he 15
or she is the head; and
centre;
(ii) the results obtained from every direction executed at that interception
(g) must prescribe the manner in, and the period for, which such information must
b e 20
(k ) is, for purposes of the exercise of the powers, performance of the functions
and carrying out of the duties conferred upon, assigned to or imposed upon
him or her by the Minister or under this Act, accountable to the Minister.
(2) A member or an officer seconded or designated in terms of section 34(4) may
exercise the powers and must perform the functions and carry out the duties conferred 25
upon, assigned to or imposed upon him or her by the Director, subject to the control and
directions of the Director.
(3) The law enforcement agencies and other Departments of State must render such
assistance as may be reasonably required in the exercise of the powers, performance of
the functions and carrying out of the duties conferred upon, assigned to or imposed upon 30
the Director by the Minister or under this Act.
Head and staff of interception centres
36. (1) The Minister must in respect of every interception centre to be established by
section 32( ])(a ), request the persons referred to in section 34(4)(a)(i) to (VI to second a
member or an officer from among their respective Departments to such interception 35
centre as head of the interception centre in terms of the laws regulating such
secondment.
(2) The head of an interception centre may exercise the powers and must perform the
functions and carry out the duties conferred upon, assigned to or imposed upon him or
her by the Director or under this Act, subject to the control and directions of the Director. 40
(3) Whenever the head of an interception centre is for any reason unable to exercise,
perform and carry out his or her powers, functions and duties or when the secondment
of a member or an officer as head of an interception centre is pending, the Minister may
request the persons referred to in section 34(4)(a)(i) to (v), to designate, from among
their respective Departments, a member or an officer to that interception centre as acting 45
head of the interception centre concerned, to exercise the powers, perform tbc functions
and carry out the duties of the head of that interception centre.
(4) The head of an interception centre will i n the exercise of the powers, perfomance
of the functions and carrying out of the duties conferred upon, assigned to or imposed
upon from or her by the Director or uildei- this Aci, be assisTed, subject to his or her 50
control and directions, by-
(a ) members of the law enforcement agencies, seconded or designated to the
interception centre concerned for that purpose by the persons referred to in
section 34(4)(a)(i) to (v); and
(0) officers of any other Department of State seconded to the Office, for a 55
particular service.
(5 ) A member or an officer seconded or designated in terms of subsection (4) may
exercise the powers and must perform the functions and carry out the duties conferred
upon, assigned to or imposed upon him or her by the Director 01- the head of the5
33
interception centre concerned, subject to the control and directions of the head of the
interception centre concerned.
(6) In order to achieve the objects of this Act, the head of an interception centre must
exercise control over members and officers seconded or designated to the interception
c e n t r e i n of subsection (4). 5
Keeping of records by heads of interception centres and submission of reports to
Director
37. (1) The head of an interception centre must keep or cause to be kept proper records
of such information as may be prescribed by the Director in terms of section 35( l)(f).
(2) (a) The head of an interception centre must on a quarterly basis, or as often as the 10
Director requires, submit a written report to the Director on-
(i) the records kept by him or her in terns of subsection (1);
(ii) any abuses in connection with the execution of directions which he or she is
aware of;
(iii) any defects in any telecommunication system or in the operation of the 15
interception centre which have been discovered; and
(iv) such activities at the interception centre or on any other matter relating to this
Act which the Director requests the head of the interception centre to deal with
in such report.
(h) Notwithstanding paragraph (a), a head of an interception centre may at any stage 20
submit a report to the Director on any matter which, in the opinion of the head
concerned, should urgently be brought to the attention of the Director.
(3) The Director must, upon receipt of a report contemplated in subsection (2)(a),
submit a copy of that report to the Minister and the Chairperson of the Joint Standing
Committee on Intelligence established by section 2 of the Intelligence Services Control 25
Act, 1994 (Act No. 40 of 1994).
Establishment and control of Internet Service Providers Assistance Fund
38. (1) There is hereby established a fund to be known as the Internet Service
(2) T h e F u n d will be credited with- 30
Providers Assistance Fund.
(a) the contributions referred to in section 46(l)(b);
(b) interest derived from the investment of money in the Fund; and
(c) money accruing to the Fund from any other source.
(a) acquiring, whether by purchasing or leasing, facilities and devices for 35
(6) the expenses involved in the control and management of the Fund.
(3) The money in the Fund must be utilised for-
purposes of section 46(7)(b); and
(4) The Director is the accounting officer of the Fund in terms of the Public Finance
(5 ) The Fund is, subject to the directions of the Minister, in consultation with the 40
Management Act, 1999 (Act No. 1 of 1999).
relevant Ministers, under the control and management of the Director, who-
(a) must utilise the money in the Fund in accordance with subsection (3);
(b) will be charged with the responsibility of accounting for money received in,
(c) must cause the necessary accounting and other related records to be kept. 45
and payments made from, the Fund; and
(6) The Minister, in consultation with the relevant Ministers, must make recommendations to the Director relating to the utilisation of the money in the Fund as
contemplated in subsection (3)(a).
(7) Any money in the Fund which is not required for immediate use must be invested
by the Director with a banking institution approved by the Minister, in consultation with 50
the Cabinet member responsible for national financial matters, and may be withdrawn
when required.
(8) Any unexpended balance of the money in the Fund at the end of any financial year
must be carried forward as a credit in the Fund to the next financial year.
