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(unedited version)
Government
Gazette
REPUBLIC OF
SOUTH AFRICA
Vol. 451
Cape Town 22 January 2003 No. 24286
THE
PRESIDENCY
No. 122 22
January 2003
It is
hereby notified that the President has assented to
the following Act, which is hereby
published for general
information:–
No. 70 of
2002: Regulation of Interception
of Communications and Provision
of Communication-related
information
Act, 2002. AIDS
HELPLINE: 0800-123-22 Prevention is the cure 2 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003 Act No. 70,2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONSe
AND
PROVISION OF COMhlUNICATIOK-RELATED INFORMATION
ACT. 2002 GENERAL
EXPLAKATORI’ NOTE: [ ] Words in
bold type in square brackets indicate omissions from existing
enactments.
Words
underlined with a solid line indicate insertions in
existing
enactments.
,=
( Eng l i s
h text signed by the President.)
(Assenred 10 30 December
2002.)
ACT
To regulate
the interception of certain communications, the monitoring of certain signals and
radio frequency spectrums and the provision of certain communication-related
information; to regulate the making of applications for, and the issuing
of,
directions authorising the interception of communications and the provision
of
communication-related
information under certain circumstances; to regulate the execution of
directions and entry warrants by law enforcement officers and the
assistance
to be given by postal service providers, telecommunication service providers
and decryption key holders in the execution of such directions and entry
warrants;
to prohibit the provision of telecommunication services which do not have the
capability to be intercepted; to provide for certain costs to be borne by
certain
telecommunication service providers; to provide for the establishment of interception
centres, the Office for Interception Centres and the Internet Service
Providers
Assistance Fund; to prohibit the manufacturing, assembling, possessing, selling,
purchasing or advertising of certain equipment; to create offences and to
prescribe
penalties for such offences; and to provide for matters connected therewith. B E IT
ENACTED by the Parliament of the Republic of South Africa, as follows:-
ARRAKGEMENT
OF SECTIONS
Section
CH4PTER 1
INTRODUCTORY
PROVISIONS
5
I .
Definitions and interpretation
CHAPTER 2
PROHIBITION
OF INTERCEPTION OF COMMUNICATIONS AND
RELATED
INFORMATION AND EXCEPTIONS
Part 1
Prohibition
of interception of communications and exceptions
PROVISION
OF REAL-TIME OR ARCHIVED COMMUNICATION- I O
2.
Prohibition of interception of communication
4 so. 24286 GOVERNMENT
GWEITE. 22 JANU.4RY 1003
Act No. 70.2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONS ++*
AND
PRO\’ISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002
3.
3 .
5 .
6.
7 .
8.
9.
10.
11.
Interception
of communication under interception direction
Interception
of communication by party to communication
Interception
of communication with consent of party to communication
Interception
of indirect communication in connection
with carrying on of business 5
Interception
of communication to prevent serious bodily harm
Interception
of communication for purposes of determining
location in case of emergency
Interception
of communications authorised by cert@n,other Acts
Monitoring
of signal for purposes of installation or mlintenance of equipment. 10
facilities
or devices
Monitoring
of signal and radio frequency spectrum for purposes of managing
radio
frequency spectrum
, ,
Part 2
Prohibition
of Drovision of real-time or archived communication-related 15
12.
13.
11.
15.
16.
17.
18.
19.
30.
21.
23.
23.
25.
13 -- .
26.
27.
38.
29.
information
and exceptions
Prohibition
of provision of real-time or archived communication-related
information
Provision of real-time
or archived communication-related information under
real-time
communication-related direction or archived communication-related 20
direction
Proyision
of real-time or archived communication-related information upon
authorisation
by customer
Availability
of other procedures for obtaining real-time or archived communi-
cation-related
25
CHAPTER 3
APPLICATIONS
FOR, AND ISSUING OF, DIRECTIONS AND
ENTRY
WARRANTS
Application
for, and issuing of. interception direction
Application
for, and issuing of. real-time communication-related direction 30
Combined
application for, and issuing of, interception direction, real-time
communication-related
direction and archived communication-related direc-
tion or
interception direction supplemented by real-time communication-
related
direction
Application
for. and issuing of, archived communication-related direction 35
Amendment
or extension of existing direction
.4pplication
for. and issuing of, decryption direction
Application
for. and issuing of, entry warrant
Oral
application for. and issuing of. direction, entry warrant. oral direction
or
oral 40
Reports on
progress
Cancellation
of direction, entry warrant, oral direction or oral entry warrant
CHAPTER 4
EXECUTION OF DIRECTIONS
AND ENTRY WARRANTS
Execution
of direction 45
Execution
of entry warrant
Assistance
by postal service provider and telecommunication service provider
Assistance
by decryption key holder
A No. 24786 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION
OF Ih’TERCEPTION OF COMMUNICATIONS * 0
AND
PROVISION OF COMMUNICATION-RELATED INFORM4TION ACT. 2002
CHAPTER 5
INTERCEPTION
CAPABILITY AND COMPENSATION
30.
? I .
Interception
capability of telecommunication services and storing of commu-
nication-related
information
Compensation
payable to postal senice provider. telecommunication service 5
proyider
and decryption key holder
CHAPTER 6
-.
INTERCEPTION
CENTRES, OFFICE FOR INTERCEPTION CENTRES
AND
INTERNET SERVICE PROVIDERS ASSISTa4NCE FUND ,.
!
32. Establishment
of interception centres
2 3 . Establishment
of Office for Interception Centres
34.
Director and staff of Office
- 3 3 . Po\\ ers. functions
and duties of Director
36. Head
and staff’ of interception centres
37. Keeping
of records b> heads o f
interception centres and submission of reports
38. Establishment
and control of Internet Service Providers Assistance Fund
- 7
7 -
to Director
1 0
15
CHAPTER 7
DL’TIES OF
TELECOAIRIUNICATION SERVICE PROVIDER AND
CUSTOMER 20
30.
10.
41.
42.
43.
44.
15.
16.
17.
48.
39.
50.
51.
5’.
53.
54.
55.
56.
57.
Information
t o be obtained and kept by certain
telecommunication sewice
pro\ iders
Information
t o br: obtained and kept in respect of
cellular phone and SIM-card
Loss. thefr
or destruction of cellular phone or SIM-card to
be reported
CHAPTER 8 15
GEXERAL PROHIBITIONS
.4ND EBERIPTIONS
Prohibition
on disclosure of information
Disclosure of information
by authorised person for performance of official
duties
Listed 30
Prohibition
on manufacture. possession and advertising of listed
equipment
Exemptions
CHAPTER 9
CRI3IINAL
PROCEEDINGS, OFFENCES AND PENALTIES
Use of
information in criminal proceedings 35
Proof of certain
facts by certifcate
Unlawful
interception of communication
Unlan-ful
pro\.ision of real-time or archived communication-related infoma-
tlon
Offences 40
Failure to
give satisfactory account of possession of cellular phone or SIM-card
Absence of
reasonable cause for believing cellular phone or SIM-card properly
acquired
Unlau.ful
acts in respect of telecommunication and other equipment
Failure to
report loss. theft or destruction of cellular phone or SIM-card
and 45
presumption
Re\.oking
of licence to provide telecommunication service
Forfeiture
of listed or other equipment
8 No. 21286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONS * 0
AND
PROVISION OF COh4MtiNICATIOIGRELATED INFORh.C;4TION ACT, 1002
CHAPTER 10
GENERAL
PROVISIONS
58. Supplementary
directives regarding applications
59.
Amendment of section 205 of Act 5 1 of 1977, as
substituted by section 11 of
60.
Amendment of section 11 of Act 140 of 1992
61.
Amendment of section 3 ofAct 40 of 1994. as amer?&d by section 3 of Act
31
of 1995 and
section 3 of Act 42 of 1999
62. Repeal
of law and transitional arrangements
63.
Shortitle and commencement
Act 204 of
1993
Schedule > .
