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

32. Establishment of interception centres 2 3 . Establishment of Office for Interception Centres

34. Director and staff of Office 7 - - 3 3 . Po\\ ers. functions and duties of Director 5 1 0

36. Head and staff' of interception centres

37. Keeping of records b> heads o f interception centres and submission of reports 15 to Director

38. Establishment and control of Internet Service Providers Assistance Fund CHAPTER 7 DL'TIES OF TELECOAIRIUNICATION SERVICE PROVIDER AND CUSTOMER 20 30. 10. 41. Information t o be obtained and kept 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 by certain telecommunication sewice CHAPTER 8 GEXERAL PROHIBITIONS .4ND EBERIPTIONS 42. 43. 44. 15. 16. Prohibition on disclosure of information Disclosure of information by authorised person for performance of official duties Listed Prohibition on manufacture. possession and advertising of listed equipment Exemptions CHAPTER 9 CRI3IINAL PROCEEDINGS, OFFENCES AND PENALTIES 15 30 17. 48. 39. 50. 51. 5'. 53. 54. 55. 56. 57. 35 Use of information in criminal proceedings Proof of certain facts by certifcate Unlawful interception of communication Unlan-ful pro\.ision of real-time or archived communication-related infoma- tlon Offences 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 40 equipment penalties and 8 No. 21286 GAZETTE, GOVERNMENT 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 Supplementary directives regarding applications 58.

33. There is hereb!, established an office to be known as the Office for Interception 35 Centres. Director and staff of Office 31. ( I ) The Minister and the reh’ant Ministers must. from among their respective Departments. second a member or an officer to the Office as the Director: Office for who Interception Centres. head will be the Office. of the 40 ( 2 ) The Director may exercise the powers and must perform the functions and carry out the duties conferred upon. assigned to or imposed upon him or her by the Minister or under this Act. subject to the control and directions of the Minister. ( 3 ) Whenever the Director is for any reason unable to exercise, perform and carry out his or her powers. functions and duties officer as Director is pending. the hlinister and the relevant Ministers may. from among their respective Departments. designate a member or an officer to the Office as Acting Director. to exercise the powers. perform the functions and cany out the duties of the Director. or when the secondment of a member or an 45 (4) The Director will in the exercise of the powers, performance of the functions and 50 carrying out of the duties conferred upon. assigned to or imposed upon Minister or under this Act, be assisted. subject to his or her control and directions, by- ( ( I ) members of the law enforcement agencies. seconded or designated to the him or her by the Office for that purpose by the- 66 KO. 21286 GOVERNMENT GAZETTE, 22 JANUARY 1003 .Act KO. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS 0 AND PROVISION OF COM~~UNICATIO~-RELATED INFORMATION ACT. 2002 (i) National Commissioner; ( i i ) Secretary for Defence; (iii) Director-General: National Intelligence Agency; (iv) Director-General: South African Secret Service; (1.) National Director: and fhi officers of any other Department of State seconded particular service. and to the Office. for a ( 5 1 A member or an officer may only be seconded or designated as contemplated in section this 36- and in terms of the laws regulating such secondment; section I N ) tbi Lsith his or her consent: and r c ) after a security clearance has been issued 'i. . by the Agency in respect of that member or officer. - 1 Powers. functions and duties of Director 35. ( 1 ) In order to achie1.e tht. objects of this Act: the Director- must carr!' out the administrative Office: duties relating to the functioning of the { h l must exercise control over heads of interception centres and staff of the Office: i c / must manage, and exercise administratiye conrrol over, interception centres: i d , must regulate the procedure and determine the manner of'this Act must be carried out by interception centres: f c l must co-ordinate the activities of interception centres: f,f) must prescribe the information to be kept b!- the head of an interception centre in which the provisions in terms of section 37. \vhich must include particulars relating to- ( i ) applications for the issuing of directions and the directions issued upon such applications w,hich is relelmt to the interception centre of m,hich he or she is the head: and the results obtained from every direction executed at that interception centre; t i i ) ig) must prescribe the manner in. and the period for. which such information must 1 / 7 1 be kept; and is. for purposes of the exercise of the p v e r s . performance of the functions and carrying out of the duties conferred upon. assigned to or imposed upon him or her by the Minister or under this Act. accountable to the Minister. ( 2 ) A member or an officer seconded or designated in terms of section 34(4) may exercise the power5 and must perform the functions and carry out the duties conferred upon. assigned to or imposed upon him or her by the Director. subject to the control and directions of the Director. ( 3 I The law enforcement agencies and other Departments of State must render such assistance as ma\ be reasonabl! required in the exrr2ise of the powers. performance of the functions and carrying out of the duties conferred upon. assigned to or imposed upon the Director by the Minister or under this Act. Head and staff of interception centres 36. ( 1 The Minister must in respect of ever?. interception centre to be established by section 32( 1)fa). request the persons referred to in section 34(4)(n)(i) to (v) to second a member or an officer to such interception from among their respective Departments centre as head of the interception centre in ternls of the laws regulating such secondment. ( 2 ) The head of an interception centre may exercise the powers and must perform the functions and carry out the duties conferred upon, assigned to or imposed upon him or the Director or under this Act, subject to the control and directions of the Director. her b!- ( 3 ) Whenever the head of an interception centre is for any reason unable to exercise, perform and carry out his or her powers, functions and duties or when the secondment of a member or an officer as head of an interception centre is pending. the Minister may 68 2003 JANUARY 22 So. 21286 GAZETTE. GOVERNMENT Act No. 70.2002 - REGULATION OF IXTERCEPTION OF COMMUNICATIONS * .4ND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT, 2002 request the persons referred to in section 34(4)(a)(i) to (v), to designate, from among their respective Departments, a member or an officer to that interception centre as acting head of the interception centre concerned, to exercise the powers. perform the functions and carry out the duties of the head of that interception centre. (4) The head of an interception centre will in the exercise of the powers, performance of the functions and carrying out of the duties conferred upon. assigned to or imposed upon him or her by the Director or under this Act. be assisted, subject to his or her control and directions, by- 5 fcrl members of the law enforcement agencies. seconded- or designated to the by the persons referred to in interception centre concerned for that purpose section 34(4)(aJ(i) to (v); and f h ) officers of any other Department of State seconded to the Office, for a particular service. ( 5 ) A member or an officer seconded or designated in < e h s of subsection (4) may exercise the powers and must perform the functions and carr! out the duties conferred by the Director or the head of the upon. assigned to or imposed upon him or her interception centre concerned. subject to the control and directions of the head of the interception centre concerned. ( 6 ) In order to achieve the objects of this Act. the head of' an interception centre must exercise control over members and officers seconded or designated to the interception centre in terms of subsection (4'1. Keeping of records by heads of interception centres and submission of reports to Director 10 15 20 37. ( 1 1 The head of an interception centre must keep or cause to be kept proper records of such information as may be prescribed by the Director in terma of section 3 j( 1 )(f,. 25 ( 2 ) f o J The head of an interception centre must on a quarterly basis. or as often as the Director requires. submit a Lvritten report to the Director on- ( i ) the records kept by hitn or her in terms of subsection ( 1 ): ( i i 1 an!- abuses in connection w,ith the execution of directions which he or she is aivare of: 30 (iii) any defects in any telecommunication system or in the operation of the interception centre which have been discovered: and t i \ . ) such activities at the interception centre or on any other matter relating to this Act uhich the Director requests the head of the interception centre to deal with in such report. 35 f h , Notw-ithstanding paragraph ( a ) . a head of an interception centre may at any stage submit a report to the Director on an) matter which. concerned. should urgently be brought to the attention of the Director. in the opinion of the head ( 3 ) The Director must. upon receipt of a report contemplated in subsection (?)(a), submit a cop!. of that report to the Minister and the Chairperson of the Joint Standing Committee on Intelligence established b!. section 2 of the Intelligence Services Control ,4ct. 1993 (.Act No. 40 of 1993). 40 Establishment and control of Internet Service Providers Assistance Fund 38. ( I ) There is hereby established a fund to be knonm as the Internet Service Proliders .4ssistance Fund. ( 2 J The Fund will be credited with- f a ) the contributions referred to in section 46( ])(/I): ( h i interest derived from the investment of money in the Fund: and money accruing to the Fund from any other source. ( 3 , The money in the Fund must be utilised for- ( ( I ) acquiring, whether by purchasing or leasing, facilities and devices for purposes of section 46(7)(b); and ( b l the expenses involved in the control and management of the Fund. ( 3 ) The Director is the accounting officer of the Fund in terms of the Public Finance Management Act. 1999 (Act No. 1 of 1999). (5) The Fund is. subject to the directions of the Minister, in consultation with the relevant Ministers. under the control and management of the Director, who- 45 50 55 70 GOVERNMENT 50. 21286 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNIC@lONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002 2003 JANUARY GAZETTE. 22 r. * f a ) must utilise the money in the Fund in accordance with subsection ( 3 ) : (11) will be charged with the responsibility of accounting for money received in, and payments made from, the Fund; and ( r ' ) must cause the necessary accounting and other related records to be kept. ( 6 ) The Minister. in consultation with the relevant Ministers. must make recommen- 5 dations to the Director relating to the utilisation contemplated in subsection ( 3 ) f a ) . of the money in the Fund as 17) Any money in the Fund which is not required for immediate use must be invested by the Director with a banking institution approved by the Mirfister. in consultation with the Cabinet member responsible for national financial matters, and may be withdrawn u.hen required. ( 8 ) An!, unexpended balance of the money in the Fund at the end of any financial year must be carried forward as a credit in the Fund to the nex: fipncial year. ( 9 ) The Fund and the records referred to in subsection ( 5 ) ( c ) must be audited by the Auditor-General. CHAPTER 7 ' DUTIES OF TELECOMMUNICATION SERVICE PROVIDER AND CUSTOMER Information to providers be obtained and kept b!- certain telecommunication service 39. (1 1 Before a telecommunication service provider. other than a telecommunication senrice provider who provides a mobile cellular telecommunication service. enters into a contract with any person for the provision of a telecommunication service to that person. he or she- I N ) must. if that person is a natural person- ii) obtain from him or her- I O U ) his or her full names, identity number. residential postal address. whichever is applicable: and and business or f h h ) a certified photocopy of his or her identification document on u,hich his or her photo. applicable. appear: full names and identit) number, whichever is iii) retain the photocopy obtained i i i i ) verify the photo. full names and identity number, whiche\,er applicable. of that person with reference to his document: or in terms of subparagraph (i)(bh): and is or her identification (11) must. if that person is a juristic person- ii) obtain from the person representing that juristic person- I O 15 10 3 30 3s ( m i his or her full names. identity number. address. whichever is applicable: residential and postal (hb) the business name and address and. if registered as such in terms of 40 an)' law, the registration number of that juristic person; (cc-1 a certified photocopy of his or her identification document on which is and identity number. whichever his or her photo. full names applicable. appear: and (dd) a certified photocop), of the business letterhead of. or other similar document relating to. that juristic person: 45 (ii) retain the photocopies obtained in terms of subparagraph (i)(cc) and (dd): and (iii) verify the- ( a l l ) photo. full names and identity number. whichever is applicable, of that person with reference to his or her identification document: and (bh] name and registration number of that juristic person with reference 50 to its business letterhead or other similar document: and icj may obtain from such person any other information which the telecommuni- cation service provider deems necessary for purposes of this Act. ( 2 ) A telecommunication service provider referred to in subsection (1) must ensure 55 that proper records are kept of- - 72 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 1003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIC&rIONS \B AND PROVISION OF C0:MMUNICATION-RELATED INFORMATION ACT. 2002 ( a ) the information. including the photocopies. referred to in subsection (1) and, where applicable, any change in such information which is brought to his or her attention; (hl the telephone number or any other number allocated to the person concerned; and 5 ( c ) any other information in respect of the person concerned which the telecommunication service provider concerned may require in order to enable him or her to identify that person. ( 3 ) An applicant may. for purposes of making an applicahn for the issuing of direction. in writing request subsection ( I ) to- 3 telecommunication service provider referred a to in 10 (ul confirm that the person specified in the request is a customer of that telecommunication service provider concerned: *.,* * / h i provide the applicant with the telephone number or any other number and allocated to that person by that telecommunication service provider: 15 ( c ) furnish the applicant with a photocopy ofdhe identification document of that person which is retained by that telecommunication service provider in terms of subsection ( 1 )(aJ(ii). (1) .A telecommunication senice provider who receives a request referred to in subsection ( 3 ) must immediately comply with that request if the person specified in the 20 request is a customer of the telecommunication service provider concerned. Information to he obtained and kept in respect of cellular phone and SIM-card 40. ( 1 ) Before any person s e l k or in any other manner provides, any cellular phone or SIhl-card to any other person, he or she- ( ( 1 J must, if the receiver of that cellular phone or SIM-card is a natural person- 25 ( i ) obtain from him or her- lual his or her full names, identity number. residential and business or postal address. whichever is applicable; and ( h h ) a certified photocopy of his or her identification document on which his or her photo, applicable. appear; full names and identity number, whichever ( i i ) retain the photocopy obtained (iii) verify the photo, full names and identity number. whichever in terms of subparagraph (i)(bh); and is 30 is applicable, of th,at person with reference to his or her identification document: or 35 ( h 1 must. if the receiver of that cellular phone or SIM-card is a juristic person- ( i ) obtain from the person representing that juristic person- ( a n ) his or her full names. identity number, residential and postal address. whichever is applicable: (bb) the business name and address and, if registered as such in terms of 40 any law. the registration number of that juristic person: (cc) a certified photocopy of his or her identification document on which is full names and identity number. whichever his or her photo. applicable, appear: and (dd) a certified photocopy of the business letterhead of. or other similar 45 document relating to. that juristic person: (ii) retain the photocopies obtained in terms of subparagraph (i)(cc) and (dd): and (iii) verify the- (aa) photo, full names and identity number. whichever is applicable. of 50 that person with reference to his or her identification document; and ( b h ) name and registration number of that juristic person with reference to its busines letterhead or other similar document; and (c) may obtain from the r'xeiver of that cellular phone or SIM-card any other 71 So. 21286 GOVERNMENT GAZETTE. 22 JANUARY 2003 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS w AND PROVISION OF COhlMUNICATION-RELATED INFORMATlON ACT. 1002 information which the person who sells or in any other manner provides the cellular phone or SIM-card deems necessary for purposes of this Act. (2) A person referred to in subsection ( 1 ) must ensure that proper records are kept of- ( a ) the information. including the photocopies, referred to in subsection ( 1 ) and. where applicable. any change in such information which is brought to his or her attention: 5 ( b ) the cellular telephone number or any other number allocated to the other person; i c ) the number of the cellular phone concerned: and Id) any other informati011 in respect of the other person which the person q. . 1 0 concerned m q S require in order to enable him or her to identify that other person. ( 3 ) Section 39(3) and (4) applies, with the necessary chaqes. in respect of any person a,ho sold. or in any other manner provided. a cellular phone or SIM-card to any other person. 15 Loss, theft or destruction of' cellular phone or SIM-card to be reported 41. ( I ) Whenever a cellular phone or SIM-card is lost. stolen or destroyed. the owner of that cellular phone or SIhl-card. or any other person u.ho was in possession. or had control. thereof when it was so l'ost. stolen or destroyed. must within a reasonable time after having reasonabl!. become aware of the loss. theft or destruction of the cellular phone or SIM-card. report such loss. theft or destruction in person or through a person authorised thereto by him or her. to a police official at an!; police station. ( 2 ) A police official u.ho recei\.es a report contemplated in subsection (1). must immediately pro\.ide the person Tivho makes the report with written proof that the report has been made or. in the case of a telephonic report, with the official reference number 75 of the report. 20 ( 3 ) X record of ever!. report made in terms of subsection ( 1 ) must be kept at the police station a here such a report has been made. (1) ( ( 1 ) The Minister must, within three months after the fixed date and in consultation with the Cabinet member responsible for policing. issue directives prescribing the- 30 ( i ) form and manner in Lvhich- ( u a ) a report contemplated in subsection ( 1 ) must be made; and ( h b ) records contemplated in subsection ( 3 ) must be kept: and ( i i ) information to be contained in such a report or record. Ih) .4ny directive issued under paragraph ( a ) may at any time in like manner be 35 amended or withdrawn. I C ) Any directive issued under paragraph ( a ) must. before the implementation thereof. bs submitted to Parliament. CHAPTER 8 GENERAL PROHIBITIONS .4ND EXEMPTIONS Prohibition on disclosure of information 32. ( I ) No person may disclclse any information which he or she obtained in the exercising of his or her powers or the performance of his or her duties in terms of this .4ct. except- to any other person who of necessity requires it for the performance of his or 45 her functions in terms of this Act: if he or she is a person who of necessity supplies it in the performance of his or her functions in ternis of this Act: information which is required in terms of any law or as evidence in any court of law: or or an to any competent investigation with a view to the institution, of any criminal proceedings or authority which requires it for the institution, so 76 No. 24286 GAZETTE, GOVERNMENT 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * ~~~ AND PROVISION OF COMMUNICATION-RELATED INFOR~ATION ACT, 2002 " civil proceedings as contemplated Organised Crime Act. in Chapter 5 or 6 of the Prevention of ( 2 ) No- ( a ) postal service provider, telecommunication service provider or decryption key holder may disclose any information which he in the exercising of his or her powers or the performance of his or her duties in terms of this Act; or or she obtained ( b ) employee of a postal service provider, telecommunication service provider or decryption key holder may disclose any informatioqvhich he or she obtained in the course of his or her employment and which exercising of any power or the performance of any duty in terms of this Act, whether that employee is involved in the exercising of that power or the performance of that duty or not. is connected with the in subsection (1). . . in subsections ( I ) and ( 7 ) includes information ., except for the purposes mentioned (3) The information contemplated relating to the fact that- I n ) a direction has been issued under this Aut; ( b ) a communication is being or has been or will probably be intercepted: (c) real-time or archived communication-related information is being or has been or v.ill probably be provided: (d) a decryption key is being or has been or will probably be disclosed or that decryption assistance is being or has been or will probably be provided; and le) an interception device is being or has been or will probably be installed. 5 10 15 20 Disclosure of information by authorised person for performance of official duties

