SA LAW COMMISSION INVESTIGATES INTERCEPTION/MONITORING

Issued by: S A Law Commission

13 December 1999

STATEMENT BY THE SOUTH AFRICAN LAW COMMISSION ON ITS INVESTIGATION INTO THE INTERCEPTION AND MONITORING PROHIBITION ACT '27 OF 1992

The South African Law Commission has submitted a report on the Interception and Monitoring Prohibition Act 127 of 1992 to the Minister for Justice and Constitutional Development.

A review and rationalisation of South Africa's security legislation is undertaken to ensure thatthe legislation is in accordance with international norms, the Constitution and present requirements of the country.

The main provisions of the Bill contained in the report are the following:

• The regulation of the Interception of cellular communications. The Insertion of a definition of "communication" into the Act to ensure that any Conversation or communication can be intercepted,
• The addition of further offences in the definition of "serious offence" to fall within the ambit of the Act
• That communications between a legal representative and his or her client may not be intercepted or monitored. except if on reasonable grounds, the judge is satisfied that such a legal representative Is involved in, or aiding or abetting a serious offence or an offence threatening the security of the Republic.
• That the judge upon application may direct further additions or amendments to an existing directive if he or she is satisfied that the addition or amendment is necessary.
• That no person, body or organisation rendering a telecommunication service, may provide any such service which does not have the capacity to be monitored and that the Investment, technical, maintenance and operating costs in enabling a telecommunication service to be monitored, shall be carried by the person, body or organisation rendering such a service"
• That the Minister of Communication after consultation with any person, body or organisation rendering a telecommunication service, may issue a directive for complying 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.
• That any person, body or organisation rendering telecommunication service shall at own cost and within the period specified in a directive by the Minister of Communication, acquire the necessary facilities and devices to enable the monitoring of communications and that the remuneration payable to telecommunication service providers referred to in the Act shall only be in respect of direct costs incurred in respect of personnel and administration and the lease of telecommunications systems, where applicable, and shall not include the costs of acquiring the facilities and devices.
• That a service provider will not be responsible to decrypt an encrypted communication unless the facility for encryption forms part of the service rendered by the service provider
• That the South African Police Service, the South African national Defence Force, the Intelligence Agency and the Secret Service shall, at State Expense, equip, operate and maintain central monitoring centr3es for the authorised monitoring of conversations or communications and that an agreement on the sharing of any such central monitoring centre shall not be excluded.
• That the inevitability of the procedures set out in the Bill in respect of the ongoing provisioning of call-related information shall exclude the us of any power in any other Act, to obtain evidence or information in respect of a person, body or organisation.
• 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 to require positive identification from a client to whom such a service
• That any person, body or organisation rendering a telecommunication service, shall provide such Information regarding the customer who has contracted for the use of such telecommunication service to the South African Police Service, the South African National Defence Force, the Agency or the Service, as may be required by an officer or member, to fulfil the functions and exercise the powers authorised by law.
• That if a judge considers any case to be sufficiently urgent, the procedure set out in the Act may be dispensed with and the matter may be dealt with in such manner and subject to such conditions as the judge may deem fit, including the grant in any appropriate case or an oral directive followed up by written application incorporating the terms of the directive within one week, and thatwhere an oral directive was issued, the judge must reduce it to writing within two days.
• That the use of any information obtained through the application of the Act, or an similar Act in another country, as evidence in any prosecution, is subject to the decision of a Director of Public Prosecutions or an Investigating Director.
• That Information regarding the commission of any criminal offence, obtained by means of any interception or monitoring In terms of the Act, or any similar Act In another country may be admissible as evidence in criminal proceedings.

The report is available on the Internet at

http://www.law.wits.ac.za/salc/sa.c.html and will be obtainable from the Government Printer when printed.

ISSUED BY THE SECRETARY, SA LAW COMMISSION, Pretoria:

CONTACT FOR ENQUIRIES IN RESPECT OF MEDIA STATEMENT:

MR PA VAN WYK (012) 322 0440