CHAPTER 1
INTRODUCTORY
PROVISIONS
Definitions
and interpretation
1. (1 ) In this
Act. unless the context othenvise indicates-
“Agency”
means the Agency as defined in section 1 of the Intelligence Services
Act:
“applicant”
means-
an officer
referred to in section 33 of the South African Police Service Act. if
the officer
concerned obtained in Lvriting the approval in advance of another
officer in
the Police Service with at least the rank of assistant-commissioner
and who has
been authorised in Lvriting by the National Commissioner to
grant such
approval:
an officer
as defined in section 1 of the Defence Act. if the officer
concerned
obtained in
v.riting the approval in advance of another officer in the Defence
Force with
at least the rank of major-general and who has been authorised in
writing by
the Chief of the Defence Force to grant such approval:
a member as
defined in section 1 of the Intelligence Services Act, if
the
member
concerned obtained in writing the approval in advance of another
member of
the A2enc!, or the Senice. as the case may be, holding a post of at
least
general manager:
the head of
the Directorate or an Investigating Director authorised
thereto in
a.riting by
the head of the Directorate:
a member of
a component referred to in paragraph ( e ) of
the definition of “law
enforcement
agent!.”. authorised thereto in writing by the National Director:
or
a member of
the Independent Complaints Directorate, if the member
concerned
obtained in N.riting the approval in advance of the Executive
Director:
“archived
communication-related direction” means a direction issued under
section 1 S( 3 ) ( a
) or 19( 3) in terms of which a telecommunication service provider
is directed
to protzide archived communication-related information in respect of a
customer;
“archi\sed
communication-related information” means any communication-related
information
in the possession of a telecommunication service provider
and which
is being
stored by that telecommunication service provider in terms of section
30( I)(!,)
for the period determined in a directive referred to in section 30(2)(a).
beginning
on the first day immediately following the expiration of a period of 90
days after
the date of the transmission of the indirect communication to which that
communication-related
information relates:
“authorised
person” means any-
( a ) law
enforcement officer who may. in terms of section 26(l)(a)(i). execute a
(bl law
enforcement officer or other person who may, in terms of section
direction:
or
26(l)(a)(iij.
assist with the execution of a direction;
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25
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45
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I O No. 24286 GOVERNMENT
GAZETTE, 12 JANUARY 7003
0
Act No. 70.2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONS *
.4ND PROVISION OF
COMMUNICATION-RELATED INFORMXTION ACT. 2002
“Authority”
means the Independent Communications Authority of South Africa
established
by section 3 of the Independent Communications Authority of South
Africa Act.
2000 (Act.No. 13 of 2000);
“business”
means any business activity conducted by any person.
including
acti\.ities
of any private or public body;
“cellular
phone” means any fixed or mobile cellular apparatus or terminal which is
capable of
connection to a cellular telecommunication system and which is used by
a customer to transmit or
receive indirect communications over such telecommu-
nication k..
“communication”
includes both a direct communication and an indirect commu-
nication:
“communication-related
information” means any information relating to an
indirect
communication which is available in the recor;ds of a telecommunication
sen ice
provider. and includes sMitching, dialling or. signalling information that
identities
the origin. destination. termination. duration. and equipment used in
respect. o f each
indirect communication generated or received by a customer or
user o ! any
equipment. facility or service prhided b), such a telecommunication
ser\.ice
pro\,ider and. where applicable. the location of the user u>ithin the
telecommunication
system:
“Constirution”
means the Constitution of the Republic of South Africa. 1996 (Act
No. i08 of 1996):
“contents”.
when used with respect to any Communication. includes any
information
concerning the substance. purport or meaning of that communication:
“customer”
means any persoll-
((11 to \\,horn
a telecommunication service provider pro\.ides a telecommunication
service: or
who has entered
into a contract with a telecommunication service
provider for
the
provision of a telecommunication senzice. including
a pre-paid telecom-
munication
semice:
“decryption
assistance” means to-
( ( 1 ) allow
access. to the extent possible. to encrypted information; or fh, facilitate
the putting of encrypted information into an intelligible form:
“decr!.ption
direction” means a direction issued under section 71(3) in terms of
u hich a decryption
key holder is directed t o -
( o j disclose a decryption
key: or
( h i protide
decryption assistance in respect of encrypted information. and
“decr\ption
key” means any key. mathematical formula, code. password.
algorithm
or any other data which is used to-
(cr I allow
access to encrypted information: or
( h ~ f’xilitate
the putting of encrypted information into an intelligible form:
“decryption
ke! holder” means an! person who is in possession of a decryption
ke! for
purposes of subsequent decryption of encrypted information relating to
indirect
communications;
“Defence
Act” means the Defence Act. 1957 (Act No. 44 of 1957):
“Defence
Force” means the defence force referred to in section 199(2) of the
Constitution:
“designated
judge” means any judge of a High Court discharged from active
serjice
under section 3(1) of the Judges’ Remuneration and Conditions of
Emplo\ment
.4ct. 2001 (Act No. 47 of 2001). or any retired
judge. who is
designated b!, the
Minister to perform the functions of a designated judge for
purposes of
this Act:
“direct
communication” means an-
( 0 J oral
communication. other than an indirect communication. between two or
more
persons which occurs in the immediate presence of all the persons
participating
in that communication; or
( h r utterance
by a person who is participating in an indirect communication, if the
utterance
is audible to another person who. at the time that the indirect
communication
occurs, is in the immediate presence of the person participat-
ing in the
indirect communication;
“direction”
means any interception direction, real-time communication-related
direction.
archived communication-related direction or decryption
direction issued
includes an
oral decryption direction issued under section 23(7):
12 No. 24286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No.
70,2002 REGULATlON OF INTERCEPTION OF COMMUNICATIONS * *
AND PROVISION
OF COMMUNICATION-RELATED lNFORR$ATION ACT, ZOO?
under this
Act, and includes an oral direction issued under section 23(7), but, for
purposes of
section 20, excludes an archived communication-related
direction;
“Director”
means the Director: Office for Interception Centres. seconded in terms
of‘ section
34( 1 1:
“Directorate”
means the Directorate of Special Operations referred to in section 1 5
of the
National Prosecuting Authority Act;
”encrypted
information” means any electronic data which, without the decryption
key to that
data-
(a) cannot. or
cannot readily. be accessed; or
(b) cannot. or cannot
readily, be put into an intelligible form;
“entry
warrant” means a warrant issued under section 2 3 3 ) and which
authorises
entry upon
any premises for purposes of-
( a , intercepting
a postal article or communication on the premises; or
( h ) installing
and maintaining an interception de&e on, and removing an
L. .
10
interception
de\ice from. the premises. and includes an oral entry warrant 15
issued
under section 93(7):
“Executive
Director“ means the Executive Director appointed in terms of section
51 of the
South African Police Service Act;
“fixed
date” means the date of commencement of this Act:
“Fund“
means the Internet Service Providers Assistance Fund established by 20
section 38(
I ):
“Identification
Act“ means the Identification Act. 1997 (Act No. 68 of 1997);
“identification
document” means. in the case of a person who is-
( a J a South
African citizen or is lawfully and permanently resident
in the Republic
and has
attained of 16 years- 25
( i ) an identity
card or temporary identity certificate as defined in the
Identification
Act:
(ii) a green.
bar-coded identity document issued in accordance with the
Identification
Act. 1986 (Act No. 72 of 1986), until such identity
document is
replaced by an identity card as contemplated in section 25 of 30
the
Identification Act: or
Travel
Documents Act, 1994 (Act No. 4 of 1994):
(iii) a
South African passport as defined in the South African
Passports and
( b J a South
African citizen or is lawfully and permanently resident
in the Republic
and has not attained
the age of 16 years. a birth certificate referred to in section 35
I3 of the
Identification Act: and
(c,l not a South
African citizen or is not permanently resident in the Republic-
( i ) a travel
document as defined in the South African Passports and Travel
Documents
,4ct. 1994: or
(ii) a passport or
travel document as contemplated in paragraphs (b), (c) and 40
( d l of
the definition of “passport” in the Immigration Act, 3002 (Act No.