59. Amendment of section 205 of Act 5 1 of 1977, as substituted by section 11 of Act 204 of 1993

61. Amendment of section 11 of Act 140 of 1992 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 title and commencement Schedule > . CHAPTER 1 INTRODUCTORY PROVISIONS Definitions and interpretation 1. (1 ) In this Act. unless the context othenvise "Agency" means the Agency as defined Act: "applicant" means- indicates- in section 1 of the Intelligence Services in Lvriting by the National Commissioner 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 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 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, concerned obtained Director: in N.riting the approval in advance of the Executive in writing the approval if the member 5 10 1s 20 25 30 35 40 a direction issued under "archived communication-related direction" means 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)(!,) 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 for the period determined in a directive referred to in section 30(2)(a). 45 50 direction: or (bl law enforcement officer or other person who may, in terms of section 26(l)(a)(iij. assist with the execution of a direction; 55 I O No. 24286 GAZETTE, GOVERNMENT 12 JANUARY 7003 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0 .4ND PROVISION OF COMMUNICATION-RELATED INFORMXTION ACT. 2002 system: k.. by any person. including any business activity conducted "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 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 "communication" includes both a direct communication and an indirect commu- nication: "communication-related information" means an indirect communication which is available in the recor;ds of a telecommunication s e n 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 p r h i d e d b), such a telecommunication ser\.ice pro\,ider and. where applicable. the location telecommunication system: "Constirution" means the Constitution of the Republic of South Africa. 1996 (Act N o . i08 of 1996): "contents". when 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 to any Communication. any information relating to of the user u>ithin the used with respect includes any 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 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 71(3) in terms of includes an oral decryption direction issued under section 23(7): h key. mathematical formula, code. password. "decr\ption key" means any algorithm or any other data which is used to- (cr I allow access to encrypted information: or f'xilitate the putting of encrypted information into an intelligible form: ~ ( "decryption ke! holder" means an! person who is in possession of a decryption for purposes of subsequent decryption of encrypted information relating ke! to indirect communications; "Defence Act'' means the Defence Act. 1957 (Act No. 44 of 1957): "Defence Force" means the defence force referred to Constitution: "designated judge" means any judge of a High Court discharged from active 3(1) of the Judges' Remuneration and Conditions serjice under section Emplo\ment .4ct. 2001 (Act No. 47 of 2001). or any retired judge. who is designated b!, purposes of this Act: "direct communication" means an- ( 0 J oral communication. other than an indirect communication. between two or all the persons more persons which occurs participating in that communication; or utterance by a person who is participating in an indirect communication, if the the Minister to perform the functions in the immediate presence of in section 199(2) of the of a designated judge for ( h r of 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 direction. archived communication-related direction or decryption direction issued any interception direction, real-time communication-related 12 No. 24286 GAZETTE, GOVERNMENT 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 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 “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 form; L. . 5 10 interception de\ice from. the premises. and includes issued under section 93(7): an oral entry warrant 15 “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 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 has of 16 years- by 20 25 age the attained and ( 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 document is replaced by an identity card as contemplated in section 25 of 30 the Identification Act: or No. 72 of 1986), until such identity (iii) a South African passport as defined in the South African Passports and Travel Documents Act, 1994 (Act No. 4 of 1994): ( 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 ( i ) a travel document as defined Documents ,4ct. 1994: or is not permanently resident in the Republic- in the South African Passports and Travel (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) ( v ) signals; or ( v i ) radio frequency spectrum: or \,isual images. whether animated or not; in whole or in part by means of a postal service or (bi in an!. other form or in any combination of forms. that is transmitted 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 encryption or other acquisition “intercept” means the aural 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 the contents an it; of to applied was process similar or 50 a 55 60 14 No. 24286 GAZETTE, GOVERNMENT .z. Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNIGATIONS 22 JANUARY 2003 .* u 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 cation: and diversion of any indirect communication from its intended destination to any other destination. and “interception” has a corresponding meaning: ”interception centre” means an interception centre estahshed by section 32( I)(a); “interception device“ means any electronic, mechanical 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- or other instrument, ( 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 5 I0 15 20 course of his or her business: or (D) a hearing aid or similar device being used to correct below normal hearing to not better than normal, 35 in the Republic, 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) of any and which authorises the interception. at any place 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 or ser\.ice related to. the Internet ser\ice is pro\kled under and 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 (c) rdi ( e l any component of the prosecuting authority, designated to another person. whether or not such access in accordance with a telecommunication the Defence Force: the Agency or the Service: the Directorate: or by the National 30 35 40 Director to specialise in the application of Chapter 6 of the Preventior? of Organised Crime .4ct: “law enforcement officer” means an! member of- ( a ) the Police Service; (0) (c, tdi ( e l any component referred the Defence Force, excluding a member of a visiting force; the Agency or the Service: the Directorate; or to in paragraph ( e ) of the definition of “law 45 50 enforcement agency”; “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 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 to or record any communication: listen to or record communications by means of a 55 60 16 No. 24286 GAZETTE, GOVERNMENT 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 “party to the communication”, for purposes of- ( a ) section 4. means, in the case of- section 23(7); 10 5 (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 15 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: 20 (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 25 ( b ) section 5, means. in the case of- (i) a direct communication, any person participating in such direct communication or to whom such direct communication is directed; or (ii) an indirect communication- ( a a ) the sender or the recipient communication: or or intended recipient of such indirect 30 (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; 35 by section “Police Senice” means the South African Police Service established 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 section 179 of the Constitution; “public body” means any- (a) department of state or administration in the national or provincial sphere government or any municipality in the local sphere of government; or (b) other functionary or institution when- by of 60 40 45 50 55 18 No. 23286 Act No. 70,2002 REGULATION OF INTERCEPTION O F COMMUNICATIONS a* .4ND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002 GOVERNMEhT GAZE'ITE, 21 JANUARY 2003 ( i ) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or iii) exercising a public power or performing a public function in terms of any legislation; a direction issued under "real-time communication-related direction" means 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" is immediately available to information which provider- ( ( 1 ) before. during. or for a period of 90 days after. the transmission of an indirect mean; communication-related a telecommunication service 1 ( h i to be intelligence serjices: and communication; and in a manner that allows the communication-related information associated with the indirect communication to which it relates: "relevant Ministers" means the Cabinet members responsible for- ( a ) communications: 0 1 ) defence: ( c i 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 ( h ) ofl'ence that is allegedly being or has allegedly been or will probably be in the Schedule: or \ . 5 10 15 20 25 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; 30 (ii) acting in the execution or furtherance of a common purpose conspiracy; or ( i i i ) which could result in substantial financial gain for the person. group or of 35 persons or syndicate committing the offence. in section 1 of the Intelligence Services or attempt to commit any of the above- including any conspiracy. incitement mentioned offences: "Service" means the Service as defined Act; "SIM-card" means the Subscriber Identity Module which electronically activated device designed to transmit and receive indirect phone to enable the user communications by providing access to telecommunication systems and enabling such telecommunication systems to 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 independent. for use in conjunction with a cellular identif)) the particular Subscriber Identity of the cellular phone of a- is an (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 any person duly authorised by that officer; or (bhi person who is acting as such or any person duly authorised by such acting person; and Ih) a public body. means, in the case of- (i) a national department, provincial administration or organisational component- 40 45 50 55 60 20 KO. 24286 GAZETTE, GOVERNMENT 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 such; as acting is who mentioned in Column 1 of Schedule 1 or 3 to the Public Service Act, 1993 (Proclamation No. 103 of 1994), the officer who incumbent of the post bearing the designation mentioned in Column 2 of the said Schedule national department. provincial administration 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 1 or 3 opposite the name of the relevant or organisational is the 10 .5 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: "Telecommunications Act" means the Telecommunications Act, 103 of 1996,: "telecommunication service" means any telecommunication service as defined in the Telecommunications Act: provider" "telecommunication ( a J person who provides a telecommunication service under and in accordance 1996 (Act No. service means any- ! 1s 20 provider: service 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 defined in the Telecommunications Act; or 25 ( 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 "telecommunication system" means a telecommunication system as defined in the Telecommunications Act. 13) For purposes of this Act- 30 l a ) the interception of a communication takes place in the Republic if, and only if, is effected by conduct within the Republic and the the interception 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 3.5 (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 intended recipient to collect it or otherwise to have access to it. is used for storing it in a manner that enables the ( 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 transmitted for general reception. or 32 KO. 24286 GAZETTE, GOVERNMENT 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 5 Prohibition of interception of communications y d exceptions Prohibition of interception of communication

