GOVERNMENT GAZETTE
No. 24286
22 JANUARY 2003
Act No. 70, 2002
No. 24286
22 JANUARY 2003
Act No. 70, 2002
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| GENERAL EXPLANATORY NOTE: | |
| [ ] | Words in bold type in square brackets indicate omissions from existing enactments. |
| __ | Words underlined with a solid line indicate insertions in existing enactments. |
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To regulate the interception of certain communications, the monitoring of certain signals and radio frequency spectrums and the provision of certain communication-related information; to regulate the making of applications for, and the issuing of, directions authorising the interception of communications and the provision of communication-related information under certain circumstances; to regulate the execution of directions and entry warrants by law enforcement officers and the assistance to be given by postal service providers, telecommunication service providers and decryption key holders in the execution of such directions and entry warrants; to prohibit the provision of telecommunication services which do not have the capability to be intercepted; to provide for certain costs to be borne by certain telecommunication service providers; to provide for the establishment of interception centres, the Office for Interception Centres and the Internet Service Providers Assistance Fund; to prohibit the manufacturing, assembling, possessing, selling, purchasing or advertising of certain equipment; to create offences and to prescribe penalties for such offences; and to provide for matters connected therewith.
(English text signed by the President.)
(Assented to 30 December 2002.)
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows—
ARRANGEMENT OF SECTIONS
Section
INTRODUCTORY PROVISIONS
| 1. | Definitions and interpretation |
PROHIBITION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF REAL-TIME OR ARCHIVED COMMUNICATION-RELATED INFORMATION AND EXCEPTIONS
Part 1
Prohibition of interception of communications and exceptions
Part 2
Prohibition of provision of real-time or archived communication-related information and exceptions
APPLICATIONS FOR, AND ISSUING OF, DIRECTIONS AND ENTRY WARRANTS
EXECUTION OF DIRECTIONS AND ENTRY WARRANTS
| 26. | Execution of direction |
| 27. | Execution of entry warrant |
| 28. | Assistance by postal service provider and telecommunication service provider |
| 29. | Assistance by decryption key holder |
INTERCEPTION CAPABILITY AND COMPENSATION
INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES AND INTERNET SERVICE PROVIDERS ASSISTANCE FUND
DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER
GENERAL PROHIBITIONS AND EXEMPTIONS
CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES
GENERAL PROVISIONS
INTRODUCTORY PROVISIONS
Definitions and interpretation
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(1) In this Act, unless the context otherwise indicates— "Agency" means the Agency as defined in section 1 of the Intelligence Services Act;"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 grant such approval;"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 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), 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— "Authority" means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act, 2000 (Act No. 13 of 2000); "business" means any business activity conducted by any person, including 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 telecommunication system; "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act 20 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 service; or"decryption assistance" means to (a) allow access, to the extent possible, to encrypted information; or"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"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"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 communication" means 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"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 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); "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"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"Executive Director" means the Executive Director appointed in terms of section 51 of the South African Police Service Act; "fixed date" means the date of commencement of this Act; "Fund" means the Telecommunication 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—"Independent Complaints Directorate" means the Independent Complaints Directorate established by section 50(1) of the South African Police Service Act;(i) an identity card or temporary identity certificate as defined in the Identification Act;(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 "indirect communication" means the transfer of information, including a message or any part of a message, whether— (a) in the form of—"Intelligence Services Act" means the Intelligence Services Act, 1994 (Act No. 38 of 1994);(i) speech, music or other sounds;(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; "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— (a) monitoring of any such communication by means of a monitoring device;"interception centre" means an interception centre established by section 32(1)(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—"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);(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;(b) a hearing aid or similar device being used to correct below normal hearing to not better than normal, and a reference to an "interception device" includes, where applicable, a reference to a "monitoring device"; "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;"law enforcement officer" means any member of— (a) the Police Service;"listed equipment" means any equipment declared to be listed equipment under section 44(1)(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(1)(a) of the Constitution; "National Prosecuting Authority Act" means the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); "Office" means the Office for Interception Centres established by section 33; "oral direction" means any direction issued under section 23(7); "oral entry warrant" means an entry warrant issued under