13 of 2002 1:
“Independent
Complaints Directorate“ means the Independent Complaints Direc-
torate
established b!, section 50( 1 ) of the
South African Police Service Act;
“indirect
communication“ means the transfer of information, including a message 45
or any part of
a message. whether-
( a ) in the form
of-
( i ) speech.
music or other sounds:
(ii) data:
(iii) text;
(iv) \,isual
images. whether animated or not;
( v ) signals; or
( v i ) radio
frequency spectrum: or
(bi in an!.
other form or in any combination of forms.
that is
transmitted in whole or in part by means of a postal service or a 55
telecommunication
system;
“Intelligence
Services Act” means the Intelligence Services Act, 1994 (Act No. 38
of 1994):
“intelligible
form” means the form in which electronic data was before an
encryption
or similar it; 60
“intercept”
means the aural or other acquisition of the contents of any
communication
through the use of any means, including an interception device, so
as to make
some or all of the contents of a communication available to a person
50
14 No. 24286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
u
.z.
Act No.
70,2002 REGULATION OF INTERCEPTION OF COMMUNIGATIONS
.*
AND PROVISION OF
COMMUNICATION-RELATED INFORMATION ACT. 2002
other than
the sender or recipient or intended recipient of that
communication, and
includes
the-
( a ) monitoring
of any such communication by means of a monitoring device;
( b ) viewing,
examination or inspection of the contents of any
indirect communi-
( c I diversion
of any indirect communication from its intended destination to any
and
“interception” has a corresponding meaning:
”interception
centre” means an interception centre estahshed by section 32( I)(a);
“interception
device“ means any electronic, mechanical or other instrument,
device,
equipment or apparatus which is used or can be
used. whether by itself or
in
combination with any other instrument. device, equipment or apparatus, to
intercept
an!’ communication. but does not include-,
( a ) any
instrument, device. equipment or apparatus:’ or any component thereof-
( i ) furnished
to the customer by a telecommunication service provider
in the
ordinary
course of his or her businqss and being used by the customer in
the
ordinary course of his or her business:
iii)
furnished by such customer for connection to the facilities of such
telecommunication
service and used in the ordinary course of his or her
business:
or
(iii) being
used by a telecommunication service provider in the ordinary
course of his or her
business: or
(D) a hearing
aid or similar device being used to correct below
normal hearing to
and a
reference to an “interception device” includes, where applicable, a
reference
to a
”monitoring device”:
”interception
direction“ means a direction issued under section 16(3) or 18(3)(a)
and which
authorises the interception. at any place in the Republic, of any
communication
in the course of its occurrence or transmission, and includes an oral
interception
direction issued under section 23(7);
”Internet”
means the international computer network known by that name;
“Internet s
e n k e provider“ means an). person who
provides access to. or any other
ser\.ice
related to. the Internet to another person. whether or not such access or
ser\ice is
pro\kled under and in accordance with a telecommunication
senice
licence
issued to the first-mentioned person under Chapter V of the Telecommu-
nications
Act;
“law
enforcement agency’. means-
ra) the
Police Service:
r h 1 the Defence
Force:
© the Agency
or the Service:
rdi the
Directorate: or
( e l any
component of the prosecuting authority, designated by the National
Director to
specialise in the application of Chapter 6 of the Preventior? of
Organised
Crime .4ct:
cation: and
other
destination.
not better
than normal,
“law
enforcement officer” means an! member of-
( a ) the
Police Service;
(0) the Defence
Force, excluding a member of a visiting force;
(c, the Agency
or the Service:
tdi the
Directorate; or
( e l any
component referred to in paragraph ( e ) of the
definition of “law
“listed
equipment” means any equipment declared to be listed
equipment under
section 34(
l)(a). and includes any component of such
equipment;
“Minister“
means the Cabinet member responsible for the administration of
justice,
except in Chapter 6 where it means the Cabinet member responsible for
intelligence
services;
“monitor”
includes to listen to or record communications by means of a
monitoring
device. and “monitoring” has a corresponding
meaning;
“monitoring
device” means any electronic, mechanical or other instrument,
device,
equipment or apparatus which is used or can be used, whether by itself 01
in
combination with any other instrument, device, equipment or apparatus,
to listen
enforcement
agency”;
5
I0
15
20
35
30
35
40
45
50
55
60
to or
record any communication:
16 No. 24286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No. 70,2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS .bo
AND PROVISION OF
COMMUNICATION-RELATED INFORMATION ACT. 2002
“National
Commissioner” means the National Commissioner referred to in section
6( 1) of the
South African Police Service Act;
“National
Director” means the National Director of Public Prosecutions contem-
plated in
section 179(1)(a) of the Constitution;
“National
Prosecuting Authority Act” means the National Prosecuting Authority
Act, 1998
(Act No. 32 of 1998);
“Office”
means the Office for Interception Centres established by section 33;
“oral
direction” means any direction issued under section 23(7);
“oral entry
warrant” means an entry warrant issued un*p section 23(7);
“party to
the communication”, for purposes of-
( a ) section 4.
means, in the case of-
(i) a
direct communication. any person-
(aal participating
in such direct communication or to whom such
direct
communication
is directed; or
(bb) in whose
immediate presence such direct communication occurs
and is
audible to the person concerned. regardless of whether or not
the direct
communication is specifically directed to him or her; or
(ii) an
indirect communication-
laai the
sender or the recipient or intended recipient of such indirect
communication:
(bb) if it is intended
by the sender of an indirect communication that such
indirect
communication be received by more than one person, any
of those
recipients: or
(cc) any other
person who, at the time of the occurrence of the indirect
communication,
is in the immediate presence of the sender or the
recipient
or intended recipient of that indirect communication; and
(i) a
direct communication, any person participating in such direct
(ii) an
indirect communication-
, +
(b) section 5, means. in
the case of-
communication
or to whom such direct communication is
directed; or
( a a ) the
sender or the recipient or intended recipient of such indirect
communication:
or
(bb) if it is intended
by the sender of an indirect communication that such
indirect
communication be received by more than one person, any
of those
recipients;
“Police
Senice” means the South African Police Service established by section
5( 1) of the
South African Police Service Act;
“postal
article” means any postal article as defined in the Postal Services Act;
“postal
service” means a postal service as defined in
the Postal Services Act, and
includes
any-
( a ) private
postal service; and
(b) service
which is offered or provided as a service of which the
main purpose,
or one of
the main purposes, is to make available. or to facilitate, a means of
transmission
from one place to another place of postal articles
containing
indirect
communications:
“Postal
Senices Act” means the Postal Services Act, 1998 (Act NO. 124 of 1998);
“postal
service provider” means any person who provides a postal service;
“premises”
includes any land, building, structure, vehicle, ship, boat, vessel,
aircraft or container;
“Prevention
of Organised Crime Act” means the Prevention of Organised Crime
Act, 1998
(Act No. 121 of 1998);
“private
body” means-
( a ) a natural
person who carries on any trade, business or profession, but only in
such
capacity;
(b) a
partnership which carries on any trade,
business or profession; or
© any
juristic person,
but
excludes a public body;
“prosecuting
authority” means the national prosecuting authority established by
section 179
of the Constitution;
“public
body” means any-
(a) department
of state or administration in the national or provincial sphere of
government
or any municipality in the local sphere of government;
or
(b) other
functionary or institution when-
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18 No. 23286 GOVERNMEhT
GAZE’ITE, 21 JANUARY 2003
Act No. 70,2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONS a*
.4ND PROVISION OF
COMMUNICATION-RELATED INFORMATION ACT. 2002
( i )
exercising a power or performing a duty in
terms of the Constitution or
iii)
exercising a public power or performing a public
function in terms of any
“real-time
communication-related direction” means a direction issued under
section 17t3) or 18(3) in
terms of which a telecommunication service provider is
directed to
provide real-time communication-related information in respect of a
customer,
on an ongoing basis. as it becomes
available, and includes an oral
real-time
communication-related direction issued underdection 23(7 ):
“real-time
communication-related information” mean; communication-related
information
which is immediately available to a telecommunication service
provider-
( ( 1 ) before.
during. or for a period of 90 days after. the transmission of an indirect
communication;
and
( h i in a manner that
allows the communication-related information to be
associated
with the indirect communication to which it relates:
“relevant
Ministers” means the Cabinet members responsible for-
( a ) communications:
0 1 ) defence:
( c i intelligence
serjices: and
I d ) policing.
except in
Chapter 6 where it means the Cabinet members referred to
in paragraphs
( a i . ( 6 , and Id1
and the Cabinet member responsible for the administration of
justice:
“serious
offence” means any-
( ( 1 ) offence
mentioned in the Schedule: or
( h ) ofl’ence
that is allegedly being or has allegedly been or
will probably be
committed
by a person. group of persons or syndicate-
r i ) acting in
an organised fashion which includes the planned. ongoing.