59. Section 205 of the Criminal Procedure Act, 1977, substitution for subsection (1) of the following subsection: is hereby amended by the "( 1) A judge of [the supreme court] a High Court, a regional court magistrate or a magistrate may, subject to the provisions of subsection (4) and section 15 of the Regulation of Interception of Communications and Provision of Communication- of [an attorney-general] a related Information Act, 2002, upon the request Director of Public Prosecutions or a public prosecutor authorized thereto in writing by the [attorney-general] Director of Public Prosecutions, require the attendance before him or any other judge, regional court magistrate examination by the [attorney-general] Director of Public Prosecutions or the public prosecutor authorized thereto in writing by the [attorney-general] Director or magistrate, for 50 55 92 GOVERNMENT No. 24286 GAZElTE, 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS* * AND PROVISION OF COMMUNICATION-RELATED I N F O ~ ~ A T I O N ACT, 2002 is likely to give material or relevant of Public Prosecutions, of any person who information as to any alleged offence, whether or not it is known by whom the offence was committed: Provided that if such person furnishes that information to the satisfaction of the [attorney-general] Director of Public Prosecutions or public prosecutor concerned prior before a judge. regional court magistrate or magistrate, he shall be under no further obligation magistrate.". to the date on which he or she is required to to appear before a judge, regional court magistrate or appear 5 Amendment of section 11 of Act 140 of 1992 ,\

60. Section 11 of the Drugs and Drug Trafficking Act, 1992, is hereby amended by the 10 substitution in subsection (1) for paragraph ( e ) of the following paragraph: " ( e ) sub.ject to section 15 of the Regulation of Intercwtion of Communications and Provision of Communication-related Information Act. 2002, require from any person who has in his possession control an): register. record or other document which in the opinion of the police official may have a bearing on any offence or alleged offence under this Act, to deliver to him then and and place as may be determined by the police official, any such register, record or document:". there, or to submit to him or her at such time or custody or under his 15 Amendment of section 3 of Act 40 of 1994, as amended by section 3 ofAct 31 of 1995 20 and section 3 of Act 42 of 1999

61. Section 3 of the Intelligence Services Control Act, 1994, is hereby amended by the substitution in paragraph ( a ) for subparagraph (iii) of the following subparagraph: "(iii) any designated judge as defined in section 1 of the Regulation of Interception [and Xlonitoring Prohibition] of Communications and Provision of Com- 25 munication-related Information Act. [1992 (Act No. 127 of 1992)] 2002. a report regarding the functions performed by him or her in terms of that Act, including statistics regarding such functions, together with any comments or recommendations which such designated judge may deem appropriate: ProISided that such report shall not disclose any information contained in an 30 application or direction [contemplated in section 3 of] referred to in that Act:". Repeal of law and transitional arrangements 62. ( 1 ) Subject to subsections (2) and (3). the Interception and Monitoring Prohibition (Act '4ct. 1993 (1) Any judge whose designation in terms of the Interception and Monitoring No. 177 of 1992). is hereby repealed. 35 Prohibition Act. 1997. to perform the functions of a judge for purposes of that Act is still in force on the fixed date. must be regarded as having been so designated in tenns of this Act. ( 3 ) A direction issued under section 3 of the Interception and Monitoring Prohibition 40 Act. 1992. and which is still in force on the fixed date. must be regarded as having been issued under this Act and remains in force until the period or extended period for which that direction has been issued, lapses. (4) The directives issued Prohibition Act. 1991. and which are cease to be of force and effect from the fixed date. under section 6 of the Interception and Monitoring still in force immediately before the fixed date, 45 ( 5 ) ( a ) Any place which. immediately before the fixed date, has been used by the Police Service, Defence Force. Agency. Service or Directorate for the interception and monitoring of communications in terms of the Interception and Monitoring Prohibition Act. 1992, will. as from a date specified intelligence services, cease to exist unless such place is established as an interception centre as contemplated in section 37( 1 ) ( [ I ) . by the Cabinet member responsible for 50 91 No. 23286 GOVERNMENT GAZETTE, 22 JANUARY 2003 Act NO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS? AND PROVISION OF COMMUNICATION-RELATED INFORXIATION ACT. 2002 0 (hi If any place referred to in paragraph (a)- (i) is established as an interception centre as contemplated in that paragraph, all in the of that place will vest assets, liabilities. rights and obligations interception centre so established; or (ii) ceases to exist as contemplated in that paragraph. all- 5 (aa) assets, including liabilities and obligations relating thereto. and rights of that place will, as from the date it ceases to exist. vest in interception centres established by section 32( l ) ( a ) and specified by the Cabinet member responsible for intelligencqservices for that purpose. without formal transfer and without payment of any fees. duties. taxes or 10 other charges: and on which (bh) other liabilities and obligations of that place remain with the Police Senice, Defence Force. Agency. Service or Directorate. whichever used that place for purposes referred to in par&g!iaph ( u ) . 16) ( a ) Any person who, at the fixed date. is the owner of a cellular phone or a 15 by SIM-card must. in the manner and within the period determined by the Minister notice in the Gacerre. provide the information referred to in section 40( 1 ) to the person who sold. or in any other manner provided. the cellular phone or SIM-card to him or her. or to the telecommunication service provider or other person mentioned in such notice. ( h i Different periods may he determined in terms of paragraph ( a ) in respect of- ( i ) owners whose surnames start with different letters of the alphabet, or whose dates of birth fall in different months: or I i i ) categories of numbers of cellular phones or SIM-cards. rc') Before the Minister exercises the powers conferred on him or her by paragraph (a). he or she must consult the telecommunication service providers concerned. (di Any notice issued under paragraph ( a ) must, before publication thereof in the Garerte. be submitted to Parliament. terms in telecommunication service provider or other person of paragraph (a). provided to whom information has been ( e ) Section 30(2) and (3) applies, with the necessary changes, in respect of a Short title and commencement 20 25 30

63. This Act of Interception of Communications and Provision of Communication-related Information Act. 2002. and comes into operation on a date fixed by the President by proclamation in the Gazerre. is called the Regulation 96 No. 24286 GAZETTE, GOVERNMENT 22 JANUARY 2003 Act No. 70,u)OZ REGULATION OF INTERCEPTION OF COMMUNICATION>’ AND PROVlSlON OF COMMUNICATION-RELATED INFOR%lATlON ACT, 2002 0 SCHEDULE (Section 1) Act: 1 . 2 . 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 11. 4 . high treason; any offence relating to terrorism: any offence involving sabotage; sedition; any offence which could result in the loss of a peqon’s life or serious risk of loss of a person‘s life: to in Schedule 1 to the Implementation of the Rome any offence referred Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002); in section 1 of :he National Prosecuting any specified offence as defined Authority any offence referred to in Chapters 2. 3 and 3 of the Prevention of Organised Crime Act: an!; offence referred to in section 13(f) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992); any offence relating to the dealing in or smuggling of ammunition. firearms, explosives or armament and the unlawful possession explosives or armament: any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones: any offence contemplated in section 1( 1) of the Corruption Act, 1992 (Act No. 93 of 1992): dealing in. being in possession of or conveying endangered, scarce and protected game or plants or parts or remains thereof in contravention of any legislation; any offence the punishment wherefor may be imprisonment for life or a period of imprisonment prescribed by section 51 of the Criminal Law Amendment .4ct. 1997 (Act No. 105 of 1997). or a period of imprisonment exceeding five years without the option of a fine. of such firearms.

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. 10 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 execution thereof. may intercept any communication: and Ib) postal service provider to whom an interception direction is addressed, may 15 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. 20 ( Any law enforcement officer may intercept any communication if he or she is- 3 l a ) a party to the communication: and i h ) satisfied that there are reasonable grounds to believe that the interception of a is necessary on a communication of another party to the communication ground referred to in section 16(5)(a). 1.5 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 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. lam. enforcement officer, may intercept 30 (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 35 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 be directed to him or her; or 40 (c) (ii) send or receive an indirect communication: and the interception of such direct or indirect communication is necessary on ground referred to in section 16(5)(aJ. a unless such communication is intercepted by such law enforcement officer for purposes of committing an offence. 45 No. 24286 24 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * GOVERNMENT GAZETTE, 22 JANUARY 2003 A N D 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 indirect communication- . ( 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, 5 in the course of its transmission over a telecommunication system. ( 2 ) A person may only intercept an indirect c o m m u n i c a t h i n terms of subsection (1)- ( a ) if such interception is effected by, or with the express or implied consent of, 10 the system controller; ( b ) for purposes of- , , (i) monitoring or keeping a record of indirect communications- ( a a ) in order to establish the existence of facts; Ibb) for purposes of investigating or detecting the unauthorised use of 15 that telecommunication system; or (cc) where that is undertaken in order to secure. or as an inherent part of, the effective operation of the system; or (ii) monitoring indirect communications made to a confidential voice- telephony counselling or support service which is free of charge, other than the cost, if any. of making a telephone call, and operated in such a way that users thereof may remain anonymous if they so choose; 20 (c) if the telecommunication system concerned partly in connection with that business; and is provided for use wholly or (d) if the system controller has made all reasonable efforts to inform in advance a 25 person. who intends to use the telecommunication system concerned, that indirect communications transmitted by means thereof may be intercepted or if such indirect communication is intercepted with the express or implied consent of the person who uses that telecommunication system. Interception of communication to prevent serious bodily harm 7. (1) Any 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 person; infliction of serious bodily harm to another 30 35 (ii) threatens, or has threatened, to cause the infliction of serious bodily harm to another person: or (iii) threatens. or has threatened, to take his or her own life or to perform an act which would or may endanger his or her own life or would or may cause the infliction of serious bodily harm to himself or herself; 40 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 45 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 communications concerned to the designated interception centre. of subsection ( I ) , route the duplicate signals of the indirect 50 (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 26 No. 21286 GAZETTE, GOVERNMENT 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 proiider in connection with the request. law enforcement officer to that telecommunication service ( 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 ( b ) an affidavit setting forth the results and information obtained from that in subsection ( 3 ) ; (c.1 interception: and 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 communication suggests that bodily harm. attempted bodily harm threatened bodily harm has been caused or is IikLy to be caused. if nothing in the or officer of the communication 5 10 ( 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. 15 ( 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. 20 Interception of communication for purposes of determining location emergency in case of 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 the location of the sender is unknown to that person, ( ( ‘ 1 the person referred to in paragraph f a ) may, if he or she is- ( i ) ;I Iau enforcement officer. and if he or she is of the opinion that determining is likely to be of assistance in dealing with the the location of the sender emergency. orally request. or cause another law enforcement officer to orally request. the telecommunication service provider concerned to- f u u ) or from the sender for purposes of intercept any Communication to determining his or her location: or ihb) determine the location of the sender telecommunication service provider deems appropriate; or 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 . 25 30 35 40 45 ( 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 concerned to act as contemplated in subsection ( 1 )(i)(au) or (bb). 50 ( 3 ) A telecommunication service provider must. upon receipt of a request made to him to orally request, the telecommunication service provider or her in ternis of subsection ( I )(i) or (2)- ( a ) intercept any communication to determining his or her location: or or from the sender for purposes of (01 determine the location of the sender in any other manner which the telecommunication service provider deems appropriate, 55 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 - 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 * of the any other information obtained from that interception which, in the opinion 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- 5 ( a ) as soon as practicable after making that request, furnish the telecommunica- tion service provider concerned with which sets out the information gi\ren by that law yfprcement officer to that telecommunication service provider in connection nhth the request; a written confirmation of the request ( b ) as soon as practicable after making that request. furnish a designated judge 10 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 i n terms of subsection ( 3 ) . as soon a s p x s i b l e after receipt thereof. submit to a designated judge information obtained from that interception. an affidavit setting forth the results and ( 5 ) A telecommunication service provider contemplated in subsection ( 3 ) . must. as soon designated judge- y h o has taken as practicable thereafter, submit to any of the steps a ( a i an affida\>it setting forth the steps taken by that telecommunication service ( / I ) provider in giving effect to the request concerned and the results and information obtained from such steps: and if such steps included the interception 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. of an indirect communication. any ( 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 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 session. submit a copy of those regulations to Parliament: or of its next ensuing ordinary 15 20 25 30 35 30 lh) are made after the fixed date. the Cabinet member responsible for correctional services must. before the publication thereof regulations to Parliament. in the Gazette, submit those Monitoring of signal for purposes facilities or devices of installation or maintenance of equipment, 45

