| (1) |
An applicant may apply to a designated judge for the issuing of an interception direction. |
| (2) |
Subject to section 23(1), an application referred to in subsection (1) must be in writing and must— |
| (a) |
indicate the identity of the— |
| (i) |
applicant and, if known and appropriate, the identity of the law enforcement officer who will execute the interception direction; |
| (ii) |
person or customer, if known, whose communication is required to be intercepted; and |
| (iii) |
postal service provider or telecommunication service provider to whom the direction must be addressed, if applicable; |
| (b) |
specify the ground referred to in subsection (5)(a) on which the application is made; |
| (c) |
contain full particulars of all the facts and circumstances alleged by the applicant in support of his or her application; |
| (i) |
subject to subsection (8), a description of the— |
| (aa) |
nature and location of the facilities from which, or the place at which, the communication is to be intercepted, if known; and |
| (bb) |
type of communication which is required to be intercepted; and |
| (ii) |
the basis for believing that evidence relating to the ground on which the application is made will be obtained through the interception; |
| (e) |
if applicable, indicate whether other investigative procedures have been applied and have failed to produce the required evidence or must indicate the reason why other investigative procedures reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence: Provided that this paragraph does not apply to an application for the issuing of a direction in respect of the ground referred to in subsection (5)(a)(i) or (v) if the— |
| (i) |
serious offence has been or is being or will probably be committed for the benefit of, at the direction of, or in association with, a person, group of persons or syndicate involved in organised crime; or |
| (ii) |
property is or could probably be an instrumentality of a serious offence or is or could probably be the proceeds of unlawful activities; |
| (f) |
indicate the period for which the interception direction is required to be issued; |
| (g) |
indicate whether any previous application has been made for the issuing of an interception direction in respect of the same person or customer, facility or place specified in the application and, if such previous application exists, must indicate the current status of that application; and |
| (h) |
comply with any supplementary directives relating to applications for 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 (a), (d) or (f) of the definition of "applicant"; |
| (b) |
subsection (5)(a)(ii) or (iii), must be made by an applicant referred to in paragraph (b) or (c) of the definition of "applicant"; |
| (c) |
subsection (5)(a)(iv), must, in the case of— |
| (i) |
the investigation of a serious offence, be made by an applicant referred to in paragraph (a) or (d) of the definition of "applicant"; and |
| (ii) |
the gathering of information, be made by an applicant referred to in paragraph (c) of the definition of "applicant"; and |
| (d) |
subsection (5)(0)(v), must be made by an applicant referred to in paragraph (e) of the definition of "applicant" : |
Provided that an applicant referred to in paragraph (f) of the definition of "applicant" may only make an application on the ground referred to in subsection (5)(a)(i)—
| (i) |
if the offence allegedly has been or is being or will be committed by a member of the Police Service; or |
| (ii) |
in respect of a death in police custody or as a result of police action. |
| (4) |
Notwithstanding section 2 or anything to the contrary in any other law contained, a designated judge may, upon an application made to him or her in terms of subsection (1), issue an interception direction. |
| (5) |
An interception direction may only be issued if the designated judge concerned is satisfied, on the facts alleged in the application concerned, that— |
| (a) |
there are reasonable grounds to believe that— |
| (i) |
a serious offence has been or is being or will probably be committed; |
| (ii) |
the gathering of information concerning an actual threat to the public health or safety, national security or compelling national economic interests of the Republic is necessary; |
| (iii) |
the gathering of information concerning a potential threat to the public health or safety or national security of the Republic is necessary; |
| (iv) |
the making of a request for the provision, or the provision to the competent authorities of a country or territory outside the Republic, of any assistance in connection with, or in the form of, the interception of communications relating to organised crime or any offence relating to terrorism or the gathering of information relating to organised crime or terrorism, is in— |
| (aa) |
accordance with an international mutual assistance agreement; or |
| (bb) |
the interests of the Republic's international relations or obligations; or |
| (v) |
the gathering of information concerning property which is or could probably be an instrumentality of a serious offence or is or could probably be the proceeds of unlawful activities is necessary; |
| (b) |
there are reasonable grounds to believe that— |
| (i) |
the interception of particular communications concerning the relevant ground referred to in paragraph (a) will be obtained by means of such an interception direction; and |
| (ii) |
subject to subsection (8), the facilities from which, or the place at which, the communications are to be intercepted are being used, or are about to be used, in connection with the relevant ground referred to in paragraph (a) are commonly used by the person or customer in respect of whom the application for the issuing of an interception direction is made; and |
| (c) |
in respect of the grounds referred to in paragraph (a)(i), (iii), (iv) or (v), other investigative procedures have been applied and have failed to produce therequired evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot adequately be investigated, or the information therefore cannot adequately be obtained, in another appropriate manner: Provided that this paragraph does not apply to an application for the issuing of a direction in respect of the ground referred to in paragraph (a)(i) or(v) if the— |
| (i) |
serious offence has been or is being or will probably be committed for the benefit of, at the direction of, or in association with, a person, group of persons or syndicate involved in organised crime; or |
| (ii) |
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— |
| (b) |
must contain the information referred to in subsection (2)(a)(ii) and (iii) and (d)(i)' |
| (c) |
may specify conditions or restrictions relating to the interception of communications authorised therein; and |
| (d) |
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. |
(7)
| (a) |
An application must be considered and an interception direction issued without any notice to the person or customer to whom the application applies and without hearing such person or customer. |
| (b) |
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)(d)(i)(aa) and (5)(b)(ii) relating to the description of the facilities from which, or the place at which, the communication is to be intercepted do not apply if, in the case of an application for the issuing of an interception direction which authorises the interception of— |
| (a) |
a direct communication— |
| (i) |
the application contains full particulars of all the facts and circumstances as to why such description is not practical; |
| (ii) |
the application indicates the identity of the person whose communication is required to be intercepted; and |
| (iii) |
the designated judge is satisfied, on the facts alleged in the application, that such description is not practical; and |
| (b) |
an indirect communication, the— |
| (i) |
application indicates the identity of the customer whose communication is required to be intercepted; |
| (ii) |
applicant submits proof that there are reasonable grounds to believe that the actions of the customer concerned could have the effect of preventing interception from a specified facility; |
| (iii) |
designated judge is satisfied that sufficient proof has been submitted; and |
| (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 was reasonably close to the instrument through which such communication will be or was transmitted. |
| (9) |
The interception of a communication under an interception direction to which the requirements of subsections (2)(d)(i)(aa) and (5)(b)(ii) do not apply by reason of subsection (8)(a) 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 execution thereof. |
(10)
| (a) |
A telecommunication service provider to whom an interception direction referred to in subsection (8)( b) is addressed, may in writing apply to a designated judge for an amendment or the cancellation of the interception direction concerned on the ground that his or her assistance with respect to the interception of the indirect communication cannot be performed in a timely or reasonable fashion. |
| (b) |
A designated judge to whom an application is made in terms of paragraph (a) must, as soon as possible after receipt thereof— |
| (i) |
inform the applicant concerned of that application; and |
| (ii) |
consider and give a decision in respect of the application. |
Implementation of Geneva Conventions Act, 2012
