Chairperson, hon members, the Bill before us will entail some inconveniences to most of us but it is an important crime-fighting and regulatory measure.
In terms of the regulation of interception of communications Act of 2002, interception of communications is prohibited except under the following circumstances: interception of communications by a party to that communication and interception made in terms of an interception order granted by a designated judge in terms of this legislation, and in instances where there is imminent harm to the lives of persons involved.
Any interception of any communication in any other manner or form is illegal. I want to repeat that. Any interception of any communication in any other manner or form is illegal. This is an important principle to bear in mind when considering the Bill before us. The amendment Bill before us pertains to sections 40 and 62(6) of the regulation of interception of communications Act of 2002, which, as the Minister has said, relates to the requirements pertaining to mobile cellular service operators, or cellular phones as we call them.
The Minister has indicated the history of this and the involvement of the mobile cellular operators in calling for the amendment in question, and I won't be going into that in any detail at the moment.
The Bill, as introduced, requires the registration and verification of certain particulars of customers of mobile cellular services - the addresses and identity numbers of potential customers are required to be recorded, failing which such persons will not be able to gain access to mobile cellular services.
The committee, having been seized with the question of these requirements and having the unintended consequence of restricting the access of mobile telephones into certain sectors, has been at pains to ensure that an adequate balance is found between the matter of access without compromising the overall objective of this legislation by ensuring that there is adequate data on record for the purposes of crime prevention, detection and, more importantly, prosecution.
The definitions of "address", "identity number" and "identity document" were therefore broadened from their usual meaning so that addresses, for example, would include a residential or business address in the normal sense but would also include an address in an informal settlement.
Identity documents, as defined, would include your normal green identity book but also a temporary identity certificate, the proposed new-style identity card, passports, as well as an identity document issued in terms of the Refugees Act of 1998.
It should also be borne in mind that any person may transfer ownership to a family member without the requirement of registering the details of the transferee with the mobile cellular operator.
Conversely, it must be borne in mind that anyone who owns a cellular phone and a SIM card that is activated and who wishes to transfer ownership to somebody other than a family member, as defined, is under obligation to present himself or herself together with the transferee to the relevant service provider to register the details of the new owner prior to handing over the phone to the new user.
In terms of the Act, the mobile cellular operators are obliged to inform customers of their rights and obligations under this legislation, and the various sources of information that have to be captured - and the Minister has dealt with much of that - and ultimately these details will have to be recorded against a natural person, as well as a juristic person.
Cellular phone rental companies are also under similar obligations as mobile cellular operators regarding registration and verification of customers. Section 62 deals essentially with the matter of existing customers of mobile cellular operators and requires the registration of personal and phone details of existing customers within a specified period of 12 months from implementation. Initially, the mobile cellular operators approached the committee to extend this period to four years. The committee responded by requesting a motivation and the provision of accurate data around the number of subscribers that are required to be registered, bearing in mind that all contract customer details had already been captured.
The committee further requested the three mobile cellular operators to provide details of the number of registration points, which would put the committee in a position to rationally ascertain how long the mobile cellular phone operators would require for the completion of this process. They unfortunately declined to offer this information but suggested a period of 36 months. In effect, as we had been poised to pass this legislation already in June 2006, we have, in terms of this law, effectively afforded an extra 12 months to them, and depending on the implementation of the relevant section into law, we are convinced that sufficient time has been afforded the mobile cellular operators in this respect, particularly when considering the experiences of other countries in this regard. Should a customer not register his or her details within the contemplated period such service will be terminated.
The Bill has two very important consequences. The first of these means that both the handset and the SIM card must be recorded prior to a customer getting access to a network. Cellular phones not registered on a network will not be able to work on that network. We are of the view that the registration of phone handsets is necessary in order to put the identity of the owner of the phone beyond doubt. This will assist in proving ownership of cellular phone handsets in certain investigations and, more particularly, enable the preferment of prima facie evidence as opposed to circumstantial evidence in subsequent court proceedings.
Secondly, a foreigner who comes to our shores will be required to register his or her personal details before they are able to roam. The law therefore doesn't prohibit roaming but will require registration by foreigners prior to roaming. It has been argued, inter alia, that this is an unnecessarily heavy-handed provision designed to inconvenience foreign visitors to our shores. The mobile cellular operators suggest that the current method of obtaining foreign customer information through the co-operation of foreign mobile cellular operators is a viable and workable method of securing information for crime fighting. It has been a matter of intense deliberation, and the problems identified with the so-called solution are that, firstly, it has not been indicated to what extent these co-operation agreements with foreign mobile cellular operators are legal in the foreign countries concerned, given the extensive privacy laws that exist in many jurisdictions. Accordingly, their admissibility in court in this country is questionable.
Secondly, there are inherent limitations in the data stored by certain countries that do regulate the storage of customer information, as many jurisdictions do not require the registration of pre-paid SIM cards. This creates a potential loophole in the legislative framework we are spending millions and millions to implement.
Lastly, not all countries even require this minimal storage of data as many countries do not have legislation in this regard at all.
I wish to remind members at this stage that criminals, particularly organised syndicates, use increasingly sophisticated methods to stay a step ahead of law-enforcement agencies. And yes, there is the potential of enormous inconvenience to all of us who own cellular phones.
I would like to quote an extract from the Sunday Times of 1 September 2002 - at that time I still read that paper. That quotation I find particularly apt in this context, and it goes as follows:
South Africans are notorious for loving strong-arm tactics to fight crime, but they are frequently unwilling to be inconvenienced by the actions that are required of them in this fight. This attitude must change if we are rolling back this scourge.
This, members, is a matter for some contemplation on our part.
Lastly, let me please thank the members of the portfolio committee firstly; secondly, Mr Sarel Roberts, Ms Ina Botha and Mr Lawrence Bassett for their invaluable and very, very hard work in this regard. They provided expertise and direction that was enormously valuable to us, and we do thank them very much. Thank you very much, Chairperson. [Applause.]