10. Any person who is lawfully engaged in duties relating to the- ( a ) installation or connection of any equipment, facility or device used, or intended to be used. in connection u,ith a telecommunication service; ( h ) operation or maintenance of a telecommunication system; or I C ) installation. connection or maintenance of any interception device used, intended to be used. interception direction. for the interception of a communication under an or 50 may. in the ordinary course of the performance of those duties. monitor a signal relating No. 24186 30 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNIC&TIONS * GAZETTE, GOVERNMENT AND PROVISION OF COMMUN1CATIOi'-RELATED INFORMATlON ACT, 2002 22 JANUARY 1003 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 inspector in terms of section 98 of the law'fully engaged in performing the functions of the a5 an Telecommunications Act and who is 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 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. or radio frequency spectrum relating to - 5 - I Part 2 ' Prohibition of provision of real-time or archived communication-related information and exceptions 1 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 real-time communication-related direction or archived communication-related direction or archived communication-related information under 25

13. Subject t o this Act. an!. telecommunication service provider to whom a real-time is communication-related direction or an archived communication-related direction addressed. may prmide an! real-time or archil ed communication-related information to which that real-time communication-related direction related direction relateh. or archived communication- 30 Provision of real-time or archived communication-related information upon authorisation by customer

14. An!, telecommunication senice pro\.ider may. upon the written authorisation the customer concerned. pro\.ide to an)' person specified b!. given b! his or her customer on each occasion. and subject to the conditions determined 35 b! or archi\.ed communication-related information which relates to the customer con- cerned. that customer real-time information 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 in respect of any person sections 17 and 19 does not preclude obtaining such information in accordance with a procedure prescribed in any other Act. ( 2 ) Any real-time or archived communication-related information which is obtained 45 in terms of such other Act may not be obtained on an ongoing basis. c. *, 37 No. 24186 GOVERNMEKT GAZETTE, 22 JANUARY 2003 Act No. 70,2002 REGCLATION OF IXTERCEPTION OF COMMUNICATIONS 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 16. ( 1 ) .4n applicant may apply to a designated judge for the issuing of an interception 5 direction. \ - - i?i Subject to section ?3( 1 1. an application referred to in subsection ( 1 ) must be in writing and must- ( ( 1 ) indicate the identity of the- ! i ) applicant and. if known and appropriat,e,, the identity of the law 10 enforcement officer who will execute the interception direction: ( i i ) person or customer. if knot4m. whose communication is required to be intercepted: and ( i i i 1 postal service provider or telecommimication service provider t o whom be addressed. i f applicable: must the direction 15 ( h i specif!. the ground referred to in subsection (5)((/) on \vhich the application is made; ( ( ' 1 contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application: i d ) include- j i I subject to subsection (8). a description of the- (LICIJ nature and location of the facilities from which. 30 or the place at ( P I which. the communication is to be intercepted. if known: and ibh) type of communication which is required to be intercepted; and the basis for believing that evidence relating application is made will be obtained through the interception: to the ground on which the 3-51 ( i 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 ) ( 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 or (1.) if the- ( i i ) property is or could probabl! be an instrumentality of a serious offence or is or could probably be the proceeds o f unlawful actitities: indicate the period for which the interception direction isued: 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 is required to be 3 0 ( 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 ( ( I ) . (dl or (j') of the definition of "applicant": i b J subsection (5)(aJ(ii) or (iii). must be made by an applicant referred to in 50 paragraph ( b ) or ( c ) of the definition of "applicant": (c) subsection (5)iu)(iv). must, in the case of- i i ) the investigation of a serious offence, be made by an applicant referred to t i i ) in paragraph ( n l or (dl of the definition of "applicant": and the gathering of information. be made paragraph (c) of the definition of "applicant"; and by an applicant referred to in 55 ( d ) subsection (5)(a)(v). must be made by an applicant referred to in paragraph ( e ) of the definition of "applicant": 34 Nn. 14186 GAZETTE. GOVERNMENT 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 of the Police Service; or i n respect of a death in police custody or as a result of police action. (ii) 5 (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. alleged the facts satisfied. on 10 ( i i i J t i \ . ) that- in the application necessary: is (cr) there reasonable grounds or conlpelling national economic ( 5 ) An interception direction may only be issued if the designated judge concerned is concerned. to believe that- ( i 1 a serious offence has been or is being or will probably be committed: the gathering of information concerning a,n ;actual threat to the public i i i l health o r safetl,. national security interests of the Republic the gathering of information concerning a potential threat health or safety or national security of the Republic is necessary: the making 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 the gathering of information concerning property which is probably be an instrumentality of probabl!, be the proceeds of unlawful activities is necessary: or could a serious offence or is or could of a request for the provision. or the projision to the t o the public 15 I \ i l l ) ic.1 there are reasonable ( i ) the interception of particular communications concerning the relevant grounds believe to that- 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. 3 0 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 the person or customer in respect of whom the 111 are commonly used b!, application for the issuing of an interception direction is made: and 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 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 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 adequatel! be investigated. crime: 30 SO or ( 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) idtci ); nap specify conditions communications authorised therein; and or restrictions relating to the interception of (dl ma!' be issued for a period not exceeding three months at a time. and the period for a,hich it has been issued must be specified therein. 60 ( 7 ) ( N ) .4n application must be considered and an interception direction issued without any notice to the person hearing such person or customer. or customer to whom the application applies and without 1 36 No. 21286 GAZETTE. GOVERNMENT 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 an application for the issuing of an be intercepted interception direction which authorises the interception of- do not apply if, in the case of 5 ( a ) a direct communication- (i) the application contains full particulars of all the facts and circumstances as to why such description is not practical; L. . ( i i ) the application indicates the identity of the person whose communication 10 is required to be intercepted: and (iii) the designated judge that such description is not practical: and communication. is satisfied. on the facts alleged in the application. , . the- ( b ) an indirect ( 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 of preventing the actions of the customer concerned could have the effect 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. ( 1 0 ) i a ) A telecornmunication service provider to whom an interception direction 30 referred to in subsection (S)ib) is addressed. may in writing apply to a designated judge on the for an amendment or the cancellation of the interception direction concerned ground that communication cannot be performed in a timely or reasonable fashion. his or her- assistance u i t h respect to the interception of the indirect ( h ) A designated judge to n.hom an application is made in terms of paragraph ( a ) 3S must. as soon as possible after receipt thereof- inform the applicant concerned of that application: and ( i ) ( 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 appl! related information on designated judge for the issuing of a real-time communication-related direction. is required, an applicant may an ongoing basis to a ( 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; (ii) customer. i f known. in respect of whom the real-time communication- related information is required: and ( i i i ) telecommunication service proyider to whom the real-time communica- direction tion-related (11) specify the ground referred to addressed; must he 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- ( i ) a description of the type of real-time communication-related information (ii) that is required; and the basis for believing that evidence relating to the ground on which the application is made will be obtained through the provision of the information: real-time communication-related 35 SO 55 60 38 No. 71286 - Act KO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICA7JONS * GOVERNMENT GAZE7TE. 22 JANUARY 7003 4 N D PRO\'ISION OF COMMUNICATION-RELATED INFORMATION ACT. 1002 be is required information in which, the real-time to the law enforcement agency concerned; for which. and the manner provided; to routed to a designated interception centre specified in the application: or indicate whether the real-time communication-related information must be- (i) (ii) pro\,ided indicate the period communication-related 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 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. 5 10 15 ( ( 1 ( 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 that- there are rea<onable grounds to believe a serious offence has been or is being or will probably be committed; the gatherin: of information concerning an actual threat to the public health or 30 safet!.. national security or compelling national economic interests Republic is necessary: the gathering of information concernins a potential threat to the public health or safety or national securit), of the Republic is necessary; of the ( c ) ( / ? I ( 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!' o f f e x e relating to terrorism or the gathering of information relating to organised crime or terrorism. is in- accordancc Lvith an international mutual assistance agreement; ( i I the interest\ o f t h e Republic's international relations or obligations; or ( i i ) 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)'. or fc.1 30 and that the prwision of real-time communication-related information is necessary for purposes of in\-esiigating such offence or gathering such information. 35 (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) and ( e l : 30 ( ( ' i ma! specif! conditions or restrictions relating to the provision of real-time communication-related information authorised therein: and ( ( 1 ) ma! he iswed for a period not exceeding three months at a time. and the period for \vhich it has been issued must be specified therein. ( 6 ) Section 16(3) and ( 7 ) applies. with the necessary changes. in respect application for, and the issuing of. a real-time communication-related direction. of an 45 Combined application communication-related direction and archived communication-related direction or interception direction supplemented direction of, interception direction, real-time by real-time communication-related for, and issuing 50 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 2003 Act No. 70.2002 REGUL.4TION OF 1NTERCEPTION OF COMMUNICATIONS * 0 GOVERNMENT GAZETTE. 22 JANUARY 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 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. to make that (hi An application referred to in paragraph ( a ) must- \. . ( 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 ( i i i ) he made at any stage after the issuing of the interception direction concerned. i t has been but before the expiry of the period or extended period for which issued. an interception direction has been issued: and *. I I O 15 ( 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 to supplement that interception direction: communication-related direction Provided that a real-time communication-related direction issued under this paragraph expires whcn the period interception direction concerned has been issued. lapses. or extended period for which the 25 ( 4 , SotLvithstanding section 191 1 ). ( 3 ) and (4)- ( ( I J an application in terms of subsection ( 1 ) for the issuing of an archived (/IJ communicarion-related direction may only be made to a designated judge; and 30 a desipated judge ma)' issue an archived communication-related onI! 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 l ? C ) : and 0 1 ) comply q.ith an)' supplementar!, directives relating archived communication-related directions issued under section 5 8 . ( 3 ) Notwithstanding section 12 or anything to the contrary in any other lau contained. or a magistrate may. upon an or her in terms of subsection ( 1 ). issue an archived a judge of a High Court. a regional court magistrate application made to him communication-related to applications for direction. 30 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 w i l l 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 Republic is necessan: the gathering of information concerning a potential threat to the public health or safety or national securit!, of the Republic is necessary: of the ( ( ' 1 32 No. '1286 GOVERNMENT GAZETTE. 22 JANUARY 2003 Act No. 70.2002 REGULATIOR OF INTERCEPTION OF COMMUNICATIONS * t. AND PROVISION OF COMMUNICATION-RELATED I N F O R M ~ I O N ACT. 2002 ( 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 of communications connection with. 'or in the form of. the interception relatin: to organised crime or any offence relating to terrorism or the gathering to organised crime or terrorism, is of information relating ( i ) accordance with an international mutual assistance agreement: or the interests of the Republic's international relations or obligations; or (ii) the gathering of information concerning property which is or could probably or is o j o u l d probably be the be an instrumentality of a serious offence proceeds of unlawful activities is necessary. in- ( P ) 5 10 and that the pro\,ision of archived communication-related information is necessary for purposes o f investigating such offence or gathering such information. ( 5 i An archived communication-related direction- ( a i must he in Lvriting: f b ) must contain the information referred to and ( e ) : ,, , I in section 17(2)(a)(ii) and (iii). (d)(i) 15 f c l must state the period within lvhich the archived communication-related information must be routed or provided: and may specif!, conditions or restrictions relating / d l to the provision of archived therein. authorised communication-related information (6) Section 16(3) and ( 7 ) applies, with the necessary changes. in respect 70 of an application for. and the issuing of. an archived communication-related direction. ( 7 ) If a judge of a High Court. regional court magistrate archive communication-related direction. thereafter. submit a direction concerned to a designated judge. copy of the application and archived he or she must, or magistrate issues an as soon as practicable communication-related 25 ( 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. .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 r h l case applicant in support of his or her application; in the the- ( i ) amendment of an existing direction, indicate the amendment which of an application for 40 is required: or ( i i ) extension of the period for which an existing direction has been issued, indicate the period for which the extension is required; ( c / contain an affidavit setting forth the results obtained from the direction 45 concerned from the date application is made. or a reasonable explanation of the failure to obtain such results: and of its issuance up to the date on which that ( d J comply with any supplementan directives relating to applications for the amendment or extension of directions issued under section (3) .4 designated judge may. upon an application made 58. 50 to him or her in terms of 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 GAZETTE, GOVERNMENT 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 been issued, must be in writing. (6) Section 16(7) applies. with the necessary changes. in respect of the amendment of an existing direction or the extension of the period for which an existing direction has been issued. S Application for, and issuing of, decryption direction L. 21. ( 1 An applicant w h o - ( a ) makes an application referred to in section 16( 1 ) may in his or her application 10 also apply for the issuing of a decryption directiqn, or ( b ) made an application referred to in section 16( 1 ) or. if he or she is not available. any other applicant who would have been entitled to make that application. may. at any stage after the issuing of the interception direction which such an application was made. but before the expiry of the period or 15 extended period for which it has been issued, apply to a designated judge for the issuing of a decryption direction. ( 3 ) Subject to section 33( 1 ). an application referred to in subsection ( 1 ) must be in in respect of identity writing and must- ( n ? indicate the of the- ( i ) applicant: ( i i ) customer. if known, in respect of whom the decryption of encrypted information is required; and ( i i i ) decryption key holder to whom the decryption direction must be addressed: ( h i describe the encrypted information which ( c ) specify the- is required to be decrypted: ( i ) decryption key, if known. which must be disclosed: or (ii) decryption assistance which must be provided. and the form and manner which in be it must provided: ( d ) indicate the period for which the decryption direction is required to be issued: ( e ) indicate whether any previous application has been made for the issuing of a decryption direction in respect of the same customer or encrypted information specified in the application and. the indicate if such previous application exists, must of that 35 application: in terms of subsection ( I ) f h ) . also contain- ( f ) if the application is made status current 20 30 25 Ci) proof that an interception direction has been issued: and (ii) an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that application obtain such results: and is made. or a reasonable explanation of the failure to 40 ( g i comply with any supplementary directives relating to applications for decryption directions issued under section 58. (3) A designated judge may, upon an application made to him or her in terms of 45 direction. decryption subsection (1). issue a ( 3 ) A decryption direction may only be issued- ( u ) if the designated judge on the facts alleged in the concerned is satisfied, - application concerned, that there are reasonable grounds to believe that- to which the interception direction con- any indirect communication cerned applies, or any part of such an indirect communication. consists of SO encrypted information: the decryption key holder specified in the application is in possession of the encrypted information and the decryption key thereto; the purpose for which the interception direction would be defeated, in whole or in part, if the decryption direction was not 55 issued: and it is not reasonably practicable for the authorised person who executes the interception direction concerned or assists with the execution thereof, concerned was issued