continuous
or repeated participation. involvement or engagement
in at
least two incidents of criminal or
unlawful conduct that has the same or
similar
intents. results. accomplices. victims or methods of commission,
or
otherwise are related by distinguishing characteristics;
(ii) acting in
thexecution or furtherance of a common
purpose or
conspiracy;
or
( i i i )
which could result in substantial financial gain for the
person. group of
persons or
syndicate committing the offence.
including
any conspiracy. incitement or attempt to commit any
of the above-
mentioned
offences:
“Service”
means the Service as defined in section 1 of the
Intelligence Services
Act;
“SIM-card”
means the Subscriber Identity Module which is an independent.
electronically
activated device designed for use in
conjunction with a cellular
phone to
enable the user of the cellular phone to transmit and
receive indirect
communications
by providing access to telecommunication systems and enabling
such
telecommunication systems to identif)) the particular Subscriber Identity
Module and
its installed information:
“South
.4frican Police Service Act” means the South African Police Service Act,
1995 (Act No. 68 of
1995):
“system
controller” of. or in relation to-
( a ) a private
body. means, in the case of a-
a
provincial constitution; or
legislation;
\ .
1
(i) natural
person. that natural person or any person duly authorised by that
natural
person;
( i i ) partnership,
any partner of the partnership or any person duly authorised
by the
partnership: or
(iii)
juristic person. the-
(aa) chief
executive officer or equivalent officer of the juristic person or
(bhi person
who is acting as such or any person duly authorised by such
any person
duly authorised by that officer; or
acting
person; and
Ih) a public
body. means, in the case of-
(i) a
national department, provincial administration or organisational
component-
5
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60
20 KO. 24286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No.
70,2002 REGULATION OF INTERCEPTION OF COMMUNIQTIONS
a
\%
AND PROVISION OF
COMMUNICATION-RELATED INFORMATION ACT. ?M)2
1 aa
(hh
mentioned
in Column 1 of Schedule 1 or 3 to the Public Service
Act,
1993
(Proclamation No. 103 of 1994), the officer who is the
incumbent
of the post bearing the designation mentioned in Column
2 of the said
Schedule 1 or 3 opposite the name of the relevant
national
department. provincial administration or organisational .5
component
or the person who is acting as such; or
not so
mentioned. the Director-General, head, executive director or
equivalent
officer, respectively, of that national department, provin-
cial
administration or organisational companent, respectively, or the
person who
is 10
I ii ) a municipality.
the municipal manager appointed in terms of section 82
of the Local
Government: Municipal Structures Act, 1998 (Act No. 11 7
of 1998). or the person
who is acting as such: or
(iii ) any other
public body. the chief executive offiier, or equivalent officer, of
that public
body or the person who is acting as such: 1s
“Telecommunications
Act” means the Telecommunications Act, 1996 (Act No.
103 of
1996,: !
“telecommunication
service” means any telecommunication service as defined in
the
Telecommunications Act:
“telecommunication
service provider” means any- 20
(aJ person who
provides a telecommunication service under and in accordance
with a
telecommunication service licence issued to such person under Chapter
V of the
Telecommunications Act, and includes any person who provides-
( i ) a local
access telecommunication service, public pay-telephone service,
value-added
network service or private telecommunication network as
25
defined in
the Telecommunications Act; or
(ii) any other
telecommunication service licensed or deemed to be licensed
or exempted
from being licensed as such in terms of the
Telecommuni-
cations
Act: and
(hi Internet
service 30
“telecommunication
system” means a telecommunication system as defined
in the
Telecommunications
Act.
13) For purposes of this Act-
l a ) the
interception of a communication takes place in the
Republic if, and only if,
the
interception is effected by conduct within the Republic and the 3.5
communication
is either intercepted. in the case of-
( i ) a
direct communication, in the course of its occurrence; or
(ii) an
indirect communication. in the course of its transmission by means of
a postal
service or telecommunication system. as the case may be; and
(hj the time
during which an indirect communication is being transmitted by 40
means of a telecommunication
system includes any time when the telecom-
munication
system by means of which such indirect communication
is being,
or has
been. transmitted is used for storing it in a manner that enables the
intended
recipient to collect it or otherwise to have access to it.
( 3 ) A reference in
this Act to the interception of a communication does not include a 45
reference to the
interception of any indirect communication which is broadcast or
transmitted
for general reception.
32 KO. 24286 GOVERNMENT
GAZETTE, 22 JANUARY 2003
Act No.
70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * -e ~ -~
AND
PROVISION OF COMMUNICATIONRELATED INFOR~ATION ACT. 2002
CHAPTER 2
PROHIFHTION
OF .INTERCEPTION OF COMMUNICATIONS
AND
PROVISION OF REAL-TIME
OR ARCHIVED COMMUNICATION-
RELATED
INFORMATION AND EXCEPTIONS
Part 1
Prohibition
of interception of communications y d exceptions
Prohibition
of interception of communication
2. Subject to
this Act, no person may intentionally intercept or attempt to intercept. or
authorise
or procure any other person to intercept or attem’pt’to
intercept. at any place in
the
Republic. any communication in the course of its occurrence or
transmission.
Interception
of communication under interception direction
3. Subject
to this Act. any-
l u ) authorised
person who executes an interception direction or assists
with the
Ib) postal
service provider to whom an interception
direction is addressed, may
execution
thereof. may intercept any communication: and
intercept
any indirect communication,
to which that
interception direction relates.
Interception
of communication by party to communication
4. ( I ) Any
person, other than a law enforcement officer, may
intercept any
communication
if he or she is a party to the communication. unless such communication
is
intercepted by such person for purposes of committing an
offence.
( 3 Any law
enforcement officer may intercept any communication if he or she is-
l a ) a
party to the communication: and
i h ) satisfied
that there are reasonable grounds to believe that the interception of a
communication
of another party to the communication is necessary on a
ground
referred to in section 16(5)(a).
unless such
communication is intercepted by such law enforcement officer for purposes
of
committing an offence.
Interception
of communication with consent of party to
communication
5. ( 1 ) An!.
person, other than a lam. enforcement officer, may intercept any
communication
if one of the parties to the communication has
given prior consent in
witing to such
interception. unless such communication is intercepted by such person
for
purposes of committing an offence.
(3) An!. law
enforcement officer ma). intercept any communication if-
( a ) one of the
parties to the communication has given prior consent in writing to
such
interception;
f b J he or she
is satisfied that there are reasonable grounds to believe that the party
who has
given consent as contemplated in paragraph (a) will-
(i) participate
in a direct communication or that a direct communication will
(ii) send
or receive an indirect communication: and
ground
referred to in section 16(5)(aJ.
be directed
to him or her; or
© the
interception of such direct or indirect communication is necessary on a
unless such
communication is intercepted by such law enforcement officer for purposes
of
committing an offence.
5
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24 No. 24286
GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION
OF INTERCEPTION OF COMMUNICATIONS *
AND PROVISION
OF COMMUNICATION-RELATED INFORM4TION ACT, 2002
Interception
of indirect communication in connection with
carrying on of business
6. (1) Any person
may. in the course of the carrying on of any business, intercept any
(a) by means of
which a transaction is entered into in the course of that business;
(b) which
otherwise relates to that business; or
© which
otherwise takes place in the course of the
carrying on of that business,
( 2 ) A person
may only intercept an indirect communicath i n terms of subsection
( a ) if such
interception is effected by, or with the express or implied consent of,
(b) for
purposes of-
indirect
communication- .
in the
course of its transmission over a telecommunication system.