(9) The Fund and the records referred to in subsection (Sjjc) must be audited by the 55
Auditor-General.20
34
CHAPTER 7
DUTIES OF TELECOMMUNICATION SERVICE PROVIDER
AND CUSTOMER
Information to be obtained and kept by certain telecommunication service
providers 5
39. (1) Before a telecommunication service provider, other than a telecommunication
service provider who provides a mobile cellular telecommunication service, enters into
a contract with any person for the provision of a telecommunication service to that
person, he or she-
(a) must, if t h a t p e r s o n is a n a t u r a l person- 10
(i) obtain from him or her-
(an) his or her full names, identity number, residential and business or
(bh) a certified photocopy of his or her identification document on which
postal address, whichever is applicable; and
his or her photo, full names and identity number, whichever is 15
applicable, appear;
(ii) retain the photocopy obtained in terms of subparagraph (i)(0h); and
(iii) verify the photo, full names and identity number, whichever is
applicable, of that person with reference to his or her identification
d o c u m e n t ;
(b) must, if that person is a juristic person-
(i) obtain from the person representing that juristic person-
(aa) his or her full names, identity number, residential and postal
address, whichever is applicable;
(hb) the business name and address and, if registered as such in terms of 25
any law, the registration number of that juristic person;
(cc) a certified photocopy of his or her identification document on which
his or her photo, full names and identity number, whichever is
applicable, appear; and
(dd) a certified photocopy of the business letterhead of, or other similar 30
document relating to, that juristic person;
(ii) retain the photocopies obtained in terms of subparagraph (i)(cc) and (dd);
(iii) verify the-
and
(an) photo, full names and identity number, whichever is applicable, of 35
that person with reference to his or her identification document; and
(bh) name and registration number of that juristic person with reference
to its business letterhead or other similar document; and
(c) may obtain from such person any other information which the telecommuni-
(2) A telecommunication service provider referred to in subsection (I ) must ensure
(a) the information, including the photocopies, referred to i n subsection (1) and,
where applicable, any change in such information which is brought to his or
her attention; 45
(0) the telephone number or any other number allocated to the person concerned;
and
(c) any other information in respect of the person concerned which the
telecommunication service provider concerned may require in order to enah!c
him or her to i d e n t i f y t h a t p e r s o n . 50
(3) An applicant may, for purposes of making an application for the issuing of a
direction, in writing request a telecommunication service provider referred to in
subsection (I ) to-
(a ) confirm that the person specified i n the request is a customer of that
telecommunication service provider c o n c e r n e d ; 5 5
(0) provide the applicant with the telephone number or any other number
allocated to that person by that telecommunication service provider; and
cation service provider deems necessary for purposes of this Act. 40
that proper records are kept of-25
(c) furnish the applicant with a photocopy of the identification document of that
person which is retained by that telecommunication service provider in terms
of subsection (l)(a)(ii).
(4) A telecommunication service provider who receives a request refined to in
subsection (3) must immediately comply with that request if the person specified in the
request is a customer of the telecommunication service provider concerned.
Information to be obtained and kept in respect of cellular phone and SIM-card
30. (1) Before any person sells, or in any other manner provides, any cellular phone
((a ) must, if the receiver of that cellular phone or SIM-card is a natural person-
(0.) his or her full names, identity number, residential and business or
postal address, whichever is applicable; and
(bb) a certified photocopy of his or her identification document on which
his or her photo, full names and identity number, whichever is
applicable, appear;
or SIM-card to any other person, he or she-
(i) obtain from him or hef-
(ii) retain the photocopy obtained in terms of subparagraph (i)(bb); and
(iii) verify the photo, full names and identity number, whichever is
applicable, of that person with reference to his or her identification
document; or
(b) must, if the receiver of that cellular phone or STM-card is a juristic person-
6 )
(ii)
(iii)
obtain from the person representing that juristic person-
(an) his or her full names, identity number, residential and postal
address, whichever is applicable;
(bb) the business name and address and, if registered as such in terms of
any law, the registration number of that juristic person;
(cc) a certified photocopy of his or her identification document on which
his or her photo, full names and identity number, whichever is
applicable, appear; and
(dd) a certified photocopy of the business letterhead of, or other similar
document relating to, that juristic person;
retain the photocopies obtained in terms of subparagraph (i)(cc) and (dd);
and
verify the-
(na) photo, full names and identity number, whichever is applicable, of
that person with reference to his or her identification document; and
(bb) name and registration number of that juristic person with reference
to its business letterhead or other similar document; and
(c) may obtain from the receiver of that cellular phone or SIM-card any other
information which the person who sells or in any other manner provides the
cellular phone or SIM-card deems necessary for purposes of this Act.
(;!)A person referred to in subsection (1) must ensure that proper records are kept of-
(a) the information, including the photocopies, referred to in subsection (1) and,
where applicable, any change in such information which is brought to his or
her attention;
(b) the cellular telephone number or any other number allocated to the other
person;
(c) the number of the cellular phone concerned; and
(d) any other information in respect of the other person which the person
concerned may require in order to enable him or her to identify that other
person.
(3 ) Section 39(3) and (4) applies, with the necessary changes, in respect of any person
who sold, or in any other manner provided, a cellular phone or SIM-card to any other
person.
Loss, theft or destruction of cellular phone or SIM-card to he reported
41. (1) Whenever a cellular phone or SIM-card is lost, stolen or destroyed, the owner
of that cellular phone or SIM-card, or any other person who was in possession, or had
control, thereof when it was so lost, stolen or destroyed, must within a reasonable time30
36
after having reasonably become aware of the loss, theft or destruction of the cellular
phone or SIM-card, report such loss, theft or destruction in person or through a person
authorised thereto by him or her, to a police official at any police station.
(2) A police official who receives a report contemplated in subsection (I), must
immediately provide the person who makes the report with written proof that the report 5
has been made or, in the case of a telephonic report, with the official reference number
of the report.
(3) A record of every report made in terms of subsection (1) must be kept at the police
station where such a report has been made.
(4) (a) The Minister must, within three months after the fixed date and in consultation 10
with the Cabinet member responsible for policing, issue directives prescribing the-
(a ) a report contemplated in subsection (1) must be made; and
(bb) records contemplated in subsection (3) must be kept; and
(i) form and manner in which-
(ii) information to be contained in such a report or record. 15
(b) Any directive issued under paragraph (a) may at any time in like manner be
(c) Any directive issued under paragraph (a) must, before the implementation thereof,
amended or withdrawn.
be submitted to Parliament.