16 No. 23286 GAZETTE, GOVERNMENT 21 JANUARY 2003 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * + AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002 to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction; and ( b ) after the designatd judge concerned has considered- (i) the extent and'nature of any other encrypted information. in addition to the encrypted information in respect of which the decryption direction is to be issued. to which the decryption key concerned is also a decryption key; and 5 (ii) any adverse effect that the issuing of the decryption direction might have on the business carried on by the decryption k ~ y holder to whom the decryption direction 10 addressed. is (5) A decryption direction- ( a ) must be in writing; ( h i must contain !he information referred to in subsection (3)(u)(ii) and (iii). ( b ) and (c): \ , i c ) must state the period uithin which the decryption key must be disclosed or the 15 decryption assistance must be proiided. whichever is applicable: i d ) may specify conditions or restrictions relating to decryption authorised therein: and [ c i may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: Provided that a 20 decryption direction expires when the period or extended period for which the interception direction concerned has been issued. lapses. ( 6 ) Section 16(7) applies. with the necessary changes. in respect of the issuing of a decryption direction. -4pplication for, and issuing of, entry warrant 22. ( I ) An applicant Msh* ( n ) makes an application referred to in section 16( 1) may in his or her application also apply for the issuing of an entry warrant: or ( b ) made an application referred to in section 16( I ) or, if he or she is not available. any other applicant who would have been entitled to make that application, may. at any stage after the issuing of the interception direction in respect of which such an application was made, but before the e x p i n of the period or extended period for which it has been issued. apply to a designated judge for the issuing of an e n t v warrant. 95 30 ( 3 ) Subject to section 23( 1 ). an application referred to in subsection (1 ) must be in 35 writing and must- (rrl indicate the- ( i ) identity of the applicant: ( i i ) premises in respect of which the entry warrant is required to be issued: and l i i i ) specific purpose. referred to in the definition of "entry warrant". for \vhich the application is made: ( b ) if the application is made in terms of subsection ( 1 )ib), also contain- ( i ) proof that an interception direction has been issued; and ( i i ) 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; (c) indicate whether any previous application has been made for the issuing of an the same purpose entry uwrant for specified in the application and. indicate the current status of that application: and (a') comply with any supplementary directives relating or in respect of the same premises if such previous application exists, must to applications for entry 40 45 50 warrants issued under section 58. (3) A designated judge may, upon an application made to him or her in terms of 55 subsection ( I 1. issue an entry warrant. (4) An entry warrant may only be issued if the designated judge concerned is satisfied, on the facts alleged in the application concerned, that- ( a ) the entry of the premises concerned is necessary for a purpose referred to in the definition of "entry warrant"; or (h) there are reasonable grounds to believe that it would be impracticable to intercept a concerned communication under the interception direction otherwise than by the use of an interception device installed on the premises. 5 ( 5 ) An entry warrant- ( 0 ) must be in writing: (6) must contain the information referred to in subsection (2)(a)(ii) and (iii); and th entr u on the premises ( c I may contain conditions or restrictions relating to concerned as the designated judge deems necessary. \ y p (6) An entry warrant expires when- ( a i the period or extended period for which the interception direction concerned 10 has been issued. lapses; or ( h ) it is cancelled in terms of section 23( 1 I ) or 2561 ) or ( 2 ) by the designated judge who issued it or. if he or she is not availabfe, by any other designated 15 judge. whichever occurs first. (7 1 Section 1617) applies. with the necessary changes. in respect of the issuing of an 7 entry %'arrant. (8 I If an entry warrant has expired as contemplated in subsection ( 6 ) ( u ) , the applicant 20 who made the application in respect of the entry warrant concerned or, if he or she is not available. an!. other applicant who would have been entitled to make that application. must. as soon as practicable after the date of expiry of the entry warrant concerned. and without applying to a judge for the issuing of a further entry warrant. remove. or cause to be removed, any interception device which has been installed at the date of expiry of that entry warrant. has not yet been removed from the premises concerned. thereunder and which. 25 Oral application for, and issuing of, direction, entry warrant, oral direction or oral entry warrant 23. ( 1 1 An application referred to in section 16( 1 ). 17( I ). 1% 1 ). 21 ( 1 ) or 22( 1 ) may be 30 made orally by an applicant who is entitled to make such an application if he or she is of the opinion that it is not reasonably practicable. having regard to the urgency of the case or the existence of exceptional circumstances. to make a written application. ( 2 ) An oral application referred to in subsection ( 1 ) must- lrr) contain the information referred to u.hichever is applicable; indicate the particulars of the urgency of the case or the other exceptional circumstances which. in the opinion of the applicant. justify the making of an oral application: and in section 16(2). 17(2). 21(2) or X!(?), 35 t b ) I C ' ) comply with an)' supplementary directives relating to oral applications issued 40 under section 58. ( 3 ) Notwithstanding sections 2 and 12 or anything to the contrary in any other law contained. a designated judge may. upon an oral application made to him or her in terms of subsection ( 1 ). issue the direction or entry warrant applied for. ( 4 ) A direction or an entry warrant may only be issued under subsection (3)- 4s ( N J if the designated judge concerned is satisfied, on the facts alleged in the oral application concerned, that- ( i ) there are reasonable grounds to believe that the direction or entry warrant applied for could be issued: ( i i ) a direction is immediately necessary on a ground referred to in section 50 16(5)la). 17(4) or 21(4)(u), whichever is applicable, or an entry warrant is immediatel:, necessary on a ground referred to in section 22(4); and ( ii i) it is not reasonably practicable. having regard to the urgency of the case or the existence of exceptional circumstances, to make a written application for the issuing of the direction or entry warrant applied for; 55 and SO No. 21786 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0 AND PROVISION OF COMMUNICATION-RELATED INFORhfPtTION ACT. 2002 GOVERNMENT G A Z E T I E , 22 JANUARY 9003 ( b ) on condition that the applicant concerned must submit a written application to of the within 48 hours after the issuing the designated judge concerned direction or entry warrant under subsection (3). ( 5 ) A direction or entry warrant issued under subsection (3) must be in writing. (6) Section 16(5)(bl and (c). (6) and (7). 17(5) and (6),21(3)(h), ( 5 ) and (6) or 2215). 16). ( 7 ) and (8). whichever is applicable. applies. with the necessary changes, in respect of the issuing of a direction or an entry warrant under subsection (3). ( 7 ) Notwithstanding subsection (5). a designated judge may. upon an oral application made t o him or her in terms of subsection ( 1 ). orally issue the direction or entry warrant applied for. '. . 5 10 (cr I (8, An oral direction or oral entry warrant may only be issued under subsection (7)- if the designated judge concerned is satisfied, on the facts alleged in the oral appl~cation concerned. that- ( i ) i t is not reasonably practicable. having regard IO the urgency of the case or the existence of exceptional circumstances to issue the direction entry warrant applied for in wrriting: or or 15 l i i ) any other exceptional circumstances exist which justify the issuing of an oral direction or oral entr). warrant: lind ( h i on condition that the applicant concerned must submit a written application to the designated judge concerned Mithin 48 hours after the issuing of the oral 20 direction or oral entry n'arrant under subsection (7). subsection (9) Section 16(5)ib) and fc). (6)lb). (c) and i d ) and ( 7 ) . 17(5)(bJ, fc) and (d) and ( 6 ) . 2 l ( 4 ) l b ) . ( S ) ( b ) . IC). ( d l and ( e ) and (6) or 1 3 S ) f h ) and (c). (6). (7) and (8). applies. with the necessary changes. in respect of the issuing of an oral direction or oral entry warrant under 15 ( 7 ) . (10) A designated judge who issues an oral direction or oral entry warrant under subsection ( 7 ) must- ( a ) immediately after the issuing thereof. inform the applicant and, if applicable. the postal service provider or telecommunication service provider to whom it is addressed. orally of such an oral direction or oral entry warrant. including 30 the- ( i ) contents thereof: and l i i ) period for which it has been issued: and ( 1 7 ) confirm that oral direction or oral entry warrant in writing within 11 hours thereof. issuing after the ( 11 I .4 designated judge who issued- ( a ) a direction or an entry warrant under subsection ( / I ) an oral direction or oral entry warrant under subsection ( 7 ) , 13): or or. if he or she is not available. any other designated judge who would have been entitled to issue such direction. entry warrant. oral direction or oral e n t q warrant must. upon receipt of a written application submitted to him or her in terms of subsection (4)lh) or ( 8 ) ( h ) . reconsider that application u,hereupon he or she may confirm. amend or cancel that direction. entry warrant. oral direction or oral entry warrant. ( 11) It' a dircction. entr) warrant, oral direction or oral entry warrant is- ( a ) confirmed or amended in terms of subsection ( 1 1 ). the designated judge 35 30 4s concerned must forthv,.ith in lvriting inform- ( i ) the applicant concerned: and ( i i ) if applicable. the postal ser\,ice provider, telecommunication service provider or decryption ke!. holder concerned. of such confirmation cancelled in terms of subsection ( 1 1 ). section 35(3), (4) and (5) applies with the necessary changes. or amendment: or 50 5 2 No. 732x6 GAZETTE. GOVERNMENT 22 JANUARY 2003 Act NO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS *. c. .4ND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 1002 Reports on progress

