Regulation of Interception of Communications and Provision of Communication-related Information Act

Link to law: http://www.gov.za/documents/regulation-interception-communications-and-provision-communication-related-information--13
Published: 2003-01-22

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Regulation of Interception of Communications and Provision of Communication-related information Act [No. 70 of 2002]


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.


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 insquare b ackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
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( O g 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 communica- tion-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 information 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 entry warrant 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.
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Interception capability of telecommunication services and storing of commu- nication-related information Compensation payable to postal senice provider. telecommunication service 5 proyider and decryption key holder
CHAPTER 6 -.
INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES AND INTERNET SERVICE PROVIDERS ASSISTa4NCE FUND , .
!
32. Establishment of interception centres 2 3 . Establishment of Office for Interception Centres 34. Director and staff of Office - 3 3 . Po\\ ers. functions and duties of Director 36. Head and staff' of interception centres 37. Keeping of records b> heads o f interception centres and submission of reports
38. Establishment and control of Internet Service Providers Assistance Fund
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7 -
to Director
1 0
15
CHAPTER 7
DL'TIES OF TELECOAIRIUNICATION SERVICE PROVIDER AND CUSTOMER 20
30.
10. 41.
42. 43.
44. 15. 16.
17. 48. 39. 50.
51. 5'. 53.
54. 55.
56. 57.
Information t o be obtained and kept by certain telecommunication sewice pro\ iders Information t o br: obtained and kept in respect of cellular phone and SIM-card Loss. thefr or destruction of cellular phone or SIM-card to be reported
CHAPTER 8 15
GEXERAL PROHIBITIONS .4ND EBERIPTIONS
Prohibition on disclosure of information Disclosure of information by authorised person for performance of official duties Listed equipment 30 Prohibition on manufacture. possession and advertising of listed equipment Exemptions
CHAPTER 9
CRI3IINAL PROCEEDINGS, OFFENCES AND PENALTIES
Use of information in criminal proceedi gs 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 and penalties 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. Short itle and commencement
Act 204 of 1993
Schedule > .
CHAPTER 1
INTRODUCTORY PROVISIONS
Definitions and interpretation
1. (1 ) In this Act. unless the context othenvise indicates- "Agency" means the Agency as defined in section 1 of the Intelligence Services Act: "applicant" means-
an officer referred to in section 33 of the South African Police Service Act. if the officer concerned obtained in Lvriting the approval in advance of another officer in the Police Service with at least the rank of assistant-commissioner and who has been authorised in Lvriting by the National Commissioner to grant such approval: an officer as defined in section 1 of the Defence Act. if the officer concerned obtained in v.riting the approval in advance of another officer in the Defence Force with at least the rank of major-general and who has been authorised in writing by the Chief of the Defence Force to grant such approval: a member as defined in section 1 of the Intelligence Services Act, if the member concerned obtained in writing the approval in advance of another member of the A2enc!, or the Senice. as the case may be, holding a post of at least general manager: the head of the Directorate or an Investigating Director authorised thereto in a.riting by the head of the Directorate: a member of a component referred to in paragraph ( e ) of the definition of "law enforcement agent!.". authorised thereto in writing by the National Director: or a member of the Independent Complaints Directorate, if the member concerned obtained in N.riting the approval in advance of the Executive Director:
"archived communication-related direction" means a direction issued under section 1 S( 3 ) ( a ) or 19( 3) in terms of which a telecommunication service provider is directed to protzide archived communication-related information in respect of a customer; "archi\sed communication-related information" means any communication-related information in the possession of a telecommunication service provider and which is being stored by that telecommunication service provider in terms of section 30( I)(!,) for the period determined in a directive referred to in section 30(2)(a). beginning on the first day immediately following the expiration of a period of 90 days after the date of the transmission of the indirect communication to which that communication-related information relates: "authorised person" means any- ( a ) law enforcement officer who may. in terms of section 26(l)(a)(i). execute a
(bl law enforcement officer or other person who may, in terms of section direction: or
26(l)(a)(iij. assist with the execution of a direction;
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I O No. 24286 GOVERNMENT GAZETTE, 12 JANUARY 7003 0
Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * .4ND PROVISION OF COMMUNICATION-RELATED INFORMXTION ACT. 2002
"Authority" means the Independent Communications Authority of South Africa established by section 3 of the Independent Communications Authority of South Africa Act. 2000 (Act.No. 13 of 2000); "business" means any business activity conducted by any person. including acti\.ities of any private or public body; "cellular phone" means any fixed or mobile cellular apparatus or terminal which is capable of connection to a cellular telecommunication system and which is used by a customer to transmit or receive indirect communications over such telecommu- nication system: 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 prh ided 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 N o . 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- ( ( 1 1 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 f h , 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 the age 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 o similar process was applied to it; 60 “intercept” means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person
