Chairperson and hon members, allow me to commence by taking you for a short walk down memory lane. The Act being amended by the Bill was put on the Statute Book as a measure to combat serious crime - that was as far back as 2002. The aim of this legislation was, and still is to regulate, once and for all, the interception and monitoring of all forms of communication in a single statute - something that was lacking in our law. When I say all forms of communication I refer, for instance, to communications facilitated by advances in communication technologies such as cellphones and other electronic forms of communication, which were not covered by the existing and rather outdated legislation in this regard, namely the Interception and Monitoring Prohibition Act of 1992.
The aim of this 2002 Act is twofold: Firstly, it is on the Statute Book to ensure that the interception and monitoring of communications takes place in accordance with very strict criteria after a judge has considered an application placed before him or her by any of our law-enforcement agencies for such an interception order. The interception of communications is only permissible where a serious crime has been or is likely to be committed. In other words, the interception of communications is directed at the criminal element.
Secondly, this Act is there to protect our law-abiding citizens. It prohibits the interception and the monitoring of their private communications. Any attempt to do so is illegal and indeed punishable. This Act therefore 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 crime.
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 cellphones to record and store certain information of their clients as well as the particulars of the SIM cards and the cellphones 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 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.
Hon members, since the Bill is aimed mainly at the registration and the verification of certain particulars of owners of cellular phones and SIM cards - addresses and identity numbers for instance - such persons who fail to verify such particulars 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 endeavour to ensure that the objective of universal access to electronic communication services, including cellular services, is not compromised - particularly that of the poor who live in outlying areas and who rely very heavily on cellphone communication. It is clear to me that every effort has been made to ensure that the distribution and the availability of cellphone services are not affected negatively.
I am aware that there are still a number of aspects in the Bill with regard to which the service providers have reservations: the requirement of whether to register the handset number and the IMEI number or not; the implications that the Bill will have on visitors to the country who wish to roam on our networks; and the timeframes within which the registration of the existing cellphone clients must be finalised. These are some of the issues that have been raised by the service providers.
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 that is specified in the Bill and required to be captured is essential - not only for investigation purposes, but also as evidence in our courts. [Interjections.]