24. The designated judge who issued a direction or an entry warrant may at the issuing thereof or at any stage before'the date of expiry thereof, in writing require the applicant who made the application in respect of the direction or entry warrant concerned to report to him or her in writing- 5 ( [ I ) at such intenals as he or she determines, on- ( i ) the progress that has been made towards achie\.ing the objectives of the direction or entry warrant concerned: and ,.. (ii ) any other matter which the designated judge deems necessary; or (bl on the date of expiry of the entry warrant concerned. on whether the 10 interception device has been removed from the premises concerned the date of such removal. and. if so. > . Cancellation of direction, entry warrant, oral direction or oral entry warrant 25. i 1 ) The designated judge who issued a direction or an entry warrant or, if he or she is not available. any other designated judge who would have been entitled to issue such 15 direction or entry warrant may cancel that direction or entry Lvarrant if- tal the applicant concerned applicable: or fails to submit a repon in terms of section 23. if t h ) he or she. upon receipt of a report submitted i n terms of section 24. is satisfied that the- ( i ) objectives of the direction or entry warrant concerned have been 20 achieved: or ( i i ) ground on which the direction or the purpose for which the entry warrant who judge designated ( 2 ) The concerned was issued, has ceased to exist. issued- ' 5 icli a direction or an entry warrant under section 2 3 ( 3 ) : or ((11 an oral direction or oral entry warrant. or. if' he or she is not available. any other designated judge who would have been entitled to issue such a direction. entry warrant. oral direction or oral entry warrant. must cancel that direction. entry warrant. concerned fails to comply with section 23(4)(0, or (8)(b). oral direction or oral entry warrant if the applicant 30 ( 3 I If a designated judge cancels- a direction or an entry warrant: i I I J (6, a direction or an entry warrant issued under section 23(3): or i c i an oral direction or oral entry warrant. in terms of subsection ( 1 ) or ( 2 ) . he or she must forthwith in tvriting inform- (i \ (ii the applicant concerned: and if applicable, the postal service protider. telecommunication service provider or decryption key holder concerned. of such cancellation. ( 4 ) If an e n t c warrant or oral entry warrant is cancelled in terms of subsection ( 1 ) or ( 2 ) . the applicant concerned must. as soon as practicable after having been informed of such cancellation. remove. or cause to be removed. any interception device which has been installed under the entry warrant or oral entry warrant concerned. ( 5 ) If a direction issued under section 1 3 ( 3 ) or an oral direction is cancelled in terms of subiection ( 2 ) - the contents of any communication intercepted under that direction or oral direction will be inadmissible as evidence in any criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act. unless the court evidence would not render the trial unfair or otherwise be detrimental to the administration of justice; or any postal article that was taken direction must be dealt with in accordance with section 26(4). into possession under that direction or oral is of the opinion that the admission of such 35 40 45 so 54 No. 24286 GOVERNMENT GAZETTE. 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS PIND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002 ** CHAPTER 4 EXECUTION OF DIRECTIONS AND ENTRY WARRANTS Execution of direction 26. ( 1 ) ( u i If a direction has been issued under this Act. any- law enforcement officer may execute that direction: or ( i ) (ii) law enforcement officer or other person may assist w2Q the execution thereof. if the law enforcement officer or person concerned has been authorised by the applicant of the direction concerned to execute that who made the application for the issuing direction or to assist with the execution thereof. ( h ) A direction issued under this Act upon an application made by an applicant referred to in paragraph (,f) of the definition of “applicant”‘niay only be executed by a law enforcement officer authorised thereto in writing by the applicant concerned. after consultation with the National Commissioner. if that I a n enforcement officer is a member of the Police Service. or the National Director. if that law enforcement officer is a member of the Directorate or of any component referred to in paragraph ( e ) of the definition of “lau. enforcement agency“. ( 2 ) The applicant concerned may authorise such number of authorised persons to 5 I O 1s assist with the execution of the direction as he or she deems necessary. ( 3 ) An authorised person who executes a direction or assists with the execution thereof may intercept. at any place in the Republic, any communication in the course of its occurrence or transmission to which the direction applies. 20 (4) If any postal article has been taken authorised person who executes the direction thereof- in possession in terms of subsection ( 3 ) , the concerned or assists with the execution due regard to the interests of such postal article and may, if the postal article of the persons must take proper care concerned is perishable, with concerned and with the written approval of the applicant concerned, dispose of that postal article in such manner as the circumstances may require; must. with the written approval of the applicant concerned. return such postal article. if it has not been disposed of in terms of paragraph (a). or cause it to be returned to the postal service provider concerned if. in the opinion of the applicant concerned- (i ) no criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act. will be instituted in connection with such postal article; or or civil such postal article will proceedings for purposes of evidence or for purposes of an order of court: and such postal article may be returned without prejudice to the public health or safet).. national security or compelling national economic interests of the Republic. as the case ma)’ be: or not be required at any such criminal (ii) (iii) may. in circumstances other than those referred to in- (i) approval of the applicant concerned, paragraph (b). with the written return such postal article or cause it to be returned to the postal service provider concerned if such postal article- (aaj has not been disposed of in terms of paragraph ( a ) : and (Db) in the opinion of the applicant concerned, may be returned without or prejudice to the public health compelling national economic interests of the Republic. as the case may be; or or safety, national security (ii) of the applicant concerned paragraph ( a ) , on the written instructions in such manner as the public health or dispose of such postal article safety. national security or compelling national economic interests of the Republic. as the case may be. requires, if such postal article- (aai has not been disposed of in terns of paragraph (a); and (bhj in the opinion of the applicant concerned, cannot be returned in terms of subparagraph (i) without prejudice to the public health or 25 30 35 40 35 50 55 No. 56 21286 2003 JANUARY GOVERNMENT G A Z E n E , 22 Act No. 7 0 , 2 0 2 REGULATION OF INTERCEPTION OF COMMUNICATIONS a. AND PROVISION OF COMMUNICATION-RELATED INFORMARON ACT. 2002 safety. national security or compelling national economic interests of the Republic. as the case may be. Execution of entry warrant

27. If an entry warrant has been issued. any authorised person who executes the interception direction in respect of which that entry warrant has been issued or assists with the execution thereof may, at any time during which the entry w a r a n t is of force, without prior notice enter the premises specified in the entry wanant and perfom any act relating to the purpose. referred to in the definition of “entry \ barrant”, for which the entry warrant concerned has been issued. 5 10 Assistance by postal service provider and telecommunication service provider . * 28. ( 1 ) If an interception direction or a copy thereof is hinded to the postal service is that interception direction or assists provider or telecommunication service provider to whom the interception direction addressed b!, with the execution thereof. the- the authorised person who executes ( a i postal service provider concerned must intercept the postal article to which the interception direction applies and hand it to the authorised person concerned: 01’ 15 l h ) telecommunication ser\zice provider concerned must immediately- ii) route the duplicate signals of indirect communications to which that interception direction applies concerned; or to the designated interception centre 20 iii) make available the necessary assistance and. subject to section 46(7)(b), the necessary facilities concerned to effect the necessary connections in order to intercept any indirect communications to which the interception direction applies. and devices to enable the authorised person ( 2 ) If a real-time communication-related direction or an archived communication- related direction or a copy thereof is handed to the telecommunication service provider to whom the real-time communication-related direction or archived communication- related direction communication-related direction or archived communication-related direction or assists with the execution thereof, the telecommunication service provider concerned must- is addressed by the authorised person who executes that real-time 25 30 ( a ) route the- ( i ) real-time communication-related information specified in the real-time communication-related direction concerned immediately; or ( i i ) archived communication-related information specified, and within the 35 period stated. in the archived cemed, communication-related direction con- to the designated interception centre concerned; or ( h , pro\,ide the- ( 1 ) real-time communication-related information specified in the real-time 40 communication-related direction concerned immediately; or (ii) archived communication-related information specified, and within the communication-related direction con- in the archived period stated. cerned, to the law enforcement agency concerned, in the form as specified in that real-time communication-related direction or archived communication- related direction. 45 Assistance by decryption key holder 29. ( 1 ) If a decryption direction or a copy thereof is handed to the decryption key by the authorised person who holder to whom the decryption direction is addressed executes that decryption direction or assists with the execution thereof, the decryption key holder concerned must within the period stated in the decryption direction- ( a ) disclose the decryption kej.; or ( b ) provide the decryption assistance. specified in the decryption direction concerned. to the authorised person concerned. 50 55 56 No. 24286 GAZETTE, GOVERNMENT 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * w AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT, 2002 ( 2 ) In complying with a decryption direction, a decryption key holder- ( a ) must only disclose such decryption key or provide such decryption assistance which is necessarylto obtain access to the encrypted information specified in that decryption direction or to put that encrypted information in an intelligible form: 5 (hl may only disclose the decryption key or provide the decryption assistance to the authorised person who executes that decryption direction or assists with the execution thereof: and (c) may not disclose any other information. which , k n o t specified in that decryption direction. relating to the customer in respect of whose encrypted information the decryption assistance has been provided. key has been disclosed or the decryption 1 0 ( 3 ) A decryption key holder to whom a decryption directiop is addressed and who is in possession of both the encrypted information and the decryption key thereto- (01 may use any decryption key in his or her possession to provide decryption 15 assistance: and ( h i must. ' i n providing such decryption assi.&ance. make a disclosure of the encrypted information in an intelligible form. ( 4 ) A decryption key holder u.ho. in terms of a decnption direction. is required to provide decryption assistance in respect of any encrypted information. will be regarded 20 as having complied with that requirement if he or she- ( a ) instead of providing such decryption assistance. discloses any decryption key to the encrypted information that is in his or her possession: and f h ) makes such a disclosure, in accordance with the decryption direction concerned, to the authorised person to whom. and by the time by which. he or 25 she was required to provide the decryption assistance. ( 5 ) If a decryption key holder to whom a decryption direction is addressed. is- ( ( I ) not in possession of the encrypted infonnation: or ( ( 1 ) incapable. nithout the use of a decryption ke! comply possession, to direction. fully with that decryption that is not in his or her 30 the decryption key holder concerned must endeavour to compl!. to the best of his or her ability, with that decvption direction. (6) If a decryption key holder to whom a decnption direction is addressed, is in possession of difl'erent decnption keys. or combinations of decryption keys. to the encrypted information- 35 ( a ) be necessary. for purposes it will not direction concerned. for the decryption key holder to disclose any decryption keys in addition to thow the disclosure of which. alone. is sufficient to enable the authorised person encrypted information to whom they are disclosed and to put i t into an intelligible form: to obtain access to the or of complying with the decryption 4 0 ( b ) the decryption k q holder may select which or combination of decFption keys. to disclose for purposes of complying with the decryption direction concerned. of the decryption keys. ( 7 ) If a decqption direction is addressed to a decryption key holder who- ( u ) has been i n possession of the decryption Le! to the encrypted information. but 35 is no longer in possession thereof; (hi if he or she had continued to have the decryption ke). in his or her possession, he or she would have been required by virtue of the decryption direction to disclose it; and ( ~ 1 is in possession of any information that would facilitate the obtaining or 50 discovery of the decryption key or the provision of decryption assistance, he or she must disclose in his or her possession to the authorised person who executes the decryption direction or assists with the execution thereof. all such information as is (8) An authorised person to whom a decryption key has been disclosed under this 55 section- ( a ) may use the decryption key only in respect of the encrypted information, and in the manner and for the purposes. specified concerned; and in the decryption direction ( 6 ) must, on or before the expiry of the period or extended period for which the 60 decryption direction concerned has been issued. with the written approval of and 60 KO. 24286 GAZETTE, GOVERNMENT 22 JANUARY 2003 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0 AND PROVISIOK OF COh4MUNICATION-RELPED INFORMNION ACT. 2002 the applicant who made the application for the issuing of direction. destroy all records of the disclosed decryption key if, in the opinion of the applicant concerned- ( i ) no criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime Act, will be instituted connection with such records: or a decryption in 5 iii) such records will not be required at any such criminal or civil proceedings for purposes of evidence or for purposes of an order of court. CHAPTER 5 INTERCEPTION CAPABILITY AND CORlPENSATION 10 Interception capability of telecommunication services and storing of communica- tion-related information 30. [ I i Notwithstanding any other law. a telecomnpnication service provider must- ( ( 1 ) provide a telecommunication service which has the capability intercepted: store communication-related infonnation. ( 3 ) The Cabinet member responsible for communications. f h ) in consultation with the hqinister and the other relevant Ministers and after consultation with the Authority and the telecommunication service provider pro\,iderh concerned. must. on the date of the issuing of a telecommunication service 3-0 licence under the Telecommunications pro\.ider or category of telecommunication service providers- or category of telecommunication service a telecommunication service Act. to such to be 15 ((11 issue a directive in respect of that telecommunication service provider category of telecommunication service providers. determining the- ( i ) manner in which effect is to be given to subsection telecommunication service provider or category of telecommunication service providers concerned: ( 1 ) by the or lii) security. technical and functional requirements devices to be acquired by the telecommunication service projider or catezory of telecommunication service providers ~ L I L ~ ) interception of indirect communications in terms of this Act: and storing of communication-related information in terms of subsec- tion ( l ) ( h ) : and of the facilities and to enable the- f h h ) 3-5 30 ( i i i ) type of communication-related information which must be stored in terms of subsection (1 ) , b ) and the period for tvhich such information 35 must be stored. which period ma!, subject to subsection (8). not be less than three years and not more than five years from the date of the transmission of the indirect communication to which that communica- tion-related information relates: and I ~ J determine a period. which may not be less than three months and not more 40 than six months from the date on which a directive referred to in p a r a p p h ( a ) is issued. for compliance with such a directive. and the period so determined must be mentioned in the directi\,e concerned. ( 3 ) A directive referred to in subsection ( 2 ) ( a k - where ( ~ 1 1 must. the- prescribe applicable. ( i ) capacit). needed for interception purposes: (ii) technical requirements of the systems to be used; (iii) connectivity with interception centres: (iv) manner of routing duplicate signals designated interception centres of indirect communications to in terms of section 28( 1 )(bi(i): and (i.1 manner of routing real-time or archived communication-related informa- tion to designated interception centres in terms of section 28(2)(u); and 35 50 KO. 21286 62 Act NO. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * 0 GAZETTE, GOVERNMENT AND PROVISION OF COMMUNICATION-RELATED INFORMXTION ACT. 2002 12 JANUARY 2003 ( b ) may prescribe any other matter which the Cabinet member responsible for communications. in consultation with the Minister and the other relevant Ministers and expedient. after consultation with the Authority, deems necessary or (4) Notwithstanding any other law, agreement or licence. a telecommunication Service provider must. subject by purchasing or leasing. the facilities and devices determined in a directive referred to in subsection ( 2 ) f u ) . to section 46(1)(a), at own cost acquire, whether ((I) (5) Any costs incurred by a telecommunication service prcqider under this .Act in- . enabling- (i 1 a tciecommunicvtion service to be intercepted: and ( i i ) communication-related information to be stored. including the investment. technical. maintenance and operating costs: and f h j compl!.ing with section ?S( 1 )ih)(i) and (?)(a), ',\. must be borne by that telecommunication service provider. ( 6 ) .4 directi\.e issued under subsection ( ? ) ( ( I ) may in like manner be amended or withdrawn. 5 1 0 1s ( 7 ) The Cabinet member responsible for communications must. within two months after the fixed dare ;~nd in consultation with the Minister and the other relevant Ministers and after consultation uith the Authority and a telecommunication service provider or 20 category of telecommunication service providers to whom. prior to the fixed date. a telecommunicatlon service licence has Act- been issued under the Telecommunications ( ( 1 ) issue a directive referred telecommunication service provider service providers: and 20 in subsection (2)(a) in respect or category of telecommunication of such a 25 fbj determine a period. which may not be less than three months and not more than six months from the date on which a directive referred to in paragraph ( a ) is issued. for compliance with such a directive, and the period so determined must be mentioned in the directive concerned. 3 0 ( 8 ) If a period of more than three years has been determined in terms of subsection (2)laj(iii). the Cabinet member responsible for communications may. upon application by the telecommunication relevant Ministers. reduce that period to a period which may not be less than three years by issuing an amended directive under subsection ( ? ) ( a ) . senice provider concerned and in consultation with the 35 Compensation payable to postal service provider. telecommunication service provider and decnption key holder 31, ( 1 J ( ( 1 ) The Minister. after consultation with the Cabinet members responsible for communications and national financial matters or telecommunication service providers concerned. as the case may be. must b!, notice in the Ga:etre prescribe- and the postal service providers 40 ( i j the forms of assistance in the execution of a direction for which a postal serlticc provider. telecommunication service provider holder must be compensated: and or decryption key ( i i ) reasonable tariffs of compensation payable to a postal service provider, 45 telecommunication service provider or decryption key holder for providing such prescribed forms of assistance. ( h ) The tarif% prescribed under paragraph (a)(ii)- (i) may differ in respect of different categories of postal service providers. telecommunication service providers or decryption key holders: and 50 ( i i ) must be uniform in respect of each postal service provider, telecommunication service provider or decryption key holder falling within the same category. ( c ) A notice issued under paragraph ( a ) may at any time in like manner be amended or withdraw. ( d ) The first notice to be issued under paragraph (a) must be published in the Gaxrte kvithin three months after the fixed date. ( 2 ) The forms of assistance referred to in subsection (I)(a)(i) must include. in the case of a- ( a ) telecommunication service provider, the making available of a facility. device or telecommunication system: and 55 60 64 No. 24286 Act No. 70,2002 REGULATION OF 1KI”TRCEPTION OF COMMUNICA+TIONS * - AND PROVISION OF COMMUNICP;TION-RELATED INFORMATION ACT. 2002 GAZElTE. GOVERNMENT 22 JANUARY 2003 (hi decryption key holder, the- (i) disclosure of a decryption key: and ( i i ) provision of decryption assistance. (3) The compensation payable to a postal service provider, telecommunication service provider or decryption key holder in terms of this section will only be for direct costs incurred in respect of personnel and administration which are required for purposes of providing any of the forms of assistance contemplated in subsection (I)(a)(i). (4) Any notice issued under subsection (1) must. before publication thereof in the 5 Gazette. be submitted to Parliament. \ . CHAPTER 6 INTERCEPTION CENTRES, OFFICE FOR INTERCEPTION CENTRES AND INTERNET SERF’ICE PROVIDERS ASSI$$ANCE FUND Establishment of interception centres 32. ( 1 ) The Minister. in consultation with the rele\ant Ministers and at State expense- for national financial matters. must. member responsible the Cabinet (01 establish one or more centres. to be known as interception centres, for the interception of communications in terms of this Act: chi equip. operate and maintain such interception centres; ( c i acquire. install and maintain connections between telecommunication and centres; systems and interception tdi administer the interception centres. 10 15 30 ( 2 ) The h’finister must exercise final responsibility over the administration and functioning of interception centres. ( 3 ) Notu ithstanding the Telecommunications Act, an interception centre will. for purpoxs of performing its functions in terms of this Act, be exempted from- 35 f r i l obtaining any kind of licence required by that Act; and 0 1 ) paying any fees payable in terms of that Act. (4 1 The Minister must enter into senice level agreements with the relevant Ministers in respec1 of the provision of ser\.ices by the interception centres to the law enforcement agencies. 30 (5) The Executive Director ma! enter into agreements with the National Commis- to make use of the services of interception centres, sioner and National Director including the cost thereof. Establishment of Office for Interception Centres