CHAPTER 8 20
GENERAL PROHIBITIONS AND EXEMPTIONS
Prohibition on disclosure of information
42. (1) No person may disclose any information which he or she obtained in the
exercising of his or her powers or the performance of his or her duties in terms of this
Act, except- 25
(a ) to any other person who of necessity requires it for the performance of his or
her functions in terms of this Act;
(b) if he or she is a person who of necessity supplies it in the performance of his
or her functions in terms of this Act;
(c) information which is required in terms of any law or as evidence in any court 30
of law; or
(d ) to any competent authority which requires it for the institution, or an
investigation with a view to the institution, of any criminal proceedings or
civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of
Organised C r i m e A c t . 35
(2) NO-
(a ) postal service provider, telecommunication service provider or decryption key
holder may disclose any information which he or she obtained in the
exercising of his or her powers or the performance of his or her duties in terms
of this Act; or 40
(b) employee of a postal service provider, telecommunication service provider or
decryption key holder may disclose any information which he or she obtained
in the course of his or her employment and which is connected with the
exercising of any power or the performance of any duty in terms of this Act,
whether that employee is involved in the exercising of that power or the 45
performance of that duty or not,
except for the purposes mentioned in subsection (1).
relating to the fact that-
(3) The information contemplated in subsections (1) and (2) includes information
(u) a direction has b e e n i s s u e d u n d e r this Act; 50
(h) a communication is being or has been or will probably be intercepted;
(c ) real-time or archived communication-related information is being or has been
((1) a decryption key is being or has been or will probably be disclosed or that
((3 ) an interception device is being or has been or will probably be installed.
or will probably be provided;
decryption assistance is being or has been or will probably be provided; and 5535
37
Disclosure of information by authorised person for performance of official duties
43. Notwithstanding section 42(1), any authorised person who executes a direction or
(a ) the contents of any communication intercepted under that direction, or
(b) real-time or archived communication-related information provided under that
assists with the execution thereof and who has obtained knowledge of-
e v i d e n c e d e r i v e or 5
direction,
may-
(i) disclose such contents or evidence or real-time or archived communication-
related information to another law enforcement oficer, to the extent that such 10
disclosure is necessary for the proper performance of the official duties of the
authorised person making or the law enforcement officer receiving the
disclosure; or
(ii) use such contents or evidence or real-time or archived communication-related
information to the extent that such use is necessary for the proper performance 15
of his or her official duties.
Listed equipment
44. (1) (a) The Minister must, by notice in the Gazette, declare any electronic,
elecrro-magnetic, acoustic, mechanical or other instrument, device or equipment, the
design of which renders it primarily useful for purposes of the interception of 20
communications, under the conditions or circumstances specified in the notice, to be-
listed equipment.
(6) A notice issued under paragraph (a) may at any time in like manner be amended
or withdrawn.
(c ) The first notice to be issued under paragraph (a) must be published in the Gazette 25
within three months after the fixed date.
(2) (a) Before the Minister exercises the powers conferred upon him or her by
subsection (l), he or she must-
(i) consult the relevant Ministers; and
(ii) cause to be published in the Gazette a draft of the proposed notice, together 30
with a notice inviting all interested parties to submit to him or her in writing
and within a specified period, comments and representations in connection
with the proposed notice.
(6) A period of not less than one month must elapse between the publication of the
(3 ) Subsection (2) does not apply-
draft notice a n d t h e notice under subsection (1). 35
(a) if the Minister, in pursuance of comments and representations received in
terms of subsection (2)(a)(ii), decides to publish a notice referred to in
subsection (1) in an amended form; and
16) to any declaration in terms of subsection (1) in respect of which the Minister 40
is of the opinion that the public interest requires that it be made without delay.
(4) Any notice issued under subsection (I ) must, before publication thereof in the
Guzette, be submitted to Parliament.
Prohibition on manufacture, possession and advertising of listed equipment
45. (1) Subject to subsection (2) and section 46, no person may manufacture, 45
assemble, possess, sell, purchase or advertise any listed equipment.
(2) Subsection (1) does not apply to any telecommunication service provider or other
person who, or law enforcement agency which, manufactures, assembles, possesses,
sells, purchases or advertises listed equipment under the authority of a certificate of
exemption issued to him or her or it for that purpose by the Minister under section 46. 50
Exemptions
46. (1) (a) The Minister may, upon application and in consultation with the relevant
(i) Internet service provider from complying with section 30(4) in respect of the
Ministers, exempt any-
facilities and devices referred to in section 30(2)(a)(ii); 5540
38
25
(ii) telecommunication service provider or any other person from one or all Of the
(iii) law enforcement agency from the prohibited acts of possessing and
for such period a n d o n s u c h conditions as the Minister determines. 5
(6) A condition referred to in paragraph (a ) may include that an Internct service
provider to whom an exemption has been granted under paragraph (a)(i) must pay as an
annual contribution to the Fund such amount as the Minister determines in each case.
(2) The Minister may only grant an exemption under subsection (l)(a) if he or she is
satisfied that- 10
(a ) in the case of an exemption under subsection (l)(a)(i), the Internet service
provider concerned carries on such a small business that he or she cannot
comply with section 30(4); or
ib) in the case of an exemption under subsection (l)(a)(ii), the purpose for which
the listed equipment will be manufactured, assembled, possessed, sold, 15
purchased or advertised is reasonably necessary; and
(c) such exemption is in the public interest; or
id) special circumstances exist which justify such exemption.
prohibited acts referred to in section 45(1); or
purchasing referred to in section 45(1),
(3) (a) An exenxption under subsection (l)(a) must be granted by issuing to the-
(i) I n t e r n e t s e r v i c e provider; 20
(ii) telecommunication service provider or other person; or
(iii) law enforcement agency,
concerned, a certificate of exemption in which his or her or its name and the scope,
period and conditions of the exemption are specified.
(b) A certificate of exemption issued under paragraph (a)-
(i) must be published in the Gazette; and
(ii) becomes valid upon the date of such publication.