section 23(7); "party to the communication", for purposes of— (a) section 4, means, in the case of—"Police Service" means the South African Police Service established by section 5(1) of the South African Police Service Act;(i) a direct communication, any person—(b) section 5, means, in the case of—(aa) participating in such direct communication or to whom such direct communication is directed; or(ii) an indirect communication— "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"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;"prosecuting authority" means the national prosecuting authority established by section 179 of the Constitution; "public body" means any— (a) department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or"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"relevant Ministers" means the Cabinet members responsible for— (a) communications;"serious offence" means any— (a) offence mentioned in the Schedule; or "Service" means the Service as defined in section 1 of the Intelligence Services Act; (a) a private body, means, in the case of a—"Telecommunications Act" means the Telecommunications Act, 1996 (Act No. 103 of 1996);(i) natural person, that natural person or any person duly authorised by that natural person;(b) a public body, means, in the case of— "telecommunication service" means any telecommunication service as defined in the Telecommunications Act; "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—"telecommunication system" means a telecommunication system as defined in the Telecommunications Act.(i) a local access telecommunication service, public pay-telephone service, value-added network service or private telecommunication network as defined in the Telecommunications Act; 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(2) For purposes of this Act— (a) the interception of a communication takes place in the Republic if, and only if, the interception is effected by conduct within the Republic and the communication is either intercepted, in the case of—(i) a direct communication, in the course of its occurrence; or(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. |
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(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. |
PROHIBITION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF REAL-TIME OR ARCHIVED COMMUNICATION-RELATED INFORMATION AND EXCEPTIONS
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.
Interception of communication under interception direction
3. Subject to this Act, any—
(a) authorised person who executes an interception direction or assists with the execution thereof, may intercept any communication; and
(b) postal service provider to whom an interception direction is addressed, may intercept any indirect communication, to which that interception direction relates.
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—
(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 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 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;
(b) he or she is satisfied that there are reasonable grounds to believe that the party who has given consent as contemplated in paragraph (a) will—(i) participate in a direct communication or that a direct communication will be directed to him or her; or
(ii) send or receive an indirect communication; and(c) the interception of such direct or indirect communication is necessary on a ground referred to in section 16(5)(a), unless such communication is intercepted by such law enforcement officer for purposes of committing an offence.
Interception of 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 indirect communication, which is transmitted in whole or in part over a telecommunication system provided by that business —
(a) by means of which a transaction is entered into in the course of that business;
(b) 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.
(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, the system controller;
(b) for purposes of—(i) monitoring or keeping a record of indirect communications—
(aa) in order to establish the existence of facts;
(bb) for purposes of investigating or detecting the unauthorised use of that telecommunication system; or
(cc) where that is undertaken in order to secure, or as an inherent part of, 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;
(c) if the telecommunication system concerned is provided for use wholly or partly in connection with that business; and
(d) if the system controller has made all reasonable efforts to inform in advance a person, who intends to use the telecommunication system concerned, that indirect communications transmitted by means thereof may be intercepted or if such indirect communication is intercepted with the express or implied consent of the person who uses that telecommunication system.
Interception of communication to prevent serious bodily harm
7.(1) Any law enforcement officer may, if—
(a) he or she is satisfied that there are reasonable grounds to believe that a party to the communication has—
(i) caused, or may cause, the infliction of serious bodily harm to another person;
(ii) threatens, or has threatened, to cause the infliction of serious bodily harm to another person; or
(iii) threatens, or has threatened, to take his or her own life or to perform an act which would or may endanger his or her own life or would or may cause the infliction of serious bodily harm to himself or herself;(b) 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 oral interception direction; and
(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.
(2) A telecommunication service provider must, upon receipt of a request made to him or her in terms of subsection (1), 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 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 concerned, submit to a designated judge—
(a) a copy of the written confirmation referred to in subsection (3);
(b) an affidavit setting forth the results and information obtained from that interception; and
(c) 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 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, 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 (5), or cause it to be kept, for a period of at least five years.
