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Summary

South Africa permits law enforcement and security agencies to intercept various forms of communication. The applicable law requires telecommunications service providers to ensure that their systems can be intercepted and to store all communication-related information for between three and five years. While the agencies must first obtain an interception direction from the relevant court in order to intercept direct or indirect communications, no direction is required in cases of emergency. An agency petitioning for an interception direction may also seek a decryption direction the issuance of which would entitle it, depending on the terms of the direction, to demand that a decryption key holder disclose the decryption key or provide decryption assistance.

I. Introduction

Surveillance of domestic communications is primarily governed under the Regulation of Interception of Communications and Provision of Communication-Related Information Act 2002 and its subsidiary legislation. [1] With the exception of a few provisions, the Act took effect in September 2005. [2] All of the provisions of the Act had been in effect as of June 2009. [3]

A 2014 report showed which of the country’s law enforcement and security agencies obtained court authorizations to monitor communications and how often such authorizations were granted. According to the report, from 2008 through 2011, there was a 170% increase in the number of court authorizations (referred to as “interception directions” throughout this report—see Part III, below) for interception of communications with 206 authorizations in 2008/09 and 418 authorizations in 2010/11. [4] The report indicated a substantial decline in authorizations in the following two years in which 261 authorizations were issued in 2011/12 and 144 in 2012/13. [5] Most of the authorizations were issued to the South African Police Service (SAPS) and the State Security Agency (SSA). For example, SAPS was issued 107 authorizations in 2008/09 and 436 authorization in 2010/11, while the SSA was issued 84 and 127 authorizations during the same time periods. [6] It is important to note that one authorization may represent large numbers of interceptions—for instance, the report indicated that the facility that intercepts communications was able to make over three million interceptions using only 882 authorizations over a three-year period. [7]

The above numbers do not account for interceptions conducted without prior court authorization. Over a nineteen-month period in 2010/11, 3,217 interceptions without court authorization are said to have been carried out by law enforcement and security agencies in South Africa. [8]

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II. Interception Capability and Storage

The Communications and Provision of Communication-Related Information Act guarantees the ability of the relevant law enforcement and security agencies in the country to intercept communications by requiring that all telecommunications service providers “provide a telecommunication service which has the capability to be intercepted” and store communications-related information. [9] The provision of telecommunications services that do not have the capability to be intercepted is prohibited. [10] The required period of storage of communication-related information ranges from three to five years. [11] In addition, electronic communications service providers [12] that provide mobile cellular electronic communications services must, at their own cost, “record and store” various information regarding their customers. [13]

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III. Interception of Communications

The governing law allows law enforcement and security agencies to intercept [14] communications in certain circumstances with or without an interception direction. [15] The law provides that a law enforcement officer “who executes an interception direction or assists with the execution therefore, may intercept any communication . . . to which that interception direction relates,” including direct [16] and indirect [17] communication. [18] An interception direction is a court-issued authorization to intercept any communication “in the course of its occurrence or transmission.” [19] In addition, a law enforcement officer may make an application before the relevant court for

  • a real-time communications-related direction;

  • an archived communications-related direction; or

  • the simultaneous issuing of an interception direction, a real-time communications direction, and an archived communications-related direction, or of an interception direction supplemented by a real-time communications-related direction. [20]

There are instances in which law enforcement officers do not need an interception direction in order to intercept communications. These include instances where the interception is done to prevent impending serious bodily harm and for the purpose of determining location in the case of an emergency. [21]

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IV. Decryption of Encrypted Information

A law enforcement officer seeking an interception direction from a court may also make an application for a “decryption direction.” [22] With the issuance of a decryption direction, the decryption key holder is required, as per the specifications in the decryption direction, to disclose the decryption key or provide decryption assistance. [23] A decryption key is “any key, mathematical formula, code, password, algorithm or any other data which is used to . . . allow access to encrypted information . . . or . . . facilitate the putting of encrypted information into an intelligible form.” [24] A decryption key holder is “any person who is in possession of a decryption key for the purpose of subsequent decryption of encrypted information relating to indirect communications.” [25] A decryption direction may only be issued if the judge before whom the application is made is satisfied that

  • the indirect information in question is partly or completely encrypted;

  • the decryption key holder is in possession of the encrypted information and the decryption key;

  • failure to issue a decryption direction would defeat the purpose for which the interception direction was issued; and

  • it is not “reasonably practicable” for the applicant to acquire the encrypted information in question in “an intelligible form” without a decryption direction. [26]

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V. Admissibility in Court

Any information regarding the commission of an offense obtained through interception or the provision of any real-time or archived communications-related information under South African or foreign law (with the authorization of the national director of public prosecutions) may be admissible in criminal or civil proceedings. [27]

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Prepared by Hanibal Goitom
Foreign Law Specialist
May 2016