(4) (a) The Minister must, before he or she publishes a certificate of exemption in
terms of subsection (3)(b)(i), table such certificate in the National Assembly for
approval. 30
(b) The National Assembly may reject a certificate tabled in terms of paragraph (a)
within two months after it has been tabled, if Parliament is then in ordinary session, or,
if Parliament is not then in ordinary session, within 14 days after the commencement of
its next ensuing ordinary session.
amended certificate in the National Assembly.
(c) If the National Assembly rejects such a certificate, the Minister may table an 35
(d) If the Minister tables an amended certificate and the National Assembly-
(i) approves the amended certificate, the Minister must publish that certificate in
terms of subsection (3)(b)(i) within one month of the National Assembly’s
approval; or 40
(ii) rejects the amended certificate within two months after it has been tabled, if
Parliament is then in ordinary session, or, if Parliament is not then in ordinary
session, within 14 days after the commcncernent of its next ensuing ordinary
session, paragraph (c) and this paragraph apply.
(e ) If the National Assembly does not reject a certificate as contemplated in paragraph 45
(i) such certificate will be deemed to have been approved by the National
(ii) the Minister must publish that certificate in terms of subsection (3)(b)(i)
(5) 4 certificate of exemption contemplated in subsection (3) may at any time in like
(6) An exemption under subsection (I )(u ) lapses upon-
(b) or (d)(ii)-
Assembly; and
within one m o n t h t h e r e a f t e r . 50
manner be amended or withdrawn by the Minister.
((7) termination of the period for which it was granted; or
(/I ) withdrawal of the relevant certificate under subsection (5 ). 55
(7) If an excnlption has been granted to an Internct service provider under subsection
((l ) that Internet service provider will be subject to all the other applicable
provisions of this Act: and
(1 1 ) the l a w enforcement agency which made the application for the issuing of the 60
direction which is addressed to such Internet service provider, must make
available the necessary facilities and devices to execute that direction.
( I )(L L )( iI-4s
so
CHAPTER 9
CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES
Use of information in criminal proceedings
47. (1 ) Information regarding the commission of any criminal offence, obtained by
nleans of any interception. or the provision of any real-time or archiyed communication- 5
related information, under this Act, or any similar Act in another country, may be
adtnissible as evidence in criminal proceedings or civil proceedings as contemplated iu
Chapter 5 or 6 of the Pre\,ention of Organised Crime Act.
(2) Any information obtained by the application of this Act, or any similar Act it1
another country, may only be used as evidcncr. in any criminal proceedings or civil 10
proceedings as contemplated in Chapter 5 or 6 of the Prevention of 01-ganised Crime
Act, with the written authority of the National Director, or any member of the
prosecuting authority authorised thereto in writing by the National Director.
Proof of certain facts by certificate
48. Whenever in any criminal proceedings or civil proceedings in terms of Chapter 5 15
or 6 of the Prevention of Organised Crime Act, the question arises whether a designated
judge, judge of a High Court, regional magistrate or magistrate has issued a direction
undcr this Act, a certificate signed by a designated judge, judge of a High Court, regional
magistrate or magistrate in which he or she-
or her in terms of this Act;
(a) alleges that he or she has received and considered an application made to him 20
(b) alleges that he or she has issued a direction under this Act; and
(c) specifies the contents of such direction,
shall, upon its mere production at such proceedings, be prima facie proof that the
designated judge, judge of a High Court, regional magistrate or magistrate concerned 25
received and considered such application, issued such direction and of the contents
thereof.
Unlawful interception of communication
49. (1) Any person who intentionally intercepts or attempts to intercept, or authorises
or procures any other person to intercept or attempt to intercept, at any place in the 30
Republic, any communication in the course of its occurrence or transmission, is guilty
of an offence.
(2) Subsection (1) does not apply to the-
(u) interception of a communication as contemplated in sections 3, 4, 5, 6, 7, 8
(b) monitoring of a signal or radio frequency spectrum as contemplated in
and 9; or 35
sections 10 and 11.
'
Unlawful provision of real-time or archived communication-related information
50. (1) Any telecommunication service provider or employee of a telecommunication
service provider who intentionally provides or attempts to provide any real-time or 40
archived communication-related information to any person other than the customer of
the telecommunication service provider concerned to whom such real-time or archived
communication-related information relates, is guilty of an offence.
(2) Subsection (1) does not apply to the provision of real-time or archived
communication-related information as contemplated in sections 13, 14 and 15. 45
Offences and penalties
51. (1) (u) Any person who-
(i) contravenes or fai!s to comp!y with sectim 6(2), 7(4), 8(4), 29(8), 40(1), (2 )
or (3 ), 42( 1) or 45( 1);
(ii) in any application made in terms of this Act, furnishes information or makes 50
a statement, knowing such information or statement to be false, incorrect or
misleading or not believing it to be correct;5s5
40
30
(iii) acts contrary to the authority of any direction issued under this Act or proceeds
to act under any such direction knowing that it has expired;
(iv) acts contrary to the authority of an entry warrant issued under this Act or,
without being authorised thereto under an entry warrant, enters any premises
for purposes of intercepting a postal article or communication, or installing 5
and maintaining an interception device, on that premises;
entry warrant issued under this Act;
Act, knowing such particulars or information to be false, incorrect or 10
misleading or not believing it to be correct;
(vii) obstructs, hinders or interferes with an authorised person who executes any
direction or entry warrant issued under this Act or assists with the execution
thereof, in the exercising of his or her powers under that direction or entry
warrant; or 15
(viii) otherwise than in accordance with, or in a manner allowed by, this Act,
authorises or procures any person to intercept any communication or
authorises or procures any telecommunication service provider or employee
of a telecommunication service provider to provide any real-time or archived
communication-related information to him or her or any other person, 20
(v) forges or, with the intent to deceive, alters or tampers with any direction or
(vi) furnishes particulars or information in any affidavit or report referred to in this
is guilty of an offence.