(1)-
the system
controller;
(i)
monitoring or keeping a record of indirect communications-
, ,
(aa) in
order to establish the existence of facts;
Ibb) for
purposes of investigating or detecting the unauthorised use of
(cc) where
that is undertaken in order to secure. or as an inherent part of,
(ii)
monitoring indirect communications made to a confidential voice-
telephony
counselling or support service which is free of charge, other
than the
cost, if any. of making a telephone call, and operated in such a
way that
users thereof may remain anonymous if they so choose;
© if the
telecommunication system concerned is provided for use wholly or
partly in
connection with that business; and
(d) if the
system controller has made all reasonable efforts to inform in advance a
person. who
intends to use the telecommunication system concerned, that
indirect
communications transmitted by means thereof may be intercepted or
if such
indirect communication is intercepted with the express or implied
consent of
the person who uses that telecommunication system.
that
telecommunication system; or
the
effective operation of the system; or
Interception
of communication to prevent serious bodily harm
7. (1) Any
lam. enforcement officer may, if-
( a ) he or she
is satisfied that there are reasonable grounds to believe that a party
to the
communication has-
(i) caused,
or may cause. the infliction of serious bodily harm to another
(ii)
threatens, or has threatened, to cause the infliction of serious bodily
harm
(iii)
threatens. or has threatened, to take his or her own life or to perform an
person;
to another
person: or
act which
would or may endanger his or her own life or would or may
cause the
infliction of serious bodily harm to himself or herself;
he or she is of the
opinion that because of the urgency of the need to intercept
the
communication, it is not reasonably practicable to make an application in
terms of
section 16(1) or 13jl) for the issuing of an interception direction or
an oral
interception direction; and
the sole
purpose of the interception is to prevent such bodily harm,
any
communication or may orally request a telecommunication service
provider to
route duplicate signals of indirect communications specified in that
request
to the
interception centre designated therein.
(2) A
telecommunication service provider must, upon receipt of a request made
to him
or her in
terms of subsection ( I ) , route the duplicate signals of the indirect
communications
concerned to the designated interception centre.
(3) The law
enforcement officer who made a request under subsection (1) must as
soon as
practicable after malung that request, furnish the telecommunication
service
provider
concerned with a written confirmation of the request which sets out the
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26 No. 21286
GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No.
70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS Q C
AND PROVISION
OF COMMUNICATION-RELATED INFORM~TION ,413.2002
information
given by that law enforcement officer to that telecommunication service
proiider in
connection with the request.
( 3 ) The
law enforcement officer who intercepts a communication under subsection ( 1 )
or (2) must.
as soon as practicable after the interception
of the communication
concerned.
submit to a designated judge-
( a ) a copy of
the written confirmation referred to in subsection ( 3 ) ;
(b) an
affidavit setting forth the results and information obtained from that
interception:
and
(c.1 any
recording of the communication that has been &gained by means of that
interception.
any full or partial transcript of the recording and any notes made
by that law
enforcement officer of the communication if nothing in
the
communication
suggests that bodily harm. attempted bodily harm or
threatened
bodily harm has been caused or is IikLy to be caused.
( 5 1 A telecommunication
service provider who. in terms isf subsection ( 2 ) . has routed
duplicate
signals of indirect comn~unications to the designated
interception centre must,
as soon as practicable
thereafter. submit an affidavii to a designated judge setting forth
the steps
taken b\, that telecommunication service provider in
giving effect to the request
concerned
and the results obtained from such steps.
( 6 ) A designated
judge must keep all written confirmations and affidavits and any
recordings.
transcripts or notes submitted to him or her
in terms of subsections (4) and
(5). or cause it to be kept.
for a period of at least five years.
Interception
of communication for purposes of determining
location in case of
emergency
8. ( 1 ) I n
circumstances where-
( a ) a
person is a party to a communication:
/ h i that
person. as a result of information received from another
party to the
communication
(in this section referred to as the “sender”), has reasonable
grounds to
believe that an emergency exists by reason of the fact that the life
o f another
person. whether or not the sender. is being endangered or that he or
she is dying or is being or
has been seriously injured or that his or her life is
likely to
be endangered or that he or she is
likely to die or to be seriously
injured:
and
( ( ‘ 1 the
location of the sender is unknown to that
person,
( i ) ;I Iau enforcement
officer. and if he or she is of the opinion that
determining
the
location of the sender is likely to be of assistance in dealing with the
emergency.
orally request. or cause another law enforcement officer to orally
request.
the telecommunication service provider concerned to-
f u u ) intercept
any Communication to or from the sender for purposes of
ihb) determine
the location of the sender in any other manner which the
( i i ) not a lair.
enforcement officer. inform, or cause another person to inform, any
lau-
enforcement officer of the matters referred to in paragraphs (u), (b) and
i c i .
( 3 ) A
laq, enforcement officer who has been informed as contemplated in
subsection
( 1 )iii ), may. if he
or she is of the opinion that determining the location of the sender is
likely to
be of assistance in dealing with the emergency, orally request, or cause
another
lav enforcement
officer to orally request, the telecommunication service provider
concerned
to act as contemplated in subsection (1 )(i)(au) or (bb).
( 3 ) A
telecommunication service provider must. upon receipt of a request
made to him
or her in ternis of subsection
( I )(i) or (2)-
( a ) intercept
any communication to or from the sender
for purposes of
(01 determine
the location of the sender in any other manner which
the
and if the
location of the sender has been so determined, the telecommunication
service
provider
concerned must. as soon as practicable after determining that location,
provide
the law
enforcement officer who made the request with the location of the sender
and
the person
referred to in paragraph f a ) may, if he
or she is-
determining
his or her location: or
telecommunication
service provider deems appropriate; or
determining
his or her location: or
telecommunication
service provider deems appropriate,
5
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28 No. 24286 GOVERNMENT GAZElTE, 12 JANUARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION
OF COhlMUNIC,4TIONS *
AND
PROVISION OF COMMCTNICATION-RELATED IMFORMATION ACT, 2002
any other
information obtained from that interception which, in the opinion of the
telecommunication
service provider concerned, is likely to be of assistance in dealing
with the
emergency.
($1 The law
enforcement officer who made a request under subsection (I)(i) or (2)
must-
( a ) as soon as
practicable after making that request, furnish the telecommunica-
tion
service provider concerned with a written confirmation of the request
which sets
out the information gi\ren by that law yfprcement officer to that
telecommunication
service provider in connection nhth the request;
(b) as soon as
practicable after making that request. furnish a designated judge
with a copy
of such written confirmation; and
(cj if the
location of the sender and any other information has been provided to
him or her
in terms of subsection ( 3 ) . as soon aspxsible after receipt thereof.
submit to a
designated judge an affidavit setting forth the results and
information
obtained from that interception.
( 5 ) A telecommunication
service provider yho has taken any of the steps
contemplated
in subsection ( 3 ) . must. as soon as practicable thereafter, submit to a
designated
judge-
(ai an
affida\>it setting forth the steps taken by that telecommunication
service
provider in
giving effect to the request concerned and the results and
information
obtained from such steps: and
( / I ) if such
steps included the interception of an indirect communication. any
recording
of that indirect communication that has been obtained by means of
that
interception, any full or partial transcript of the recording and any notes
made by that
telecommunication service provider of that indirect communi-
cation.
( 6 ) A designated
judge must keep all u%tten confirmations and affidavits and any
recordings.
transcripts or notes submitted to him or her in
terms of subsections (3)(b)
and © and ( 5 ) . or cause it to be kept.
for a period of at least five years.
Interception
of communications authorised by certain other Acts
9. ( I ) Any
communication may. in the course of its occurrence or transmission. be
intercepted
in an!’ prison as defined in section 1 of the
Correctional Services Act, 1998
(Act No. 11 1 of 1998 ). if such
interception takes place in the exercise of any power
conferred
by or under. and in accordance with. any regulations made
under that Act.
( 2 ) If any
regulations referred to in subsection (1 )--
(a) were
made prior to the fixed date. the Cabinet member
responsible for
correctional
services must within one month after the fixed date, if Parliament
is then in
ordinary session. or. if Parliament is not then in ordinary session.
within one
month after the commencement of its next ensuing ordinary
session.
submit a copy of those regulations to Parliament: or
lh) are
made after the fixed date. the Cabinet member responsible for correctional
services
must. before the publication thereof in the Gazette, submit those
regulations
to Parliament.