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14 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003 u
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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 es tahshed 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: (c) the Agency or the Service: rdi the Directorate: or ( e l any component of the prosecuting authority, designated by the National
Director to specialise in the application of Chapter 6 of the Preventior? of Organised Crime .4ct:
cation: and
other destination.
not better than normal,
“law enforcement officer” means an! member of- ( a ) the Police Service; (0) the Defence Force, excluding a member of a visiting force; (c, the Agency or the Service: tdi the Directorate; or ( e l any component referred to in paragraph ( e ) of the definition of “law
“listed equipment” means any equipment declared to be listed equipment under section 34( l)(a). and includes any component of such equipment; “Minister“ means the Cabinet member responsible for the administration of justice, except in Chapter 6 where it means the Cabinet member responsible for intelligence services; “monitor” includes to listen to or record communications by means of a monitoring device. and “monitoring” has a corresponding meaning; “monitoring device” means any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself 01 in combination with any other instrument, device, equipment or apparatus, to listen
enforcement agency”;
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to or record any communication:
16 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS .bo AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002
“National Commissioner” means the National Commissioner referred to in section 6( 1) of the South African Police Service Act; “National Director” means the National Director of Public Prosecutions contem- plated in section 179(1)(a) of the Constitution; “National Prosecuting Authority Act” means the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); “Office” means the Office for Interception Centres established by section 33; “oral direction” means any direction issued under section 23(7); “oral entry warrant” means an entry warrant issued un*p section 23(7); “party to the communication”, for purposes of- ( a ) section 4. means, in the case of-
(i) a direct communication. any person- (aal participating in such direct communication or to whom such direct
communication is directed; or (bb) in whose immediate presence such direct communication occurs
and is audible to the person concerned. regardless of whether or not the direct communication is specifically directed to him or her; or
(ii) an indirect communication- laai the sender or the recipient or intended recipient of such indirect
communication: (bb) if it is intended by the sender of an indirect communication that such
indirect communication be received by more than one person, any of those recipients: or
(cc) any other person who, at the time of the occurrence of the indirect communication, is in the immediate presence of the sender or the recipient or intended recipient of that indirect communication; and
(i) a direct communication, any person participating in such direct
(ii) an indirect communication-
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(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 (c) any juristic person, but excludes a public body; “prosecuting authority” means the national prosecuting authority established by section 179 of the Constitution; “public body” means any- (a) department of state or administration in the national or provincial sphere of
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;
( i i ) acting in the xecution 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;
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(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
( i i i ) juristic person. the- (aa) chief executive officer or equivalent officer of the juristic person or
(bhi person who is acting as such or any person duly authorised by such any person duly authorised by that officer; or
acting person; and Ih) a public body. means, in the case of-
(i) a national department, provincial administration or organisational component-
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20 KO. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIQTIONS a
\%
AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. ?M)2
1 aa
(hh
mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act, 1993 (Proclamation No. 103 of 1994), the officer who is the incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule 1 or 3 opposite the name of the relevant national department. provincial administration or organisational .5 component or the person who is acting as such; or not so mentioned. the Director-General, head, executive director or equivalent officer, respectively, of that national department, provin- cial administration or organisational companent, respectively, or the person who is acting as such; 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
( i i i ) any other public body. the chief executive offiier, o equivalent officer, of that public body or thepe son who is acting as uch: 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
( i i ) 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 provider: 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
( i i ) 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 i t 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
(c) the interception of such direct or indirect communication is necessary on a
unless such communication is intercepted by such law enforcement officer for purposes of committing an offence.