43. Notwithstanding section 42( I), any authorised person who executes a direction or 25 assists with the execution thereof and who has obtained knowledge of- ( a ) the contents of any communication intercepted under that direction, or evidence derived therefrom; or ( b ) real-time or archived communication-related information provided under that direction, may- ( i ) disclose such contents or elidence or real-time or archived communication- related information t o another law enforcement officer. to the extent that such disclosure is necessary for the proper performance of the official duties of the authorised person making disclosure: or or the law enforcement officer receiving the (ii) use such contents or evidence or real-time or archived communication-related information to the extent that such use is necessary for the proper performance of hi5 or her official duties. Listed equipment 44. ( 1) ( a ) The Minister must. by notice in the Gacerte, declare any electronic. electro-magnetic. acoustic. melzhanical or other instrument, device or equipment, the of design of which renders communications. under the conditions or circumstances specified in the notice, to be listed equipment. it primail), useful for purposes of the interception ( b ) A notice issued under paragraph ( a ) may at any time in like manner be amended or withdrawn. 30 35 40 45 ( r ) The first notice to be issued under paragraph ( a ) must be published in the Gazetre within three months after the fixed date. ( 2 ) fa) Before the Minister exercises the powers conferred upon him or her by 50 subsection (1). he or she must- (i) consult the relevant Ministers; and (ii) cause to be published in the Gazette a draft of the proposed notice, together with a notice inviting all interested parties to submit to him or her in writing and within a specified period, comments and representations in connection with the proposed notice. ( b ) A period of not less than one month must elapse between the publication of the 55 draft notice and the notice under subsection ( I ). 78 2003 JANUARY 22 No. 21286 GAZETTE, GOVERNMENT Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * e AND PROVISION OF COMMUNICATION-RELATED INFORM~TION ACT. 2002 (3) Subsection 12) does not apply- ( a ) if the Minister, in pursuance of comments and representations received terms of subsection (2)(a)(ii), decides subsection ( 1 ) in an amended form; and to publish a notice referred in to in (bj to any declaration in terms of subsection (1) in respect of which the Minister is of the opinion that the public interest requires that it be made without delay. in the ( 1 ) must, before publication thereof (4) Any notice issued under subsection Gumre, be submitted to Parliament. Prohibition on manufacture, possession and advertising of listed equipment \ . 45. ( 1 ) Subject to subsection (2) and section 46, no person may manufacture, 10 assemble, possess. sell, purchase or advertise any listed equipment. ( 2 ) Subsection 1) does not apply to any telecommunicatidn service provider or other person who. or law enforcement agency which. manufactures, assembles. possesses, sells. purchases or advertises listed equipment under the authority of a certificate of exemption issued to him or her or it for that purpose by the Minister under section 46. 15 Exemptions 46. ( 1 ) iu) The Minister may, upon application and in consultation with the relevant Ministers, exempt any- (i) Internet service provider from complying with section 30(4) in respect of the (ii J (iii) to in section 30(2)(a)(ii); referred and devices facilities telecommunication service provider or any other person from one or all of the prohibited acts referred to in section 45(1): or law enforcement agency from the prohibited acts purchasing referred to in section 4 3 1). of possessing and for such period and on such conditions as the Minister determines. ( b ) A condition referred to in paragraph ( a ) may include that an Internet service provider to whom an exemption has been granted under paragraph (a)(i) must pay as an annual contribution to the Fund such amount as the Minister determines in each case. (1) The Minister may only grant an exemption under subsection (l)(a) if he or she is satisfied that- (u1 in the case of an exemption under subsection ih J provider concerned carries on such a small business comply with section 30(4): or in the case of an exemption under subsection (I)(a)(ii), the purpose for which the listed equipment will be manufactured, assembled, possessed, sold, purchased or advertised is reasonably necessary; and (l)(a)(i), the Internet service that he or she cannot (c) such exemption is in the public interest; or ( d ) special circumstances exist which justify such exemption. ( 3 ) ( a i An exemption under subsection (l)(a) must be granted by issuing to the- ii) Internet senice provider; (ii) telecommunication service provider or other person; or (iii) law enforcement agency. concerned. a certificate of exemption in which his or her or its name and the scope. period and conditions of the exemption are specified. ( b ) A certificate of exemption paragraph under issued (a)- (i) must be published in the Gazetre; and (ii) becomes valid upon the date of such publication. (4) ( a ) The Minister must. before he or she publishes a certificate of exemption in terms of subsection (3)(h)(i), approval. table such certificate in the National Assembly for 20 25 30 35 40 45 50 (bj The National Assembly may reject a certificate tabled in terms of paragraph (a) within two months after it has been tabled. if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session, within 14 days after the commencement of its next ensuing ordinary session. (c) If the National Assembly rejects such amended certificate in the National Assembly. a certificate, the Minister may table an 55 80 No. X 2 8 6 GAZETTE, GOVERNMENT 22 JANUARY 2003 Act No. 70.2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS \\ AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT. 2002 ( d ) If the Minister tables an amended certificate and the National Assembly- (i) approves the amended certificate. the Minister must publish that certificate in terms of subsection (3)(b)(i) within one month of the National Assembly's approval: or (ii) rejects the amended it has been tabled, if Parliament is then in ordinary session, or, if Parliament is not then in ordinary session. within 13 days after the commencement of its next ensuing ordinary session. paragraph (c) and this paragraph apply. certificate within two months after (d)(ii)- ( 6 ) or ( e ) If the National Assembly does not reject a certificate as tanternplated in paragraph 5 10 ii) such certificate will be deemed to have been approved by the National (ii) Assembly: and the Minister must publish within one month thereafter. that certificate in t,erf"s of subsection (3)(b)(i) (5) A certificate of exemption contemplated in subsection (3) may at any time in like 15 manner be amended or withdrawn by the Minister. (6) An exemption under subsection (1)ful 1apseSupon- ( u ) termination of the period for which ( h ) withdraual of the relevant certificate under subsection (5). it was granted: or ( 7 ) If an exemption has been granted to an Internet service provider under subsection 20 (1)fuNi)- ( 0 ) that Internet service provider will be subject to all the other applicable provisions of this Act: and ( b ) the law enforcement agency which made the application for the issuing of the direction which available the necessary facilities and devices to execute that direction. is addressed to such Internet service provider, must make 25 CHAPTER 9 CRIMINAL PROCEEDINGS, OFFENCES AND PENALTIES Use of information in criminal proceedings 17. ( 1 ) Information regarding the commission of any criminal offence, obtained by 30 means of an)' interception. or the provision of any real-time or archived communication- related information, under admissible as evidence in criminal proceedings or civil proceedings as contemplated in Chapter 5 or 6 of the Pre\.ention of Organised Crime Act. in another country, may be this Act. or any similar Act ( 2 ) P l y information obtained by the application of this Act, or an). similar Act in 35 another countrj-. ma!' only be used as evidence proceedings as contemplated in Chapter 5 or 6 of the Prevention of Organised Crime of the or any member Act, with the written authority prosecuting authority authorised thereto in writing by the National Director. in any criminal proceedings or civil of the National Director. Proof of certain facts by certificate 40