Monitoring
of signal for purposes of installation or maintenance of equipment,
facilities
or devices
10. Any
person who is lawfully engaged in duties relating to the-
( a ) installation
or connection of any equipment, facility or device used, or
( h ) operation
or maintenance of a telecommunication system; or
I C ) installation.
connection or maintenance of any
interception device used, or
intended to
be used. for the interception of a communication under an
interception
direction.
intended to
be used. in connection u,ith a telecommunication service;
5
10
15
20
25
30
35
30
45
50
-
may. in the
ordinary course of the performance of those duties. monitor a signal
relating
30 No. 24186
GOVERNMENT GAZETTE, 22 JANUARY 1003
Act No. 70.2002 REGULATION
OF INTERCEPTION OF COMMUNIC&TIONS *
AND PROVISION OF
COMMUN1CATIOi’-RELATED INFORMATlON ACT, 2002
to an indirect
communication where i t is reasonably necessary for that
person to monitor
that signal
for purposes of performing those duties effectively.
Monitoring
of signal and radio frequency spectrum for purposes of managing
radio
frequency spectrum
11. .4ny
person appcinted a5 an inspector in terms of section 98 of the 5
Telecommunications
Act and who is law’fully engaged in performing the functions of the
Authority
relating to the management of the radio
frequency spectrum, as contemplated
in section
28( 1 ) of that .4ct. may. in the ordinary course of
the performance of those
functions.
monitor a signal or radio frequency spectrum relating to an indirect
communication
which is transmitted over radio. where it is reasonably necessary for that 1 0
employee to monitor
that signal or radio frequency spectru? for purposes of
identifying,
isolatiny
or preventing an unauthorised or interfering
use of such a signal or frequencv - or of a transmission.
I -
Part 2 ‘
Prohibition
of provision of real-time or archived communication-related
information
and exceptions
Prohibition
of provision of real-time or archived
communication-related informa-
tion
12. Subject
to this Act. no telecommunication service
provider or employee of a
telecommunication
service provider may intentionally provide or attempt to provide any
real-time or archived
communication-related information to any person other than the
customer of the
telecommunication ser\Jice provider concerned to whom such real-time
or
archi\.ed communication-related inforn-~ation relates.
Provision
of real-time or archived communication-related information under
1
real-time
communication-related direction or archived communication-related 25
direction
13. Subject
t o this Act. an!.
telecommunication service provider to whom a
real-time
communication-related
direction or an archived communication-related direction is
addressed.
may prmide an! real-time or archil ed communication-related information to
which that
real-time communication-related direction or archived communication- 30
related
direction relateh.
Provision of real-time
or archived communication-related information upon
authorisation
by customer
14. An!,
telecommunication senice pro\.ider may. upon the written authorisation
given b!
his or her customer on each occasion. and subject
to the conditions determined 35
b! the
customer concerned. pro\.ide to an)’ person specified b!. that
customer real-time
or
archi\.ed communication-related information which relates to the customer
con-
cerned.
Availability
of other procedures for obtaining real-time or archived communica-
tion-related
40
15. ( 1 ) Subject to subsection (
2 ) . the availability of the procedures in respect of the
provision
of real-time or archived communication-related information provided for in
sections 17 and 19 does not
preclude obtaining such information in respect of any person
in
accordance with a procedure prescribed in any other Act.
in terms of
such other Act may not be obtained on an ongoing basis.
( 2 ) Any
real-time or archived communication-related information which is obtained 45
37 No. 24186 GOVERNMEKT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGCLATION OF IXTERCEPTION
OF COMMUNICATIONS
c. *,
AND PRO\’lSION
OF COMMUNICATION-RELATED INFORMATlON ACT. 2002
CHAPTER 3
APPLICATIONS
FOR, AND ISSUING OF, DIRECTIONS .4ND ENTRY
WARRANTS
Application
for. and issuing of, interception direction
30
16. ( 1 ) .4n
applicant may apply to a designated judge for the issuing of an
interception 5
i?i Subject to
section ?3( 1 1. an application
referred to in subsection ( 1 ) must be in
direction. \- -
writing and
must-
( ( 1 ) indicate
the identity of the-
! i ) applicant
and. if known and appropriat,e,, the identity of the law 10
( i i ) person or customer.
if knot4m. whose communication is required to be
( i i i 1 postal
service provider or telecommimication service provider t o whom
( h i specif!.
the ground referred to in subsection (5)((/) on \vhich the
application is
( ( ‘ 1 contain
full particulars of all the facts and circumstances alleged by the
i d ) include-
enforcement
officer who will execute the interception direction:
intercepted:
and
the
direction must be addressed. i f applicable: 15
made;
applicant in support of his or her
application:
j i I subject to subsection
(8). a description of the-
(LICIJ nature and
location of the facilities from which. or the place
at
which. the
communication is to be intercepted. if known: and
ibh) type
of communication which is required to be intercepted; and
( i i ) the basis
for believing that evidence relating to the ground
on which the 3-51
application
is made will be obtained through the interception:
( P I if applicable.
indicate whether other investigative procedures have been
applied and
have failed to produce the required evidence or must indicate the
r a w n
wh!. other inI’estigative procedures reasonably appear to be unlikely to
wcceed if
applied or are likeljp to be too dangerous to apply in
order to obtain 30
the
required etidence: Provided that this paragraph does not apply to an
application
for the issuing of a direction in respect of the ground
referred to in
suhection (
5 ) ( ~ / ) ( i ) or (1.) if the-
( i I serious
offence has been or i < being or m i l l probably be
committed for the
benefit of. at the
direction of. or in association kvith. a person.
group of 35
persons or
syndicate invol\.ed in organised crime; or
is or could
probably be the proceeds of unlawful actitities:
( i i ) property is or could
probabl! be an instrumentality of a serious
offence or
indicate
the period for which the interception direction is required to be
isued: 3 0
indicatc.
ushether any pre\,ious application has been made for the issuing of an
interception
direction in respect of the same person or customer. facilit) or
piace
specified in the application and. if such
previous application exists. must
indicate
the current status of’that application; and
( 1 1 ) compl)
\\,ith any supplementar!, directives relating to
applications for 45
interception
directions issued under section 58.
( 3 ) An
application on a ground referred to in-
( a ) subsection
(5)(a)(i). must be made by an applicant referred to in paragraph
ibJ subsection
(5)(aJ(ii) or (iii). must be made by an
applicant referred to in 50
©
subsection (5)iu)(iv). must, in the case of-
( ( I ) . (dl or (j’) of the
definition of “applicant”:
paragraph ( b ) or © of the
definition of “applicant”:
i i ) the
investigation of a serious offence, be made by an applicant referred to
t i i ) the
gathering of information. be made by an applicant referred to in 55
in
paragraph ( n l or (dl of the
definition of “applicant”: and
paragraph © of the
definition of “applicant”; and
( d ) subsection
(5)(a)(v). must be made by an applicant referred to in paragraph ( e )
of the
definition of “applicant”:
34 Nn. 14186 GOVERNMENT
GAZETTE. 22 JANUARY 2003
Act Ivo. 70.2002 REGULATION
OF IKTERCEPTION OF COMMUNICATIONS *
.AND
PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002
Provided
that an applicant referred to in paragraph If) of the
definition of s’applicant”
may only
make an application on the ground referred to in subsection (5)(0)(i)--
( i ) if
the offence allegedly has been or is being or will be
committed by a member
(ii) i n respect
of a death in police custody or as a result
of police action. 5
of the Police
Service; or
(4) Kotwithstanding
section 2 or anything to the contrary in any other law contained.
a
designated judge may. upon an application
made to him or her in terms of subsection
( 1 ). issue an
interception direction.