(b) Any person who is convicted of an offence referred to in-
(i) paragraph (a) or in section 49(1) or 54, is liable to a fine not exceeding
R2 000 000 or to imprisonment for a period not exceeding 10 years; or
(ii) section 52,53( 1) or S5( I), is liable to a fine or to imprisonment for a period not 25
exceeding two years.
(2) (a) Any postal service provider or employee of a postal service provider who-
(i) contravenes or fails to comply with section 28( l)(a);
(ii) contravenes or fails to comply with section 42(2); or
(lii) performs an act contemplated in subsection (l)(a)(iii), (v) or (vii),
is guilty of an offence.
convicted of an offence referred to in paragraph (a) is liable, in the case of-
(b) Any postal service provider or employee of a postal service provider who is
(i) a postal service provider who is a-
(nu) natural person, to a fine not exceeding R2 000 000 or to imprisonment 35
(bb) juristic person, to a fine not exceeding RS 000 000; or
period not exceeding 10 years.
for a period not exceeding 10 years; or
(ii) an employee, to a fine not exceeding R2 000 000 or to imprisonment for a
(3) (a) Any telecommunication service provider or employee of a telecommunication 40
(i) contravenes or fails to comply with section 7(2), 8(3), 28( l)(b) or (2), 30(1) or
(ii) contravenes or fails to comply with section 30(4);
(iii) contravenes or fails to comply with section 7(5), 8(5), 39(1) or (2) or 42(2); or 45
(iv) performs an act contemplated in subsection (l)(a)(iii), (v) or (vii),
service provider who-
39(4);
is guilty of an offence.
(b) Any telecommunication service provider or employee of a telecommunication
service provider who is convicted of an offence referred to i n paragraph (a) or i n section
50( I), is liable, in the case of- 50
(i) a telecommunication service provider who is a-
(aa) natural person, to a fine not exceeding R2 000 000 or to imprisonment
jbb) juristic person, to a tine not exceeding R5 000 000; or
period not exceeding 10 years.
for a period not exceeding l0 yexs; or
(ii) an employee, to a fine not exceeding R2 000 000 or to imprisonment for a 55
(4) (a) Any decryption key holder or any employee of a decryption key holder who-
(i) contravenes or fails to comply with section 29(1);
(ji) contravenes or fails to comply with section 29(2), (3)(b), (5 ) or (7) or 42(2);
(iii) performs an act contemplated in subsection (l)(a)(iii), (v) 01- (vii),
or 60
is guilty of an offence.10
41
(6) Any decryption key holder or employee of a decryption key holder who is
convicted of ;tn offence referred to in paragraph (a) is liable, in the case of-
(i) a decryption key holder who is a-
(traj natural person, to a fine not exceeding R2 000 000 or to imprisonment
(hb) juristic person, to a fine not exceeding R5 000 000; or
period not exceeding 10 years.
(5) A conviction of an offence referred to in-
for a period not exceeding 10 years; or 5
(ii) an employee, to a fins not exceeding R2 000 000 or to imprisonment for a
(a) subsection (2)(a)(i) does not relieve any postal service provider or any 10
employee of such a postal service provider of the obligation to comply with
section 28( l)(a);
(b) subsection (3)(u)(i) or (ii) does not relieve any telecommunication service
provider or any employee of such a telecommunication service provider of the
obligation to comply with section 28(1)(h) or (2), 30(1) or (4) or 39(4); or 15
(c ) subsection (4)(a)(i) docs not relieve any decryption key holder or any
employee of such a decryption key holder of the obligation to comply with
section 29( 1).
(6) Notwithstanding anything to the contrary in any other law contained, a
(7) No person who-
magistrate’s court may impose any penalty provided for in this Act. 20
(a) in good faith assists an authorised person with the execution of a direction;
(b) believes on reasonable grounds that such authorised person is acting in
and
accordance with such a direction,
is liable to prosecution for a contravention of this Act. 25
Failure to give satisfactory account of possession of cellular phone or SIM-card
52. Any person who is found in possession of any cellular phone or SIM-card in
regard to which there is reasonable suspicion that it has been stolen and is unable to give
a satisfactory account of such possession, is guilty of an offence. 30
Absence of reasonable cause for believing cellular phone or SIM-card properly
acquired
53. (1) Any person who in any manner acquires or receives into his or her possession
from any other person a stolen cellular phone or SIM-card without having reasonable
cause for believing at the time of such acquisition or receipt that such cellular phone or 35
SIM-card is the property of the person from whom he or she acquires or receives it or
that such person has been duly authorised by the owner thereof to deal with it or dispose
of it, is guilty of an offence.
(2) In the absence of evidence to the contrary which raises a reasonable doubt, proof
of such possession is sufficient evidence of the absence of reasonable cause. 40
Unlawful acts in respect of telecommunication and other equipment
54. (1) Any person who, intentionally and unlawfully, in any manner-
(a) modifies, tampers with, alters, reconfigures or interferes with, any telecom-
munication equipment, including a cellular phone and a SIM-card, or any part
thereof; 45
(b) reverse engineers, decompiles, disassembles or interferes with, the software
installed on any telecommunication equipment, including a cellular phone and
a SIM-card, by the manufacturer thereof; or
(c) allows any other person to perform any of the acts referred to in paragraph (a )
or (b), 50
is guilty of an offence.
(2 ) Any person who, intentiona!ly and ~rdawfd!y, in any namer-
(a) modifies, tampers with or interferes with, any interception or monitoring
equipment, device or apparatus installed or utilised in terms of this Act; or
(b) allows any other person to perform any of the acts referred to in paragraph (a), 55
is guilty of an offence.15
42
55. (1) Any person who fails to report the loss, theft or destruction of a cellular phone
(2) Whenever a person is charged with an offence referred to in subsection (1) and it 5
or SIM-card in terms of section 41(1), is guilty of an offence.
is proved that such person was, at the time, the owner or authorised possessor of the
cellular phone or SIM-card alleged to have been lost, stolen or destroyed, proof that the
person has failed to produce such cellular phone or SIM-card within seven days of a
written request by a police official to do so, will, in the absence of evidence to the
contrary which raises reasonable doubt, be sufficient evidence that the cellular phone or 10
SIM-card has been lost, stolen or destroyed.