48. Whenever in any criminal proceedings or civil proceedings in terms of Chapter 5 or 6 of the Prevention of Organised Crime Act. the question arises whether a designated judge. judge of a High Court. regional magistrate or magistrate has issued a direction under this Act, a certificate signed by a designated judge. judge of a High Court. regional magistrate or magistrate in which he or she- 45 (a) alleges that he or she has received and considered an application made to him or her in terms of this Act: (b) alleges that he or she has issued a direction under this Act; and (c) specifies the contents of such direction, its mere production at such proceedings, be shall, upon designated judge. judge of a High Court, regional magistrate or magistrate concerned of the contents received and considered such application, issued such direction and thereof. pritna facie proof that the 50 No. 24286 82 * Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * GOVERNMENT GAZETTE, 21 JANUARY 2003 AND PROVISION OF COMMUNICATION-RELATED INFOR&~ATION ACT, 2002 an Unlawful interception of communication 49. (1) Any person who intentionally intercepts or attempts to intercept, or authorises or procures any other person to intercept or attempt to intercept, at any place in the Republic, any communication in the course of its occurrence or transmission, is guilty of offence. 5 (2) Subsection (1) does not apply to the- ( a ) interception of a communication as contemplated in sections 3, 4, 5 . 6. 7 , 8 and 9; or ( h ) monitoring of a signal sections 10 and 1 1. or radio frequency spectrum \\ as contemplated in 10 Unlawful provision of real-time or archived communication-related information . . 50. ( 1 ) Any telecommunication service provider or employee of a telecommunication service provider who intentionally provides or attempts archived communication-related information to any person other than the customer of the telecommunication service provider concerned to whom such real-time or archived 15 communication-related information relates, is guilty of an offence. to provide any real-time or ( 2 ) Subsection ( 1 ) does not apply to the provision of real-time or archived communication-related information as contemplated in sections 13. 14 and 15. Offences and penalties 51. ( 1 ) ( a ) Any person who- 20 or 25 correct; not believing it to be contraienes or fails to comply with section 6(2), 7(4), 8(4), 29(8), 40( 1 ), (3) or (3). 42( 1 ) or 45( 1): in any application made in terms of this Act, furnishes information or makes a statement. knowing such information or statement to be false, incorrect or misleading acts contrary to the authority of an)' direction issued under this Act or proceeds to act under any such direction knowing that it has expired; acts contrary to the authority of an entry warrant issued under this Act or. without being authorised thereto under an entry warrant, enters any premises for purposes of intercepting a postal article or communication. or installing 30 and maintaining an interception device. on that premises; forges or, with the intent to deceive, alters or tampers with any direction or entry warrant issued under this Act: furnishes particulars or information in any affidavit or report referred to in this ,4ct, knowing such particulars misleading or not belieling it to be correct: or obstructs, hinders or interferes with an authorised person who executes any direction or e n t q warrant issued under this Act or assists with the execution thereof. in the exercising of his or her powers under that direction or entn. wwrant, of an offence. or information to be false, incorrect or 40 35 ( b ) .L\ny person who is convicted of an offence referred to in- (i) paragraph (a) or in section 49(1) or 54. is liable to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years: or (ii) section 52,53( 1 or 55(1). is liable to a fine or to imprisonment for a period not 45 exceeding two years. (2) (a) Any postal service provider or employee of a postal service provider who- (i) contravenes or fails to comply with section 28(l)(a); (ii) contravenes or fails t o comply with section 42(2); or (iii) performs an act contemplated in subsection (l)(a)(iii), (v) or (vii), 50 is guilty of an offence. ( b ) Any postal service provider or employee of a postal service provider who is convicted of an offence referred to in paragraph f a ) is liable. in the case of- (i) a postal service provider who is a- 84 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * c AND PROVISION OF COMMUNICATION-RELATED INFOR~ATION ACT, 2002 (aa) natural person, to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years; or (bb) juristic person, to a fine not exceeding R5 000 000; or (ii) an employee, to a fine not exceeding R2 000 000 or to imprisonment for a exceeding not period 10 years. (3) (a) Any telecommunication service provider or employee of a telecommunication service provider who- ( i j contravenes or fails to comply with section 7 ( 2 ) . 8(3), 28( 1)fb) or (2), 30( 1) or 39(4L x- . or contravenes (ii) fails (iii) contral'enes or fails to comply with section 7(5), 8(5). 39( 1 j or ( 2 ) or 42(2); or (ivj performs an act contemplated in subsection (I)(aj(iii), (v) or (viij. 30(4); to comply section with 5 10 is guilty of an offence. (bj Any telecommunication senice provider or employke of a telecommunication service provider a.ho is convicted of an offence referred to in paragraph ( 0 ) or in section 15 50( 1). is liable. in the case of- ( i ) a telecommunication service provider who is a- laai natural person, to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years; or to a fine not (Ob) juristic person, exceeding R5 000 000; or (ii) an employee. to a fine not exceeding R2 000 000 or to imprisonment for a 20 period not exceeding 10 years. (4) ( a ) An!- decryption key holder or any employee of a decryption key holder who- (i) contra\.enes or fails to comply with section 29( 1); (ii) contravenes or fails to comply with section 29(2). (3)(b), ( 5 ) or (7) or 42(2); 25 or (iii) performs an act contemplated in subsection (l)(a)(iii). (v) or (vii). is guilty of an offence. (6) Any decqption key holder or employee of a decryption key holder to in paragraph (a) is liable, in the case of- who is 30 convicted of an offence referred ( i ) a decryption key holder who is a- l o a , natural person. to a fine not exceeding R2 000 000 or to imprisonment lor a period not exceeding 10 years; or (bb, juristic person, to a fine not exceeding R5 000 000: or (ii) an employee, to a fine not exceeding R3- 000 000 or to imprisonment for a 35 period not exceeding 10 years. (5) A con\zicrion of an offence referred to in- (a) subsection (?)(aj(i) does not relieve any postal service provider or any emplo!ze of such a postal service provider of the obligation to comply with section 18( 1 j(a); ( b ) suhsection (3)(a)(i) or (ii) does not relieve any telecommunication service provider or any employee of such a telecommunication service provider of the obligation to comply with section 18( 1 ) ( h ) or ( 2 ) . 30( 1) or (4) or 39(4): or or any ( c j subsection (4)(a)(i) does not relieve any decryption key holder 40 employe of such a decryption key holder of the obligation to comply with 45 section 29( 1 j. (6) Notwithqanding anything in any other law contained, a to the contrary magistrate's court may impose any penalty provided for in this Act. (7) No person \ \ , h e ( 0 ) in good faith assists an authorised person with the execution of a direction; 50 and ( b ) belie\.es on reasonable grounds that such authorised person is acting in accordance with such a direction, is liable to prosecution for a contravention of this Act. 86 No. 24286 GOVERNMENT GAZETTE, 22 JANUARY 2003 Act No. 70.2002 REGULAllON OF INTERCEPTION OF COMMUNICATIONS * 0 AND PROVISION OF COMMUNICATION-RELATED INFOMATION ACT, 2002 Failure to give satisfactory account of possession of cellular phone or SIM-card

52. Any person who is found in possession of any cellular phone or SIM-card in regard to which there is reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession, is guilty of an offence. Absence of reasonable cause for believing cellular phone or SIM-card properly acquired 5 53. (1 1 Any person who in any manner acquires or receives into his or her possession \ . from any other person a stolen cellular phone or SIM-card without having reasonable cause for believing at the time of such acquisition or receipt that such cellular phone or SIM-card is the property of the person from whom he or she acquires or receives it or that such person has been duly authorised by the owner thege'of to deal with it or dispose of it. is guilty of an offence. ( 2 ) In the absence of evidence to the contrary which raises a reasonable doubt, proof of such possession is sufficient evidence of the absence of reasonable cause. 10 Unlawful acts in respect of telecommunication and other equipment 15 54. ( 1 ) Any person who. intentionally and unlawfully, in any manner- fa) modifies, tampers with. alters, reconfigures or interferes with, any telecom- munication equipment. including a cellular phone and a SIM-card. or any part thereof; i h , reverse engineers. decompiles, disassembles or interferes with, the software 20 installed on any telecommunication equipment. including a cellular phone and a SIM-card, by the manufacturer thereof; or ic,j allows any other person to perform any of the acts referred to in paragraph ( a ) or (6). is guilty of an offence. ( 2 ) Any person who. intentionally and unlawfully, in any manner- la) modifies. tampers with or interferes with, any interception or monitoring equipment, device or apparatus installed or utilised in terms of this Act; or i h i alloLvs any other person to perform any of the acts referred to in paragraph (a). is guilty of an offence. Failure to report loss, theft or destruction of cellular phone or SIM-card and presumption 25 30 55. 1 ) Any person who fails to report the loss, theft or destruction of a cellular phone or SIM-card in terms of sectior. 11(1), is guilty of an offence. ( 2 ) Whenever a person is charzed with an offence referred to in subsection ( 1 ) and it is proved that such person wax. at the time. the owner or authorised possessor of the cellular phone or SIM-card alleged to have been lost, stolen or destroyed. proof that the of a person has failed to produce such cellular phone or SIM-card within seven days written request by a police official to do so. will, in the absence of evidence to the contrary wzhich raises reasonable doubt, be sufficient evidence that the cellular phone or SIM-card has been lost. stolen or destroyed. 35 40 Revoking of licence to provide telecommunication service

56. The Cabinet member responsible for communications, after consultation with the .4uthority. may. in the case of a second or subsequent conviction of a telecommunication service provider of an offence referred to in section 5 1 (3)(a)(ii) and notwithstanding the imposition of any penalty prescribed by section 5 1 (3)jb), revoke the licence issued to the telecommunication service provider concerned under Chapter V of the Telecommu- nications Act. to provide a telecommunication service. 45 No. 24286 88 Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICJTIONS * v GOVERNMENT GAZETTE, 22 JANUARY 2003 AND PROVISION OF COMMUNICATION-RELATED INFORMATION ACT, 2002 Forfeiture of listed or other equipment 57. (1) A court convicting a person of an offence referred to in section 51 must, in addition to any penalty which it may impose equipment- in respect of that offence, declare any listed (a) by means of which the offence was committed; (b) which was used in connection with the commission of the offence; (c) which was found in the possession of the convicted person; or ( d ) the possession of which constituted the offence, 1. 5 to be forfeited to the State. (2) A court convicting a person of an offence referred to in section 5 1 may, in addition to any penalty which it may impose in respect of that offence, declare any equipment, other than listed equipment- 10 ( a ) bg means of which the offence was committed:,' ( h ) which was used in connection with the commission of the offence; (c) which was found in the possession of the convicted person; or (d) the possession of which constituted the offence. 15 to be forfeited to the State. (3) Any listed equipment or other equipment declared forfeited under subsection (1) or (2) must, as soon as practicable after the date of declaration of forfeiture, be delivered to the Police Service. 20 (4) Any listed equipment or other equipment delivered to the Police Service in terms of subsection ( 3 ) must. in the case of- ( a ) listed equipment declared forfeited under subsection (l), be kept by the Police Service- ( i ) for a period of four months with effect from the date of declaration of 25 forfeiture; (ii) if an application referred to in subsection (6)(a) is made, until a final (iii) decision in respect of any such application has been given; or if an application referred to in subsection (7)(a) is made, until a final decision in respect of any such application has been given. 30 and must- ( a a ) as soon as practicable after the expiry of the period referred to in subparagraph (i); (bb) if the decision referred to in subparagraph (ii) has been given against the telecommunication service provider or other person concerned. as soon as practicable after that decision has been given; or (cc) if an application referred to in subparagraph (iii) has been refused, as 35 soon as practicable after such rerusal; or ( h ) equipment declared forfeited under subsection ( 2 ) , be kept by the Police Service- (i) for a period of 30 days with effect from the date of declaration of forfeiture: and (ii) must as soon as practicable after the expiry of the period referred to in subparagraph (i). be destroyed by the Police Service. 40 45 ( 5 ) A declaration of forfeiture under subsection ( 1 ) does not affect any right which any telecommunication service provider or other person, other than the convicted person, may have to such listed equipment. if it is proved that such telecommunication service provider or other person- ( a ) has been exempted, under section 46( l)(a), from the relevant prohibited act 50 referred to in section 45(1) in respect of such listed equipment; ( b ) could not reasonably be expected to have known or had no reason to suspect that the listed equipment concerned was being or would be used in connection with the offence: and ( c ) had taken all reasonable steps to prevent the use thereof in connection with the 55 offence. (6) (a) The court in question or. if the judge or judicial officer concerned is not officer of the court in question, may upon an available, any other judge or judicial application made at any time within a period of three months with effect from the date of declaration of forfeiture under subsection provider or other person, other than the convicted person, who claims that- ( I ) , by any telecommunication service 60 90 No. 24286 - Act No. 70,2002 REGULATION OF INTERCEPTION OF COMMUNICATIONS * GOVERNMENT GAZElTE, 22 JANUARY 2003 AND PROVISION OF COMMUNICATION-RELATED INFOIU~ATION ACT, 2002 (i) the listed equipment declared forfeited under subsection (1) is his or her property; and (ii) he or she is a person referred to in subsection ( 5 ) . inquire into and determine those matters. ( b ) If the court referred to in paragraph (a) is satisfied that the- (i) (ii) listed equipment concerned is the property of the telecommunication service provider or other person concerned; and telecommunication service provider or other person concerned referred to in subsection (S), is a person x. - the court must set aside the declaration of forfeiture and direct that the listed equipment concerned be returned to such telecommunication service proyider or other person. (c) If a determination by the court under paragraph (b) is adverse to the applicant, he if it were a convictioq or she may appeal therefrom as determination. and such appeal may be heard either separately or jointly with an appeal against the con\$iction as a result whereof the declaration of forfeiture under subsection ( 1 ) was made. or against a sentence imposed as a result of such conviction. by the court making the ( d ) When determining the matters referred to in Caragraph (a)(i) and (ii), the record of 5 10 1s the criminal proceedings in which the declaration of forfeiture under subsection (1) was made. must form part determination may hear such additional evidence, whether deems fit. of the relevant proceedings, and the court making the h!, affidavit or orally, as it 20 (7) ( a ) The Minister may. if an application referred to in subsection (6)(a)-- (il has not been made, upon an application made at any time after a period of of declaration of forfeiture under three months with subsection ( I ) but before the expiry of a period of four months from that date; or effect from the date (ii) has been made and the declaration of forfeiture has not been set aside, upon an application made at any time within a period of one month with effect from the date on which a final decision in respect of that application has been given. in terms of section 46( 1 )(a)(iii) exempt the law enforcement agency which made the application from possessing the listed equipment declared forfeited under subsection ( 1 ). ( h ) Section 46 applies with the necessary changes in respect of an application referred to in paragraph ( a ) . CHAPTER 10 GENERAL PROVISIONS 25 30 35 Supplementary directives regarding applications 58. (1 ) A designated judge or. if there is more than one designated judge. all the designated judges jointly. may. after consultation with the respective Judges-President of the High Courts, issue directives to supplement the procedure for making applications 40 for the issuing of directions or entry warrants in terms of this Act. ( 3 ) Any directive issued under subsection ( 1 ) may at any time in like manner be amended or withdrawn. (3) Any directive issued under subsection (1) must be submitted to Parliament. Amendment of section 205 of Act 51 of 1977, as substituted by section 11 of Act 204 of 1993 45