[1] Regulation of Interception of Communications and Provision of Communication-Related Information Act No. 70 of 2002, 34 Butterworths Statutes of the Republic of South Africa (updated through 2015), available on the Southern African Legal Information Institute (SAFLII) website, at http://www.saflii.org/za/legis/consol_act/ roiocapocia2002925 , archived at https://perma.cc/9TRT-PFEG; Department of Communications, sched. A, Directive for Fixed Line Operators in Terms of Section 30(7)(a) Read with Section 30(2) of the Regulation of Interception of Communication-Related Information Act, 2002 (Act No. 70 of 2002), Government Notice (GN) No. 1325/2005 (Nov. 28, 2005),http://www.gov.za/sites/www.gov.za/files/28271_0.pdf , archived at https://perma.cc/ RXS3-ZBCX; Department of Justice and Constitutional Development, Notice in Terms of Section 31 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act No. 70 of 2002): Mobile Cellular Operations, GN No. R93 (Feb. 6, 2009),http://www.gov.za/sites/www.gov. za/files/gg31844_nn93_pg10-15.pdf , archived at https://perma.cc/D4D5-TD5H; Department of Justice and Constitutional Development, Notice in Terms of Section 44(1)(a) of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002), GN No. R1263 (Dec. 29, 2005), http://www.justice.gov.za/legislation/regulations/r2005/gg28371_r1263_interception-notice.pdf , archived at https://perma.cc/XD4V-GBLZ; Department of Justice and Constitutional Development, Notice in Terms of Section 31 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002): Fixed Line Operations, GN No. R. 92 (Feb. 6, 2009),http://www.gov.za/ sites/www.gov.za/files/31844_92.pdf, archived at https://perma.cc/888G-F92Y.

[2] Regulation of Interception of Communications and Provision of Communication-Related Information Act § 63.

[3] Id .

[4] Right to Know, State of the Nation Report: Trends, Patterns and Problems in Secrecy 6 (2014), http://www.r2k.org.za/wp-content/uploads/R2K-secrecy-report-2014.pdf , archived at https://perma.cc/CPK5-Z4Z8.

[5] Id .

[6] Id.

[7] Id . at 7.

[8] Jane Duncan, Securocrats Serious About Cyberwarfare, Mail & Guardian (Feb. 20, 2015), http://mg.co.za/ article/2015-02-19-securocrats-serious-about-cyberwarfare , archived at https://perma.cc/3UUS-UH6F.

[9] Regulation of Interception of Communications and Provision of Communication-Related Information Act § 30. “Communication–related information” is

any information relating to an indirect communication which is available in the records of a telecommunication service provider, and includes switching, dialling or signalling information that identifies the origin, destination, termination, duration, and equipment used in respect, of each indirect communication generated or received by a customer or user of any equipment, facility or service provided by such a telecommunication service provider and, where applicable, the location of the user within the telecommunication system. Id. § 1.

[10] Id . Preamble; Nazreen Bawa, The Regulation of Interception of Communications and Provisional Communication Related Information Act, in Telecommunications Law in South Africa 296, 300 & 307 (Lisa Thornton et al. eds., 2006), available on the University of Witwatersrand University website, at https://www.wits.ac. za/media/migration/files/TeleLawfull.pdf, archived at https://perma.cc/YE6L-GLH6.

[11] Regulation of Interception of Communications and Provision of Communication-Related Information Act § 30.

[12] An “electronic communications service provider” is

any –

  • (a) person who provides an electronic communication service under and in accordance with a electronic communication service licence issued to such person under Chapter 3 of the Electronic Communications Act, and includes any person who provides –

    • (i) a local access communication service, public pay-telephone service, value-added network service or private electronic communication network as defined in the Electronic Communications Act; or

    • (ii) any other electronic communication service licensed or deemed to be licensed or exempted from being licensed as such in terms of the Electronic Communications Act; and

  • (b) Internet service provider. Id. § 1.

[13] Id . § 40.

[14] The term “intercept” is defined as

the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person 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 communication; and

  • (c) diversion of any indirect communication from its intended destination to any other destination,

and “interception” has a corresponding meaning. Id. § 1

[15] Id . ch. 2.

[16] This is an

  • oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or

  • utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication. Id. § 1.

[17] This is

the transfer of information, including a message or any part of a message, whether –

  • (a) in the form of –
    • (i) speech, music or other sounds;
    • (ii) data;
    • (iii) text;
    • (iv) visual images, whether animated or not;
    • (v) signals; or
    • (vi) radio frequency spectrum;
  • (b) in any other form or in any combination of forms, that is transmitted in whole or in part by means of a postal service or a telecommunication system. Id.

[18] Id . § 3.

[19] Id . § 1.

[20] Id . §§ 16, 17, 18 & 19.

[21] Id. §§ 7 & 8.

[22] Id. § 21.

[23] Id. §§ 1 & 29.

[24] Id. § 1. “Intelligible form” is defined as “the form in which the electronic data was before an encryption of similar process was applied to it.” Id. § 1.

[25] Id .

[26] Id. § 21.

[27] Id. § 47.

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Last Updated: 10/06/2016