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24 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * AND PROVISION OF COMMUNICATION-RELATED INFORM4TION ACT, 2002
Interception of indirect communication in connection with carrying on f 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 (c) which otherwise takes place in the course of the carrying on of that business,
( 2 ) A person may only intercept an indirect communica th 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 aconfidential 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.
that telecommunication system; or
the effective operation of the system; or
Interception of communication to prevent serious bodily harm
7. (1) Any lam. enforcement officer may, if- ( a ) he or she is satisfied that there are reasonable grounds to believe that a party
to the communication has- (i) caused, or may cause. the infliction of serious bodily harm to another
(ii) threatens, or has threatened, to cause the infliction of serious bodily harm
(iii) threatens. or has threatened, to take his or her own life or to perform an
person;
to another person: or
act which would or may endanger his or her own life or would or may cause the infliction of serious bodily harm to himself or herself;
he or she is of the opinion that because of the urgency of the need to intercept the communication, it is not reasonably practicable to make an application in terms of section 16(1) or 13jl) for the issuing of an interception direction or an oral interception direction; and the sole purpose of the interception is to prevent such bodily harm, any communication or may orally request a telecommunication service
provider to route duplicate signals of indirect communications specified in that request to the interception centre designated therein.
(2) A telecommunication service provider must, upon receipt of a request made to him or her in terms of subsection ( I ) , route the duplicate signals of the indirect communications concerned to the designated interception centre.
(3) The law enforcement officer who made a request under subsection (1) must as soon as practicable after malung that request, furnish the telecommunication service provider concerned with a written confirmation of the request which sets out the
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26 No. 21286 GOVERNMENT GAZETTE, 22 JANUARY 2003
Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS Q C AND PROVISION OF COMMUNICATION-RELATED INFORM~TION ,413.2002
information given by that law enforcement officer to that telecommunication service proiider in connection with the request.
( 3 ) The law enforcement officer who intercepts a communication under subsection ( 1 ) or (2) must. as soon as practicable after the interception of the communication concerned. submit to a designated judge-
( a ) a copy of the written confirmation referred to in subsection ( 3 ) ; (b) an affidavit setting forth the results and information obtained from that
interception: and (c.1 any recording of the communication that has been &gained by means of that
interception. any full or partial transcript of the recording and any notes made by that law enforcement officer of the communication if nothing in the communication suggests that bodily harm. attempted bodily harm or threatened bodily harm has been caused or is IikLy to be caused.
( 5 1 A telecommunication service provider who. in terms isf subsection ( 2 ) . has routed duplicate signals of indirect comn~unications to the designated interception centre must, as soon as practicable thereafter. submit an affidavii to a designated judge setting forth the steps taken b\, that telecommunication service provider in giving effect to the request concerned and the results obtained from such steps.
( 6 ) A designated judge must keep all written confirmations and affidavits and any recordings. transcripts or notes submitted to him or her in terms of subsections (4) and (5). or cause it to be kept. for a period of at least five years.