Revoking of licence to provide telecommunication service
56. The Cabinet member responsible for communications, after consultation with the
Authority, may, in the case of a second or subsequent conviction of a telecommunication
service provider of an offence referred to in section 5 1 (3)(a)(ii) and notwithstanding the 15
imposition of any penalty prescribed by section 51(3)(b), revoke the licence issued to
the telecommunication service provider concerned under Chapter V of the Telecommu-
nications Act, to provide a telecommunication service.
Forfeiture of listed equipment
25
57. (1) A court convicting a person of an offence referred to in section 51 must, in 20
addition to any penalty which it may impose in respect of that offence, declare any listed
equipment-
(a) by means of which the offence was committed;
(b) which was used in connection with the commission of the offence;
(c) which was found in the possession of the convicted person; or
(d) the possession of which constituted the offence,
to be forfeited to the State.
(2) A court convicting a person of an offence referred to in section 5 1 may, in addition
to any penalty which it may impose in respect of that offence, declare any equipment,
other than listed cquipment- 30
(a ) by means of which the offence was committed;
(b) which was used in connection with the commission of the offence;
(c) which was found in the possession of the convicted person; or
(d) the possession of which constituted the offence,
t o b e forfeited to t h e S t a t e . 35
(3) Any listed equipment or other equipment declared forfeited under subsection (1)
or (2) must, as soon as practicable after the date of declaration of forfeiture, be delivered
to the Police Service.
(4) Any listed equipment or other equipment delivered to the Police Service in terms
of subsection (3) m u s t , i n the case of- 40
(a) listed equipment declared forfeited under subsection (l), be kept by the Police
Service-
(i) for a period of four months with effect from the date of declaration of
(ii) ifan application referred to in subsection (6)(a) is made, until a final 45
(iii) if an application referred to in subsection (7)(a) is made, until a final
and must-
(aa) as soon as practicable after the expiry of the period referred to in 50
subparagraph (i);
(Db) if the decision referred to in subparagraph (ii) has been given against the
telecommunication service provider or other person concerned, as soon
as practicable after that decision has been given; or
(cc) ifan application referred to in subparagraph (iii) has been refused, as 55
soon as practicable after such refusal; or
forfeiture;
decision in respect of any such application has been given; or
decision in respect of any such application has been given,
(b) equipment declared forfeited under subsection (2), be kept by the Police
Service-20
43
(i ) f o r a period of 30 days with effect from the date of declaration of
(ii) must as soon as practicable after the expiry of the period referred to in
forfeiture; and
subparagraph (i),
be destroyed by the Police Senice.
(5 ) A declaration of forfeiture under subsection (1) does not affect any right which any
telecommunication service provider or other person, other than the convicted person,
may have to such listed equipment, if it is proved that such telecommunication service
provider or other person-
(u ) has been exempted, under section 46(l)(a), from the relevant prohibited act
referred to in section 45( 1) in respect of such listed equipment;
(b) could not reasonably be expected to have known or had no reason to suspect
that the listed equipment concerned was being or would be used in connection
with the offence; and
(c) had taken all reasonable steps to prevent the use thereof in connection with the
offence.
(6) (a) The court in question or, if the judge or judicial officer concerned is not
available, any other judge or judicial officer of the court in question, may upon an
application made at any time within a period of three months with effect from the date
of declaration of forfeiture under subsection (l), by any telecommunication service
provider or other person, other than the convicted person, who claims that-
(i) the listed equipment declared forfeited under subsection (1) is his or her
(ii) he or she is a person referred to in subsection (3 ,
property; and
inquire into and determine those matters.
(b) If the court referred to in paragraph (a) is satisfied that the-
(i) listed equipment concerned is the property of the telecommunication service
(ii) telecommunication service provider or other person concerned is a person
the court must set aside the declaration of forfeiture and direct that the listed equipment
concerned be returned to such telecommunication service provider or other person.
(c) If a determination by the court under paragraph (b) is adverse to the applicant, he
or she may appeal therefrom as if it were a conviction by the court making the
determination, and such appeal may be heard either separately or jointly with an appeal
against the conviction as a result whereof the declaration of forfeiture under subsection
(1) was made, or against a sentence imposed as a result of such conviction.
(d) When determining the matters referred to in paragraph (a)(i) and (ii), the record of
the criminal Proceedings in which the declaration of forfeiture under subsection (1) was
made, must form part of the relevant proceedings, and the court making the
determination may hear such additional evidence, whether by affidavit or orally, as it
deems fit.
provider or other person concerned; and
referred to in subsection (5),
(7) (a) The Minister may, if an application referred to in subsection (6)(u)--
(i) has not been made, upon an application made at any time after a period of
three months with effect from the date of declaration of forfeiture under
subsection [l) but before the expiry of a period of four months from that date;
or
(ii) has been made and the declaration of forfeiture has not been set aside, upon an
application made at any time within a period of one month with effect from the
date on which a final decision in respect of that application has been given,
in terms of section 46(l)(a)(iii) exempt the law enforcement agency which made the
application from possessing the listed equipment declared forfeited under subsection
(1).
(6) Section 46 applies with the necessary changes in respect of an application referred
to in paragraph (a).
44
CHAPTER 10
GENERAL PROVISIONS
Supplementary directives regarding applications
58. (1) A designated judge or, if there is more than one designated judge, all the
designated judges jointly, may, after consultation with the respective Judges-President 5
of the High Courts, issue directives to supplement the procedure for making applications
for the issuing of directions or entry warrants in terms of this Act.
(2) Any directive issued under subsection (1) may at any time in like manner be
amended or withdrawn.
