| (a) |
makes an application referred to in section 16( 1) may in his or her application also apply for the issuing of a decryption direction; or |
| (b) |
made an application referred to in section 16( 1) or, if he or she is not available, any other applicant who would have been entitled to make that application, may, at any stage after the issuing of the interception direction in respect of which such an application was made, but before the expiry of the period or extended period for which it has been issued, apply to a designated judge for the issuing of a decryption direction. |
| (2) |
Subject to section 23(1), an application referred to in subsection (1) must be in writing and must— |
| (a) |
indicate the identity of the— |
| (ii) |
customer, if known, in respect of whom the decryption of encrypted information is required; and |
| (iii) |
decryption key holder to whom the decryption direction must be addressed; |
| (b) |
describe the encrypted information which is required to be decrypted; |
| (i) |
decryption key, if known, which must be disclosed; or |
| (ii) |
decryption assistance which must be provided, and the form and manner in which it must be provided; |
| (d) |
indicate the period for which the decryption direction is required to be issued; |
| (e) |
indicate whether any previous application has been made for the issuing of a decryption direction in respect of the same customer or encrypted information specified in the application and, if such previous application exists, must indicate the current status of that application; |
| (f) |
if the application is made in terms of subsection (1)(b), also contain— |
| (i) |
proof that an interception direction has been issued; and |
| (ii) |
an affidavit setting forth the results obtained from the interception direction concerned from the date of its issuance up to the date on which that application is made, or a reasonable explanation of the failure to obtain such results; and |
| (g) |
comply with any supplementary directives relating to applications for decryption directions issued under section 58 |
| (3) |
A designated judge may, upon an application made to him or her in terms of subsection (1), issue a decryption direction. |
| (4) |
A decryption direction may only be issued— |
| (a) |
if the designated judge concerned is satisfied, on the facts alleged in the application concerned, that there are reasonable grounds to believe that— |
| (i) |
any indirect communication to which the interception direction concerned applies, or any part of such an indirect communication, consists of encrypted information; |
| (ii) |
the decryption key holder specified in the application is in possession of the encrypted information and the decryption key thereto; |
| (iii) |
the purpose for which the interception direction concerned was issued would be defeated, in whole or in part, if the decryption direction was not issued; and |
| (iv) |
it is not reasonably practicable for the authorised person who executes the interception direction concerned or assists with the execution thereof, to obtain possession of the encrypted information in an intelligible form without the issuing of a decryption direction; and |
| (b) |
after the designated judge concerned has considered— |
| (i) |
the extent and nature of any other encrypted information, in addition to the encrypted information in respect of which the decryption direction is to be issued, to which the decryption key concerned is also a decryption key; and |
| (ii) |
any adverse effect that the issuing of the decryption direction might have on the business carried on by the decryption key holder to whom the decryption direction is addressed. |
| (5) |
A decryption direction— |
| (b) |
must contain the information referred to in subsection (2)(a)(ii) and (iii), (b) and (c); |
| (c) |
must state the period within which the decryption key must be disclosed or the decryption assistance must be provided, whichever is applicable; |
| (d) |
may specify conditions or restrictions relating to decryption authorised therein; and |
| (e) |
may be issued for a period not exceeding three months at a time, and the period for which it has been issued must be specified therein: |
Provided that a decryption direction expires when the period or extended period for which the interception direction concerned has been issued, lapses.
| (6) |
Section 16(7) applies, with the necessary changes, in respect of the issuing of a decryption direction. |
Supreme Court Act, 1959