Interception of communication for purposes of determining location in case of emergency
(a) a person is a party to a communication;
(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,the person referred to in paragraph (a) may, if he or she is—
(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 determining his or her location; or
(bb) determine the location of the sender in any other manner which the telecommunication service provider deems appropriate; or(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 (c).
(2) A law enforcement officer who has been informed as contemplated in subsection (1)(ii), 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 (1)(i)(aa) or (bb).
(3) A telecommunication service provider must, upon receipt of a request made to him or her in terms of subsection (1)(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 (1)(i) or (2) must—
(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 or 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.
Interception of communications authorised by certain other Acts
9.(1) 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. 111 of 1998), if such interception takes place in the exercise of any power conferred by or under, and in accordance with, any regulations made under that Act.
(2) If any regulations referred to in subsection (1)—
(a) were made prior to the fixed date, the Cabinet member responsible for correctional services must within one month after the fixed date, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within one month after the commencement of its next ensuing ordinary session, submit a copy of those regulations to Parliament; or
(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.
Monitoring of signal for purposes of installation or maintenance of equipment, facilities or devices
10. Any person who is lawfully engaged in duties relating to the—
(a) installation or connection of any equipment, facility or device used, or intended to be used, in connection with a telecommunication service;
(b) operation or maintenance of a telecommunication system; or
(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 that signal for purposes of performing those duties effectively.
Monitoring of signal and radio frequency spectrum for purposes of managing radio frequency spectrum
11. Any person appointed as an inspector in terms of section 98 of the Telecommunications Act and who is lawfully engaged in performing the functions of the Authority relating to the management of the radio frequency spectrum, as contemplated in section 28(1) of that 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, isolating or preventing an unauthorised or interfering use of such a signal or frequency or of a transmission.
Prohibition of provision of real-time or archived communication-related information and exceptions
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 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 real-time communication-related direction or archived communication-related direction.
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
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.
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 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.
APPLICATIONS FOR, AND ISSUING OF, DIRECTIONS AND ENTRY WARRANTS
Application for, and issuing of, interception direction
16.(1) An applicant may apply to a designated judge for the issuing of an interception 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 and, if known and appropriate, the identity of the law enforcement officer who will execute the interception direction;
(ii) person or customer, if known, whose communication is required to be intercepted; and
(iii) postal service provider or telecommunication service provider to whom the direction must be addressed, if applicable;(b) specify the ground referred to in subsection (5)(a) on which the application is made;
(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application;
(d) include—(i) subject to subsection (8), a description of the—
(aa) nature and location of the facilities from which, or the place at which, the communication is to be intercepted, if known; and
(bb) type of communication which is required to be intercepted; and(ii) the basis for believing that evidence relating to the ground on which the application is made will be obtained through the interception;
(e) if applicable, indicate whether other investigative procedures have been 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 subsection (5)(a)(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 is or could probably be the proceeds of unlawful activities;(f) indicate the period for which the interception direction is required to be issued;
(g) indicate whether any previous application has been made for the issuing of an 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
(h) comply with any supplementary directives relating to applications for interception directions issued under section 58.
(3) An application on a ground referred to in—
(a) subsection (5)(a)(i), must be made by an applicant referred to in paragraph (a), (d) or (f) of the definition of "applicant";
(b) subsection (5)(a)(ii) or (iii), must be made by an applicant referred to in paragraph (b) or (c) of the definition of "applicant";
(c) subsection (5)(a)(iv), must, in the case of—(i) the investigation of a serious offence, be made by an applicant referred to in paragraph (a) or (d) of the definition of "applicant"; and
(ii) the gathering of information, be made by an applicant referred to in paragraph (c) of the definition of "applicant"; and(d) subsection (5)(a)(v), must be made by an applicant referred to in paragraph (e) of the definition of "applicant":
Provided that an applicant referred to in paragraph (f) of the definition of "applicant" may only make an application on the ground referred to in subsection (5)(a)(i)—
(i) if the offence allegedly has been or is being or will be committed by a member of the Police Service; or
(ii) in respect of a death in police custody or as a result of police action.