(3) Any directive issued under subsection (1) must be submitted to Parliament. 10
Amendment of section 205 of Act 51 of 1977, as substituted by section 11 of Act 204
of 1993
59. Section 205 of the Criminal Procedure Act, 1977, is hereby amended by the
substitution for subsection (1) of the following subsection:
"( 1) A judge of [the supreme court] a High Court, a regional court magistrate 15
or a magistrate may, subject to the provisions of subsection (4) and section 15 of the
Regulation of Interception of Communications and Provision of Communication-
related Information Act, 2002, upon the request of [an attorney-general] 5
Director of Public Prosecutions or a public prosecutor authorized thereto in writing
by the [attorney-general] Director of Public Prosecutions, require the attendance 20
before him or her or any other judge, regional court magistrate or magistrate, for
examination by the [attorney-general] Director of Public Prosecutions or the
public prosecutor authorized thereto in writing by the Pattorney-general] Director
of Public Prosecutions, of any person who is likely to give material or relevant
information as to any alleged offence, whether or not it is known by whom the 25
offence was committed: Provided that if such person furnishes that information to
the satisfaction of the [attorney-general] Director of Public Prosecutions or public
prosecutor concerned prior to the date on which he or she is required to appear
before a judge, regional court magistrate or magistrate, he orshe shall be under no
further obligation to appear before a judge, regional court magistrate or 30
magistrate.".
Amendment of section 11 of Act 140 of 1992
60. Section 11 of the Drugs and Drug Trafficking Act, 1992, is hereby amended by the
substitution in subsection (1) for paragraph (e ) of the following paragraph:
"(e ) subject to section 15 of the Regulation of Interception of Communications and 35
Provision of Communication-related Information Act, 2002, require from any
person who has in his or her possession or custody or under his control
any register, record or other document which in the opinion of the police
official may have a bearing on any offence or alleged offence under this Act,
to deliver to him then and there, or to submit to him at such time 40
and place as may be determined by the police official, any such register, record
or document;".
Amendment of section 3 of Act 40 of 1994, as amended by section 3 of Act 31 of 1995
and section 3 of Act 42 of 1999
61. Section 3 of the Intelligence Services Control Act, 1994, is hereby amended by the 45
"(iii) any designated judge as defined in section 1 of the Regulation of Interception
[and Monitoring Prohibition] of Communications and Provision of Com-
munication-related Information Act, [1992 (Act No. 127 of 1992)] 2002, a
report regarding the functions performed by him or her in terms of that Act, 50
including statistics regarding such functions, together with any comments or
recommendations which such designated judge may deem appropriate:
Provided that such report shall not disclose any information contained in an
substitution in paragraph (a) for subparagraph (iii) of the following subparagraph:5
45
Repeal of law and transitional arrangements
62. (1) Subject to subsections (2) and (3), the Interception and Monitoring Prohibition
Act, 1992 (Act No. 127 of 19921, is hereby repealed.
(2) Any judge whose designation in terms of the Interception and Monitoring
Prohibition Act, 1992, to perform the functions of a judge for purposes of that Act is still
i n force on the fixed date, must be regarded as having been so designated in terms of this
Act.
Act, 1992, and which is still in force on the fixed date, must be regarded as having been
issued under this Act and remains in force until the period or extended period for which
that direction has been issued, lapses.
(4) The directives issued under section 6 of the Interception and Monitoring
Prohibition Act, 1992, and which are still in force immediately before the fixed date, 15
cease to be of force and effect from the fixed date.
(5 ) (a ) Any place which, immediately before the fixed date, has been used by the
Police Service, Defence Force, Agency, Service or Directorate for the interception and
monitoring of communications in terms of the Interception and Monitoring Prohibition
Act, 1992, will, as from a date specified by the Cabinet member responsible for 20
intelligence services, cease to exist unless such place is established as an interception
centre as contemplated in section 32( l )(a ).
5
(3) A direction issued under section 3 of the Interception and Monitoring Prohibition 10
(b) If any place referred to in paragraph (a)-
(i) is established as an interception centre as contemplated in that paragraph, all
assets, liabilities, rights and obligations of that place will vest in the 25
interception centre so established; or
(aa) assets, including liabilities and obligations relating thereto, and rights of
that place will, as from the date on which it ceases to exist, vest in
interception centres established by section 32( l)(a) and specified by the 30
Cabinet member responsible for intelligence services for that purpose,
without formal transfer and without payment of any fees, duties, taxes or
other charges; and
(bb) other liabilities and obligations of that place remain with the Police
Service, Defence Force, Agency, Service or Directorate, whichever used 35
that place for purposes referred to in paragraph (a).
(ii) ceases to exist as contemplated in that paragraph, all-
Short title and commencement
63. This Act is called the Regulation of Interception of Communications and
Provision of Communication-related Information Act, 2002, and comes into operation
on a d a t e fixed by the President by proclamation in the Gazette. 4010
I .
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
46
SCHEDULE
(Section 1)
high treason;
any offence relating to terrorism;
any offence involving sabotage;
sedition;
any offence which could result in the loss of a person’s life or serious risk of
loss of a person’s life;
any offence referred to in Schedule 1 to the Implementation of the Rome
Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002);
any specified offence as defined in section 1 of the National Prosecuting
Authority Act;
any offence referred to in Chapters 2, 3 and 4 of the Prevention of Organised
Crime Act;
any offence referred to in section 13(f) of the Drugs and Drug Traficking Act,
1992 (Act No. 140 of 1992);
any offence relating to the dealing in or smuggling of ammunition, firearms,
explosives or armament and the unlawful possession of such firearms,
explosives or armament;
any offence under any law relating to the illicit dealing in or possession of
precious metals or precious stones;
any offence contemplated in section 1( 1) of the Corruption Act, 1992 (Act No.