( 5 ) An
interception direction may only be issued if the designated judge concerned
is
satisfied.
on the facts alleged in the application concerned. that- 10
(cr) there
reasonable grounds to believe that-
( i 1 a serious
offence has been or is being or will probably be committed:
i i i l the
gathering of information concerning a,n ;actual
threat to the public
health o r
safetl,. national security or conlpelling
national economic
interests of the
Republic is necessary: 15
( i i i J the
gathering of information concerning a potential threat t o the public
health or
safety or national security of the
Republic is necessary:
t i \ . ) the making
of a request for the provision. or the
projision to the
competent
authorities of a country or territory outside the
Republic. of
an\’
assistance in connection with. or in the fom1 of. the
interception of 70
communications
relating to organised crime or an!’ offence relating to
terrorism or the
gathering of information relating to organised crime or
terrorism.
is in-
i t r u 1 accordance
with an international mutual assistance agreement: o r
ibhi the interests of the
Republic’s international relations or obligations: 75
or
I \ the
gathering of information concerning property which is or could
probably be
an instrumentality of a serious offence or is or could
probabl!, be the
proceeds of unlawful activities is necessary:
i l l ) there are reasonable
grounds to believe that- 3 0
( i ) the
interception of particular communications concerning the relevant
ground
referred to in paragraph ( a ) will be
obtained by means of such an
interception
direction: and
i i i i subject 10 subsection (
6 ) . the facilities from which. or the place at which.
the
communications are to be intercepted are being used. or are about t o 35
be used. in
connection with the relevant ground referred to in paragraph
111 are
commonly used b!, the person or customer in respect of
whom the
application
for the issuing of an interception direction is made: and
ic.1 in respect
of the grounds referred to in paragraph i a i ( i )
. (iii). (iv) or ( \ ‘ ) . other
in\,estigative
procedures have been applied and have failed to produce the 30
required
evidence or reasonably appear to be unlikely to succeed
if applied or
are likel)
to be too dangerous to apply in order to obtain the required eyidence
and that the offence
therefore cannot adequatel! be investigated. or the
information
ther.:fore cannot adequately be obtained. in another appropriate
manner:
Pro\ Ided that this paragraph does not appl! to an application for the 45
issuing of
a direLtion in respect of the ground referred to in paragraph i a K i ) or
i \ ) if the-
i i ) serious off’ence
has been or is being or will probably be committed for the
benefit of.
at the direction of. or in association uith. a person.
group of
persons or
s!.ndicate invol\.ed in organised crime: or SO
( i i ) property is
or could probably be an instrumentality of a serious
offence or
is or could
probably be the proceeds of unlawful activities.
(6) An interception
direction-
( c t J must be in
writing:
( h i must
contain the information referred to in subsection (7,luXii) and (iii) and 55
© nap specify
conditions or restrictions relating to the interception of
(dl ma!’ be
issued for a period not exceeding three months at a time. and the
( 7 ) ( N ) .4n application
must be considered and an interception direction issued without
any notice
to the person or customer to whom the application applies and without
hearing
such person or customer.
idtci );
communications
authorised therein; and
period for
a,hich it has been issued must be specified therein.
60
1
36 No. 21286
GOVERNMENT GAZETTE. 72 JAN’C’ARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION
OF COMMUNICATIONS 0
AND PROVISION OF
COMMUNIC.4TION-RELATED INFORMATION ACT. 2002
(0) A designated
judge considering an application may require the applicant to furnish
such
further information as he or she deems necessary.
(8) The
requirements of subsections (2)(dJ(i)(aa) and
(5)(b)(ii) relating to the
description
of the facilities from which. or the place
at which, the communication is to
be
intercepted do not apply if, in the case of an application
for the issuing of an 5
interception
direction which authorises the interception of-
(a) a direct
communication-
(i) the
application contains full particulars of all the facts and circumstances
(ii) the
application indicates the identity of the person whose communication 10
(iii) the
designated judge is satisfied. on the facts alleged in the application.
as to why such
description is not practical;
is required
to be intercepted: and
that such
description is not practical: and
L. .
( b ) an
indirect communication. the- , .
( i ) application
indicates the identity of the custcher whose communication 15
is required
to be intercepted:
(ii) applicant
submits proof that there are, reasonable grounds to believe that
the actions
of the customer concerned could have the effect of preventing
interception
from a specified facility;
( i i i ) designated
judge is satisfied that sufficient proof has been submitted: and 20
(iv)
interception direction authorises the interception only for such time as it
is reasonable
to presume that the customer identified in the application is
or \vas
reasonably close to the instrument through which such
commu-
nication
will be or was transmitted.
(9) The
interception of a communication under an interception direction to which
the 25
requirements
of subsections (?)(d)(iHm/J and 15)(O)(ii) do
not apply by reason of
subsection (8)(ai may not
take place until the place at which the communication is to be
intercepted
is determined by the authorised person who executes the interception
direction
concerned or assists with the e\ecution thereof.
referred to
in subsection (S)ib) is addressed. may in writing apply to
a designated judge
for an
amendment or the cancellation of the interception direction concerned on
the
ground that
his or her- assistance uith respect to
the interception of the indirect
communication
cannot be performed in a timely or reasonable fashion.
must. as soon as possible
after receipt thereof-
(10)ia) A telecornmunication
service provider to whom an interception direction 30
( h ) A designated
judge to n.hom an application is made in terms of paragraph ( a ) 3S
(i) inform the
applicant concerned of that application: and
( i i )
consider and give a decision in respcct of
the application.
Application
for, and issuing of, real-time communication-related direction
17. ( 1 ‘I If no
interception direction has heen issued and only real-time communication- 40
related
information on an ongoing basis is required, an applicant may appl! to a
designated
judge for the issuing of a real-time
communication-related direction.
( 9 ) Subject to
section ?3( 1). an application referred to in subsection ( 1 ) must be in
writing and
must-
( a ) indicate
the identity of the-
(i) applicant;
35
(ii) customer. if known. in
respect of whom the real-time communication-
( i i i )
telecommunication service proyider to whom the real-time communica-
(11) specify the
ground referred to in subsection (4) on which the application is
made;
(cl contain
full particulars of all the facts and circumstances alleged by the
applicant
in support of his or her application:
( d l include-
55
( i ) a description
of the type of real-time communication-related information
that is
required; and
(ii) the basis
for believing that evidence relating to the ground on which the
application
is made will be obtained through the provision of the
real-time
communication-related information: 60
related
information is required: and
tion-related
direction must he addressed; SO
38 No. 71286 GOVERNMENT
GAZE7TE. 22 JANUARY 7003
Act KO. 70,2002 REGULATION
OF INTERCEPTION OF COMMUNICA7JONS * -
4ND PRO\’ISION
OF COMMUNICATION-RELATED INFORMATION ACT. 1002
indicate
whether the real-time communication-related information must be-
(i) routed
to a designated interception centre specified in
the application: or
(ii)
pro\,ided to the law enforcement
agency concerned;
indicate
the period for which. and the manner in which, the
real-time
communication-related
information is required to be provided; 5
indicate
whether any previous application has been made for the issuing of a
resl-time
communication-related direction in respect of the same customer or
real-time
communication-related infommtion specified in the application and.
if such previous
application exists, must indicate *-current status of that
application;
and 10
compl! with
an) supplementary directives relatins to applications for
real-time
communication-related directions issued under section 58.
(3)
Notujithstanding section 12 or anything to the contrary in any other law contained.
a designated
judge ma!. upon an application made t o him o’r>her
in terms of subsection
( 1 1. issue a
real-time communication-related direction. 15
( 3 ) .A real-time
commLlnication-related direction ma!’ onl!, be issued if it appears to
the
desiyated judse concerned. on the facts alleged in the application
concerned. that
there are
rea<onable grounds to believe that-
( ( 1 a serious
offence has been or is being or will probably be committed;
( / ? I the
gatherin: of information concerning an actual threat to the public health
or 30
safet!..
national security or compelling national economic interests of the
Republic is
necessary:
( c ) the
gathering of information concernins a potential threat to the public
health
or safety
or national securit), of the Republic is necessary;
( d l the making
of a request for the provision. or the provision
to the competent 35
authorities
of a country or territory outside the Republic.
of any assistance in
connection
with. or in the form of. the interception of communications
rrlating to
organised crime or an!’ offexe relating to terrorism
or the gathering
of information
relating to organised crime or terrorism. is in-
( i I accordancc
Lvith an international mutual assistance agreement; or 30
( i i ) the
interest\ ofthe Republic’s international relations or obligations; or
fc.1 the
gathering of information concerning property which is or could probably
be an
instrumentalit! of a serious offence or is or could probably be the
proceeds of
unlawful activities is necessar)’.
and that
the prwision of real-time communication-related information is necessary
for 35
purposes of
in\-esiigating such offence or gathering such information.
(5 .A real-time
comm~~nication-related direction-
( 0 1 must be in
writing:
t h J must
contain the information referred to in subsection (3’)(a)(ii) and (iii).
