B Mabandla: Regulation of Interception of Communication-related
Information Amendment Bill Second Reading Debate

29 August 2007

Madam Speaker
Honourable members

I think it may be appropriate to introduce this debate by making a few basic
points which we tend to overlook when dealing with such a technical subject as
the one before the House and which we are to decide on shortly.

The Act, being amended by the Bill was put on the Statute Book as a measure
to combat serious crime. It regulates, very carefully, the manner in which
private communications of persons may be intercepted and monitored. It does so
in a way which does not offend the Constitution in any manner. The infringement
of a person's right to privacy, which this Act permits, in very limited and
circumscribed conditions, is justified on the grounds, among others, that the
interception and monitoring of communications is necessary in order to detect,
prevent and investigate serious crimes.

In short, it allows for interception only after a designated judge has
authorised such interception at the request of any of the law enforcement
agencies on an individual basis.

The Act envisages the "tapping" of phone calls, that is, landline phone
calls, as well as cellular phone calls. The nature of the Act is therefore
understandably comprehensive, detailed and technical in the extreme. One cannot
imagine it being otherwise.

The Bill before us relates only to the interception of cellular phone calls.
It was promoted at the instigation of the three mobile cellular operators
jointly, that is Vodacom, MTN and Cell C. These service providers approached
government when the implementation of the principal Act was receiving
attention. They requested government not to implement sections 40 and 62(6) of
the Act. These sections require persons who sell SIM cards and cell phones to
record and store certain information of their clients, as well as the
particulars of the SIM cards and the cell phones themselves.

These provisions, as they read at present, call for a paper-based
registration process, section 40 dealing with the registration of clients after
the commencement of that section and section 62(6) dealing with the
registration of persons who are clients at the time this provision is
implemented. The service providers proposed that this paper-based process be
replaced by an electronic solution. That, in essence, is what the Bill is
about. It provides for the electronic capturing of certain information to
ensure that the principal Act is fully effective and to ensure the achievement
of its objects.

I know that the Bill has been the subject of lengthy deliberations in
and
outside of Parliament. It has been adapted by the Committee in numerous
respects. I do not intend to deal with all aspects of the Bill, but would
rather make a few general observations.

Since the Bill is aimed mainly at the registration and verification of
certain particulars of owners of cellular phones and SIM cards, for instance,
addresses and identity, failing which such persons will not be able to gain
access to cellular phone services, some of the proposed new definitions in
clause 1 indicate the Portfolio Committee's endeavours to ensure that as many
persons as possible will be in a position to comply with the registration
requirements, particularly persons who live in outlying areas who rely heavily
on cellular phone services for access to numerous different basic services, for
instance to obtain information about pension pay-outs and cellular phone
banking. It is clear to me that every effort has been made to ensure that the
distribution and availability of cell phone services are not compromised in any
manner.

I am aware that there are still a number of aspects in the Bill in respect
of which the service providers have reservations. The requirement whether to
register the handset number (the IMEI number) or not, the implications the Bill
will have on visitors to the country who wish to "roam" on our networks and the
timeframes within which the registration of existing cellphone clients must be
finalised, are some of the issues that have been raised by the service
providers. We are now halfway through the Parliamentary process. The Bill still
needs to be considered by the National Council of Provinces. I am therefore
reluctant to go into the merits of these issues. I would rather let the
Parliamentary process run its course.

I must, however, make my view known, namely that there can be no room for
any gaps in this legislation. As I see it, the information specified in the
Bill that is required to be captured is essential, not only for investigation
purposes, but also as evidence in our courts. My sense is that the further
deliberations on the Bill must be more on how to achieve what is already in the
Bill rather than on what should or should not be in the Bill.

My plea to all stakeholders today is to facilitate the expeditious enactment
of this Bill. We need to use all measures at our disposal to fight crime and
every day that this Bill is delayed, is an extra day for criminals to use to
their advantage in the planning and execution of crimes. On this note, I need
to express the hope that the service providers have, in the run-up to the
enactment of this Bill, used the time fruitfully in gearing themselves for what
is likely to be required of them when the Bill is in place. Their proactive
endeavours in this regard should enable them to finalise the registration
process in respect of their existing clients far quicker than the 12 month
period provided for in the Bill. As I have already said, we simply cannot allow
for any further unnecessary delays.

I wish to express my appreciation to Ms Fatima Chohan and her Portfolio
Committee members for their inputs and for their unanimous support of the Bill.
It is clear they have spared no effort in trying to ensure that the final
product does not detract from the objectives of the principal Act on the one
hand, with as little disruption as possible to the service providers and the
users of mobile cellular services, on the other.

Thank you.

Issued by: Department of Justice and Constitutional Development
29 August 2007
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)