(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 (1), issue an interception direction.
(5) An interception direction may only be issued if the designated judge concerned is satisfied, on the facts alleged in the application concerned, that—
(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 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 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—(aa) 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 probably be the proceeds of unlawful activities is necessary;
(b) there are reasonable grounds to believe that—
(i) the interception of particular communications concerning the relevant ground referred to in paragraph (a) will be obtained by means of such an interception direction; and
(ii) subject to subsection (8), the facilities from which, or the place at which, the communications are 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(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 (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 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 (d)(i);
(c) may specify conditions or restrictions relating to the interception of communications authorised therein; and
(d) 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.
(a) An application must be considered and an interception direction issued without any notice to the person or customer to whom the application applies and without hearing such person or customer.
(b) A designated judge considering an application may require the applicant to furnish such further information as he or she deems necessary.
(8) The requirements of subsections (2)(d)(i)(aa) and (5)(b)(ii) relating to the description of the facilities from which, or the place at which, the communication is to be intercepted do not apply if, in the case of an application for the issuing of an interception direction which authorises the interception of—
(a) a direct communication—
(i) the application contains full particulars of all the facts and circumstances as to why such description is not practical;
(ii) the application indicates the identity of the person whose communication is required to be intercepted; and
(iii) the designated judge is satisfied, on the facts alleged in the application, that such description is not practical; and(b) an indirect communication, the—
(i) application indicates the identity of the customer whose communication is required to be intercepted;
(ii) applicant submits proof that there are reasonable grounds to believe that the actions of the customer concerned could have the effect of preventing interception from a specified facility;
(iii) designated judge is satisfied that sufficient proof has been submitted; and
(iv) interception direction authorises the interception only for such time as it is reasonable to presume that the customer identified in the application is or was reasonably close to the instrument through which such communication will be or was transmitted.
(9) The interception of a communication under an interception direction to which the requirements of subsections (2)(d)(i)(aa) and (5)(b)(ii) do not apply by reason of subsection (8)(a) may not take place until the place at which the communication is to be intercepted is determined by the authorised person who executes the interception direction concerned or assists with the execution thereof.
(a) A telecommunication service provider to whom an interception direction referred to in subsection (8)(b) is addressed, may in writing apply to a designated judge for an amendment or the cancellation of the interception direction concerned on the ground that his or her assistance with respect to the interception of the indirect communication cannot be performed in a timely or reasonable fashion.
(b) A designated judge to whom an application is made in terms of paragraph (a) must, as soon as possible after receipt thereof—(i) inform the applicant concerned of that application; and
(ii) consider and give a decision in respect of the application.
Application for, and issuing of, real-time communication-related direction
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 in writing and must—
(a) indicate the identity of the—
(i) applicant;
(ii) customer, if known, in respect of whom the real-time communication-related information is required; and
(iii) telecommunication service provider to whom the real-time communication-related direction must be addressed;(b) specify the ground referred to in subsection (4) on which the application is made;
(c) contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application;
(d) include—(i) a description of the type of real-time communication-related information that is required; and
(ii) the basis for believing that evidence relating to the ground on which the application is made will be obtained through the provision of the real-time communication-related information;(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 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 application; and
(h) 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 (1), issue a real-time communication-related direction.
(4) 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) 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;
(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 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 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 purposes 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) and (e);
(c) may specify conditions or restrictions relating to the provision of real-time communication-related information authorised therein; and
(d) 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.
(6) Section 16(3) and (7) applies, with the necessary changes, in respect of an application for, and the issuing of, a real-time communication-related direction.
Combined application for, and issuing of, interception direction, real-time communication-related direction and archived communication-related direction or interception direction supplemented by real-time communication-related direction
(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) 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.
(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 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 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, 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(5), (6) and (7), 17(4), (5) and (6) and 19(4), (5) and (6), issue the combination of directions applied for; or
(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.
(4) Notwithstanding section 19(1), (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
(b) only a designated judge may issue an archived communication-related direction under subsection (3)(a).
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