Vol. 402, No. 19618, 24 December 1998
GENERAL NOTICE
Notice 3016 of 1998
SOUTH AFRICAN LAW COMMISSION
DISCUSSION PAPER 78: REVIEW OF SECURITY
LEGISLATION
THE INTERCEPTION AND MONITORING PROHIBITION ACT OF 1992
The Working Committee of the Commission recently approved the publication of Discussion Paper 78 for general information and comment. Discussion Paper 78 deals with the Interception and Monitoring Prohibition Act of 1992 and contains recommendations on the amendment of the Act.
In March 1996 the Minister of Justice approved the inclusion of the review of security legislation in the Commission's programme and subsequently appointed the project committee to deal with this investigation. The Interception and Monitoring Prohibition Act of 1992 is the first subject which was considered by the project committee as part of this investigation. In future the project committee will consider other areas of the law relating to security.
The main recommendations contained in Discussion Paper 78 are that the Interception and Monitoring Prohibition Act, 1992 be augmented by-
- placing an obligation on telecommunication service providers to ensure interceptability/monitoring of all communications;
- making further provision in the definition of serious offence for offences to fall within the ambit of the Act;
- making it clear that the general position regarding interception or monitoring is that the interception or monitoring without the knowledge or permission of the parties to a conversation or communication so as to gather confidential information concerning any person body or organisation, is prohibited;
- providing that a judge in each division be designated by the Minister to consider applications for interception and monitoring in cases relating to serious offences, provided that the Minister may designate a judge for more than one division, and
- that one judge be designated to consider applications in regard to security and national interest matters;
- providing that a judge may issue a directive if he or she is convinced that the offense that has been or is being committed or will probably be committed, is a serious offense that cannot be properly investigated in another less intrusive manner;
- providing that no communication between a legal representative and his or her client may be intercepted or monitored, except if on reliable information, the judge is satisfied that such a legal representative is involved in, or aiding or abetting a serious offense;
- providing that the remuneration under the Act shall only be in respect of direct
- costs incurred in respect of personnel and administration and the lease of telecommunications lines, where applicable, and shall not include the costs of acquiring the facilities and devices referred to in the Act;
- providing that no person, body or organisation rendering a telecommunication service, may provide any such service which is not capable of being monitored;
- providing that any person, body or organisation rendering a telecommunication service shall at own cost and within the period specified in a directive by the Minister responsible for Communications, acquire the necessary facilities and devices to enable the monitoring of conversations and communications, where the monitoring has been authorised in terms of the Act, from a supplier approved by the Minister responsible for Communications;
- providing that the investment, technical, maintenance and operating costs in making a telecommunication service capable of being monitored, shall be carried by the person, body or organisation rendering such a service;
- providing that the Minister responsible for Communications may issue a directive to any person,- body or organisation rendering a telecommunication service, to comply with the provision on the rendering of services which are capable of being monitored and that he or she may specify the security, technical and functional requirements of the facilities and devices to be acquired under the Act;
- providing that any person, body or organisation rendering a telecommunication service shall, in respect of all conversations or communications which are monitored in terms of this Act. route the call related data specified in a direction to a designated central monitoring centre;
- providing that any person, body or organisation rendering a telecommunication service shall ensure that proper records regarding identities and addresses are kept in respect of clients to whom a telecommunication service is provided, whether on a prepaid or contract basis and shall require positive identification from a client to whom such a service is provided.
- providing that a judge considering an application may dispense with the procedure set out in the Act in any case considered by him or her to be sufficiently urgent. and that he or she may deal with the matter in such manner and subject to such conditions as he or she may deem fit, including the grant in any appropriate case of an oral direction followed up by written application within one week;
- setting out that the use of any information obtained through the application of the Act, or any similar Act in another country, as evidence in any prosecution, is subject to guidelines issued by the Director of Public Prosecutions or Investigating Director concerned;
- setting out that the information regarding the commission of any criminal offence, obtained by means of any interception or monitoring in terms of the Act, may be admissible as evidence in criminal proceedings;
- providing that any person, body or organisation rendering a telecommunication service and who or which fails or refuses to comply with a direction issued by a judge; a directive issued by the Minister for Posts, Telecommunications and Broadcasting; the obligation to provide information regarding a user of a telecommunication service; the obligation to keep records; or the obligation to require positive identification when contracting a telecommunication service, shall be guilty of an offence, and liable on conviction, to a fine not exceeding R200 000;
- providing that a person who intentionally and without the knowledge or permission of the dispatcher intercepts a communication which has been or is being or is intended to be transmitted by telephone or in any other manner over a telecommunications line, or intentionally monitors a conversation by means of a monitoring device so as to gather confidential information concerning any person, body or organisation, shall be guilty of an offence and liable on conviction to a fine not exceeding R 20 000 or to imprisonment not exceeding two years;
- providing that if any person who is or was concerned in the performance of any function in terms of the Act, discloses any information which he or she obtained in the performance of such a function shall be guilty of an offense and liable on conviction to a fine not exceeding R 40 000 or to imprisonment not exceeding five years;
- providing that if any person, body or organisation who or which renders a telecommunication service, after a conviction for failing to comply with a directive, fails to comply with a further directive issued by the Minister for Posts, Telecommunications and Broadcasting, the Minister may revoke the licence issued in terms of Chapter V of the Telecommunications Act, 1996, to such person, body or organisation to render a telecommunication service.
A matter which is alarming in South Africa, is the large number of advertisements by private investigators, sometimes even in law journals, offering to deliver services which include "bugging". The Commission therefore requests comment particularly on the question of whether the manufacture, distribution, possession and advertising of wire or oral communication intercepting devices should be regulated, and if so, which measures should be adopted?
The Commission invites the comments of all parties who feel that they have an interest in the topic or may be affected by the measures set out in the Interception and Monitoring Prohibition Act of 1992. Individuals, organisations and institutions affected by the Interception and Monitoring Prohibition Act of 1992 Act or who are likely to be affected by possible amendments to the existing legislation should participate in this debate and are invited to indicate how the present law affects them, what their concerns are, what solutions they are able to propose and whether there are other issues and/or options affecting the law of interception and monitoring that must be explored.
Based on the outcome of these comments and discussions, a report containing the Commission's final recommendations and an amendment Bill will be prepared and presented to the Minister of Justice.
It would be appreciated if written comments or suggestions could reach the Commission by 25 January 1999 at the address given below.
Correspondence should be addressed to:
The Secretary
South African Law Commission
Private Bag X 668
PRETORIA
0001
e-mail: pvwyk@salawcom.org.za
Telephone: (012) 322-6440 (Mr P van Wyk)
The discussion paper will be made available on the Internet at the following site: http://www.law.wits.ac.za/salc/discussn/discussn.html