| (1) |
A request by an authority, court or tribunal exercising jurisdiction in a foreign State for the— |
| (b) |
seizure of data or other article; |
| (d) |
obtaining of real-time communication-related information or archived communication-related information; or |
| (e) |
interception of indirect communications, |
must, subject to subsection (9), be submitted to the designated Point of Contact.
| (a) |
Upon receipt of a request referred to in subsection (2), the National Director of Public Prosecutions must satisfy himself or herself that— |
| (i) |
proceedings have been instituted in a court or tribunal exercising jurisdiction in the requesting foreign State; or |
| (ii) |
there are reasonable grounds for believing that an offence has been committed in the requesting foreign State or that it is necessary to determine whether an offence has been so committed and that an investigation in respect thereof is being conducted in the requesting foreign State; and |
| (iii) |
the offence in question is— |
| (aa) |
similar to those contemplated in Part I or Part II of Chapter 2; or |
| (bb) |
substantially similar to an offence recognised in the Republic, which may be committed by means of, or facilitated through the use of, an article; and |
| (iv) |
the foreign State intends to submit a request in terms of section 7 of the International Co-operation in Criminal Matters Act, 1996, for obtaining the data, information, a communication or an article in the Republic for use in such proceedings or investigation in the foreign State. |
| (b) |
For purposes of paragraph (a), the National Director of Public Prosecutions may rely on a certificate purported to be issued by a competent authority in the foreign State concerned, stating the facts contemplated in subsection (3)(a). |
| (a) |
The National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the Cabinet member responsible for the administration of justice, for the Cabinet member’s approval. |
| (b) |
Upon being notified of the Cabinet member’s approval the National Director of Public Prosecutions must forward the request contemplated in subsection (1) to the designated judge for consideration. |
| (5) |
Where the request relates to the expedited disclosure of traffic data, subsections (3)(a)(iv) and (4) do not apply, and the National Director of Public Prosecutions must submit the request for assistance, together with their recommendations, to the designated judge. |
| (6) |
Subject to subsections (7) and (8), the designated judge may on receipt of a request referred to in subsection (4) or (5), issue any order they deem appropriate to ensure that the requested— |
| (a) |
data or other article is preserved in accordance with section 42; |
| (b) |
data or other article is seized on an expedited basis in accordance with section 29 and preserved; |
| (c) |
traffic data is disclosed on an expedited basis in terms of a disclosure of data direction in accordance with section 44; |
| (d) |
real-time communication-related information or archived communication related information, is obtained and preserved; or |
| (e) |
indirect communications are intercepted and preserved, |
as is specified in the request.
| (7) |
The designated judge may only issue an order contemplated in subsection (6), if— |
| (a) |
on the facts alleged in the request, there are reasonable grounds to believe that— |
| (i) |
an offence substantially similar to the offences contemplated in Part I or Part II of Chapter 2 has been, is being, or will probably be committed; or |
| (ii) |
any other offence substantially similar to an offence recognised in the Republic, has been, is being, or will probably be committed by means of, or facilitated through the use of, an article; and |
| (iii) |
for purposes of the investigation it is necessary, in the interests of justice, to give an order contemplated in subsection (6); |
| (b) |
the request clearly identifies— |
| (aa) |
who or which will receive, is in possession of, or is in control of, the data or other article that must be preserved; or |
| (bb) |
from whose facilities the data, real-time communication-related information, archived communication-related information, indirect communications or traffic data must be obtained or intercepted; |
| (ii) |
the data or other article which must be preserved; |
| (iii) |
the data or other article which must be seized on an expedited basis and be preserved; |
| (iv) |
the traffic data which must be disclosed on an expedited basis; |
| (v) |
the real-time communication-related information or archived communication-related information, which is to be obtained; or |
| (vi) |
the indirect communications, which are to be intercepted; |
| (c) |
the request is, where applicable, in accordance with— |
| (i) |
any treaty, convention or other agreement to which that foreign State and the Republic are parties or which can be used as a basis for mutual assistance; or |
| (ii) |
any agreement with any foreign State entered into in terms of section 57; and |
| (d) |
the order contemplated in subsection (6) is in accordance with any applicable law of the Republic. |
| (8) |
The designated judge may, where a request relates to the expedited disclosure of traffic data— |
| (a) |
specify conditions or restrictions relating to the disclosure of traffic data as they deem appropriate; or |
| (b) |
refuse to issue an order referred to in subsection (6)(c), if the disclosure of the traffic data may prejudice the sovereignty, security, public safety or other essential interests of the Republic. |
| (a) |
In the case of urgency, a request by any authority, court or tribunal exercising jurisdiction in a foreign State referred to in subsection (1), may be submitted directly to the designated judge. |
| (b) |
Upon receipt of a request in terms of paragraph (a), the designated judge may issue any order referred to in subsection (6). |
| (b) |
The specifically designated police official referred to in paragraph (a), must inform— |
| (i) |
the designated judge; and |
| (ii) |
the National Director of Public Prosecutions, |
in writing, of the fact that an order has been served or executed.
| (11) |
The National Director of Public Prosecutions must, in writing, inform the applicable authority in a foreign State of the fact that an order was issued and executed or not issued. |
Financial Services Board Act, 1990