94 of 1992);
dealing in, being in possession of or conveying endangered, scarce and
protected game or plants or parts or rcmains thereof in contravention of any
legislation;
any offence the punishment wherefor may be imprisonment for life or a period
of imprisonment prescribed by section 51 of the Criminal Law Amendment
Act, 1997 (Act No. 105 of 1997), or a period of imprisonment exceeding five
years without the option of a fine.15
47
MEMORANDUM ON THE OBJECTS OF THE REGULATION OF
INTERCEPTION OF COMMUNICATIONS AND PROVISION OF
COMMUNICATION-RELATED INFORMATION BILL
1. BACKGROUND
1.1 Since the Interception and Munitoring Prohibition Act, 1992 (Act No. 127 of
1992), came into operation on 1 February 1993, there have been considerable
technological advances i n respect of telecommunications such as cellular, satellite and
computer communications through e-mail and the electronic transfer of information and
data. There havc also been considerable legal developments throughout the world
regarding the interception and monitoring of communications. Furthermore, telecom-
munications are being used increasingly in the organisation and commission of
especially organised crime, heists and other serious violent crimes.
1.2 The South African Law Commission, as part of its review of security legislation
(Project l05), investigated the subject of the Interception and Monitoring Prohibition
Act, 1992 (Act No. 127 of 1992). The Interception and Monitoring Bill, 2001, as
originally introduced in Parliament, emanated from the South African Law Commission’s Report on that investigation. The Portfolio Committee on Justice and Constitutional Development (National Assembly), after having considered the above-mentioned
Bill and the submissions which it received in respect of that Bill, presented the
Regulation of Interception of Communications and Provision of Communication-
related Information Bill.
2, OBJECTS OF BILL
2.1 The principal object of the Bill is to regulate the interception of certain
communications, the monitoring of certain signals and radio frequency spectrums and
the provision of certain communication-related information.
2.2 Chapter 1 contains a list of definitions and certain introductory provisions.
2.3 Chapter 2 contains general prohibitions of the interception of communications
and the provision of communication-related information. However, certain exceptions
to those general prohibitions are created, which include, among others, the interception
of communications-
* under an interception direction;
* by a party to a communication;
* with the consent of a party to a communication;
* in connection with the carrying on of a business; and
* to prevent serious bodily harm.
* directions authorising the interception of communications and the provision
of communication-related information; and
* entry warrants authorising entry upon premises for purposes of intercepting
postal articles or communications on premises or installing and maintaining
interception devices on, and removing interception devices from, premises.
Provision is further made for the cancellation of such directions and entry warrants.
Chapter 4 regulates the execution of directions and entry warrants by law enforcement
ofticers and the assistance to be given by postal service providers, telecommunication
service providers and decryption key holders to law enforcement officers executing
directions.
2.5 Chapter 5 provides for the interception capability of telecommunication services
and the storing of communication-related information by telecommunication service
providers. Provision is further made for the facilities and devices to be acquired by
telecommunication service providers to enable the interception of indirect communica-
tions and the storing of communication-related information. It also regulates the
compensation payable to postal service providers, telecommunication service providers
and decryption key holders for certain forms of assistance given by {hem in the
execution of directions by I2v: enfGrcement officers.
2.6 Chapter 6 provides for the establishment, equipping, operation and maintenance
of interception centres. Provision is made for the establishment of an Office for
Interception Centres and the Internet Service Providers Assistance Fund. It also provides
for the secondment of a person to the Office as the Director of the Office and regulates
2.4 Clause 3 regulates the making of applications for, and the issuing of-20
48
the powers, functions and duties of the Director. Provision is made for the secondment
of persons to interception centres as the heads thereof.
2.7 Chapter 7 imposes certain duties on telecommunication service providers and
other persons. Telecommunication service providers are required to obtain and keep
certain information in respect of their customers, cellular phones and SIM-cards. It also
contains a general obligation to report the loss, theft or destruction of cellular phones or
SIM-cards.
2.8 Chapter 8 contains general prohibitions and exceptions thereto. A prohibition is
placed on the disclosure of information which is obtained in terms of the Bill. Provision
is also made for the declaration of certain instruments, devices or equipment, the design
of which renders it primarily useful for purposes of the interception of communications,
to be listed equipment. The manufacturing, possession and advertising of such
equipment are specifically prohibited. However, certain exemptions in respect of those
prohibitions are created.
2.9 Chapter 9 regulates the admissibility and the use of information, obtained by
means of interceptions, in criminal proceedings. Certain offences are created and
penalties for such offences are prescribed. Some of those offences relate to-
* the unlawful interception of communications;
* the unlawful provision of communication-related information;
* failure to give a satisfactory account of possession of a cellular phone or a
* the absence of reasonable cause for believing that a cellular phone or
* the unlawful acts in respect of telecommunication and other equipment; and
* failure to report the loss, theft or destruction of a cellular phone or SIM-card.
Provision is made for the revoking of licences to provide telecommunication services
and for the compulsory forfeiture of listed equipment to the State. Chapter 10 contains
general provisions and amendments to other Acts.
SIM-card;
SIM-card is properly acquired;
3. CONSULTATION PROCESS
The availability of discussion paper 78, which contained provisional recommendations and a draft Bill, was announced at a media conference, as well as on the Law
Commission’s Website on the Internet, in a Bulletin issued by the Law Commission
dated 2 December 1998 and in the Government Gnzette. The discussion paper was also
distributed to approximately 400 local parties and bodies (including Government
Departments, law enforcement agencies, telecommunication service providers, indi-
viduals and bodies representing the legal community) and to 250 foreign parties and
bodies. Written submissions were considered by the Portfolio Committee and public
hearings were held.
4. FINANCIAL IMPLICATIONS FOR STATE
While every effort will be made to use existing resources to implement and apply the
legislation, there will be financial implications for the State if the legislation is to be
implemented successfully, for example in respect of the establishment, equipping,
operating and maintenance of interception centres.
5 . IMPLICATION FOR PROVINCES
None.
6. PARLIAMENTARY PROCEDURE
The Portfolio Committee and the Department of Justice and Constitutional
Development are of the opinion that this Bill must be dealt with in accordance with
section 75 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of
19961, since it contains no provision to which the procedure set out in section 74 or 76
of the Constitution applies.