Interception of communication for purposes of determining location in case of emergency
8. ( 1 ) I n circumstances where- ( a ) a person is a party to a communication: / h i that person. as a result of information received from another party to the
communication (in this section referred to as the “sender”), has reasonable grounds to believe that an emergency exists by reason of the fact that the life o f another person. whether or not the sender. is being endangered or that he or she is dying or is being or has been seriously injured or that his or her life is likely to be endangered or that he or she is likely to die or to be seriously injured: and
( ( ‘ 1 the location of the sender is unknown to that person,
( i ) ;I Iau enforcement officer. and if he or she is of the opinion that determining the location of the sender is likely to be of assistance in dealing with the emergency. orally request. or cause another law enforcement officer to orally request. the telecommunication service provider concerned to- f u u ) intercept any Communication to or from the sender for purposes of
ihb) determine the location of the sender in any other manner which the
( i i ) not a lair. enforcement officer. inform, or cause another person to inform, any lau- enforcement officer of the matters referred to in paragraphs (u) , (b) and i c i .
( 3 ) A laq, enforcement officer who has been informed as contemplated in subsection ( 1 )iii ), may. if he or she is of the opinion that determining the location of the sender is likely to be of assistance in dealing with the emergency, orally request, or cause another lav enforcement officer to orally request, the telecommunication service provider concerned to act as contemplated in subsection ( 1 )(i)(au) or (bb).
( 3 ) A telecommunication service provider must. upon receipt of a request made to him or her in ternis of subsection ( I )(i) or (2)-
( a ) intercept any communication to or from the sender for purposes of
(01 determine the location of the sender in any other manner which the
and if the location of the sender has been so determined, the telecommunication service provider concerned must. as soon as practicable after determining that location, provide the law enforcement officer who made the request with the location of the sender and
the person referred to in paragraph f a ) may, if he or she is-
determining his or her location: or
telecommunication service provider deems appropriate; or
determining his or her location: or
telecommunication service provider deems appropriate,
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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
(c j if the location of the sender and any other information has been provided to him or her i n terms of subsection ( 3 ) . as soon aspxs ib le 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 y h o has taken any of the steps contemplated in subsection ( 3 ) . must. as soon as practicable thereafter, submit to a designated judge-
(a i 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 (c) and ( 5 ) . or cause i t to be kept. for a period of at least five years.
Interception of communications authorised by certain other Acts
9. ( I ) Any communication may. in the course of its occurrence or transmission. be intercepted in an!' prison as defined in section 1 of the Correctional Services Act, 1998 (Act No. 11 1 of 1998 ). if such interception takes place in the exercise of any power conferred by or under. and in accordance with. any regulations made under that Act.
( 2 ) If any regulations referred to in subsection (1 )-- (a) were made prior to the fixed date. the Cabinet member responsible for
correctional services must within one month after the fixed date, if Parliament is then in ordinary session. or. if Parliament is not then in ordinary session. within one month after the commencement of its next ensuing ordinary session. submit a copy of those regulations to Parliament: or
lh) are made after the fixed date. the Cabinet member responsible for correctional services must. before the publication thereof in the Gazette, submit those regulations to Parliament.
Monitoring of signal for purposes of installation or maintenance of equipment, facilities or devices
10. Any person who is lawfully engaged in duties relating to the- (a ) installation or connection of any equipment, facility or device used, or
( h ) operation or maintenance of a telecommunication system; or I C ) installation. connection or maintenance of any interception device used, or
intended to be used. for the interception of a communication under an interception direction.
intended to be used. in connection u,ith a telecommunication service;
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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 o f 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 information 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 n 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- ( L I C I J 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 i n 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 o f 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
(c) subsection (5) iu) ( iv) . must, in the case of-
( ( I ) . (dl or (j') of the definition of "applicant":
paragraph ( b ) or (c ) 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 (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":
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
( i i ) 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 lleged in the application concerned. that- 10
( c r ) 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 t 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
i c . 1 in respect of the grounds referred to in paragraph i a i ( i ) . ( i i i ) . ( 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 ( i i i ) and 55
(c) 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 bespecified 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
( i i ) 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: ( i i ) 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 u i th 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
( i i ) customer. i f 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;
(c l 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 ( i i ) 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 communic tion-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 com unication-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