(d)(i)
( ( ‘ i ma! specif!
conditions or restrictions relating to the provision of real-time
( ( 1 ) ma! he iswed for a period not
exceeding three months at a time. and the
and ( e l : 30
communication-related
information authorised therein: and
period for
\vhich it has been issued must be specified
therein.
application
for, and the issuing of. a real-time
communication-related direction.
Combined
application for, and issuing of, interception
direction, real-time
communication-related
direction and archived communication-related direction
or interception
direction supplemented by real-time communication-related
direction 50
(6) Section
16(3) and ( 7 ) applies. with the necessary changes. in respect of an 45
18. ( 1 ) If tht-
i c r ) interceplion
of an indirect communication and the provision
of communica-
tion-related
information. whether real-time or archived or
both; or
pro:.ision of real-time
and archived communication-related information,
I
40 No. 71286
GOVERNMENT GAZETTE. 22 JANUARY 2003
Act No. 70.2002 REGUL.4TION OF
1NTERCEPTION OF COMMUNICATIONS * 0
AYD PROVISION OF
COMMUNICATION-RELATED INFORMA’ION ACT. 2002
are
required. an applicant may. subject to sections
16(2) and (3), 17(1) and (2) and 19(1)
and ( 2 ) . in a
combined application. apply to a designated judge for the simultaneous
issuing of
any combination of directions referred to in those sections.
( 2 ) ( a / If an
interception direction has been issued under section 16, the applicant who
made the
application in respect of the interception direction concerned or. if he or she is 5
not
available. any other applicant who would have been entitled to make that
application.
may. subject to section 17( 1) and (2). apply to a designated
judge for the
issuing of
a real-time communication-related direction to supplement that interception
direction.
(hi An application
referred to in paragraph ( a ) must- \. .
I O
(i 1 contain an
affidavit setting forth the results obtained from the interception
direction
concerned from the date of its issuance up to the date on which that
application
is made. or a reasonable explanation of the failure to
obtain such
results: *.
( i i )
contain proof that an interception direction has been issued: and 15
( i i i ) he made at
any stage after the issuing of the
interception direction concerned.
but before
the expiry of the period or extended period for which i t has been
issued.
( 3 ) Notwithstanding
sections 2 and 11. or anything to the contrary in any
other law
contamed. a
designated judge may. upon an application made to him or her in
terms of- 20
( ( I J subsection ( I ) and
subject to sections 16(5). ( 6 ) and (7). 17(4). ( 5 ) and (6) and
l9(4). ( 5
) and ( 6 ) . issue the combination of directions applied for: or
( h i subsection
( 2 ) and subject to section 17(4). ( 5 ) and (6).
issue a real-time
communication-related
direction to supplement that interception direction:
Provided
that a real-time communication-related direction
issued under this 25
paragraph expires
whcn the period or extended period for which the
interception
direction concerned has been issued. lapses.
I
( 4 , SotLvithstanding
section 191 1 ). ( 3 ) and (4)-
( ( I J an
application in terms of subsection ( 1 ) for the
issuing of an archived
(/IJ onI! a desipated
judge ma)’ issue an archived communication-related
communicarion-related
direction may only be made to a designated judge; and 30
direction
under subsection (3)fu).
Application
for, and issuing of. archived communication-related direction
19. ( 1 ) If only
archived communication-related information is required. an applicant
ma! apply
to a judge of a High Court.
a regional court magistrate or a magistrate for the 35
issuing of
an archi\.ed communication-related direction.
( 2 ) .4n
application referred to in subsection ( I ) must be in
writing and must-
( ( 1 ) contain.
with the necessary changes. the information referred to in section
0 1 ) comply
q.ith an)’ supplementar!, directives relating to applications
for 30
l ? C ) : and
archived
communication-related directions issued under section 5 8 .
( 3 ) Notwithstanding
section 12 or anything to the contrary in any other lau contained.
a judge of a High
Court. a regional court magistrate or a magistrate
may. upon an
application
made to him or her in terms of subsection ( 1 ). issue an
archived
communication-related
45
(4) . i n
archived communication-related direction may only be issued if it appears to
the judge
of a High Court. regional court magistrate or magistrate concerned. on the
facts
alleged in
the application concerned. that there are reasonable grounds to believe
that-
( ( 1 1 a serious
ofTence has been or is being or will probably be committed:
( 1 1 ) the
gathering of information concerning an actual threat to the public health
or 50
safety.
national security or compelling national economic interests of the
Republic is
necessan:
( ( ‘ 1 the
gathering of information concerning a potential threat to the public
health
or safety
or national securit!, of the Republic is necessary:
32 No. ‘1286
GOVERNMENT GAZETTE. 22 JANUARY 2003
AND PROVISION OF
COMMUNICATION-RELATED INFORM~ION ACT. 2002
t.
Act No. 70.2002 REGULATIOR OF INTERCEPTION
OF COMMUNICATIONS *
( d l the making
of a request for the provision, or the provision to the competent
authorities
of a country or territory outside the Republic, of any
assistance in
connection
with. ‘or in the form of. the interception of communications
relatin: to
organised crime or any offence relating to terrorism or
the gathering
of
information relating to organised crime or terrorism, is in- 5
( i ) accordance
with an international mutual assistance agreement: or
(ii) the
interests of the Republic’s international relations or obligations; or
( P ) the
gathering of information concerning property which is or could probably
be an
instrumentality of a serious offence or is o j o u
l d probably be the
proceeds of
unlawful activities is necessary.
and that
the pro\,ision of archived communication-related information is necessary
for
purposes o f investigating
such offence or gathering such information.
10
( 5 i An archived
communication-related direction- ,, ,
( a i must he in
Lvriting: I
f b ) must
contain the information referred to in section 17(2)(a)(ii) and (iii). (d)(i) 15
f c l must state
the period within lvhich the archived communication-related
/ d l may
specif!, conditions or restrictions relating to the provision of archived
(6) Section
16(3) and ( 7 ) applies, with the necessary changes. in respect of an
application
for. and the issuing of. an archived communication-related direction.
( 7 ) If a
judge of a High Court. regional court magistrate or magistrate
issues an
archive
communication-related direction. he or she must, as soon as practicable
thereafter.
submit a copy of the application and archived communication-related 25
direction
concerned to a designated judge.
( 8 ) A designated
judge must keep all copies of applications
and archived
cornmunicarion-relaIed
directions submitted to him or her in terms of subsection (7), or
cause it to be kept.
for a period of at least five years.
and ( e ) :
information
must be routed or provided: and
communication-related
information authorised therein. 70
.4mendment or extension
of existing direction 30
20. 1 I The
applicant who macle the application in respect of an existing direction or,
if he or
she is not a\.ailahle. any other applicant who would have
been entitled to make
that
application. ma!.. at any stage after the issuing of the existing direction
concerned.
but before the
expiry of the period for which it has been
issued. apply to a designated
judge for
an amendment thereof or the extension of the period for which it has been 35
issued.
( 2 ) .4n application
referred to in subsection ( 1 I must be in
writing and must-
(rr) contain
full particulars of the reasons and circumstances alleged by the
applicant
in support of his or her application;
r h l in the case
of an application for the- 40
( i ) amendment
of an existing direction, indicate the amendment which is
( i i ) extension
of the period for which an existing direction has been issued,
( c / contain an
affidavit setting forth the results obtained from the direction 45
concerned
from the date of its issuance up to the date on which that
application
is made. or a reasonable explanation of the failure to obtain such
results:
and
( d J comply with
any supplementan directives relating to applications for the
amendment
or extension of directions issued under section 58. 50
(3) .4 designated
judge may. upon an application made to him or her in
terms of
required:
or
indicate
the period for which the extension is required;
subsection (1 )-
( a ) amend an
existing direction: or
( D ) extend
the period for which an existing direction has been issued.
(4) An
existing direction may only be amended or the period for which it has been 55
issued may
only be extended if the designated judge concerned is satisfied, on the
facts
alleged in
the application concerned, that the amendment or extension is necessary for
purposes of
achieving the objectives of the direction concerned: Provided that the
period
51 No. 24286
GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No.
70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0
AND PROVISION OF COMhZUNICATlOK-RELATED
INFORMATION ACT. 2002
for which an existing
direction has been issued may only be extended for a further period
not
exceeding three months at a time.
(5) Any
amendment of an existing direction or extension
of the period for which it has | 
